Dennis v. Osram Sylvania, Inc.

United States Court of Appeals
For the First Circuit
No. 07-2670
RICHARD DENNIS,
Plaintiff, Appellant,
v.
OSRAM SYLVANIA, INC.,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella, and Lipez, Circuit Judges.
Kenneth J. Barnes, with whom Upton & Hatfield, LLP, Nancy
Richards-Stower, and Law Offices of Nancy Richards-Stower, was on
brief for appellant.
Bruce W. Felmly, with whom Jennifer L. Parent and McLane,
Graf, Raulerson & Middleton Professional Association, was on brief
for appellee.
December 10, 2008
TORRUELLA, Circuit Judge. Plaintiff-Appellant Richard
Dennis appeals the district court's decision to grant Defendant-
Appellee Osram Sylvania, Inc.'s ("Sylvania") motion for summary
judgment on a claim involving New Hampshire's anti-discrimination
statute, N.H. Rev. Stat. Ann. § 354-A. Dennis also appeals the
district court's decision to deny "as moot" two discovery motions:
(1) a motion to compel discovery of privileged documents and (2) a
motion for an extension of time pursuant to Fed. R. Civ. P. 56(f).
For the reasons stated below, we affirm.
I. Background
Dennis was employed with Sylvania from August 1995 to
March 24, 2004, at which date he was terminated. At the time of
his firing, Dennis was the Associate Development Program Manager in
Sylvania's human resources department. His responsibilities
included representing the company at recruitment fairs on campuses
and overseeing Sylvania's internship program.
Dennis claims that Sylvania retaliated against him
because he gave deposition testimony critical of the company in an
internal matter brought by Nancy Green, a former employee of
Sylvania. Green had alleged that Sylvania retaliated against her
because she had filed a sexual harassment complaint against a co-
worker. As the lead investigator of Green's complaint, Dennis was
deposed on February 5, 2004. Dennis cites to several instances in
his deposition where he was critical of Sylvania's response to
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Green's claims, such as the company's "soft punishment" of the
alleged harassers and the slow pace with which it conducted the
investigation of her claims.1
In addition, Dennis points to certain actions and
statements by Sylvania's lawyers demonstrating their
dissatisfaction with his testimony. For example, Dennis claims
that Paul Beckwith, Sylvania's legal counsel, was "hostile" to him
during the deposition. Dennis also alleges that Beckwith raised
his voice in response to Dennis' inquiries about the strength of
the Green case, exclaiming that he "doesn't have time for this
shit." Dennis further claims that during a break, when he sought
guidance from Beckwith regarding whether he had to reveal his
knowledge of a company manager's romantic involvement with a
subordinate, Beckwith, "in a forceful manner, ordered him to answer
'yes,''no,' or 'I don't recall.'"2 Dennis states that Beckwith
1
Dennis further noted in his deposition that Sylvania's employees
perceived that the alleged harassers "could do what they wanted
because they were friends with [the manager]"; that there was a
justified perception that it would be futile to file complaints
against the manager's friends; that it was inappropriate for
Sylvania to have a public team meeting on the Green matter; that
Green was "justified in being upset" by Sylvania's handling of her
complaint; and that Sylvania's issuance of a warning letter to
Green in response to her reaction at the team meeting was "the
stupidest thing [Dennis] heard."
2
Dennis also notes a dispute regarding whether he met with
Beckwith for a deposition preparation session at Sylvania on
January 22, 2004. Dennis states that he does not recall any
meeting with Beckwith prior to his February 5, 2004 deposition and
contends that he was out of the country on January 22, 2004. This
dispute is not material to the outcome of this case.
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told him that the second part of his testimony was not as helpful
as the first part. In addition, Dennis alleges that Sylvania's in-
house counsel, Nicole Vient (formerly Nicole "Buba"), "rolled her
eyes" during his deposition, indicating her unhappiness with
Dennis' testimony.
Sylvania disagrees that Dennis gave testimony critical of
the company, arguing instead that the testimony "strongly
supported" Sylvania's defense of Green's claims.3 Furthermore,
Vient does not recall if she rolled her eyes during Dennis'
deposition and insists that she "did not in any way criticize his
performance at the deposition." Beckwith, for his part, denies
instructing Dennis during a break to answer questions in any
particular way.
On February 6, 2004, the day after Dennis' deposition
testimony, Vient began investigating Dennis in reference to a
complaint, received by the company on January 28, 2004, from Miguel
Molina. Molina, an unsuccessful applicant for re-employment,
claimed that Dennis had subjected him to "inappropriate and
unprofessional" conduct. The investigation revealed that Dennis,
when meeting with Molina, had made reference to Molina's problems
3
In the proceeding below, the district court stated that "[w]hile
Dennis did make several comments critical of Sylvania at his
deposition, his testimony does not appear to have been particularly
harmful to Sylvania's legal position, and actually strongly
supported the company's position on a key issue of retaliation."
Dennis v. Osram Sylvania, Inc., No. 06-CV-029-SM, 2007 WL 2783369,
at *8 n.6 (D.N.H. Sept. 24, 2007).
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with his taxes and his rent. Also, it revealed that Dennis had
shared these details as well as details regarding Molina's marital
life with Molina's potential supervisor at the company.
Pamela Tracey, Sylvania's in-house counsel who oversaw
Vient's investigation, subsequently met with Dennis' supervisors,
Geoffrey Hunt and William Franz, to discuss these incidents.4 They
decided that a warning should be placed in Dennis' file. Franz
documented Dennis' conduct towards Molina in a February 23, 2004
internal communication to Dennis. He concluded that Dennis'
actions were "entirely inappropriate" and requested Dennis to sign
a statement to that effect. Dennis refused to sign the statement
and told Franz that he viewed the Molina investigation and warning
letter as retaliation for his deposition testimony in the Green
matter. Dennis also accuses Franz of "look[ing] away" and
responding that "he knew nothing about [the deposition]." Franz
confirmed that he told Dennis that he did not know anything about
the deposition, but does not recall "looking away."
On March 24, 2004, Sylvania terminated Dennis. In his
deposition testimony, Franz stated that Dennis' position was
"severely weakened" by the Molina matter as well as by a 2001
4
Tracey is Sylvania's Senior Labor and Employment Counsel; Hunt
is Sylvania's Senior Vice President of Communications and Human
Resources; and Franz is Sylvania's Human Resources Director.
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complaint by another former employee, Kim Serrechia.5 Franz also
states that he recommended terminating Dennis because his
performance was affected by "extreme duress" due to family issues
and because of a reduction in force in Sylvania's equipment
development department, the latter forcing Franz to choose between
Dennis and Leah Weinberg, whom Franz referred to as a "high
achieving human resources manager." Franz subsequently informed
Hunt, his supervisor, of his decision and Hunt approved.
After initially filing his complaint with the New
Hampshire Commission for Human Rights ("Commission"), Dennis filed
an action in Rockingham County Superior Court in New Hampshire
alleging retaliation under N.H. Rev. Stat. Ann. § 354-A.6 The case
was then removed to the United States District Court for the
5
On April 11, 2001, Dennis signed a written warning statement
that concluded that Dennis had engaged in the inappropriate use of
company e-mail by sending religious and inspirational messages to
Serrechia. Also, the warning stated that Dennis failed to use
"appropriate managerial judgment expected from a Human Resources
professional in an employee relations matter," citing Dennis'
"numerous conversations of an intensely personal nature" with
Serrechia. Dennis maintains that Franz told him that "he did not
believe Serrechia's allegations" and all references to the
Serrechia matter would be removed from Dennis' file. He further
points out that although his post-termination file made no
reference to the Serrechia matter and that his performance
evaluations during this period praised him for his "fine work" and
did not mention the Serrechia allegations, the matter "reappeared"
after Dennis filed a complaint with the New Hampshire Commission
for Human Rights.
6
Dennis successfully removed his case to the Superior Court
because he had exhausted his administrative remedies and because it
had been over 180 days since he had filed his complaint with the
Commission. N.H. Rev. Stat. Ann. § 354-A:21-a.
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District of New Hampshire. In the proceeding below, the district
court granted Sylvania's motion for summary judgment stating that
Dennis had failed to establish a prima facie case of retaliation
because Franz and Hunt, the individuals responsible for terminating
Dennis, "knew nothing about plaintiff's Green deposition." Dennis
v. Osram Sylvania, Inc., No. 06-CV-029-SM, 2007 WL 2783369, at *8
(D.N.H. Sept. 24, 2007). The district court alternatively
concluded that even if Dennis had established a prima facie case,
Sylvania had fired Dennis for legitimate non-discriminatory reasons
such as his poor work performance and the fact that Franz wanted to
retain another employee instead of Dennis because of the company's
reduction in force. Id. at *7. Furthermore, the district court
explained that summary judgment was appropriate because the factual
disputes arising during Dennis' deposition testimony in the Green
matter with Beckwith and Vient were not material to the resolution
of Dennis' case. Id. at *8-9.
II. Dennis' Motion for Summary Judgment
A. Standard of Review
"Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law based on the pleadings, depositions,
answers to interrogatories, admissions on file, and any
affidavits." Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st
Cir. 2008)(citing Fed. R. Civ. P. 56(c)). "A 'genuine' issue is
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one that could be resolved in favor of either party, and a
'material fact' is one that has the potential of affecting the
outcome of the case." Calero-Cerezo v. U.S. Dep't. of Justice, 355
F.3d 6, 19 (1st Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248-50 (1986)). "We review summary judgment rulings
de novo, construing the record evidence in the light most favorable
to the nonmoving party." Benoit v. Technical Mfg. Corp., 331 F.3d
166, 173 (1st Cir. 2003).
"Even in retaliation cases, 'where elusive concepts such
as motive or intent are at issue, summary judgment is appropriate
if the non-moving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation.'" Vives v.
Fajardo, 472 F.3d 19, 21 (1st Cir. 2007) (quoting Benoit, 331 F.3d
at 173); see also Thompson, 522 F.3d at 175 ("When considering
arguments for summary judgment, 'we must disregard improbable or
overly attenuated inferences, unsupported conclusions, and rank
speculation.'" (quoting Abbott v. Bragdon, 107 F.3d 934, 938 (1st
Cir. 1997))).
We will reverse "only if, after reviewing the facts and
making all inferences in favor of the non-moving party . . . the
evidence on record is sufficiently open-ended to permit a rational
factfinder to resolve the issue in favor of either side." Maymí v.
P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008) (internal
quotations omitted).
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As a preliminary matter, we note Dennis' citation to the
the Supreme Court's ruling in Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 151 (2000), for the proposition that
this court at summary judgment must "disregard all evidence
favorable to the moving party that the jury is not required to
believe." According to Dennis, our consideration of Sylvania
officials' declarations are impermissible under Reeves because the
officials are interested parties. See id. ("[T]he court should
give credence to the evidence favoring the nonmovant as well as
that evidence supporting the moving party that is uncontradicted
and unimpeached, at least to the extent that that evidence comes
from disinterested witnesses.")(internal quotations omitted).
Dennis misreads the scope of Reeves. At summary judgment
we need not exclude all interested testimony, specifically
testimony that is uncontradicted by the nonmovant. See Lauren W.
ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-72 (3d Cir. 2007)
("We cannot believe that the law precludes a party from presenting
his own testimony on a summary judgment motion . . . . The fact is
that in considering a motion for summary judgment the court should
believe uncontradicted testimony unless it is inherently
implausible even if the testimony is that of an interested
witness."). Indeed, the exclusion of interested testimony would
make it difficult for an employer to present a legitimate non-
discriminatory reason when defending against a retaliation claim.
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As the Sixth Circuit has noted, a rule barring all testimony from
interested witnesses would "lead[] to absurd consequences because
defendants will often be able to respond only through the testimony
of their employees." Stratienko v. Cordis Corp., 429 F.3d 592, 598
(6th Cir. 2005) (internal quotations omitted). Here, Dennis'
argument is unpersuasive given his failure to present evidence to
contradict the declarations of Sylvania officials in which they
present a non-retaliatory motive.
B. Applicable Law
N.H. Rev. Stat. Ann. § 354-A:19 states that "[i]t shall
be an unlawful discriminatory practice for any person engaged in
any activity to which this chapter applies to discharge, expel, or
otherwise retaliate or discriminate against any person because he
has . . . testified or assisted in any proceeding under this
chapter."
The New Hampshire Supreme Court looks to and finds
"instructive" federal standards established under Title VII, 42
U.S.C. § 2000e et seq., in resolving retaliation claims under N.H.
Rev. Stat. Ann. § 354-A. Madeja v. MPB Corp., 149 N.H. 371, 378-
79, 821 A.2d 1034, 1043 (2003). Thus, to establish a prima facie
case of retaliation under either Title VII or N.H. Rev. Stat. Ann.
§ 354-A, the plaintiff must show that "(1) she engaged in a
statutorily-protected activity; (2) she suffered an adverse
employment action; and (3) the protected activity and the adverse
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employment action were causally connected." Id. at 378 (citing
Marrero v. Goya of P.R., Inc., 304 F.3d 7, 22 (1st Cir. 2002)).
Under New Hampshire law, "[i]f there is only
circumstantial evidence of retaliation," as Dennis alleges here, a
"'pretext' approach applies." In re Montplaisir, 147 N.H. 297,
300, 787 A.2d 178, 181 (2001) (citing Texas Dep't of Cmty. Affairs
v. Burdine, 450 U.S. 248, 252-53 (1983)). This "pretext" approach
provides that "an employee who carries her burden of coming forward
with evidence establishing a prima facie case of retaliation
creates a presumption of discrimination, shifting the burden to the
employer to articulate a legitimate, non-discriminatory reason for
the challenged actions." Billings v. Town of Grafton, 515 F.3d 39,
55 (1st Cir. 2008). "'If the employer's evidence creates a genuine
issue of fact, the presumption of discrimination drops from the
case, and the plaintiff retains the ultimate burden of showing that
the employer's stated reason for [the challenged actions] was in
fact a pretext for retaliating . . . .'" Id. (quoting Colburn v.
Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir.
2005) (alteration in original)). Pretext can be demonstrated by
"such weaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions in the employer's proffered legitimate reasons
. . . that a reasonable factfinder could rationally find them
unworthy of credence and [with or without the additional evidence
and inferences properly drawn therefrom] infer that the employer
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did not act for the asserted non-discriminatory reasons." Id. at
55-56 (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168
(1st Cir. 1998) (alteration in original)).
C. Discussion
In the instant case, it is a close question whether
Dennis can establish a prima facie case of retaliation. Sylvania
does not dispute that Dennis met the first two prongs of the prima
facie test: Dennis (1) engaged in protected conduct by
participating in the Green deposition and (2) experienced an
adverse employment action by way of his termination. However, with
respect to the third prong, Dennis relies on a series of strained
inferences to establish a causal connection between the two. He
states:
if a jury believed Dennis's testimony . . .
then it could infer . . . the attorneys
believed that some of Dennis's testimony could
have a negative effect on the company's
position in the Green case; that [Vient]
conducted her investigation into the Molina
allegations with anger or resentment over
Dennis's unflattering testimony the day
before; and that the lawyers conveyed their
concerns about the testimony to one or more of
Sylvania's in-house personnel.
(Emphasis in original).
Dennis further emphasizes that Tracey, as Vient's direct
supervisor, was responsible for supervising Vient's investigation
into Molina's complaint. Dennis reasons that "[a] jury could infer
that Tracey and [Vient] talked regularly about [Vient's]
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investigation of Dennis, and that Tracey heard [Vient's] concerns
about Dennis's deposition testimony which had taken place the day
before the investigation began." (Emphasis in original). Because
Tracy "directly advised" Franz on the proper course to take in the
Molina matter, Dennis contends that a jury could infer that Franz'
decision to recommend Dennis' termination was influenced by Dennis'
testimony in the Green matter. Moreover, Dennis asserts that
Beckwith and Vient's concern with his testimony showed that they
had a "motive to retaliate against him and a motive to communicate
among the management group about these issues."
For purposes of summary judgment we are required to draw
every reasonable inference in favor of the nonmoving party.
However, at this stage we need not credit inferences that "rely on
tenuous insinuation." Nat'l Amusements, Inc. v. Town of Dedham, 43
F.3d 731, 743 (1st Cir. 1995) (internal quotations omitted).
Moreover, the nonmovant still has "the burden of producing specific
facts sufficient to deflect . . . summary judgment . . . ."
Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).
While Dennis insists that his retaliation claim naturally
flows from "a straightforward series of reasonable inferences," he
has failed to provide specific facts indicating that his
termination was caused by his allegedly unfavorable testimony in
the Green matter. Instead, Dennis speculates about alleged
communications between Sylvania's counsel and his direct
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supervisors and imputes these attorneys' alleged motives and
displeasure with Dennis' testimony to Franz and Hunt, the actual
decisionmakers responsible for his firing.
Dennis' contention that a jury could reasonably string
together these inferences is speculative, especially in view of the
fact that the only evidence that Dennis provides to demonstrate
that Franz and Hunt knew about his deposition testimony is Franz'
alleged reaction when conversing with Dennis about the Molina
warning letter. Franz' body language of "looking away" and his
statement that "he knew nothing about [Dennis' unfavorable
testimony]" in response to Dennis' allegation that the firing was
in retaliation for Dennis' deposition in the Green case is
insufficient for a jury reasonably to infer that Franz or Hunt
shared Vient and Tracy's alleged retaliatory sentiments. In
addition, Dennis offers no evidence that Franz or Hunt, in arriving
at their decision to terminate Dennis, consulted with anyone
possessing a motive to retaliate against Dennis. "Nothing in the
record supports an inference of complicity." Bennett v. Saint-
Gobain Corp., 507 F.3d 23, 31-32 (1st Cir. 2007) (holding that
causation prong was unmet where plaintiff failed to provide
sufficient proof that individual responsible for plaintiff's
discharge consulted with and shared sentiments with middle manager
who allegedly possessed retaliatory motive).
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In addition to Dennis' inferential reasoning, we also
consider the nearness in time between Dennis' deposition testimony
in the Green case and his termination. As we have stated, "Our law
is that temporal proximity alone can suffice to 'meet the
relatively light burden of establishing a prima facie case of
retaliation.'" DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.
2008)(quoting Mariani-Colón v. Dep't of Homeland Sec., ex rel.
Chertoff, 511 F.3d 215, 224 (1st Cir. 2007)). Given our analysis
below, however, we need not decide whether the mere fact that less
than two months elapsed between Dennis' deposition and his
termination is sufficient to establish a prima facie case of
retaliation.
Though we doubt Dennis could prove causation, we
nevertheless recognize that the employee's burden to establish a
prima facie case in the retaliation context "is not an onerous
one." Calero-Cerezo, 355 F.3d at 26. However, even assuming that
Dennis has established a prima facie case, his claim still fails
because he cannot show that his termination was pretextual.
Specifically, Dennis has not adequately countered the legitimate
non-discriminatory reasons Sylvania has proffered for terminating
Dennis. These reasons include Dennis' history of misconduct as
well as Sylvania's reduction in force argument.
As evidence of pretext, Dennis argues (1) that Sylvania
had "shifting rationales" for firing Dennis and (2) that there is
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a material dispute as to whether Dennis actually had a history of
misconduct. With respect to the former, Dennis asserts that
Sylvania's March 2005 response to Dennis' complaint to the
Commission cited only his history of misconduct, while Franz'
November 2006 deposition identified the reduction in force as the
true reason for Dennis' dismissal. Regarding the alleged material
dispute as to his history of misconduct, Dennis argues that the
Serrechia matter should not be given any credence because it was
allegedly purged from his file and that the Molina matter by itself
did not warrant his termination.
Both of Dennis' arguments suggesting pretext are
unconvincing. First, Sylvania did not shift its rationale for
terminating Dennis. The mere fact that Sylvania failed to include
the reduction in force reasoning in its March 2005 response does
not mean that it changed its story. This is especially true given
the fact that the record reflects that Franz presented the
reduction in force argument as early as October 2005 in a
Commission interview –- over a year before the November 2006
deposition that Dennis cites for the alleged inconsistency.
Second, the dispute surrounding Dennis' history of
misconduct is not material because Sylvania had another reason to
terminate Dennis' employment which was not contradicted. Franz
explicitly stated in his deposition testimony that even if Molina
had fabricated his complaint against Dennis, he would still have
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replaced Dennis with Weinberg because of the reduction in force.
Thus, even if we credit Dennis' argument that the Serrechia
complaint was removed from his file and that Dennis' misconduct in
the Molina matter by itself does not rise to a "firing offense,"
Dennis would still lose: Sylvania's decision to replace Dennis with
the better performing Weinberg as part of its reduction in force
argument is a "clear, specific reason[]" for his termination
separate from any retaliatory animus.7 Id. Dennis "has failed to
point to specific facts that would demonstrate any sham or pretext
intended to cover up defendant's retaliatory motive." Id.Moreover, we should exercise caution in second guessing Sylvania's
employment decisions. Courts should not act as "'super personnel
departments,' substituting their judicial judgments for the
business judgments of employers." Bennett, 507 F.3d at 32 (quoting
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991)).
III. Dennis' Discovery Motions
Dennis additionally appeals the district court's denial
of his motion to compel and his motion for extension of time under
Fed. R. Civ. P. 56(f).8 This court reviews both motions under an
7
Because Dennis does not dispute much of the conduct that formed
the basis of the Molina warning letter, Sylvania still could have
partially relied on the conduct in the Molina matter in deciding
that Weinberg was the more valuable employee.
8
As noted above, after granting Sylvania's motion for summary
judgment, the district court denied both these discovery motions as
moot.
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abuse of discretion standard. Ayala-Gerena v. Bristol Myers-Squibb
Co., 95 F.3d 86, 91 (1st Cir. 1996)("It is well settled that the
trial judge has broad discretion in ruling on pre-trial management
matters, and we review the district court's denial of discovery
[and its denial of a Rule 56(f) motion] for abuse of its
considerable discretion.")(internal citations omitted)). We note
that "[a]ppellate courts seldom intervene in discovery questions"
and that "[t]he standard of review in discovery matters is not
appellant-friendly." Modern Cont'l/Obayashi v. Occupational Safety
& Health Review Comm'n, 196 F.3d 274, 281 (1st Cir. 1999) (internal
quotations omitted). "The court of appeals 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.In the proceeding below, Dennis moved to compel six
documents Sylvania withheld on the basis of attorney client and
work product privilege. Four of these documents pertain to the
Serrechia complaint and the other two deal with the Molina matter.
Dennis argues that these documents are relevant because they could
shed light on the misconduct Sylvania partially relied upon for
terminating Dennis.
We need not reach the question of whether the district
court abused its discretion in denying Dennis' motion to compel
because Dennis' access to those documents would not have changed
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the outcome in this case. As we noted above, Dennis has not met
his burden of showing that Sylvania's reduction in force rationale
for terminating Dennis was pretextual. Dennis does not allege that
these documents would yield any information linking Sylvania's
reduction in force argument to retaliatory animus.9
We are equally unsympathetic to Dennis' appeal of the
district court's ruling on his Rule 56(f) motion. Dennis argues
that the district erred by denying him additional time to file his
opposition to Sylvania's motion for summary judgment. In
particular, Dennis contends that he was awaiting the court's
rulings on his motion to compel and needed more time to obtain
discovery of Weinberg's personnel documents and other documents
pertaining to Sylvania's reduction in force.
We have stated that "Rule 56(f) serves a salutary purpose
within the summary judgment framework. When a party confronted by
a motion for summary judgment legitimately needs additional time to
marshal the facts necessary to mount an opposition, the rule
provides a useful safety valve." Rivera-Torres v. Rey-Hernández,
502 F.3d 7, 10 (1st Cir. 2007). "Deployed appropriately, '[t]he
rule . . . safeguard[s] against judges swinging the summary
judgment axe too hastily.'" Id. (quoting Resolution Trust Corp. v.
9
Notably, the Serrechia documents were dated prior to Dennis'
deposition in the Green matter; thus, they cannot possibly contain
any relevant information relating to Sylvania's alleged retaliatory
motives with respect to its reduction in force.
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N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir.
1994))(alterations in original). Under Rule 56(f):
the litigant must submit to the trial court an
affidavit or other authoritative document
showing (i) good cause for his inability to
have discovered or marshaled the necessary
facts earlier in the proceedings; (ii) a
plausible basis for believing that additional
facts probably exist and can be retrieved
within a reasonable time; and (iii) an
explanation of how those facts, if collected,
will suffice to defeat the pending summary
judgment motion.
Id. We have warned that "Rule 56(f) is not designed to give relief
to those who sleep upon their rights" and that one who seeks a
favorable ruling under Rule 56(f) "must demonstrate due diligence
both in conducting discovery before the emergence of the summary
judgment motion and in pursuing an extension of time once the
motion has surfaced." Id. at 10-11.
Here, even if the documents Dennis were to obtain through
this additional discovery raised a material dispute concerning
Sylvania's reduction in force rationale, the request was untimely.
The record indicates that on January 25, 2006, Dennis' counsel
requested the Commission's October 2005 interview notes with Franz.
In these notes, Franz discusses the company's plan to eliminate
Weinberg's position and Franz' opinion that she was a more valuable
employee. Although Dennis states that Sylvania "fails to allege
what date Dennis received the copies and that the interview notes
(taken by the Commission investigator) do not contain the expanded
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information revealed during Franz' deposition on November 16,
2006," he does not deny receiving these notes well before
Sylvania's motion for summary judgment. Furthermore, even if we
accept Dennis' contention that he only learned the true extent to
which Sylvania relied on the reduction in force rationale during
Hunt and Franz' November 16, 2006 depositions, Dennis still did not
file his Rule 56(f) motion until more than thirty days after the
depositions, and nearly three weeks after Sylvania filed its motion
for summary judgment. Regardless of whether Dennis' Rule 56(f)
motion was a delaying tactic as Sylvania maintains, Dennis should
not be entitled to the benefits of Rule 56(f) given the amount of
time he allowed to lapse between his knowledge of Sylvania's
reduction in force justification and the filing of his Rule 56(f)
motion. Dennis neither suffered any manifest injustice nor any
substantial prejudice.
For the forgoing reasons, we affirm the district court's
order.
Affirmed.
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