January 24, 1995
[Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 94-1677
ROBERTA J. RANDALL,
Plaintiff, Appellant,
v.
SCOTT PAPER COMPANY AND S.D. WARREN COMPANY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Selya, Circuit Judge,
Bownes, Senior Circuit Judge,
and Stahl, Circuit Judge.
Robert S. Hark with whom Isaacson & Raymond, P.A. was on brief
for appellant.
B. Simeon Goldstein with whom Pierce, Atwood, Scribner, Allen,
Smith & Lancaster was on brief for appellees.
Per Curiam. Plaintiff Roberta Randall asserts that
Per Curiam.
the district court erroneously ruled that statements
contained in two affidavits were inadmissible hearsay and, as
a consequence of that ruling, improperly granted summary
judgment for defendants Scott Paper Co. and its subsidiary
S.D. Warren Co.1 on Randall's retaliation claim under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. 2000-
e(3)(a). Because we conclude that even if the statements in
question were admissible there would still be no genuine
issue of material fact, we affirm.
From 1980 to 1991, Randall worked as an
environmental technician at Scott's mill in Westbrook, Maine.
After she was laid off, either due to a mill-wide downsizing,
as Scott claimed, or due to gender discrimination, as Randall
claimed, Randall filed a complaint with the Maine Human
Rights Commission (MHRC) and with the Equal Employment
Opportunity Commission (EEOC) in September 1991. Meanwhile,
Randall obtained other employment, working first for Betz
Industrial from February 1991 until December 1991, when she
was fired for performance reasons, and then for Northeast
1. Because it is not always clear from the record which
facilities or actions relevant to this litigation are owned
by or attributable to which defendant, and because the
parties treat any such distinctions as unimportant, we will
henceforth refer to either or both defendants simply as
"Scott," even if actual ownership of a particular facility or
responsibility for a particular action in reality rests with
S.D. Warren or with both defendants.
-2-
2
Test Consultants (NTC) beginning in August 1992. Both
companies provide environmental testing services to Scott as
well as to other companies. Randall's work for Betz included
considerable time spent at Scott's mill in Hinckley, Maine.
Although 15% of NTC's business derived from Scott, NTC sent
Randall to perform work at Scott facilities on only one or
two occasions. After both the MHRC and the EEOC declined to
take action against Scott, Randall filed a sex discrimination
lawsuit against Scott and S.D. Warren in June 1993. In
January 1994, one day after she was deposed in connection
with her lawsuit, NTC laid Randall off and has not rehired
her.
Randall's allegation relevant to this appeal is
that Scott retaliated against her for pursuing her sex
discrimination claim, thus violating 42 U.S.C. 2000-
e(3)(a),2 by ordering NTC to keep her away from Scott
2. Section 2000-e(3)(a) provides in pertinent part:
It shall be an unlawful
employment practice for an
employer to discriminate
against any of his employees or
applicants for employment . . .
because he has opposed any
practice made an unlawful
employment practice by this
subchapter, or because he has
made a charge, testified,
assisted, or participated in
any manner in an investigation,
proceeding, or hearing under
this subchapter.
-3-
3
facilities and, ultimately, to dismiss her.3 The defendants
moved for summary judgment, asserting, inter alia, that there
is no genuine issue of material fact because there is no
evidence linking Scott to NTC's decision to dismiss Randall.
In response to the defendants' motion, Randall points to:
(1) the temporal proximity of her dismissal and her
deposition testimony; (2) the importance of Scott as a
customer to NTC, accounting for approximately 15% of NTC's
business; (3) the fact that she was sent to Scott facilities
only once or twice during her sixteen months at NTC; (4) a
contract between NTC and Scott (the "Service Agreement") in
which Scott retains the right to reject any NTC employees
sent to perform work at Scott facilities; (5) her favorable
performance evaluation at NTC relative to another laid-off
employee who was subsequently rehired; and (6) statements
allegedly made by Randall's supervisor at NTC, James
Guzelian, which Randall claims strongly support the inference
that Scott was behind her dismissal.
We review a grant of summary judgment de novo,
drawing all reasonable inferences in favor of the nonmovant.
3. Thus, Randall essentially claims that Scott "blacklisted"
her with NTC's cooperation. Scott does not argue that a
blacklisting claim against a former employer is not
actionable under 42 U.S.C. 2000e-3(a). See, e.g.,
Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1163-
65 (10th Cir. 1977) (holding that former employer's negative
reference because of Title VII lawsuit constituted actionable
retaliation under 2000e-3(a)).
-4-
4
LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.
1993), cert. denied, 114 S. Ct. 1398 (1994). Summary
judgment is appropriate only when the moving party
demonstrates 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." Fed. R. Civ. P. 56(c). When
the nonmovant bears the burden of persuasion at trial,
however, she can avoid summary judgment against her only if
she makes a showing sufficient to establish the existence of
each essential element to her case. Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). Thus, to get to trial,
the burden-bearing nonmovant must adduce enough competent
evidence to enable a reasonable jury to find for her on each
element essential to her claim. See LeBlanc, 6 F.3d at 842.
The alleged Guzelian statements are contained in
two affidavits: Randall's and that of Ann Peoples, a former
Scott employee. Randall states in her affidavit: (1) About
a month after she started working for NTC, Guzelian told her
that he had heard about her complaint against Scott, that
"someone" in Scott's purchasing department had mentioned it
to him but had told him that it should not be a problem. (2)
When Randall asked Guzelian when she was going to be sent to
do work at S.D. Warren facilities, "[h]e told me that Rick
LaCouture (another NTC employee) had heard that I wasn't
welcome at S.D. Warren, so he was going to . . . see if he
-5-
5
could find out anything about what Rick had said." (3) On
another occasion, Guzelian told Randall that "he had been
told" by a safety supervisor at a Scott facility that
"someone had noticed" Randall's name and that "someone
thought that it was o.k." for her to work at certain Scott
facilities but not at others located too near to the
Westbrook facility where Randall had once worked. Guzelian
also asked Randall during this conversation if she "wouldn't
. . . be better off just dropping" her lawsuit against Scott.
In her affidavit, Peoples claims that in the course
of a conversation with Guzelian concerning her own prospects
for employment at NTC, Guzelian told her that Randall "had a
problem" with Scott "because `we really can't send her over
there' or words to that effect."
The district court ruled all of the alleged
Guzelian statements4 inadmissible hearsay. Randall now
appeals, arguing that NTC was an agent of Scott, at least for
the limited purpose of retaliating against Randall.
Guzelian's statements are therefore admissible, Randall
argues, under Fed. R. Evid. 801(d)(2)(D), which provides that
"a statement by the party's agent or servant concerning a
4. In his deposition, Guzelian denies that anyone at Scott
or S.D. Warren ever exerted pressure to prevent Randall from
working at its facilities or to force NTC to dismiss her
entirely. NTC president Steven Broadhead made similar
denials in his deposition. In fact, Broadhead stated in his
deposition that Scott had never invoked its right under the
Service Agreement to reject any NTC employees.
-6-
6
matter within the scope of the agency or employment" is not
hearsay. Proof of this principal-agent relationship, Randall
asserts, is contained in a clause in the contract between NTC
and Scott that grants Scott veto power over employees NTC
wishes to send to Scott facilities, and in the alleged
Guzelian statements themselves.
We need not resolve the question of whether
Randall's agency argument propels the Guzelian statements
over the apparent hearsay and double-hearsay hurdles. Even
if the Guzelian statements were admissible, Randall's
proffered assemblage of evidence would not get her to trial.
A rational factfinder simply could not conclude from the
summary judgment record that Randall had satisfied her
ultimate burden of proving that Scott retaliated against her
because of her lawsuit.5 Randall's proffered evidence
implicates Scott only by virtue of an inferential giant step.
While Randall perhaps has mustered some evidence suggesting
5. We assume arguendo that Randall satisfied her prima facie
burden. See Petitti v. New England Tel. & Tel. Co., 909 F.2d
28, 33 (1st Cir. 1990). Scott has "adopted" NTC's non-
discriminatory justifications for the alleged adverse
employment actions -- that is, the need to send Randall to
non-Scott facilities for training and the unavailability of
work resulting in her ultimate layoff. Once the defendant
has met his burden of production, the presumption of
retaliation raised by the plaintiff's prima facie case
dissolves, and we simply look to the entire summary judgment
record to assess whether the plaintiff has met her ultimate
burden of proving that the defendant's proffered reason is a
pretext for retaliation. See Mesnick v. General Elec. Co.,
950 F.2d 816, 823 (1st Cir. 1991), cert. denied, 112 S. Ct.
2965 (1992).
-7-
7
that NTC took action against her because she persisted in her
lawsuit against Scott, an important NTC customer, she has not
offered sufficient evidence to enable a rational factfinder
to conclude that Scott instructed NTC to keep her away from
its facilities or to lay her off because of her lawsuit.
Rather than implicating Scott, the first Guzelian
statement contained in Randall's deposition actually cuts
against her argument, since it suggests that Scott had no
problem with her work for NTC. The second and third Guzelian
statements in Randall's affidavit might indicate that
"someone" at Scott thought that Randall should not work at
certain Scott facilities for unspecified reasons, but there
is no indication, or even an allegation, that these
statements came from anyone with the authority to bind Scott.
See Smith v. Stratus Computer, Inc., 40 F.3d 11, 18 (1st Cir.
1994) (holding that plaintiff's failure to adduce evidence
that maker of statement made or influenced personnel decision
rendered comment irrelevant to issue of discriminatory
animus). The inferential leap from these anonymous
statements to the conclusion that someone with authority at
Scott must have ordered NTC to keep her away from certain
Scott facilities and ultimately fire her -- or that the
motivation behind these "orders" was Randall's sex
discrimination lawsuit -- is far too great for any reasonable
factfinder to undertake. The Guzelian statement contained in
-8-
8
Peoples' affidavit provides Randall's complaint with no
additional sustenance; it, too, fails to link Scott to NTC's
decision to lay her off, suggesting only that Guzelian was
uncomfortable sending Randall to Scott facilities.
Nor do any of the other factors that Randall points
to -- e.g., Scott's importance to NTC as a customer and
Scott's veto power under the Service Agreement -- bolster her
case sufficiently to get her to trial. None of these factors
could possibly support a reasonable inference that Scott
retaliated against Randall and caused the adverse employment
actions she suffered at NTC. Thus, Randall has failed to
adduce sufficient evidence to meet her burden at trial, and
the defendants are therefore entitled to judgment as a matter
of law.
Affirmed. Costs to Appellees.
Affirmed. Costs to Appellees.
-9-
9