Pina v. Children's Place , 740 F.3d 785 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-1609
JAMILYA PINA,
Plaintiff, Appellant,
v.
THE CHILDREN'S PLACE a/k/a THE CHILDREN'S PLACE
RETAIL STORES, INC. and JEAN RAYMOND,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Howard, and Kayatta,
Circuit Judges.
Winston Kendall, with whom Law Office of W. Kendall, was on
brief for appellant.
Michael Mankes, with whom F. Arthur Jones II and Littler
Mendelson, P.C., were on brief for appellees.
January 27, 2014
TORRUELLA, Circuit Judge. Jamilya Pina ("Pina") appeals
from the district court's grant of summary judgment in favor of her
former employer, The Children's Place Retail Stores, Inc. ("TCP"),
and TCP District Manager Jean Raymond ("Raymond"). Pursuing claims
of employment discrimination and retaliation, Pina asserts that she
was fired, harassed, and not rehired on the basis of race in
violation of 42 U.S.C. § 1981 and Massachusetts General Laws
chapter 151B, section 4. She argues that the district court abused
its discretion by denying three of her discovery motions, and that
it erred by granting Appellees' motion for summary judgment.
Finding no error or abuse of discretion, we affirm.
I. Background
Because Pina challenges the grant of Appellees' motion
for summary judgment, we review the facts in a manner as favorable
to Pina as the record allows, "keenly aware that we cannot accept
conclusory allegations, improbable inferences, and unsupported
speculation." Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134 (1st
Cir. 2013) (internal quotation marks omitted).
A. Factual Background
Pina, an African-American woman, worked periodically as
a per diem sales associate at TCP's South Shore Plaza store
beginning in June 2006.1 In late June or early July of 2007, Pina
1
We note here that the precise timing of events is not always
clear from the record, wherein the parties periodically contradict
themselves and each other in their various descriptions of dates.
-2-
applied for a position as an Assistant Store Manager ("ASM") at
TCP's Cambridgeside Galleria ("Cambridgeside") location. Raymond
-- TCP's white male District Manager -- interviewed Pina, and on
July 2, 2007, he offered her the position. Pina accepted the ASM
position and thereafter reported to the Cambridgeside Store Manager
Ingrid Trench ("Trench"), an African-American female.
During this time, Pina was in a romantic relationship
with Michael Williams ("Williams"), an African-American male who
worked for TCP at the South Shore Plaza store. Pina, however,
began to suspect that Williams was being unfaithful, and she
accused multiple TCP employees of sleeping with Williams. Among
those Pina suspected were two South Shore Plaza ASMs: Melody Mowatt
("Mowatt"), an African-American female, and Stephanie Giordano
("Giordano"), a white female.
On the night of July 20, 2007, Pina called the South
Shore Plaza Store Manager Kristen Fernándes ("Fernándes") and
accused Mowatt and Giordano of falsifying Williams's time cards.
Pina asserts that while she was driving Williams to work, he told
her that arriving late was not a problem because one of the ASMs
would "take care of it." Because she continued receiving full
child support payments from Williams even though she knew he was
arriving late, Pina believed that Giordano and Mowatt were altering
These differences are hardly material, however, and do not play a
central role in our analysis.
-3-
Williams's time cards so that he was paid as if he had arrived on
time.
According to her deposition testimony, Pina believes that
she mentioned only the time card fraud and that she did not discuss
any romantic relationships or allegations of sexual impropriety
during her conversation with Fernándes. Pina also now claims that
after telling Fernándes about the time card fraud, she made an
additional report regarding Giordano's alteration of Williams's
time cards by calling TCP's loss prevention hotline. Pina believed
that she would be paid for her report because TCP's loss prevention
program advertised rewards of up to $100 for hotline reports
leading to the termination of an employee for theft.
The following day, on July 21, 2007, Fernándes reported
Pina's call to Raymond, who responded immediately by investigating
Pina's allegations. Raymond and Fernándes reviewed three weeks of
time cards and questioned the ASMs at the South Shore Plaza store
about the allegations, but they found no evidence of wrongdoing.
Raymond then notified the Human Resources Director of his findings.
Neither Raymond nor any other TCP employee interviewed Pina or
informed her about the results of the investigation into the time
cards.
Two days later, on July 23, 2007, Pina accused another
TCP employee -- this time her own manager, Trench -- of having an
affair with Williams. While at a Dunkin' Donuts before work, Pina
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recognized one of the other patrons: Joe Leslie ("Leslie"),
Trench's partner. In the presence of Trench's young daughter, Pina
told Leslie that Trench was sleeping with Williams.2 Leslie was
shocked by Pina's statements and immediately informed Trench of the
encounter. Trench then reported Pina's disparaging statements to
Raymond, who immediately questioned Pina to get her version of
events. Pina admitted to accusing Trench of sleeping with Williams
as reported, although she argued that it was off the clock and none
of Raymond's business. Raymond claims that he was shocked by
Pina's use of foul language during their conversation, that he
concluded Pina's actions were serious and inappropriate, and that
he suspended her with pay pending further investigation.
Later that same day, Raymond went to the Cambridgeside
store to inquire further about Pina's behavior. His investigation
revealed that Pina had also told a Cambridgeside sales associate
that Trench was sleeping with Williams, although Pina could not
recall having that conversation. In addition, Raymond received a
call from Mowatt, who revealed that Pina had left harassing
messages on Mowatt's cell phone, accusing her of having an affair
2
The parties dispute the precise language used by Pina during
this encounter. Appellees contend that Pina said Trench was
"fucking" Williams. Pina admits that she used words to the effect
that Trench was sleeping with Williams, but during her sworn
deposition she said she was unable to recall whether or not she
used the word "fucking." On appeal, she now vigorously denies
having used profanity.
-5-
with Williams as well.3 Fernándes and another TCP employee told
Raymond that they had listened to Pina's messages and were
concerned for Mowatt's safety. Trench also told Raymond that she
feared Pina. Raymond determined that Pina had engaged in
harassing, disorderly, and inappropriate behavior and that she
could pose a threat to the safety of TCP employees. After
consulting with TCP's human resources department, Raymond fired
Pina on July 27, 2007.
On January 10, 2008, Pina filed a charge of
discrimination with the Massachusetts Commission against
Discrimination ("MCAD"), alleging that TCP and Raymond terminated
her employment on the basis of her race because they did not want
to compensate her, an African-American woman, for reporting
internal theft.4 On January 9, 2011, the MCAD dismissed Pina's
charge, finding that she had engaged in a pattern of unprofessional
behavior resulting in her termination. The MCAD also found that
six of the fourteen TCP employees to have received the $100 award
for reporting theft from 2007 to 2008 were African-American, and
3
Pina admitted calling Mowatt to discuss her relationship with
Williams, but she could not recall the substance of the
conversation or whether or not she left any messages.
4
At her deposition, Pina testified that her MCAD statement that
she was discriminated against because of her race was inaccurate,
and that what she should have said was that she was terminated
because TCP did not want to investigate an interracial relationship
between Williams and Giordano.
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that reporting internal theft was not protected activity that could
give rise to a claim of retaliation under Massachusetts law.
Three months later, on April 2, 2011, Pina applied for a
position as an ASM at TCP's Downtown Crossing location. Pina
admits that she did not know if the store had any openings for that
position at the time she applied. Believing that she missed a call
from the Downtown Crossing store around May 12, 2011, Pina later
returned to the store and spoke with the same TCP employee to whom
she originally handed her application. Based on this conversation,
Pina believed that the hiring manager would contact her. According
to Appellees, however, there were no available ASM positions at the
Downtown Crossing store at the time that Pina applied. Pina was
never contacted or interviewed for the ASM position.
When an ASM position later opened up at the Downtown
Crossing store in late April or early May 2011, Cynthia Henry
("Henry"), the District Manager responsible for the Downtown
Crossing store, selected an internal candidate to fill the
position. The candidate she selected was an African-American
female with a year of experience as an ASM in TCP's Saugus store.
Henry promoted her without considering any external candidates or
advertising the position.
B. Procedural Background
On June 14, 2011, Pina filed a second charge with the
MCAD, this time claiming that TCP failed to interview and re-hire
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her on the basis of race and in retaliation for her first MCAD
charge, all in violation of Massachusetts law and Title VII. The
MCAD eventually dismissed Pina's second charge, but prior to that
decision, Pina initiated the present action on July 19, 2011.
After the case was removed to district court, many of Pina's state
law claims were dismissed for failure to file within the
limitations period and failure to state a claim. On March 9, 2012,
Appellees moved for summary judgment on Pina's remaining claims:
supervisor harassment and discriminatory firing in violation of 42
U.S.C. § 1981, and retaliatory failure to rehire in violation of
both § 1981 and chapter 151B of the Massachusetts General Laws. On
March 27, Pina filed motions to reopen Raymond's deposition, to
strike Henry's affidavit, for an extension of time, and for leave
to file a cross-motion for summary judgment. After a hearing, the
district court denied Pina's discovery-based motions, and on
March 14, 2013, it granted Appellees' motion for summary judgment.
After an unsuccessful motion for reconsideration, Pina's timely
appeal followed.
II. Analysis
On appeal, Pina argues that the district court
erroneously denied three of her discovery-related motions: her
motion to re-open Raymond's deposition, her motion to strike
Henry's affidavit, and her motion for an extension of time.
Additionally, Pina argues that the court erred by granting
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Appellees' motion for summary judgment. We begin with Pina's
discovery-based claims.
A. Discovery motions
We review challenges to a district court's discovery
determinations under an abuse of discretion standard. See, e.g.,
Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 859 (1st Cir. 2008).
It is well settled that "[a]ppellate courts seldom intervene in
discovery questions" and that "[t]he standard of review in
discovery matters is not appellant-friendly." Id. at 860
(alteration in original) (quoting Modern Cont'l/Obayashi v.
Occupational Safety & Health Review Comm'n, 196 F.3d 274, 281 (1st
Cir. 1999)). Accordingly, we "will intervene in such matters only
upon a clear showing of manifest injustice, that is, where the
lower court's discovery order was plainly wrong and resulted in
substantial prejudice to the aggrieved party." Id. (internal
quotation marks omitted).
1. Motion to reopen Raymond's deposition
The district court originally imposed a deadline of
December 16, 2011 for the completion of depositions. Pina allowed
the deadline to lapse and then sought permission to amend her
complaint to include a failure to rehire claim. The district court
allowed the amendment and set a second deposition deadline of
January 26, 2012. On January 24, 2012, Pina's counsel deposed
Raymond in his capacity as a representative of TCP pursuant to
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Federal Rule of Civil Procedure 30(b)(6).5 Subsequently, Raymond
submitted a four-page errata sheet to correct and clarify his
testimony pursuant to Federal Rule of Civil Procedure 30(e), which
gives a deponent the opportunity to review a deposition transcript
and, "if there are changes in form or substance, to sign a
statement listing the changes and the reasons for making them."
Fed. R. Civ. P. 30(e)(1). Pina argued that the changes to
Raymond's deposition testimony were material and necessitated the
reopening of his deposition, but the district court disagreed,
giving rise to Pina's argument that the district court abused its
discretion by denying her motion to reopen Raymond's deposition.
By way of support, Pina cites Tingley Sys., Inc. v. CSC
Consulting, Inc., 152 F. Supp. 2d 95, 120 (D. Mass. 2001) for the
proposition that a deposition may be reopened where "the changes
contained in the errata sheets make the deposition incomplete or
useless without further testimony." Id. (internal quotation marks
omitted). Pina points to three changes in Raymond's testimony that
she believes show that re-opening was required.6 In the first
5
Federal Rule of Civil Procedure 30(b)(6) provides in relevant
part that "a party may name as the deponent a . . . corporation
. . . and must describe with reasonable particularity the matters
for examination. The [corporation] must then designate one or more
. . . persons who consent to testify on its behalf . . . . The
persons designated must testify about information known or
reasonably available to the [corporation]." Fed. R. Civ. P.
30(b)(6).
6
Pina also correctly notes that a party served with a proper
Federal Rule of Civil Procedure 30(b)(6) notice must produce a
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instance, Raymond changed his answer to a question regarding
whether those reapplying with TCP are interviewed from "Yes,
sometimes" to "Yes, when we have a qualified applicant and an open
position." Second, when asked whether the Associate Handbook or
Code of Conduct stated that the punishment for disruptive and
disorderly behavior was suspension and termination, Raymond
originally said "I don't know." His revised answer stated that
"[u]nacceptable behavior may result in disciplinary action ranging
from counseling sessions to immediate discharge as stated in our
Associate Handbook." Finally, Pina directs us to Raymond's
testimony that Henry had called him saying that "she received this
and didn't know what to make of it." In response to the question
"[d]idn't know what to make of what," Raymond originally said
"[t]he allegation that she had applied for the assistant manager
witness who can testify as to facts known or available to the
corporate deponent on the matters specified. She then complains
that Raymond was not prepared to discuss either vacancies at TCP
stores to which Pina did not apply or what Pina herself said when
reapplying, and that the district court was therefore required to
strike his testimony as if he had not appeared. Pina, however,
never sought to preclude Raymond's testimony, neither area of
inquiry was identified with reasonable particularity in the
30(b)(6) notice, and -- even if this Circuit elected to adopt a
rule that a 30(b)(6) witness's severe unpreparedness could
constitute constructive non-appearance -- Pina has fallen well
short of showing constructive non-appearance in this case. See
Baker v. St. Paul Travelers Ins. Co., 670 F.3d 119, 124 (1st Cir.
2012) (declining to create a 30(b)(6) exception to the rule that
"sanctions for non-appearance are only available when a deponent
literally fails to show up for a deposition session" in a case
where evidence of unpreparedness was limited) (internal quotation
marks omitted) (emphasis added). We need say no more on this
subject.
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position, and she had gone to MCAD." Raymond's revised answer
stated:
She was confused. She (Ms. Henry) had no idea
Ms. Pina had applied for an Assistant Manager
position at Downtown Crossing, which did not
have an Assistant Manager opening, and she
(Ms. Pina) was alleging discrimination or
retaliation because she was not hired. We did
not have an Assistant Manager opening at
Downtown Crossing.
Pina thus concludes that reopening was required since the changes
were material, not "mere 'corrections' of stenographic errors," and
because she needed to "explore the myriad inconsistencies" in
Raymond's testimony.
In seeking to advance her argument, Pina has lost sight
of the law. Rule 30(e) does not limit a party to the correction of
stenographic errors; it permits changes "in form or substance."
Fed. R. Civ. P. 30(e)(emphasis added); Glenwood Farms, Inc. v.
Ivey, 229 F.R.D. 34, 35 (D. Me. 2005) ("Changes in the substance of
a deponent's testimony are contemplated by the rule."). When
witnesses makes substantive changes to their deposition testimony,
the district court certainly has the discretion to order the
depositions reopened so that the revised answers may be followed up
on and the reasons for the corrections explored. See Tingley, 152
F. Supp. 2d at 121 (permitting reopening where revisions
"materially alter[ed] the answers such as to render those portions
of the deposition incomplete absent further testimony"). Here,
though, Pina is unable to establish that the district court abused
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that discretion. The changes at issue constituted clarifications
or corrections consistent with Raymond's original testimony. For
example, Raymond's original deposition testimony -- like his
revised answers -- included statements to the effect that
interviews would not be conducted absent job openings, that there
were no available ASM positions at the Downtown Crossing store when
Pina applied, and that the Associate Handbook prohibited Pina's
behavior. In sum, any changes to Raymond's deposition testimony
were either not substantive or were not material to the summary
judgment motion. Accordingly, the district court acted well within
its discretion in denying Pina's motion to reopen Raymond's
deposition.
2. Motion to strike Henry's affidavit
Pina next argues that the district court erred by denying
her motion to strike Henry's affidavit, which Appellees filed along
with their motion for summary judgment after the close of
discovery. Pina argues that Henry was not listed as a potential
person with knowledge in Appellees' initial disclosures as required
by Federal Rule of Civil Procedure 26(a)(1), which instructs
parties to "provide to the other parties . . . the name . . . of
each individual likely to have discoverable information . . . that
the disclosing party may use to support its claims or defenses."
Fed. R. Civ. P. 26(a)(1)(A). Because Appellees did not disclose
Henry's identity, Pina claims that she was unable to "test" Henry's
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assertions via cross-examination at deposition. Pina believes she
was prejudiced as a result, and thus the district court abused its
discretion when it denied her motion to strike Henry's affidavit.7
Pina's claims are unavailing. First, the parties'
initial disclosures preceded Pina's amendment of her complaint to
include the retaliatory failure to rehire claim. Thus, Appellees
cannot be faulted for failing to list Henry before she became
relevant to the case when the district court allowed Pina's amended
complaint on January 5, 2012.
Second, although Pina argues that Appellees should have
supplemented their disclosures to include Henry once she became
relevant to the case, Federal Rule of Civil Procedure 26(e) exempts
a party from the supplementation requirement where "the additional
or corrective information has . . . otherwise been made known to
the other parties during the discovery process or in writing."
Fed. R. Civ. P. 26(e)(1). TCP first identified Henry as an
individual relevant to Pina's failure to rehire claim on July 29,
7
Pina also argues that Henry would have made a better 30(b)(6)
witness than Raymond because Henry could have testified regarding
the availability of ASM positions at other TCP stores and the
conversations Pina had with TCP employees about her application.
We have already disposed of Pina's claim that Raymond was an
unprepared 30(b)(6) witness, see n.6, and Pina's argument that
Henry had greater personal knowledge such that Appellees' selection
of Raymond was sanctionable conduct similarly finds no basis in the
law. See Briddell v. St. Gobain Abrasives Inc., 233 F.R.D. 57, 60
(D. Mass. 2005) (observing that a 30(b)(6) witness may properly be
expected to prepare to testify as to matters "beyond [those]
personally known to that designee or to matters in which that
designee was personally involved" (internal citations omitted)).
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2011 in its MCAD position statement, which was signed and verified
by Henry and stated that "[t]he decision to transfer [a TCP
employee] into the open A[S]M position in [the Downtown Crossing
store] was made by, among others, Cindy Henry, the district Manager
for the Boston North District." Raymond likewise testified as to
Henry's role in the hiring process during his deposition on
January 24, 2012, two days prior to the close of discovery. The
district court thus concluded that there was no discovery violation
because Pina knew of Henry's role, at the very latest, on
January 24, 2012, so the Rule 26(e) exception to the
supplementation requirement applied.
Even assuming for a moment that we were inclined to view
Appellees' failure to supplement their initial disclosures as a
discovery violation, Pina has shown only that the district court
could have stricken Henry's testimony, not that such a sanction was
necessary in this case. Poulin v. Greer, 18 F.3d 979, 985 (1st
Cir. 1994) ("[E]ven if defendants did commit a discovery violation,
the district court could reasonably determine that plaintiffs did
not suffer any prejudice, and, given defendants' plausible
explanation for their failure to supplement, that any violation was
not willful. The district court did not, therefore, abuse its
discretion when it . . . allowed [the witness's] testimony."). In
order to establish an abuse of discretion meriting reversal, Pina
must show that she was "substantially prejudiced" by the district
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court's "plainly wrong" discovery ruling. Curet-Velázquez v.
ACEMLA de P.R., Inc., 656 F.3d 47, 55-56 (1st Cir. 2011) ("[T]he
court's abuse of discretion must have resulted in prejudice to the
complaining party." (internal quotation marks omitted)). She is
unable to meet this burden.
To show prejudice, Pina complains that she was unable to
test the veracity of Henry's sworn assertions that she did not know
of Pina's MCAD charge and that no ASM positions were available at
the time of Pina's application.8 This argument falls well short of
the mark. As previously discussed, both statements appear not only
in Raymond's deposition testimony from January 24th but also in the
July 29, 2011 MCAD position statement that was signed and verified
by Henry. Pina's suggestion that she was surprised and prejudiced
by the statements when they appeared for a third time in Henry's
affidavit is thus disingenuous. Cf. Williams v. City of Boston,
CIV.A. 10-10131-PBS, 2012 WL 3260261, *4 (D. Mass. Aug. 7, 2012)
(finding insufficient prejudice to merit exclusion where "[witness]
was identified in police records as the victim" such that "the
defendants knew of her existence, and knew that she was a key
witness in the case"). Accordingly, the district court did not
8
Pina also argues that the district court improperly afforded
weight and credibility to Henry's affidavit, but that claim is
properly considered alongside Pina's other arguments that the court
erred in granting summary judgment to Appellees.
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abuse its discretion when it denied Pina's motion to strike Henry's
affidavit.
3. Rule 56(d) motion
Pina's third and final discovery-related claim is that
the district court abused its discretion when it denied as moot her
Federal Rule of Civil Procedure 56(d) motion requesting additional
time to respond to TCP's motion for summary judgment.9 By way of
argument, Pina borrows heavily from her first two discovery-based
claims; she claims that she needed additional time so that she
might: 1) depose Raymond again subsequent to his filing of the
errata sheet, and 2) "explore whether there was any veracity to the
assertions in [Henry's] affidavit" by means of a deposition, due to
Appellee's failure to supplement their initial disclosure list.
Having already found that the district court acted well within its
discretion in denying Pina's motion to reopen Raymond's deposition,
we focus only on Pina's remaining claim: she needed more time to
depose Henry.
Pina begins by correctly noting that district courts
should liberally grant Rule 56 continuances where the Rule's
preconditions for relief have been satisfied. Simas v. First
Citizens' Fed. Credit Union, 170 F.3d 37, 46 (1st Cir. 1999).
9
Pina refers to Federal Rule of Civil Procedure 56(f), but Rule
56(f) was redesignated Federal Rule of Civil Procedure 56(d) well
before Pina filed her motion. See Fed. R. Civ. P. 56(d). We
therefore refer to Rule 56(d) in our analysis for the sake of
clarity.
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Typically, a successful Rule 56(d) motion must: 1) be timely; 2) be
authoritative; 3) show good cause for failure to discover the
relevant facts earlier; 4) establish a plausible basis for
believing that the specified facts probably exist, and 5) indicate
how those facts will influence the outcome of summary judgment.
See id. at 45 n.4; Resolution Trust Corp. v. N. Bridge Assocs.,
Inc., 22 F.3d 1198, 1203 (1st Cir. 1994). Pina argues that she
filed her Rule 56 motion well in advance of the filing deadline for
her opposition to summary judgment, that she asked for a reasonable
extension of three weeks based upon Appellees' failure to
supplement their initial disclosures, and that the extension was
critical to the success of her case, so the district court's
decision to deny her motion constituted an abuse of discretion.
As we have often observed, however, Rule 56(d) "is
designed to minister to the vigilant, not to those who slumber upon
perceptible rights." Mass. Sch. of Law at Andover, Inc. v. Am. Bar
Ass'n, 142 F.3d 26, 45 (1st Cir. 1998) (internal quotation marks
and alteration omitted). Although she now asserts vigilance in
acting promptly after Appellees filed a motion for summary
judgment, Rule 56(d) "requires due diligence both in pursuing
discovery before the summary judgment initiative surfaces and in
pursuing an extension of time thereafter." Ayala-Gerena v. Bristol
Myers-Squibb Co., 95 F.3d 86, 92 (1st Cir. 1996) (quoting
Resolution Trust Corp., 22 F.3d at 1203). Pina does not dispute
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the fact that she failed to request a single deposition prior to
the court's initial deadline of December 16, 2011. Additionally,
even ignoring the MCAD position statement and assuming Pina first
learned of Henry during Raymond's deposition, Pina has offered no
explanation for her failure to seek permission to depose Henry for
over two months after that date.
More significantly, however, Pina's Rule 56 affidavit
stated as the basis for the continuance that she sought to "examine
Ms. Henry, under oath, to determine whether there is any veracity
to these contentions or whether they were manufactured." Notably
lacking from this speculation as to Henry's veracity is any
plausible basis for the court to conclude that specified, material
facts probably existed. "A 'Rule 56(f) affidavit [that] merely
conjectures that something might be discovered but provides no
realistic basis for believing that further discovery would disclose
evidence' is insufficient to delay summary judgment." Mowbray v.
Waste Mgmt. Holdings, Inc., 45 F. Supp. 2d 132, 143 (D. Mass. 1999)
(alteration in original) (quoting Mattoon v. City of Pittsfield,
980 F.2d 1, 8 (1st Cir. 1992)); see also Rivera-Torres v.
Rey-Hernández, 502 F.3d 7, 12 (1st Cir. 2007) ("Speculative
conclusions, unanchored in facts, are not sufficient to ground a
Rule 56(f) motion."). Pina's asserted desire to "explore" is
perhaps more accurately characterized as a desire to "fish," and in
either case, it falls well short of establishing entitlement to
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Rule 56(d) relief. See Mowbray, 45 F. Supp. 2d at 143 (denying
Rule 56(d) motion where movant "merely expressed a 'hope' or
'hunch' that unspecified facts might be found" because "[a]llowing
a continuance in such a case would undermine the entire summary
judgment procedure") (citation omitted).
The district court thus acted well within its discretion
when it elected to deny Pina's Rule 56(d) motion.
B. Summary Judgment
Having disposed of Pina's discovery-based claims, we turn
now to her claim that the district court erred by granting
Appellees' motion for summary judgment. We review a grant of
summary judgment de novo, affirming only if "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 a judgment as a matter of law." Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). Although we will draw all reasonable
inferences in the nonmovant's favor, we will not "draw unreasonable
inferences or credit bald assertions, empty conclusions, rank
conjecture, or vitriolic invective." Cabán Hernández v. Philip
Morris USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007). It bears repeating
that genuine issues of material fact are "not the stuff of an
opposing party's dreams," Mesnick v. Gen. Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991), and a party cannot successfully oppose a
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motion for summary judgment by resting "upon mere allegations or
denials of his pleading," LeBlanc v. Great Am. Ins. Co., 6 F.3d
836, 841 (1st Cir. 1993) (internal quotation marks omitted). If a
nonmovant bears the ultimate burden of proof on a given issue, she
must present "definite, competent evidence" sufficient to establish
the elements of her claim in order to survive a motion for summary
judgment. Mesnick, 950 F.2d at 822. This is no less true in
discrimination and retaliation cases where motive is at issue; a
nonmovant cannot rely "merely upon conclusory allegations,
improbable inferences, and unsupported speculation." Dennis, 549
F.3d at 855-56 (internal quotation marks omitted); Hoeppner v.
Crotched Mountain Rehab. Ctr., Inc., 31 F.3d 9, 14 (1st Cir. 1994).
1. Discrimination
Where, as here, there is no direct evidence of
discrimination, a plaintiff seeking to establish a prima facie case
of race discrimination under § 1981 must successfully navigate the
familiar McDonnell Douglas burden shifting framework. Straughn v.
Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir. 2001). The burden
of production starts with the plaintiff. In order to establish a
prima facie case of discriminatory termination, a plaintiff must
show: 1) she was a member of a protected class, 2) she was
qualified for her position, 3) she was subjected to an adverse
employment action, and 4) the position remained open or was filled
by someone with similar qualifications. Id. Such a showing
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creates a rebuttable presumption that the employer engaged in
discrimination. This is not the end of the matter, however, and if
the employer is able to articulate a legitimate, non-discriminatory
reason for the termination, the presumption of discrimination
disappears.10 Id.; see also LeBlanc, 6 F.3d at 842. At the third
and final stage of the McDonnell Douglas paradigm, the burden of
production returns to the plaintiff, who must offer evidence that
the defendant's explanation is pretextual and that discriminatory
animus prompted the adverse action. Conward v. Cambridge Sch.
Comm., 171 F.3d 12, 19 (1st Cir. 1999). The burden of persuasion
remains on the plaintiff at all times. Mariani-Colón v. Dep't of
Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 221 (1st Cir. 2007).
In this case, the district court found that Pina failed
to establish a prima facie case of race discrimination under § 1981
because she did not show that she was qualified for the position
from which she was fired. The court went on to say that in any
10
Additionally, the so-called "same actor inference" states that
"[i]n cases where the hirer and the firer are the same individual
and the termination of employment occurs within a relatively short
time span following the hiring, a strong inference exists that
discrimination was not a determining factor for the adverse action
taken by the employer." LeBlanc, 6 F.3d at 847 (quoting Proud v.
Stone, 945 F.2d 796, 797 (4th Cir. 1991)). The district court
found that the inference applied in this case because Raymond both
hired and fired Pina within the span of a month. Pina argues that
the inference does not apply because Raymond did not act alone,
firing her only after consulting with the human resources
department. Although we find Pina's argument unpersuasive, we need
not decide the matter because even without awarding Appellees the
benefit of the same actor inference, as we will explain shortly,
Pina's discriminatory termination claim still fails.
-22-
case, Pina presented no evidence to rebut the legitimate,
nondiscriminatory reasons Appellees presented as the basis for her
termination. The district court thus concluded that summary
judgment was appropriate. Unsatisfied with this result, Pina lets
loose a prodigious number of arguments on appeal, all of which --
as we will explain -- are meritless.
We begin with Pina's argument that she established a
prima facie case of discrimination because, contrary to the
district court's finding that she was not qualified for her
position, she showed that she "was performing [her] job at a level
that met the employer's legitimate expectations" at the time she
was discharged. Williams v. Frank, 757 F. Supp. 112, 116 (D. Mass.
1991), aff'd, 959 F.2d 230 (1st Cir. 1992). We need not tarry
here. Even assuming that Pina established a prima facie case of
discrimination, her claim still fails because she cannot show that
the nondiscriminatory explanation for her termination articulated
by Appellees was pretextual cover for their true, discriminatory
motive.
Appellees satisfied the second step of the McDonnell
Douglas framework by producing competent evidence that Pina was
terminated because she made inappropriate, unprofessional, and
harassing statements to TCP employees that were disruptive and
created safety concerns. Pina, while disputing the severity of the
allegations, admits that she accused multiple TCP employees --
-23-
including her manager -- of having sex with Williams. She further
admits to telling her manager's partner, in front of the couple's
young child, that Trench was having sex with Williams. Raymond
testified that multiple TCP employees reported concerns about
Pina's behavior after these incidents, which prompted him to
terminate Pina to ensure a safe environment for TCP's employees.
At this point, the burden shifted back to Pina to show
that Appellees' explanation for her termination was mere pretext
and that their true motive was discriminatory. To show pretext, a
plaintiff may point to "weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons such that a factfinder could infer
that the employer did not act for the asserted non-discriminatory
reasons." Straughn, 250 F.3d at 42 (internal quotation marks
omitted). Plaintiffs can use the same evidence to show both
pretext and discriminatory motive, "'provided that the evidence is
adequate to enable a rational factfinder reasonably to infer that
unlawful discrimination was a determinative factor in the adverse
employment action.'" Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 54 (1st Cir. 2000) (quoting Thomas v. Eastman
Kodak Co., 183 F.3d 38, 56 (1st Cir.1999)).
Pina claims that the complaints about her behavior are
mere pretext and that she was fired because she reported misconduct
that, if investigated, would have revealed an interracial
-24-
relationship between TCP employees that Appellees did not want to
acknowledge. This, Pina concludes, constitutes a case of
discriminatory termination,11 and Appellees' non-discriminatory
explanation for her firing should be ignored as mere pretext.
To put it mildly, the record does not bear out Pina's
claims.12 We begin by noting that Pina testified that she reported
only time card theft, not the existence of an interracial
relationship, to TCP. She offers not a single fact to support her
allegation that the company knew of a romantic relationship,
interracial or otherwise, between the employees Pina accused.13
11
Notably, Pina does not claim that she was fired because of her
race or because she engaged in or supported an interracial
relationship. She reasons that because she reported the misconduct
of, among others, a black male and white female, Appellees elected
to fire Pina so that they would not have to investigate her report
of an interracial couple's wrongdoing. Although we question
whether Pina's unusual theory of discrimination could support a
§ 1981 claim even if properly supported, we need not reach that
issue here, where Pina's claim clearly lacks the record support
necessary to survive summary judgment.
12
A number of Pina's arguments on appeal demonstrate at best a
troubling disregard for the record and at worst an attempt to
mislead this court. For just one example, consider her repeated
argument that Appellees' explanation is unworthy of belief because
Raymond "admitted that Ms. Trench and Ms. Pina had worked together
for some time and that the former had never reported any fear of
the latter." Raymond's actual testimony, however, stated that
although Trench had not reported any fear of Pina prior to the
Dunkin Donuts incident, on that day, she told Raymond that she
feared Pina.
13
When pressed on this point during her deposition, Pina merely
repeated her unsupported assertion that although she did not report
a sexual relationship between Giordano and Williams, "the company
kn[e]w. They kn[e]w."
-25-
Undaunted, Pina forges onward to argue that two pieces of evidence
show that Appellees' discriminatory feelings about interracial
relationships motivated her termination: 1) Appellees violated
company policy in both their failure to investigate her report and
their decision to fire her, and 2) "white men do not like it when
their women are dating black men."
We begin with the allegation of violations of company
policy and procedure. In sum, Pina argues that Raymond failed to
consider TCP policy when firing her and that her report of time
card fraud was not investigated in accordance with TCP policy.14
Pina correctly notes that Raymond was unable to find a written TCP
policy during his deposition that stated that the use of profanity
was prohibited behavior punishable with termination, but this fact
does not give rise to a reasonable inference that Pina's
termination violated TCP policy. Raymond's deposition testimony
identified several provisions of TCP's Associate Handbook that he
believed prohibited Pina's conduct, including the requirements that
associates must be treated with dignity and respect and that
unacceptable behavior, including disruptive or disorderly behavior
14
Pina frequently repeats her accusation that TCP violated their
own fair employment policy in firing her and that this is evidence
of pretext and discrimination, but she offers only circular
reasoning to support her claims. Her logic appears to be that her
firing was an unfair product of racial discrimination, which is
evidenced by the fact that her firing violated a company policy
that discipline must be fair and not discriminatory. Neither
repetition nor circular logic is sufficient to elevate this
unsupported accusation to the level of competent evidence.
-26-
or insubordination, will not be tolerated. Although Pina argues
that making disparaging comments about her coworkers and manager
outside of work hours should not have been classified as disorderly
or disruptive behavior as she understands the terms, the point is
immaterial. "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.
Even if Raymond's understanding of "disorderly or disruptive"
behavior was overbroad, there is nothing on the record to suggest
that it was discriminatory, that he treated other employees who
acted similarly to Pina in a different manner, or that he violated
TCP policy when firing Pina.
We turn next to Pina's argument that Appellees' failure
to investigate her theft report, as required by company policy,
evidences a discriminatory motive. According to Pina, TCP policy
dictated that reports of internal theft made to the company's
designated hotline would be fully investigated, meaning that she
would be interviewed, kept informed about the status of the
investigation, compensated for her report, and shielded from
retaliation. Appellees' failure to take these steps, she contends,
shows that they were unwilling to fully investigate a report that
would have revealed an interracial relationship, thus evidencing
their discriminatory motive.
-27-
We cannot agree, as "to reach any such conclusion on this
record, a juror would have to indulge impermissibly in unsupported
speculation." LeBlanc, 6 F.3d at 846. As an initial matter, Pina
admitted during her deposition that she could not recall making a
hotline report, so her complaints that hotline procedures were not
followed are difficult to comprehend, particularly in light of
Raymond's deposition testimony that TCP records show no hotline
calls from Pina.15 See Arrington v. United States, 473 F.3d 329,
342-43 (D.C. Cir. 2006) ("While it is admittedly not the duty of
district courts to weigh the credibility of the parties' testimony
at the summary judgment stage, 'in the rare circumstance where the
plaintiff relies almost exclusively on his own testimony, much of
which is contradictory and incomplete, it will be impossible for a
district court to determine whether . . . there are any "genuine"
issues of material fact, without making some assessment of the
plaintiff's account.'" (quoting Jeffreys v. City of New York, 426
15
Pina's initial MCAD affidavit claimed that she reported Mowatt,
Giordano, and Williams to Fernándes on July 20, 2007, and that she
later reported a fourth individual, a store manager, via the TCP
hotline on the day that she was suspended. Pina's Amended
Complaint, however, made no mention of a hotline call, and when she
was asked during her deposition whether she actually made a call to
the hotline, Pina conceded that she could not remember doing so or
reporting a fourth person, and she could only recall reporting to
Fernándes the alleged theft committed by Mowatt, Giordano, and
Williams. In her appellate brief, Pina now claims that she did, in
fact, make a hotline call, but not regarding a fourth person in a
store manager position as she initially claimed. Instead, Pina now
seems to assert that she made a hotline report regarding the time
card theft by Giordano and Williams. How she came to this most
recent view of events is unclear.
-28-
F.3d 549, 554 (2d Cir. 2005))). More significantly, undermining
her frequent assertions that TCP failed to investigate her report
is Pina's own admission during her deposition that she had no idea
whether or not TCP investigated her report. She has given us no
reason to doubt Raymond's testimony that he and Fernándes promptly
and fully investigated Pina's report by reviewing three weeks of
time cards and interviewing the accused, ultimately determining
that there was no evidence to support Pina's claim of time card
fraud and relaying that finding to human resources. On these
facts, which show that Pina's claim was investigated, her theory
that Appellees violated company policy and fired Pina because they
did not want to investigate a report that would have revealed an
interracial relationship finds no support.
Pina's final argument in support of her discrimination
claim is that white men in both the past and present dislike
interracial relationships between white women and black men. In
Pina's view, the court should have taken judicial notice of this
historical fact and denied summary judgment. At the risk of
redundancy, we note again that "conjecture cannot take the place of
proof in the summary judgment calculus." Bennett v. Saint-Gobain
Corp., 507 F.3d 23, 31 (1st Cir. 2007); see also Kearney v. Town of
Wareham, 316 F.3d 18, 22 (1st Cir. 2002) ("Creating a genuine issue
of material fact requires hard proof rather than spongy
rhetoric."). As the district court properly held, the historical
-29-
fact that many interracial couples have faced bias and prejudice is
not evidence that Raymond or anyone at TCP harbored such
discriminatory animus, and Pina's attribution of these
discriminatory views to Appellees without any factual predicate or
evidence to support her claim does not enable her to avoid summary
judgment. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180,
190-91 (4th Cir. 2004) (affirming grant of summary judgment to
employer where plaintiff relied primarily on references to the
national history of racism to evidence employer's racial animus).16
Accordingly, because Pina was unable to rebut Appellees'
legitimate, nondiscriminatory basis for her termination with
evidence of pretext and discriminatory motive, the district court
properly granted summary judgment to Appellees on Pina's claims of
race discrimination.17 To the extent that Pina purports to have
16
In an effort to dodge the swing of the summary judgment axe,
Pina also proffers a mixed-motives theory of discrimination,
arguing that she can prevail even if she shows that race
discrimination was just one of a number of reasons for her
termination. As we have just explained, however, Pina has failed
to produce any evidence of discriminatory motive, so the mixed-
motive theory cannot save her claim.
17
At the end of her brief, in a section titled "Supervisory
Liability of Defendant Raymond," Pina largely repeats the
discrimination claims we have now found inadequate to survive
summary judgment. She adds only that Raymond can be held
individually liable under § 1981 for subjecting her to retaliatory
and "discriminatory harassment," apparently in a desire to advance
a hostile work environment claim based on Raymond's failure to
interview Pina about the theft report and his decision to suspend
and terminate her. This underdeveloped claim is quickly disposed
of by Pina's own deposition testimony, wherein she stated that she
was not harassed while at TCP and that there was no immediate
-30-
articulated a separate claim against Raymond for breach of contract
under § 1981 on precisely the same theory of race discrimination
that we have now described and rejected, we note that this claim
also necessarily fails. See Ayala-Gerena, 95 F.3d at 95 ("In order
to prevail under Section 1981, a plaintiff must prove purposeful
employment discrimination . . . .").
2. Retaliation
Pina's final claim on appeal is that the district court
erred in finding that she failed to establish a prima facie case of
retaliatory failure to hire in violation of § 1981 and
Massachusetts General Laws, chapter 151, section 4.18 Like Pina's
discrimination claim, her retaliation claim is governed by the
reaction to her report of internal theft. Wary of beating the
proverbial dead horse, we add only that Pina fails to so much as
allege that her purported harassment was based on her race, and the
facts she does allege fall well short of showing the severity,
frequency, and pervasiveness of abuse necessary to allow a hostile
work environment claim to survive summary judgment. See Bhatti v.
Trs. of Bos. Univ., 659 F.3d 64, 73-74 (1st Cir. 2011).
18
In a paragraph, Pina also asserts that she is not precluded from
pursuing a claim for discriminatory failure to hire simply because
TCP ultimately hired an African-American female for the position.
While this is a true enough proposition, Pina has offered not one
iota of evidence or argument to support a discriminatory failure to
hire claim. Instead, she merely notes that she finds "suspicious"
the fact that the selected candidate was, like herself, an African-
American female. To the extent that Pina has not waived any
potential discriminatory failure to hire claim by virtue of her
failure to develop it, see United States v. Zannino, 895 F.2d 1, 17
(1st Cir. 1990) ("[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed
waived."), we note that such rank speculation is entirely
inadequate to prevent a grant of summary judgment in TCP's favor.
-31-
McDonnell Douglas burden shifting framework. See Prescott v.
Higgins, 538 F.3d 32, 40 (1st Cir. 2008) ("The familiar McDonnell
Douglas framework governs Title VII, 42 U.S.C. § 1981, and
Massachusetts General Laws, chapter 151B claims." (referring to
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973))).
Pina correctly notes that § 1981 encompasses retaliation claims.
CBOCS W., Inc. v. Humphries, 553 U.S. 442, 457 (2008). To
establish a prima facie case of retaliation under either § 1981 or
Massachusetts General Laws, chapter 151B, section 4, a plaintiff
must establish that: 1) she engaged in a statutorily protected
activity, 2) she suffered an adverse employment action, and 3) the
protected conduct and adverse employment action are causally
connected. Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir.
2005); Prescott, 538 F.3d at 43. More specifically, in retaliatory
failure to hire cases, a plaintiff seeking to pursue an adverse
employment action must establish that: 1) she applied for a
particular position, 2) the position was vacant, and 3) she was
qualified for the position. Vélez v. Janssen Ortho, LLC, 467 F.3d
802, 807 (1st Cir. 2006).
The district court found that Appellees were entitled to
summary judgment because Pina failed to establish a prima facie
case of retaliation; she did not show that she applied for a vacant
position, that she was qualified for the position to which she
applied, or that Henry had any knowledge of her MCAD claim. Pina
-32-
disagrees, arguing that there was no evidence there were no
vacancies, that she was qualified for an ASM position because she
competently worked in that role before she was fired, and that
Henry knew of her MCAD claim as a matter of law.
Pina's arguments defy both established legal precedent
and logic. First, Pina bore the burden of establishing the
existence of a vacant position; TCP was under no obligation to
prove the non-existence of a vacancy. See id. at 807-08.
Accordingly, Pina cannot credibly expect us to entertain her
argument that Appellees' failure to prove that there were no
vacancies in stores to which Pina did not apply somehow shows that
she has satisfied her burden. Pina admitted that she had no
knowledge of an ASM position vacancy at the time she applied for
the position, and Appellees have testified that there was no
vacancy until approximately one month after Pina applied, at which
time an internal promotion was made and no external candidates were
considered. Although Pina argues that TCP was obligated to
consider her application for a position that opened weeks later, we
need not address this contention. Even if Pina is correct, she
nevertheless has failed to establish at least two additional
elements necessary to make out a claim of retaliatory failure to
hire.
First, Pina has not shown that she was qualified for the
ASM position that she sought. The fact upon which Pina rests her
-33-
claim of qualification appears to be that during her one-month
tenure as an ASM, she performed adequately before she was fired for
inappropriate behavior. Appellees, however, have correctly pointed
out that Pina's application clearly states that she desires an ASM
position but is only available to work from 9:00 a.m. to 3:00 p.m.
on Saturdays. According to TCP's Standard Operating Procedure
regarding staffing, ASMs must be available open to close, including
on weekends. Pina thus failed to qualify for the position even if
one had been vacant at the time she applied.
Second, at the risk of piling on, we note that Pina has
also failed to establish a causal connection between her protected
conduct and the adverse employment action because she failed to
show that Henry knew about the MCAD charge Pina filed three years
prior. See Medina-Rivera, 713 F.3d at 139; Pomales v. Celulares
Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006)("[T]here must be
proof that the decisionmaker knew of the plaintiff's protected
conduct when he or she decided to take the adverse employment
action."). Pina argues that Henry had the requisite knowledge "as
a matter of law" because Henry worked for TCP, which had opposed
the MCAD charge Pina filed more than three year prior in relation
to events at a different TCP store in a different district. She
contends that the district court's finding to the contrary shows
that the court engaged in making improper weight and credibility
determinations.
-34-
It is well-settled that a judge must not engage in making
credibility determinations or weighing the evidence at the summary
judgment stage, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986), but it is equally clear that judges cannot allow
conjecture to substitute for the evidence necessary to survive
summary judgment, Bennett, 507 F.3d at 31. Thus, the district
court can hardly be faulted for failing to adopt Pina's speculative
and unsupported assertion of Henry's knowledge of her MCAD charge.
In the absence of any evidence that Henry or any other TCP employee
involved in the ASM hiring decision had knowledge of Pina's
protected activity, her retaliatory failure to hire claim fails.
The district court properly granted summary judgment to Appellees
as to Pina's retaliation claim in light of her failure to establish
a prima facie case.19
19
There is some suggestion in Pina's briefs that she believes that
not only her MCAD complaint, but also her reporting of internal
theft, constituted protected activity under § 1981 that can give
rise to a retaliation claim. That § 1981 retaliation claims
encompass at least some subset of activities beyond the reporting
of direct racial discrimination is clear. See CBOCS W., Inc., 553
U.S. at 452, 455-56 (allowing a retaliation claim to proceed where
plaintiff alleged he suffered retaliation for assisting another
person to "secure his § 1981 rights"). However, Pina cites not a
single authority to support her position that making an internal
theft report in the hopes that an interracial couple would be fired
so that she could collect company reward money constitutes
"protected activity" under § 1981. Finding that Pina's perfunctory
references to theft-report-based retaliation are unaccompanied by
any developed argument, we deem them waived. Zannino, 895 F.2d at
17.
-35-
III. Conclusion
For the foregoing reasons, the district court judgment is
affirmed and Pina's request for attorney's fees is denied.
Affirmed.
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