DocketNumber： 94-2191
Filed Date： 4/28/1995
Status： Precedential
Modified Date： 3/3/2016
UNITED STATES COURT OF APPEALS UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT FOR THE FIRST CIRCUIT
____________________
No. 94-2191
OTIS GRANT,
Plaintiff, Appellant,
v.
NEWS GROUP BOSTON, INC.,
D/B/A BOSTON HERALD,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge] ___________________
____________________
Before
Selya, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Boudin, Circuit Judge. _____________
____________________
Anthony W. Neal, with whom Law Offices of Anthony W. Neal was on _______________ _______________________________
brief for appellant.
M. Robert Dushman, with whom Brown, Rudnick, Freed & Gesmer was __________________ ________________________________
on brief for appellee.
____________________
April 28, 1995
____________________
BOWNES, Senior Circuit Judge. In this appeal, BOWNES, Senior Circuit Judge. _____________________
plaintiff-appellant Otis Grant, an African-American male and
a former substitute paperhandler in defendant-appellee Boston
Herald's pressroom, assigns error to the district court's
entry of summary judgment in favor of the Herald on his
claims of discriminatory treatment, discriminatory discharge,
and retaliatory discharge brought under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., and __ ____
Mass. Gen. L. ch. 151B. Grant also challenges the district
court's denial of his late-filed motion to amend the
complaint. While the record contains troubling evidence
regarding the Herald's pressroom hiring practices, it does
not support Grant's claim that the complained-of acts were
prompted by racial discrimination or a retaliatory animus.
Nor does it persuade us that the district court abused its
discretion in refusing to allow Grant to amend his complaint.
We therefore affirm.
I. I. __
A. The Initial Complaint A. The Initial Complaint _________________________
The initial complaint made the following claims:
(1) the Herald reduced Grant's hours in December 1991 and
January 1992 because of his race; (2) the Herald terminated
Grant as a substitute paperhandler in February 1992 in
retaliation for his complaining about this reduction in hours
and other alleged acts of discrimination; and (3) the Herald
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terminated Grant as a substitute paperhandler in February
1992 because of his race. In so characterizing the
complaint, we obviously reject Grant's argument that it
stated a claim that the Herald refused to promote Grant from
the position of substitute paperhandler to full-time
paperhandler because of his race. Nothing in the complaint
even remotely intimates that this is a failure-to-promote
case. See Mack v. Great Atlantic and Pacific Tea Co., Inc., ___ ____ ________________________________________
871 F.2d 179, 183-84 (1st Cir. 1989) (warning the bar that we
will hold litigants to their duty "to spell out [their]
theories clearly and distinctly before the nisi prius court,
on pain of preclusion").
The following facts are directly relevant to the
claims made in the initial complaint. Grant began working as
a substitute paperhandler in November 1989, after he learned
of the position from his brother Jeffrey, who is a full-time
employee of the Herald. A substitute paperhandler is a part-
time employee who does the same work as a full-time
paperhandler -- moving large rolls of newsprint, removing
wrapper heads from the rolls, bringing plates from the
pressroom to the presses, and cleaning the pressroom -- but
works only on an as-needed basis. A substitute paperhandler
does not need a high school diploma, technical vocational
training, or other education. He is an at-will employee and,
unlike full-time paperhandlers (who are unionized), does not
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have employee benefits such as paid vacation leave, sick pay,
or health insurance. Of paramount concern to the Herald is
a substitute paperhandler's willingness and availability to
"cover the job" -- i.e., to work when scheduled or called at
the last minute. As Grant himself admits, there is an
expectation that substitutes will "never say no" and that
they will show up at work "dead or alive."
The Herald has several methods of notifying
substitute paperhandlers to come to work. If the pressroom
superintendent, Robert Reilly, knows in advance that he will
need substitutes, he posts a list -- the "work list" -- of
the substitutes who are scheduled to work each day of a
particular week. Sometimes, he includes next to the work
list a "next list," which contains the names of those
substitutes who will be called at the last minute if a
previously scheduled full-time or substitute paperhandler is
absent. Also, substitutes are told that if they want work,
they should call the Herald before the beginning of a shift
to see if there are any openings.
Grant had two tenures as a substitute paperhandler
at the Herald. The first, which lasted from November 1989
through April 1990, ended when Reilly terminated Grant's
employment after a fight with a full-time, white co-worker,
Joseph Gauthier. During the course of this altercation,
Gauthier subjected Grant to racial slurs and spat in his
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face. Although Reilly fired Grant, he only suspended
Gauthier. The Herald explains this differential treatment in
two ways. First, Gauthier, as a union member, could not be
terminated without cause, and was entitled to certain pre-
termination procedures set forth in the collective bargaining
agreement. Second, Reilly allegedly had warned Grant a few
times about failing to cover the job, and viewed Grant's
involvement in the altercation as "the last straw."
Subsequent to his April 1990 termination, Grant
went to the Massachusetts Commission Against Discrimination
("MCAD") and charged the Herald with racial discrimination.
On January 11, 1991, Grant and the Herald settled this
charge. As part of the settlement agreement, the Herald
restored Grant to the substitute paperhandler list and paid
him a sum of money. In return, Grant agreed to release the
Herald from all claims arising out of his employment to that
point in time. Grant returned to his former position on
January 14, 1991.
Although Grant always performed his duties well,
his ability and willingness to cover the job were
consistently at issue. From January 1991 through December
1991, there were nine occasions on which Grant was scheduled
in advance to cover a shift but failed to come to work.
Without notice, Reilly discontinued using Grant as a
substitute in December 1991. When Grant inquired as to why
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he was no longer getting any hours, Daniel Messing, a
pressroom supervisor, informed him that no substitutes were
getting any hours. Grant then checked the work lists and
discovered that, in fact, two white substitute paperhandlers
were working. Grant thereafter requested a meeting with
Reilly and, on January 21, 1992, Grant and Reilly convened to
discuss Grant's work status. At that meeting, it was decided
that Grant would be put back on the substitute list. Grant
worked nine times in the next few weeks, but then failed to
appear on February 12, 1992 and called in sick on February
20, 1992. By letter dated February 21, 1992, Reilly informed
Grant that he would be removed from the list of substitute
workers. Although Grant labors mightily to circumvent or
obscure some basic facts, the record reveals: (1) no other
substitute paperhandler failed to cover an assigned shift
more frequently than Grant during the period from January
1991 through February 1992; (2) Grant often failed to work
when his name was on the next list during this same period;
(3) the two white substitute paperhandlers with job-coverage
records most similar to Grant's (and to whom Grant compares
himself in making his disparate treatment argument) were
terminated in the fifteen months following Grant's
termination for failing to cover the job; and (4) many other
substitute paperhandlers were terminated over the years for
failing to cover the job.
-6- 6
B. The Proposed Amended Complaint B. The Proposed Amended Complaint __________________________________
Grant sought to add to this case, via the amended
complaint, the following claims: (1) the Herald refused to
promote Grant to the position of full-time paperhandler
because of his race; (2) the Herald engaged in unlawful
retaliatory behavior beyond terminating him; (3) the Herald
engaged in unlawful employment practices which have had a
disparate impact on qualified African Americans and qualified
Hispanic Americans as classes; (4) the Herald engaged in an
unlawful, race-motivated pattern and practice of hiring,
promoting, disciplining, and terminating its substitute and
full-time paperhandlers; and (5) the Herald denied Grant the
right to make and enforce contracts and to enjoy all the
benefits of a contractual relationship enjoyed by white
citizens.
The following facts are directly relevant to the
new claims. Grant asserts that they also constitute indirect
evidence of the claims set forth in the initial complaint.
In 1989, at the time of Grant's initial hiring, Grant was one
of only two African-American employees working in the
Herald's pressroom. The other was his brother Jeffrey, from
whom he learned about the position. During that same year,
there were a total of 147 employees in the Herald's
pressroom. The Herald has not hired a full-time, African-
American pressroom employee since February 1987. From 1989
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through the present, a period during which the number of
pressroom employees has ranged from 129 to 165, there has
been only one full-time African-American employee. During
this same period, there have been no African-American
pressroom supervisors.
African Americans constitute 18.69% of those in the
local labor market having the requisite skills for the job of
paperhandler. Despite this fact, from December 1989 through
April 1994, the Herald hired at least twenty-three white
substitute paperhandlers and no African Americans. During
the same time period, the Herald promoted eight or more white
substitute paperhandlers, and no African-American substitute
paperhandlers, to full-time status. There are no women
working in the Herald's pressroom.
Robert Reilly -- the pressroom superintendent --
has been solely responsible for the promotion, discipline,
and discharge of all substitute paperhandlers since 1989. He
also has been solely responsible for hiring full-time
paperhandlers. By his own admission, Reilly maintains no
written criteria governing the discipline and termination of
substitute paperhandlers. Reilly maintains that "covering
the job" takes precedence over seniority in decisions
regarding whom to promote to full-time status. At least
twice -- in April 1990 (shortly after Grant was terminated
for fighting with Joseph Gauthier) and October 1991 -- Reilly
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promoted white substitute paperhandlers with less seniority
than Grant. Earlier in 1991, Grant had protested to Reilly
that the latter of these two paperhandlers was racist because
he and a co-worker left Grant a disproportionate share of the
workload. Reilly had not seen any merit in Grant's protest.
After the October 1991 elevation of the white co-worker,
Grant complained to a union representative about his not yet
having been promoted to full-time status. Grant asserts that
this complaint not only failed to bear fruit, but that it
also resulted in the December 1991-January 1992 reduction in
hours he experienced.
The only written criterion Reilly considered in
determining whom to promote was the substitute paperhandler's
initial employment application. This application requests,
inter alia, that the applicant list all friends and relatives _____ ____
employed by the Herald. The white substitute paperhandler
promoted in October 1991 had listed four relatives and
friends on his employment application; Grant had listed one.
Reilly admits that word-of-mouth communication and nepotism
heavily inform who learns about available substitute
paperhandler positions (which are neither advertised nor
posted). Grant maintains that the same factors inform the
promotion of substitute paperhandlers to full-time status.
C. Procedural History C. Procedural History ______________________
-9- 9
On July 13, 1992, Grant filed an MCAD/EEOC charge
against the Herald and the Boston Newspaper Printing
Pressmen's Union No. 3 (the paperhandlers' union). The
charge alleged that the Herald retaliated against Grant and
terminated his employment because he is an African American;
it further alleged that the union excluded him from
membership and otherwise retaliated against him because of
his race. On April 29, 1993, with the permission of the
MCAD, plaintiff initiated this action in Massachusetts
Superior Court. The union removed the case to federal court
in late May 1993. In August 1993, Grant dismissed all claims
against the union.
The district court initially ordered that discovery
be completed by February 28, 1994, and scheduled the final
pretrial conference for March 21, 1994. The court thereafter
twice extended these deadlines, eventually ordering that
discovery close on May 30, 1994, and scheduling the final
pretrial conference for August 3, 1994.
On July 13, 1994, Grant served and filed his motion
to amend the complaint. The amended complaint increased by
eighty-seven the number of allegations in the "Facts"
section. It also added the five new legal theories set forth
supra. The Herald opposed this motion, and simultaneously _____
moved for summary judgment on the initial complaint. At the
pretrial conference on August 3, 1994, the court orally
-10- 10
denied the motion to amend. On November 7, 1994, the
district court granted the Herald's motion for summary
judgment and denied Grant's motion for reconsideration of the
order denying the motion to amend. This appeal followed.
II. II. ___
As stated above, Grant makes two basic arguments on
appeal. First, he asserts that the district court abused its
discretion in not allowing him to amend his complaint so as
to press the claims outlined in Section I-B. Second, he
argues that the court erred in allowing the Herald's motion
for summary judgment on the claims outlined in Section I-A.
We discuss each argument in turn.
A. The Motion to Amend A. The Motion to Amend _______________________
The district court denied Grant's motion to amend
for two reasons. First, the court stated that the motion was
unduly late because the court was "ready now to deal with
this case after discovery is complete. . . . If I allow the
Amended Complaint, it brings theories into this case that are
going to delay it. It is like an entirely different case."
Second, the court indicated that most of the newly-added
claims were futile because Grant had not presented them in
the first instance to the MCAD. Because there is no
reversible error in the court's lateness determination, we do
not reach the question of futility.
-11- 11
We review a denial of leave to amend under Fed. R.
Civ. P. 15 for an abuse of discretion, and defer to the
district court if any adequate reason for the denial is
apparent on the record. Resolution Trust Corp. v. Gold, 30 ______________________ ____
F.3d 251, 253 (1st Cir. 1994). We are mindful, however, of
Rule 15(a)'s admonition that "leave shall be freely given
when justice so requires." Thus, unless there appears to be
an adequate reason for the denial (e.g., undue delay, bad
faith, dilatory motive on the part of the movant, futility of
the amendment), we will not affirm the denial. See Foman v. ___ _____
Davis, 371 U.S. 178, 182 (1962). _____
We also are aware that Title VII plaintiffs often
lack access to statistical evidence such as the racial
composition of the job applicant pool until after they have
filed their complaints and engaged in discovery. For this
reason, we think that a denial of leave to amend to add Title
VII claims supported by statistics should be evaluated with
some caution. Too casual a review of such a denial might
encourage the abandonment of (or failure to pursue)
potentially meritorious claims. It might also precipitate an
increase in unsubstantiated pleading. See generally Phyllis ___ _________
Tropper Baumann, Judith Olans Brown, and Stephen N. Subrin,
Substance in the Shadow of Procedure: The Integration of _____________________________________________________________
Substantive and Procedural Law in Title VII Cases, 33 B. C. __________________________________________________
L. Rev. 211, 289-90 (1992).
-12- 12
Having carefully evaluated the court's lateness
determination in light of the record, we discern no abuse of
discretion in this case. At the time Grant filed his motion,
discovery was already complete, and Grant all but concedes
that it would have to have been reopened in order for the
Herald to defend itself properly against the claims asserted
in the amended complaint. Moreover, the Herald had nearly
completed its motion for summary judgment and undoubtedly was
well into its trial preparation. When these facts are
considered in conjunction with the radical remaking of the
case contemplated by the amended complaint, Grant's argument
that the Herald would not have been prejudiced by allowance
of the amendment rings hollow. Cf. Tiernan v. Blyth, ___ _______ ______
Eastman, Dillon & Co., 719 F.2d 1, 4-5 (1st Cir. 1983) _______________________
(finding prejudice to party opposing late-filed motion to
amend even where additional discovery was not necessary; the
additional claims "may well have affected defendants' planned
trial strategy and tactics" and would likely have "required
additional time to prepare for trial").
Perhaps more importantly, while the slightly more
than fourteen-month delay between the initial complaint and
the motion to amend is not unprecedented, it is considerable,
especially in view of the fact that the motion came after the
close of discovery (which had already been twice extended).
And we have stated: "Where . . . considerable time has
-13- 13
elapsed between the filing of the complaint and the motion to
amend, the movant has the burden of showing some `valid ______
reason for his neglect and delay.'" Stepanischen v. ____________
Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir. ________________________________
1983) (quoting Hayes v. New England Millwork Distribs., Inc., _____ ____________________________________
602 F.2d 15, 19-20 (1st Cir. 1979)) (deeming a seventeen-
month delay between the initiation of the action and filing
of a motion to amend -- served ten days prior to the close of _____ __
discovery -- to be undue) (emphasis supplied). Under this
circuit authority, it is incumbent upon Grant to give a valid _____
reason for having waited so long to file his motion. This he
has failed to do.
Grant explains the lateness of his motion by
asserting that he was "stonewalled" by the Herald in his
effort to obtain documents -- i.e., the Herald's EEO-1
reports -- purportedly underlying the five new claims. He
points out that he did not receive the EEO-1 reports until
June 1994, and that he filed the amended complaint within a
month of receiving them. This explanation fails for two
reasons. First, the Herald did not stonewall Grant; Grant
did not request the documents until April 28, 1994. Grant's
suggestion that the Herald is responsible for the late
introduction of the statistical evidence derived from the
EEO-1 reports is therefore unjustified.
-14- 14
Second, Grant clearly possessed the knowledge
necessary to make the claims he sought to assert in the
amended complaint even without the EEO-1 reports. Nothing in
the EEO-1 reports was essential to his failure-to-promote
claim, for example. Grant acknowledges as much by arguing
that the failure-to-promote claim actually was included in
the original complaint. And Grant cannot claim that he was
unaware, prior to receiving the EEO-1 reports, of the general
racial composition of the pressroom staff, the discretion the
Herald invested in Robert Reilly on matters of hiring and
promotion, the lack of written criteria to guide hiring and
promotion decisions, the nepotism that pervaded the Herald
pressroom's hiring practices, or the identity of those
persons actually promoted to full-time status during Grant's
periods of employment. This simply is not a case where the
plaintiff could not, without risking sanctions, have pleaded
the late-added claims until after, or at least well into, the
discovery process. Grant was aware, or should have been
aware, of information tending to support each of the new
claims well before July 1994. Cf. Baumann et al., supra, at ___ __ ___ _____
289-96 (discussing the danger Fed. R. Civ. P. 11 poses to
Title VII plaintiffs who do not plead carefully).
For all these reasons, the district court did not
abuse its discretion in denying Grant's motion to amend the
complaint on lateness grounds.
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B. The Motion for Summary Judgment B. The Motion for Summary Judgment ___________________________________
The court granted the Herald summary judgment on
Grant's claims. In so doing, the court ruled that the Herald
had articulated a legitimate, non-discriminatory and non-
retaliatory reason for Grant's termination, and that Grant
had failed to demonstrate a triable issue as to whether the
Herald's justification was pretextual. Although the court's
analysis overlooked one of Grant's claims -- i.e., that the
reduction in hours Grant suffered in December 1991-January
1992 was motivated by racial discrimination -- we see no
error in the award of summary judgment.
There is no dispute over whether Grant has made a
prima facie case of racial discrimination or whether the
Herald, by pointing to Grant's excessive absenteeism and
unavailability for work, has articulated a legitimate, non-
discriminatory and non-retaliatory reason for Grant's
termination. See generally Woods v. Friction Materials, ___ _________ _____ ____________________
Inc., 30 F.3d 255, 259-60 (1st Cir. 1994) (summarizing the ____
first two stages of the burden-shifting paradigm established
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and _______________________ _____
applicable in Title VII cases); Mesnick v. General Elec. Co., _______ _________________
950 F.2d 816, 827 (1st Cir. 1991) (noting the applicability
of the McDonnell Douglas paradigm in retaliation cases), __________________
cert. denied, 112 S. Ct. 2965 (1992). Nor can there be any _____ ______
dispute that, in order to escape summary judgment under
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federal and state law, Grant must at least introduce __ _____
sufficient evidence to permit the factfinder to infer that
the Herald's stated reason for the termination was
pretextual. See Woods, 30 F.3d at 263 (noting the ___ _____
immateriality of the now-established difference between
federal and Massachusetts discrimination law where the
plaintiff has not offered enough evidence for the factfinder
to infer pretext); Greenberg v. Union Camp Corp., 48 F.3d 22, _________ ________________
29 (1st Cir. 1995) (plaintiff making retaliation claim must
show that employer's stated reason for the adverse action is
pretextual) (citing Mesnick, 950 F.2d at 827). Thus, we _______
restrict our inquiry to whether the district court correctly
concluded that the evidence, construed in the light most
favorable to Grant, would not allow a factfinder to conclude
that Grant's race or a retaliatory animus on the part of the
Herald was a motivating factor in Grant's termination. We
believe that the district court's conclusion was correct.
We point out that the Herald has done more than
articulate a reason for Grant's termination; it has
introduced significant evidence tending to establish the
reason's veracity. Not only does the documentary evidence
confirm that, during the relevant time period, Grant had the
poorest overall record for covering the job of any of the
Herald's substitute paperhandlers, it also indicates that
Reilly subsequently terminated the two white co-workers with
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the most similar job-coverage records -- the co-workers to
whom Grant compares himself in making his disparate treatment
argument -- for failing to cover the job. The evidence also
reveals that many other substitute paperhandlers were
terminated over the years for failing to cover the job. In
light of the evidence of the Herald's refusal to abide
substitute paperhandlers who fail to cover the job and
Grant's very poor job-coverage record, Grant faces a
formidable hurdle in arguing that the Herald's stated reason
for his termination was pretextual.
Grant seeks to support his pretext argument in
three specific ways. First, he points to the statistical
evidence summarized in Section 1-B, arguing that it is
indirect proof of Reilly's discriminatory animus. Next, he
recites three allegedly discriminatory actions taken by
Reilly, again arguing that they constitute indirect evidence
of Reilly's discriminatory animus. Third, he asserts that he
was treated differently than two white co-workers with
"similar or worse attendance records from January 6, 1991
through February 21, 1992." We already have rejected the
last of these three arguments. It bears repeating that the
record, read in the light most favorable to Grant,
conclusively establishes that Grant failed to cover the job
more often during the relevant time period than the two
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(subsequently terminated) co-workers to whom he compares
himself.
We therefore focus on Grant's first two arguments,
disregarding other arguments made only in Grant's reply brief
and/or which fall outside the parameters established by
Grant's complaint. See, e.g., Sandstrom v. Chemlawn Corp., ___ ____ _________ ______________
904 F.2d 83, 86 (1st Cir. 1990) (deeming waived an argument
not made below or in appellant's opening brief); Mack, 871 ____
F.2d at 183-84 (emphasizing that unpleaded claims and
theories will be subject to preclusion). We note in passing,
however, that, had they been properly preserved, these
arguments would not have affected our conclusion that summary
judgment was correctly entered for the Herald.
As we have stated, Grant's statistical evidence
does paint a disturbing picture of the Herald's pressroom
hiring practices and their possible effects. It is apparent
that qualified African Americans are significantly
underrepresented in the Herald's pressroom. Moreover, Robert
Reilly concedes that word-of-mouth communication and nepotism
play a large role in determining who learns about and obtains
available paperhandler positions. Finally, in response to an
inquiry posed at his deposition, Reilly, who enjoys nearly
unfettered discretion over pressroom hiring, expressed little
or no concern about the exclusionary effect these facially-
neutral practices might be having on potential applicants of
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color. We think it important for the Herald to recognize
that the facial neutrality of such hiring policies does not
necessarily take them outside the reach of Title VII. See ___
EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, ___ ____ __________________________________
(1st Cir. 1995) ("`[W]hen the work force is predominantly
white, nepotism and similar practices which operate to
exclude outsiders may discriminate against minorities as
effectively as any intentionally discriminatory policy[.]'")
(quoting Thomas v. Washington County Sch. Bd., 915 F.2d 922, ______ __________________________
925 (4th Cir. 1990)) (evaluating disparate impact claim).
The fact of the matter is, though, that we are not
evaluating a disparate impact, or a failure-to-hire, or even
a failure-to-promote claim; we are considering whether a
rational jury could find, by a preponderance of the evidence,
that the Herald is lying when it says that it terminated
Grant because of his failure to cover the job (and not ___
because of his race or his engagement in statutorily-
protected activities). In our view, Grant's statistical
evidence -- whether considered alone or in conjunction with
the other evidence we will discuss infra -- is not a _____
sufficient foundation upon which a jury could premise such a
finding. While the evidence does tend to show that the
Herald's hiring policies, as implemented by Robert Reilly,
operate to exclude African Americans from the hiring pool,
and while it may allow for a reasonable inference that the
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Herald and Reilly are insensitive to the need to provide fair
and equal access to its pressroom employment opportunities,
it is inadequate to prove that Reilly takes race into account
(or, for that matter, that Reilly takes participation in
protected activities into account) when he makes discharge
decisions. Along these lines, we note that Grant's brother
obtained full-time status and apparently still works at the
Herald. More to the point, this evidence in no way undercuts
the Herald's evidence that a willingness and ability to cover
the job is the foremost quality sought in substitute
paperhandlers, and that Grant and others who lacked this
quality were terminated precisely because they lacked it.
Grant's second argument, that three allegedly
discriminatory actions taken by Reilly prove illicit motive
in Grant's termination, also fails. We do not think that
two, if not all three, of the delineated actions could
reasonably be considered discriminatory. And even if they
could be so considered, we do not believe that they are
sufficient to call into question the non-discriminatory and
non-retaliatory explanation the Herald has given for Grant's
termination: that Grant was not covering the job.
The first of the three actions Grant points to --
that Reilly fired Grant while only suspending Joseph Gauthier
after their April 1990 fight (and shortly thereafter promoted
a white substitute with less seniority than Grant to full-
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time status) -- is at least plausibly explained by the fact
that Gauthier, as a union employee, enjoyed greater
procedural protections than did Grant, and by the allegation
that Grant was already on shaky ground because of a poor
attendance record prior to the fight. The second -- that
Reilly found unworthy of credence Grant's complaint that two
co-workers were racists who gave him too much work (and that
Reilly subsequently promoted one of these co-workers to full-
time status) -- is so sparsely explained and supported that
no rational factfinder could find racism on Reilly's part
based on the record evidence. Similarly, the third (which
coincides with the claim that the district court did not
explicitly consider in its summary judgment order) -- that
Reilly reduced Grant's work hours in December 1991 and
January 1992 because of Grant's race -- is unsupported by any
evidence to this effect. The fact that, during the same
period, a pressroom supervisor informed Grant that no
substitutes were getting any hours when, in fact, two white
substitutes were getting hours is not probative of racial
discrimination on Reilly's part. Daniel Messing, and not
Reilly, was the pressroom supervisor who gave Grant the
incorrect information, and there is no reason to infer that
Messing misinformed Grant at Reilly's direction.
Because Grant has failed to demonstrate that the
Herald's stated justification for the adverse employment
-22- 22
actions of which he complains is pretextual, the district
court did not err in granting the Herald summary judgment on
Grant's federal and state discrimination and retaliation
claims.
III. III. ____
For the reasons stated above, we affirm the
district court's entry of summary judgment in the Herald's
favor. Costs awarded to the Herald.
Affirmed. Affirmed ________
-23- 23
Jimmie E. Woods v. Friction Materials, Inc. ( 1994 )
Thomasina Mack v. The Great Atlantic and Pacific Tea ... ( 1989 )
Samuel Mesnick v. General Electric Company ( 1991 )
Joseph J. Hayes v. New England Millwork Distributors, Inc. ( 1979 )
Greenberg v. Union Camp Corp. ( 1995 )
Equal Employment Opportunity Commission v. Steamship Clerks ... ( 1995 )
Patricia A. Thomas v. Washington County School Board ( 1990 )
Simion Stepanischen v. Merchants Despatch Transportation ... ( 1983 )
Richard L. Sandstrom, Etc. v. Chemlawn Corporation ( 1990 )