Woodward v. Emulex Corporation , 714 F.3d 632 ( 2013 )

United States Court of Appeals
For the First Circuit
No. 12-1612
FRANK WOODWARD,
Plaintiff, Appellant,
v.
EMULEX CORPORATION and JEFF HOOGENBOOM,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Stahl and Lipez,
Circuit Judges.
Paul H. Merry, with whom Law Offices of Paul H. Merry was on
brief, for appellant.
T. Dos Urbanski, with whom Michael J. Mazurczak, Andre
Sansoucy and Melick & Porter, LLP were on brief, for appellees.
April 18, 2013
HOWARD, Circuit Judge. Plaintiff Frank Woodward appeals
a grant of summary judgment by the United States District Court for
the District of Massachusetts in his age discrimination suit
against Emulex Corporation. Woodward also appeals two discovery
orders. We affirm in all respects.
I. Background
Emulex, a technology company based in California,
manufactures components for large-scale computer networks and data
storage systems. Woodward joined Emulex in 2000 as a sales account
manager. Prior to joining Emulex, Woodward worked in sales for
another technology company where he developed a close relationship
with EMC Corporation, a large computer storage company based in
Hopkinton, Massachusetts. In his new position with Emulex,
Woodward continued that relationship with marked success. The
company provided him with an office in Newton, Massachusetts, where
he was the sole employee and could easily travel to his main client
EMC. His results speak for themselves: over $800 million in
revenue and over fifty "design wins," meaning that EMC incorporated
Emulex parts into its own products, ensuring a steady stream of
sales for the life cycle of those products. Woodward and his team
consistently outperformed their goals and Woodward received praise
and accolades for his success. The EMC team grew to five
employees, two of whom Woodward managed as a senior director.
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During this time, EMC was always either the third or fourth largest
Emulex client based on sales revenue.
Beginning in 2007, however, revenues from EMC began to
decline. Woodward interprets this decline as a function of two
factors. First, the general downturn in the economy affected
Emulex, as demonstrated by similarly sluggish numbers for other
sales teams. Second, Woodward alleges that Emulex undermined the
EMC team's ability to take advantage of growth opportunities.
Though Woodward requested more personnel for his team, Emulex
refused to increase the EMC sales force. Emulex also canceled
certain products after the EMC team had already obtained sales
agreements for them. Woodward also faults Emulex for failing to
address inefficient and counterproductive actions by other Emulex
employees. Part of Woodward's success was negotiating price
agreements with terms favorable to Emulex. Other Emulex employees,
seeing an opportunity to increase their own sales, offered EMC
better rates. According to Woodward, these sales teams not only
poached from his work, but also cannibalized Emulex's overall
profits. His complaints about this practice went unanswered.
Moreover, Emulex occasionally failed to deliver products on time to
EMC, and it did not heed Woodward's suggestions about improving its
delivery system.
In early 2009, Emulex let go two EMC team members.
Shortly thereafter, in March 2009, Woodward was notified that he
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too would lose his job. The two remaining EMC team members jointly
assumed Woodward's responsibilities when he left in July 2009.
While Emulex does not dispute these allegations, it
contends that its decisions were the result of diminishing EMC-
related profits, not the cause of them. According to Emulex, the
computer storage industry was undergoing a transition from
stand-alone systems (storage systems) to integrated systems (server
systems). Consequently, Emulex, which produced Host Bus Adapters
(HBAs) for both systems, began focusing on blade HBAs--removable
hardware compatible with server systems--as opposed to storage-
system HBAs. EMC does not make or sell server systems. Thus,
Emulex claims, the EMC business could no longer justify a five-
person sales team, as evidenced by the permanent reduction of the
EMC team to two employees.
Woodward, however, discounted Emulex's reasoning and
suspected that age discrimination played a role in his termination.
In January 2009--two months before Woodward's notice of
termination--Jeffrey Hoogenboom, Emulex's new vice president of
sales, commented that Woodward needed to "re-energize" the EMC
team. Woodward, who was fifty-five at the time, considered this a
disparaging remark about the ages of the EMC team members, which
ranged from forty-nine to fifty-nine. After his termination, he
filed a complaint with the Massachusetts Commission Against
Discrimination (MCAD), alleging age discrimination. MCAD dismissed
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Woodward's complaint for a lack of probable cause, and he
subsequently brought suit in state court, claiming, among other
things, age discrimination under Massachusetts law. Emulex removed
the case to the United States District Court for the District of
Massachusetts based on diversity jurisdiction, and then moved for
summary judgment on all counts. The district court granted this
motion, and Woodward appealed.
II. Discussion
A. Discovery
Woodward first challenges two discovery-related orders:
1) the district court's partial denial of his third motion to
compel; and 2) the district court's decision to quash deposition
notices for three Emulex employees, including Hoogenboom. We
review orders pertaining to discovery for abuse of discretion. See
Awuah v. Coverall N. Am., Inc., 585 F.3d 479, 481 (1st Cir. 2009).
1. Motion to Compel
From the outset of this case, discovery inched forward,
with both sides contending over its scope and refusing to accede to
the other's requests. During this acrimonious process, Emulex
resisted Woodward's attempts to obtain considerable information
about all employees at his management level or higher. Woodward
eventually limited his request to information about the age, date
of hire, positions and duties, date of termination, and grounds for
termination of all employees holding the titles of director, senior
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director, vice president, senior vice president or executive vice
president between 2008 and 2010. Woodward requested this
information in an interrogatory and in a document request filed in
September 2011. He included a list of twenty-one known employees
falling within these categories but did not limit his request to
the employees on this list. Emulex did not provide the
information, and Woodward moved to compel discovery. The district
court granted the motion to compel an answer to the interrogatory,
but only with respect to the twenty-one named employees. It did
not order Emulex to comply with the document request. Emulex
complied with the order. Woodward appeals the district court's
decision to limit discovery to the interrogatory request, and to
only the twenty-one named employees.
"[T]he standard of review in discovery matters is not
appellant-friendly." Dennis v. Osram Sylvania, Inc., 549 F.3d 851,
860 (1st Cir. 2008) (citations omitted) (internal quotation marks
omitted). "[T]he trier must be accorded considerable latitude in
gauging the extent of a party's compliance with [discovery]
precepts." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 187
(1st Cir. 1989). Woodward claims that the district court's partial
denial of his motion to compel constituted an abuse of discretion.
We disagree. First, the denial of Woodward's document request was
within the district court's discretion. Woodward sought the same
information through the twin vehicles of an interrogatory and a
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document request. Thus, the district court did not deny discovery
of new information, but simply did not compel the production of an
arguably duplicative request for documents.
The district court was also within its power in limiting
Woodward's interrogatory to the twenty-one named employees. The
purpose of this interrogatory was to compare Woodward's treatment
to that of similarly situated employees. A sine qua non of such a
comparison is a congruence of work responsibilities. See Dartmouth
Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989)
(employees must be similarly situated "in all relevant aspects" to
establish disparate treatment in an employment discrimination suit
(internal quotation marks omitted)), overruled on other grounds by
Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st
Cir. 2004). However, Woodward's request for information about all
directors and vice presidents went far beyond Emulex's sales force
and likely would have covered employees who had little or no
comparative value for Woodward's suit.
By contrast, every employee on Woodward's list was a
member of Emulex's sales force, working in the same area as
Woodward. Moreover, when Woodward filed this motion to compel,
discovery had proceeded, albeit haltingly, for eleven months,
giving Woodward time to identify the relevant employees for
comparison. The district court could have determined that, at this
late stage in discovery, the twenty-one named employees represented
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Woodward's best chance of finding some differential treatment
between younger and older employees. Given the alternative--a
fishing expedition into possibly barren waters--the district court
did not abuse its discretion by limiting discovery to those
individuals. See Fed. R. Civ. P. 26(b)(C)(ii) (requiring courts to
limit discovery when "the burden or expense of the proposed
discovery outweighs its likely benefit").
2. Motion to Quash
Woodward also appeals the district court's order quashing
deposition notices for three Emulex employees: Hoogenboom, Jeff
Benck, and Susan Bowman. At the discovery deadline, October 17,
2011, Woodward served the three employees with notices of
depositions to occur in a three-day period two weeks hence. The
parties struggled to find a time for these depositions that was
convenient to both sides. Much of the difficulty arose from
Woodward's insistence that he attend the depositions in person.
Indeed, Woodward proposed a number of possible dates, and Emulex,
relying on these dates, stated that its employees would be
available for depositions over three days from December 12-14,
dates that Woodward had indicated worked with his schedule.
Woodward, however, did not confirm his availability for these
dates, and he subsequently proposed new dates during the weeks of
December 19 and December 26, 2011. Because the deadline for
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dispositive motions was December 21, Emulex moved to quash the
notices, and the district court granted the motion.
The court did not abuse its discretion in quashing the
deposition notices. Woodward gave notice of the depositions at the
last available moment, and then he proved to be the major barrier
to their completion. When the defendants filed their motion to
quash, the parties still had not fixed a date for the depositions,
yet the deadline for dispositive motions was only five days away.
Woodward's desire to attend the depositions in person is not
compelling enough to overcome the burden that the defendants faced
from his constant scheduling demands. We see no abuse of
discretion in the district court's decision to quash these
depositions. We now turn to Woodward's appeal of the grant of
summary judgment.
B. Summary Judgment
Our review of a grant of summary judgment is de novo, and
we view the record in the light most favorable to the nonmoving
party. See Henry v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012).
"Under [Federal Rule of Civil Procedure 56(a)], summary judgment is
proper 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) (internal
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quotation marks omitted). After the moving party has presented
evidence in support of its motion for summary judgment, "the burden
shifts to the nonmoving party, with respect to each issue on which
he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor." Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 158 (1st Cir. 1998). Although the district
court granted summary judgment as to all of Woodward's claims, he
appeals only the dismissal of his state law age discrimination
claim.
Massachusetts has adopted the Supreme Court's approach to
employment discrimination. See Sullivan v. Liberty Mut. Ins. Co.,
825 N.E.2d 522, 530 (Mass. 2005). Under this framework, a
plaintiff must first state a prima facie case of discrimination.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1983). For an
age discrimination claim in Massachusetts, this constitutes showing
that: 1) the plaintiff was a member of the protected class, i.e.
over forty years old, see Mass. Gen. Laws ch. 151B, § 1(8); 2) he
had performed his job at an acceptable level; 3) he was terminated;
and 4) he was replaced by someone five or more years younger. See
Knight v. Avon Prods., Inc., 780 N.E.2d 1255, 1261-65 (Mass. 2003)
(discussing the elements of an age discrimination case and
concluding that "an age disparity of less than five years, by
itself, is too insignificant to support a prima facie case of age
discrimination"). The fourth prong, however, does not apply to a
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reduction-of-workforce case such as this, where the employer does
not replace the plaintiff with a new employee. In such cases,
"some evidence that [the employee's] layoff occurred in
circumstances that would raise a reasonable inference of unlawful
discrimination" is necessary to establish the fourth prong.
Liberty Mut. Ins. Co., 825 N.E.2d at 533-34.
Once the employee has stated his prima facie case, the
employer must provide "some legitimate, non-discriminatory reason"
for terminating the employee. McDonnell Douglas Corp., 411 U.S. at
802. The employer's obligation at this stage "is one of production
as opposed to persuasion, as the burden of persuasion remains with
[the employee]." Lewis v. City of Bos., 321 F.3d 207, 214 (1st
Cir. 2003). If the employer satisfies this step, the burden shifts
back to the plaintiff, who "must produce evidence sufficient to
support a jury verdict that it was more likely than not that the
articulated reason was pretext for actual discrimination."
Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309
(Mass. 1997) (citations omitted) (internal quotation marks
omitted).
The district court assumed, "for sake of completeness,"
that Woodward stated a prima facie case of discrimination.
Woodward v. Emulex Corp., 854 F. Supp. 2d 149, 158 (D. Mass. 2012).
We follow this approach, bypassing the first stage of the analysis
without deciding whether Woodward has in fact made his prima facie
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case. In response to Woodward's claim of discrimination, Emulex
argues that it could no longer afford Woodward's position because
of a market shift away from storage systems, as evidenced by the
precipitous fall in EMC-related revenue. Woodward offers three
reasons why this explanation is pretextual: 1) the decline in EMC
revenue was the result of Emulex's own irrational decisions; 2)
employees whose performance was similar to Woodward's were not
terminated; and 3) Hoogenboom's comments demonstrate discriminatory
animus. None of these is persuasive.
First, Woodward argues that Emulex permitted, even
accelerated, the drop in EMC revenues. Emulex discontinued
products that Woodward had already sold and rejected Woodward's
request for more sales personnel. Woodward claims that these
actions not only belie Emulex's claim that the market caused the
drop in EMC's revenues, but are so contrary to Emulex's own
interests that they amount to, in Woodward's terms, killing the
goose that laid the golden egg.
Far from showing pretext, however, these decisions
reinforce Emulex's proffered justification. Emulex, believing that
the market was moving toward server systems, saw strategic value in
diverting its limited resources away from the EMC sales team.
These actions are consistent with that strategy. Woodward contends
that Emulex's decisions unwisely assured the decline in EMC
revenues. He claims that EMC revenues were poised to rebound to
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their earlier levels, and that Emulex ignored this possibility to
its own detriment. This critique of Emulex's business judgment has
no purchase. We are not concerned with whether the stated purpose
"is unwise or unreasonable." DeMarco v. Holy Cross High Sch., 4
F.3d 166, 171 (2d Cir. 1993); see also Webber v. Int'l Paper Co.,
417 F.3d 229, 238 (1st Cir. 2005) ("[A]n employer is free to
terminate an employee for any nondiscriminatory reason, even if its
business judgment seems objectively unwise."). Instead, Woodward
must show that the stated purpose is untruthful. See Liberty Mut.
Ins. Co., 825 N.E.2d at 541 ("[O]ur task is not to evaluate the
soundness of Liberty's decision making, but to ensure it does not
mask discriminatory animus."). Nothing in Emulex's actions casts
doubt on the sincerity of its belief that the market had shifted
from storage systems to server systems.1
Woodward's next evidence of pretext is that Emulex
retained younger employees whose performance, like Woodward's,
suffered in this period. Disparate treatment between older and
younger employees is a familiar means of establishing pretext. See
Smith Coll. v. Mass. Comm'n Against Discrimination, 380 N.E.2d 121,
1
Woodward also cites two business practices--the failure to
deliver products on time and internal "poaching" of Woodward's
profits--that hurt his team's profitability. To the extent that
Emulex permitted these actions (Woodward provides no evidence that
Emulex encouraged them), the negative effects would impact all
sales teams, not just the EMC sales team. Consequently, we cannot
see how they show that Emulex's underlying motives were
discriminatory.
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125 (Mass. 1978) ("[A]lthough the fact of discriminatory motive
must be proved, it can be inferred from differences in the
treatment of two groups."). This requires, however, a showing that
the employees are "similarly situated in all relevant aspects."
Ocean Spray Cranberries, Inc., 686 N.E.2d at 1310 (citations
omitted) (internal quotation marks omitted). "The test is whether
a prudent person, looking objectively at the incidents, would think
them roughly equivalent and the protagonists similarly
situated. . . . Exact correlation is neither likely nor necessary,
but the cases must be fair congeners. In other words, apples should
be compared to apples." Dartmouth Review, 889 F.2d at 19.
As an initial matter, Emulex argues that the most
relevant aspect of Woodward's employment was his membership on the
EMC sales team. Though revenues were down across the company,
Emulex maintains that the rapid disassembling of the EMC sales team
was not merely a function of the economic downturn, but the result
of a specific market shift that rendered the EMC team overly
staffed. If we accept this proposition, then the only similarly
situated employees would be other members of the EMC sales team.
Ultimately, we need not narrow the field of congeners to
this degree, since even a broader approach does not suggest any
similarly situated employees. Of the six employees whom Woodward
mentions in his brief as similarly situated, two held positions
senior to Woodward, and therefore were not similarly situated. The
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remaining four employees were all forty years old or older at the
time that Woodward was terminated--also members of the protected
class. Moreover, while they all experienced similar percentage
declines in revenues, that metric cannot alone determine the value
of each employee, especially considering that their 2009 revenues
ranged from roughly $30 million to almost $380 million.2
Additionally, Woodward's focus on 2009 figures ignores Emulex's
claim that EMC declines began in 2007, which is supported by the
record. Finally, Woodward occupied a unique position within
Emulex, as the only employee working from a remote office in
Massachusetts. This arrangement likely entailed specific
administrative costs. Given this context, the fact that other
employees experienced declines in revenue similar to Woodward's
falls far short of the showing necessary to establish that they
were similarly situated to him for purposes of the pretext
inquiry.3
Moreover, a macroscopic view of Emulex's personnel
decisions reveals no pattern of age discrimination. As the
2
Woodward achieved approximately $65 million in revenues in
2009.
3
Woodward claims that the district court hampered his ability
to produce evidence of similarly situated employees through its
limits on discovery. See supra Part A.1. As we noted, however,
the district court's order curtailing discovery appears to have
targeted duplicative and immaterial requests. Thus we disagree
that indulging his entire discovery request would have provided
additional useful comparative evidence.
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district court noted, Emulex retained five senior directors--the
same management level as Woodward--who were older than he was.
Moreover, the median age at Emulex as of March 2009 was forty-five.
Woodward simply cannot show that Emulex's rationale was pretextual
by comparing himself to other Emulex employees.
Woodward's third argument is that Hoogenboom's comment
about the need to re-energize the EMC sales team constitutes direct
evidence of discriminatory animus. Woodward asks us to interpret
Hoogenboom's words as a critique of the age of the EMC team. Given
the context of Hoogenboom's comment, however, such a reading is too
strained. It is far more likely that the comment referred to the
performance of the EMC team. Hoogenboom made the comment in
January 2009; by March 2009 Emulex had decided to cut the team from
five employees to two. Hoogenboom was not discussing a plan to
reformulate the team with peppy, youthful salespersons. He was
presaging its possible performance-related demise. While we will
interpret any ambiguities in favor of the nonmoving party on
summary judgment, we will not ignore the obvious context of a
statement simply because the language is open to multiple
interpretations.
Even if we did accept Woodward's reading of Hoogenboom's
comments, it would not suffice to show discriminatory animus.
Massachusetts courts have held that isolated comments, even those
less ambiguous than Hoogenboom's, will not carry the plaintiff's
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burden of persuasion if the employer has articulated a legitimate
rationale for the termination. See Liberty Mut. Ins. Co., 825
N.E.2d at 536 n.24 (finding that employer's comments that "[y]ou
are part of the old guard[,] [y]ou have never adapted to the new
system at Liberty Mutual," and [y]ou simply do not fit in around
here anymore" did not constitute direct evidence that the layoff
was motivated by unlawful age discrimination); Lee v. President &
Fellows of Harvard Coll., 806 N.E.2d 463, 467 (Mass. App. Ct. 2004)
(concluding that the comment "younger is cheaper" did not "create
a genuine issue of material fact with respect to pretext").
Similarly, Hoogenboom's comment is not sufficient to show that
Emulex discriminated against Woodward.
III. Conclusion
For the foregoing reasons we affirm the district court on
all issues.
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