Grant v. News Group Boston, Inc.

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.

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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

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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

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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.

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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).

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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

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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.

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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

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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

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