Malone v. Lockheed Martin Corp.

United States Court of Appeals
For the First Circuit

No. 09-2060

AZELL MALONE,

Plaintiff, Appellant,

v.

LOCKHEED MARTIN CORPORATION; CARL SUPANCIC,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. Mary M. Lisi, U.S. District Judge]

Before

Lynch, Chief Judge,
Souter,* Associate Justice,
and Stahl, Circuit Judge.

Michael F. Drywa, Jr. with whom Sims & Sims LLP was on brief
for appellant.
Tamika R. Nordstrom with whom Mark T. Reynolds, Miller &
Martin PLLC, and Reynolds, DeMarco & Boland LTD were on brief for
appellees.

June 25, 2010

*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
 STAHL, Circuit Judge. Plaintiff-appellant Azell Malone

appeals the district court's grant of a post-trial motion for

judgment as a matter of law under Federal Rule of Civil Procedure

50(b).1 Before the motion was granted, a jury had entered a

verdict and award in favor of Malone and against defendants-

appellees Lockheed Martin Corporation and Carl Supancic. The jury

found the defendants guilty of employment discrimination based on

race, in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., the Rhode Island Fair Employment Practices

Act (RIFEPA), R.I. Gen. Laws § 28-5-1 et seq., and the Rhode Island

Civil Rights Act of 1990 (RICRA), R.I. Gen. Laws § 42-112-1 et

seq.; as well as retaliation based on Malone's alleged whistle-

blowing activities, in violation of the Rhode Island

Whistleblowers' Protection Act (RIWPA), R.I. Gen. Laws § 28-50-1 et

seq. The jury entered an award of $2 million in compensatory and

punitive damages.2

In a thorough and extensive opinion, the district court

subsequently granted defendants' renewed motion for judgment as a

matter of law, pursuant to Rule 50(b). As to the racial

1
He also appeals the district court's conditional grant of a
new trial under Fed. R. Civ. P. 59. The grant was based in part on
the court's finding that plaintiff's counsel made four assertions
to the jury during closing which were unsupported by the evidence
and were prejudicial to defendants.
2
The district court subsequently adjusted the award to $1.5
million in order to avoid duplicative recovery.

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discrimination claims brought under Title VII, RIFEPA, and RICRA,

the district court made three separate determinations. First, it

concluded that only two alleged discriminatory acts fell within the

actionable time periods of the federal and state statutes

(respectively, 300 days and one year), and that Malone failed to

present any evidence whatsoever that those two acts were the result

of racial discrimination.

Second, the district court noted that acts that occurred

outside the actionable time period "'may constitute relevant

background evidence.'" Malone v. Lockheed Martin Corp., 2009 WL

2151706, at *19 (D.R.I. July 16, 2009) (quoting National R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 112 (2002)); see also

Rathbun v. Autozone, Inc., 361 F.3d 62, 76 (1st Cir. 2004) ("A

discriminatory act or practice that is not the basis for a timely

charge of discrimination nonetheless may constitute relevant

background evidence in a proceeding in which the same type of

discriminatory act or practice has been timely challenged.").

However, upon reviewing this background evidence the court

determined that it revealed no sufficient evidentiary basis for the

jury finding of racial animus.

Third, the district court concluded that the wrongful

acts alleged by Malone which fell outside the relevant limitations

periods did not make out a hostile work environment claim (under a

so-called "continuing violation" theory) because his supervisors'

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repeated disciplinary actions were taken in response to Malone's

"undisputed and well documented" habit of "taking unscheduled

vacation days over a period of several years," and there was

otherwise no objective evidence of a racial motivation for the

discipline. Malone, 2009 WL 2151706, at *10. Essentially, the

district court determined that it had erred in allowing this

evidence before the jury on a continuing violations theory.

As to the retaliation claim brought under the RIWPA, the

district court concluded that Malone's report to his superiors that

two employees under his supervision were suspected of accepting

improper gifts from a federal employee was not the kind of act

protected by the RIWPA. In the alternative, the court also

concluded that Malone failed to put forth any evidence that his

subsequent reprimands and demotion were caused by his report of the

improper gifts rather than by his recurring absenteeism; the court

concluded that the jury's determination of causation "amount[ed] to

nothing more than speculation." Malone, 2009 WL 2151706, at *15.

Having reviewed the record carefully, we affirm the

district court's entry of judgment as a matter of law against

Malone as to all claims.3 We conclude, as the district court did

3
As a preliminary matter, we find no merit to Malone's
argument that defendants' Rule 50(a) motion, made at the close of
the plaintiff's evidence, was insufficient to preserve
consideration of their renewed motion pursuant to Rule 50(b) after
the jury reached its verdict. See Lynch v. City of Boston, 180
F.3d 1, 13 n.9 (1st Cir. 1999).

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and for substantially the same reasons, that the record reveals no

sufficient evidentiary basis for the verdict. Because our

reasoning does not differ substantially from that of the district

court, we outline the relevant facts and law only to the extent

necessary to explain our conclusions; a fuller treatment of the

case background is available in the district court's opinion.

A. Standard of Review

We generally review a district court's grant of a Rule 50

motion de novo. Visible Syst. Corp. v. Unisys Corp., 551 F.3d 65,

71 (1st Cir. 2008).4 In so doing, we use the same standard as the

4
This case presents one wrinkle in terms of our standard of
review as related to the evidence Malone presented about incidents
that occurred outside the actionable limitations periods. The
district court considered this evidence in two ways. First, it
considered the evidence as admissible background evidence that
could provide a context for understanding whether the discrete acts
within the limitations period were indeed motivated by racial
animus. See Rathbun, 361 F.3d at 76. Examining the evidence in
this light, the court determined that the acts did not provide a
sufficient evidentiary basis for the verdict because they lacked
any indication of racial animus as a motivating factor for the
behavior of Malone's supervisor, Carl Supancic. This type of
decision fits within our regular de novo framework for reviewing
Rule 50 grants because it involves a normal sufficiency of the
evidence determination. See Visible Syst., 551 F.3d at 71.
The second way the district court examined the evidence that
fell outside the limitations periods was to revisit its preliminary
decision to admit this evidence in support of Malone's continuing
violation/hostile work environment theory. Having heard the
evidence in full, the district court determined at the Rule 50(b)
stage that Malone had failed to make out such a claim and therefore
that the evidence should not have reached the jury, at least not on
that theory. This type of decision, determining the admissibility
of evidence on relevance grounds, would normally require review for
abuse of discretion alone. See United States v. Gobbi, 471 F.3d
302, 311 (1st Cir. 2006).
In this case, we need not definitively determine the standard

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district court in evaluating the motion, meaning that "[a]ll of the

evidence and reasonable inferences drawn from the evidence are . .

. considered in the light most favorable to" the non-moving party,

here Malone. See Espada v. Lugo, 312 F.3d 1, 2 (1st Cir. 2002).

Further, "[i]n reviewing the record, we will evaluate neither the

credibility of the witnesses nor the weight of the evidence."

Vazquez-Valentin v. Santiago-Diaz, 385 F.3d 23, 29 (1st Cir. 2004),

rev'd on other grounds, 546 U.S. 1163 (2006). However, and

crucially in this case, "'the plaintiff is not entitled to

inferences based on speculation and conjecture.'" Id. at 30

(quoting Ferrer v. Zayas, 914 F.2d 309, 311 (1st Cir. 1990)).

The standard for granting a Rule 50 motion is stringent.

"Courts may only grant a judgment contravening a jury's

determination when 'the evidence points so strongly and

overwhelmingly in favor of the moving party that no reasonable jury

could have returned a verdict adverse to that party.'" Rivera

Castillo v. Autokirey, Inc., 379 F.3d 4, 9 (1st Cir. 2004) (quoting

of review to be applied to the district court's two-pronged
evaluation of the evidence regarding acts outside the limitations
periods because under either standard of review we agree with the
district court that the evidence is simply bereft of any indication
of racial animus on the part of Supancic, Malone's supervisor.
However, for simplicity and because it is the most favorable
approach for the appellant, we employ the de novo framework and
assume without deciding that the acts that occurred outside the
limitations periods were properly before the jury at least for the
purposes of providing background context for the acts that took
place within the limitations periods.

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Keisling v. SER-Jobs for Progress, Inc., 19 F.3d 755, 759-60 (1st

Cir. 1994)).

B. Background Facts

As noted above, we leave the myriad details of this case

to the district court's comprehensive opinion. Essentially,

Malone, an African-American male engineer, received a series of

escalating reprimands, deteriorating performance reviews, and

eventually a demotion while employed at Lockheed Martin's facility

in Newport, Rhode Island. The reprimands, at least six between

2002 and 2005, were issued by two consecutive supervisors, Carl

Supancic and James Higson,5 in response to Malone's continued

practice of requesting vacation days without prior notice, on the

morning of the day he wished to take off, or failing to report for

work without seeking permission at all.6 Despite being told

repeatedly and in writing that such actions were disruptive,

disfavored, and could lead to job termination, Malone continued the

practice. He also continued the practice despite imposition of a

performance improvement plan, which was designed by Lockheed's

human resources managers and legal department. Perhaps the most

5
Higson passed away before trial.
6
Evidence was presented at trial showing that Malone was
receiving treatment throughout most of this period for panic
attacks, insomnia, depression, and episodic alcohol abuse.
Witnesses at trial also testified regarding incidents wherein
coworkers noted that Malone's breath smelled of alcohol at work and
where Malone's speech seemed slurred or disjointed when he
telephoned to request a day off.

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egregious example of this behavior occurred on two consecutive days

in October 2004, when Malone failed to receive advance permission

for time off or report to work despite the delivery of letters via

courier to his home each day demanding his attendance at work.

As for evidence that the reprimands, performance reviews,

and eventual demotion may have been caused by race-based animus, we

agree with district court that such evidence was lacking from the

trial record. Malone's theory was that his first supervisor, Carl

Supancic, who directed a majority but not all of the reprimands and

discipline of Malone, was racially biased against him. Malone

admitted, however, that he only reached this conclusion "after

ruling everything [else] out." There was no other evidence

submitted that suggested Supancic's actions were motivated by

racial animus.7 The only racially tinged incident put forth by

7
Malone argues on appeal that the trial court mischaracterized
the record on two related factual issues. First, he says that the
trial court overlooked that he submitted evidence showing that
white employees were treated preferentially in that they were
permitted to take vacation days even if they made the request on
the morning of the day they wished to take off. The evidence
Malone cites to in support of this contention consists solely of:
(1) his own testimony that a white employee, Cobb, was permitted to
take vacation days on the day the requests were made; and (2)
Cobb's testimony. However, we agree with the district court that
Cobb's testimony on its face does not support Malone's assertion of
differential treatment based on race. Cobb testified that he had
"occasionally" requested vacation days on the same day he called in
but that such a practice was "uncommon" and that he did not make it
a "routine practice." In contrast, the evidence is uncontroverted
that Malone did so routinely over a period of years, often by
leaving a voice mail message informing his supervisor of his last-
minute decision, despite repeated admonitions and requests for
improved behavior. Thus, the district court was correct that

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Malone was that coworkers, not including Supancic, once joked that

Malone was "driving Miss Daisy" because he had to drive a white

colleague to and from a work site.8

C. Racial Discrimination Claims

The district court correctly determined that only two

discrete acts of alleged discrimination occurred within the statute

of limitations for purposes of claims made under Title VII9 and the

state statutes. These two events were: (1) an "Updated Final

Malone submitted no evidence showing that white employees were
permitted to chronically violate the vacation policy while Malone
was held to a different standard.
Second, Malone argues that the district court misstated the
facts when it determined that Malone did not put forth any evidence
showing that white managers were treated preferentially during a
company reorganization. In April 2004, Lockheed began a
reorganization that would result in all Level 4 managers being
reclassified from managers to non-management employees (who would
carry the new title Engineer-in-Charge). This amounted to a change
in title, but not a change in responsibility, pay, or benefits.
Malone contends that he provided evidence that only he was
subjected to this re-titling and that several white managers who
also should have been subject to re-titling were spared. However,
our review of the record shows that the district court correctly
determined that the evidence showed that there were at least two
white managers who, along with Malone, also qualified for the title
change and who, along with Malone, were indeed re-titled according
to the terms of the reorganization plan. Therefore, we find no
basis for Malone's argument on this point.
8
As the district court explained, "Driving Miss Daisy" was a
"1989 film set in the American South about the relationship between
an elderly Jewish woman and her African-American chauffeur."
Malone, 2009 WL 2151706, at *5 n.1.
9
For the sake of thoroughness, we note that the Supreme
Court's recent decision in Lewis v. City of Chicago, No. 08-974, 78
U.S.L.W. 4437 (May 24, 2010), which involves Title VII's 300-day
statute of limitations in the disparate impact context, does not
affect our analysis in this case.

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Warning" regarding Malone's attendance issues that was issued by

Malone's subsequent supervisor, Higson; and (2) a performance

review that rated Malone as a "Basic Contributor" that was likewise

issued by Higson. There was no claim that Higson himself took

these actions based on racial animus, only an assertion that Higson

fell under Supancic's influence. In addition, Malone submitted

little evidence10 other than his own conjecture,11 that Higson's

10
Malone did testify at trial as to two incidents that he
argues support the conclusion that Supancic influenced Higson's
evaluation of Malone's work even after Malone was put under the
direct supervision of Higson. First, at some point in 2005 Higson
granted Malone time off at the last minute to pick up a relative
who was arriving in town. Malone testified that when Supancic
heard of Higson's decision he overruled it and demanded that Higson
tell Malone to report to work. Second, Malone testified that at a
2005 meeting regarding his performance Higson told him that "I did
not have an attendance problem . . . I had a Carl [Supancic]
problem." Malone testified that he took this to mean that Higson
"was getting fed up with Carl micromanaging me through him." These
statements arguably support an inference that Supancic, who was the
overall site manager for the Newport project, maintained some
involvement in Malone's supervision even after Higson became his
direct supervisor. However, they are not sufficient to support
Malone's much heavier burden to show that Supancic influenced the
issuance of the "Updated Final Warning" and the performance review
labeling him as a "Basic Contributor." Further, even if such an
inference were supported by Malone's limited testimony about what
Higson supposedly told him, the overwhelming objective evidence
showed that Malone did indeed have an attendance problem. In
addition, as we discuss below, Malone submitted no evidence showing
that Supancic was motivated by racial animus, meaning that even if
Supancic retained significant influence over Malone's supervision
in 2005, Malone could not prove that such influence was tainted by
racial bias. Finally, nothing in Malone's testimony about Higson's
statements suggests that Higson believed Supancic was motivated by
racial animus.
11
Despite his conjecture, Malone himself admitted at trial that
he did not know whether Supancic had any influence over Higson's
evaluation of his (Malone's) work.

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issuance of either of these reports was influenced by Supancic.

Thus, as a matter of law, these two events could not have formed an

adequate basis for the jury's finding of liability. Vazquez-

Valentin, 385 F.3d at 30 (rejecting inferences based on speculation

and conjecture alone); Ferrer, 914 F.2d at 311 (same).

As correctly noted by both parties in supplemental

briefing, evidence of events that fall outside the statute of

limitations may still be admitted as relevant background evidence

to show that discriminatory animus motivated the acts that occurred

within the statute of limitations. See Rathbun, 361 F.3d at 76.

However, this rule does nothing to help Malone's cause because he

offered no evidence that the acts that fell outside the limitations

periods (including Supancic's reprimands, performance reviews, and

eventual demotion of Malone) were motivated at least in part by

racial animus. As discussed above, Malone submitted no evidence

suggesting any racial motivation for Supancic's response to

Malone's continued and severe absenteeism problem. The district

court considered and dismissed the probative value of this

background evidence, as do we.12

12
The district court also correctly dismissed Malone's attempt
to circumvent the statute of limitations problem by alleging a
"continuing violation" claim. Malone argues that Supancic's
disciplinary measures amounted to a pattern of harassment that
constituted a hostile work environment and thus a continuing
violation, meaning that the normal time bars would not prevent a
finding of liability based on those events. See Morgan, 536 U.S.
at 115-16; Tobin v. Liberty Mutual Ins. Co., 553 F.3d 121, 130 (1st
Cir. 2009); Thomas v. Eastman Kodak Co., 183 F.3d 38, 54 (1st Cir.

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D. Retaliation Claim

Malone's other claim was that, in violation of the Rhode

Island Whisteblower Protection Act, R.I. Gen. Laws § 28-50-3 (4),

he was demoted from Engineer-in-Charge to Field Engineer13 in

November 2004 as a result of reporting to his superiors that two of

his subordinates were suspected of accepting improper gifts of

tools from a government employee.14 Malone's report was not based

on first-hand knowledge, but rather on a report he received from

another subordinate who was a co-worker of the suspected employees.

Following Malone's report, Lockheed's human resources division

1999). It is certainly true that under the continuing violations
doctrine "[p]rovided that an act contributing to the claim occurs
within the filing period, the entire time period of the hostile
environment may be considered for purposes of determining
liability." Morgan, 536 U.S. at 103. However, the plaintiff must
still show that "the employer has engaged in enough activity to
make out an actionable hostile environment claim." Id. at 117. It
is here that Malone's claim fails. The facts simply do not support
his contention that Supancic's disciplinary measures were the
result of anything other than a legitimate concern with Malone's
continued absenteeism. See Oncale v. Sundowner Offshore Servs.,
Inc., 523 U.S. 75, 78 (1998) (defining a hostile work environment
as one where "'the workplace is permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim's employment and
create an abusive working environment'") (quoting Harris v.
Forklift Systs., Inc., 510 U.S. 17, 21 (1993) (emphasis added).
13
This demotion constituted a reduction of his responsibilities
but not of his pay or benefits.
14
Allegedly the government employee, who oversaw the contract
that had been awarded to Lockheed, was stealing scrap materials
from the Lockheed facility and providing gifts of tools to two
Lockheed employees in order to buy their silence regarding the
theft.

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initiated an ethics investigation that, among other things,

resulted in a written warning to Malone which concluded that his

"lack of effective and/or active management practices contributed

to" the gift incident. All evidence presented showed that Supancic

had no role in disciplining Malone for this incident.

Putting aside whether Malone's report to his superiors

even constituted a protected act under the Rhode Island statute, we

affirm the district court's entry of judgment as a matter of law on

this issue because Malone offered no evidence of causation other

than pure speculation. Malone's theory at trial was that because

he reported his subordinates' malfeasance he suffered increased

scrutiny of his attendance and was eventually demoted from

Engineer-in-Charge to Field Engineer. The evidence, however,

showed that his attendance problems had been at issue for at least

two years prior to Malone's report of the gifts. Without more, and

Malone did not offer more, the causal link between his report and

his discipline for attendance issues was not established as a

matter of law. See Wright v. CompUSA, Inc., 352 F.3d 472, 478 (1st

Cir. 2003) (explaining that "chronological proximity does not by

itself establish causality, particularly if '[t]he larger picture

undercuts any claim of causation'") (quoting Soileau v. Guilford of

Maine, Inc., 105 F.3d 12, 16 (1st Cir. 1997)). Further, following

Malone's report of the improper gifts in September 2004, he was

absent without prior authorization and could not be reached for two

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days in October 2004 and for another two days in November 2004.

Malone's demotion to Field Engineer took place immediately after

the November absences. We agree with the district court's

conclusion that:

Against the background of Malone's unscheduled
absences over a period of more than two years,
a causal link between the forwarding of [the
subordinate's] report and Malone's reassignment
to Field Engineer . . . amounts to nothing more
than speculation, based solely on the fact that
the re-assignment happened at some point after
the report was forwarded.

Malone, 2009 WL 2151706, at *15 (emphasis in original). We

therefore affirm entry of judgment as a matter of law with respect

to the RIWPA claim.15

E. Conclusion

For the foregoing reasons, we affirm the district court's

entry of judgment as a matter of law pursuant to Rule 50(b) as to

all claims.

Affirmed.

15
Because we affirm the district court's entry of judgment as
a matter of law as to both claims, we do not address Malone's
objection to the district court's conditional grant of a new trial
pursuant to Fed. R. Civ. P. 59.

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