Dodi v. The Putnam Companies

[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

No. 95-2266

KOFI DODI,

Plaintiff - Appellant,

v.

THE PUTNAM COMPANIES,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

Before

Torruella, Chief Judge,

Cyr and Boudin, Circuit Judges.

Kevin G. Powers, with whom Robert S. Mantell and Law Office

of Kevin G. Powers were on brief for appellant.

Ilene Robinson, with whom Louis A. Rodriques, Katherine J.

Ross and Sullivan & Worcester LLP were on brief for appellee.

August 28, 1996

Per Curiam. Appellant-defendant Kofi Dodi ("Dodi")
Per Curiam.

appeals the district court's decision granting defendant-

appellant The Putnam Companies ("Putnam") summary judgment. Dodi

had filed suit under Title VII of the Civil Rights Act of 1964,

42 U.S.C. 2000e-3(a), and Mass. Gen. L. ch. 151B alleging

discrimination on account of his race and national origin and/or

retaliation for filing a charge with the Massachusetts Commission

Against Discrimination ("MCAD"). The two issues before us are

whether the court below abused its discretion in striking Dodi's

two affidavits and portions of his Opposition to Summary

Judgment; and whether it erred in granting the summary judgment.

For the reasons stated herein, we affirm.

BACKGROUND
BACKGROUND

We recite the following facts, drawn from the district

court Memorandum and Order, in the light most favorable to the

nonmovant. Equal Employment Opportunity Comm'n v. Green, 76 F.3d

19, 21 (1st Cir. 1996). Dodi is a United States citizen who was

born in Ghana and is black. He began working for Putnam in 1984,

and by 1987 was part of the Tax and Compliance unit. In December

1989 or January 1990, the department was reorganized. A white

female, Michelle Whalen ("Whalen"), was appointed Manager of the

Tax and Compliance unit, a position Dodi desired, and which title

he maintains was his prior to the reorganization and Whalen's

appointment. Dodi complained to several individuals, including

Robert Lucey, President of Putnam Investor Services. After he

complained, Dodi was made the IRS Technical Manager: he contends

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that his appointment was an effective demotion, while Putnam

labels it a lateral move.

In May 1990, Dodi filed a charge with MCAD alleging

that he was demoted and denied promotion on account of his race

and national origin. After he filed the charge, his rating in

his performance reviews declined -- his rating dropped to

"unsatisfactory" -- and the reviews suggested increased hostility

between Dodi and his supervisors. Dodi contends that he was

excluded from meetings and isolated from the department because

of the complaint. Putnam fired Dodi in March 1991, roughly ten

months after the filing of the MCAD complaint. He filed a second

complaint in June 1991, alleging that he was terminated because

of his race and national origin, or in retaliation for filing the

1990 complaint, or both.

MCAD dismissed the two complaints in December 1992, for

lack of probable cause, a decision it affirmed in January of

1993. Dodi filed a civil action in Massachusetts Superior Court,

which Putnam removed to the Federal District Court. The parties

made discovery requests and took depositions. Putnam filed a

motion for summary judgment, which Dodi opposed. In June 1995,

Putnam moved to strike portions of Dodi's Opposition to Summary

Judgment (the "Opposition"). Dodi's opposition to the motion to

strike contained an affidavit (the "first affidavit") with

attachments. At a hearing in July 1995, the district court

granted Putnam's motion to strike portions of Dodi's Opposition,

and struck the first affidavit on its own initiative. It granted

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Dodi's request for permission to submit supplemental information

in support of the stricken statements in the Opposition. In late

July Dodi filed a supplemental submission in opposition to

Putnam's motion to strike, including another affidavit (the

"second affidavit"). In August, Putnam moved to strike the

second affidavit, and in October 1995, the district court granted

Putnam's motion for summary judgment and its motion to strike the

second affidavit. This appeal ensued.

STRICKEN SUBMISSIONS
STRICKEN SUBMISSIONS

We begin with Dodi's argument that the district court

erred in striking the affidavits and his Opposition since, if

they were admissible, they would form part of the record on which

the summary judgment would be evaluated. See Fed. R. Civ. P.

56(c). We review the district court's decision to strike for

abuse of discretion. See Green, 76 F.3d at 23 ("The district

court has broad authority to prescribe the evidentiary materials

it will consider in deciding a motion for summary judgment.");

see also Ramsdell v. Brooks, 64 F.3d 5, 8 (1st Cir. 1995), cert.

denied sub nom. Ramsdell v. Machias Savings Bank, U.S. , 116

S. Ct. 913 (1996); New England Anti-Vivisection Soc. v. U.S.

Surgical Corp., 889 F.2d 1198, 1204 (1st Cir. 1989).

Under the Federal Rules of Civil Procedure, affidavits

"shall be made on personal knowledge, set forth such facts as

would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated

therein." Fed. R. Civ. P. 56(e). Accordingly, if the affidavits

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and Opposition Dodi submitted did not meet these criteria, the

district court can hardly have abused its discretion in striking

them. Cf. Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399,

401 (1st Cir. 1988) (affirming that affidavit which does not meet

the Rule 56 specificity requirement is insufficient to establish

a genuine issue for trial); FDIC v. Rold n Fonseca, 795 F.2d

1102, 1110 (1st Cir. 1986) (holding that where receipts submitted

to support opposition to summary judgment constituted

inadmissible hearsay, party failed to comply with Rule 56(e)).

Having briefly set out our standard of review and the

relevant legal framework, we turn to the particulars of Dodi's

argument. As the parties have addressed the stricken documents

according to subject, we follow suit.1

Imitation of Dodi's Accent: The district court struck

Dodi's statement in his Opposition that William McGue, Putnam's

Managing Director, and Robert Frazer, a white manager, "made fun

of Dodi's accent, and imitated him at meetings and during casual

conversations." Dodi seeks to rely on a paragraph from his

second affidavit in support of his assertion. We do not find

that the district court abused its discretion in striking either

1 In the course of his argument, Dodi several times invites this
court to review his affidavits as a whole to determine whether
they should have been struck and whether there is admissible
evidence included in them. He does not, however, attempt to cull
out the admissible portions or cite any authority. We find,
therefore, that except for the portions he specifically
discusses, he has waived his argument that the affidavits as a
whole are admissible, as arguments made perfunctorily on appeal
with no developed argument or support are deemed waived. See

United States v. Zannino, 895 F.2d 1, 17 (1st Cir.), cert.

denied, 494 U.S. 1082 (1990).

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the statement from the Opposition or the paragraph in the second

affidavit. The statements in the paragraph are conclusory and

lack specificity. Moreover, even if it were error to exclude the

evidence, it would be harmless, for the imitation does not

support Dodi's claim of retaliation, and as discussed below, that

is the only cause of action remaining on appeal.

Merit Raises: The district court struck Dodi's

statement in the Opposition that he "received raises based on

merit," on the basis that there was nothing in the record as to

what "merit" meant, or how and on what basis such raises were

given. Dodi claims that statements from the stricken second

affidavit provide such verified information. He also points to a

computer printout entitled "Salary, Increase & Performance

History Screen" which the district court struck as part of the

first affidavit, as well as a memorandum sent to him from James

Swinney, a Senior Vice President, dated January 2, 1990. We find

that the district court did not abuse its discretion in striking

these documents.

Dodi claims that all three meet the requirements to be

a business record exception to the hearsay rule. The

requirements for the exception are clear: a "memorandum, report,

record or data compilation, in any form" is admissible so long as

it is

made at or near the time by, or from
information transmitted by, a person with
knowledge, if kept in the course of a
regularly conducted business activity,
and if it was the regular practice of
that business activity to make the

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memorandum, report, record, or data
compilation, all as shown by the
testimony of the custodian or other
qualified witness . . . .

Fed. R. Evid. 803(6); see, e.g., E.E.O.C. v. Alton Packaging

Corp., 901 F.2d 920, 926 (11th Cir. 1990). Dodi has not provided

the required foundation for these three documents. First, Dodi

misunderstands the application of the rule, which applies to

memoranda, reports, and record or data compilation, not oral

statements, in claiming that it covers oral statements made to

him and mentioned in the second affidavit. Second, as for the

computer printout, Dodi's statement that in his experience, "such

documents are routinely generated by Defendant in the ordinary

course of its business" falls far short of laying out the

foundation Rule 803(6) requires. That it was provided to Dodi in

discovery does not save it. Third, Dodi has also failed to lay

out the foundation for the memorandum from Swinney: although he

says he received it in the normal course of business on January

2, 1990, and that it was generated and maintained in the ordinary

course of business, we agree with Putnam that there is no support

for these claims.

Dodi faces similar foundational issues with his claim

that the documents are also admissible as party admissions under

Fed. R. Evid. 801(d)(2)(D). He has, to put it briefly, failed to

show that the statements he cites to were made by Putnam's "agent

or servant concerning a matter within the scope of the agency or

employment, made during the existence of the relationship." Fed.

R. Evid. 801(d)(2)(D). Mere assertion that they were so made

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does not suffice.

Even if some of these statements had been admissible,

however, the court still would not have abused its discretion

since, as Dodi notes in his brief, the court based its decision

in part on the fact that there was no basis in the record as to

what "merit" meant. In the cited portion of his second

affidavit, Dodi notes that instructors from the human resources

training department told him that "the Putnam policy was to give

merit raises as a reward for satisfactory performance by

employees." This statement is clearly not admissible under the

business record exception, as he claims, since it was an oral

statement. Fed. R. Evid. 803(6) (applicable to "[a] memorandum,

report, record, or data compilation"). Nor is it a party

admission, since he has not addressed the foundational

requirements laid out in the rule itself.

EEO-1 Report: Next Dodi argues that the district court

erred in striking a 1993 EEO-1 report of Putnam, and the

corresponding portion of the first affidavit, which he claims

evidences that he reasonably believed that race discrimination

existed. In his support he notes that the report was provided in

discovery, that Putnam is required by law to produce such reports

(Dodi does not specify what law), and that it is a true and

accurate copy of the document Putnam provided Dodi. We fail to

see how the fact that a document was presented in discovery

suffices to authenticate the document or lay the foundational

requirements of Rule 803(6) or Rule 801(d)(2)(D). At any rate,

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even if the district court erred, it would have been harmless

error, since, as Dodi notes, this evidence goes to his prejudice

claim, not his retaliation cause of action, which is his sole

remaining cause of action.

Swinney Memorandum: Dodi submitted a memorandum he

wrote to Swinney, dated December 26, 1989, to show that he had

complained about his treatment, in connection with his race

discrimination claim. The district court struck the memorandum

on hearsay grounds; we agree that the necessary foundation was

missing. Dodi's citation of the fact that Putnam is required to

generate and maintain a personnel file on its employees does not

substitute for the witness testimony required to lay a

foundation. Fed. R. Evid. 803(6). However, Dodi also notes that

the memorandum is being used, in part, not to prove the truth of

the matters asserted, but to demonstrate that Dodi complained of

the subjectivity of his performance evaluations, in the context

of opposition to perceived race discrimination. But this is a

distinction without a difference, since there is no dispute that

Dodi protested against perceived racism at Putnam. Nonetheless,

because Swinney was involved in Dodi's termination and thus

Dodi's retaliation claim, we shall consider the memorandum for

this limited purpose in our review of the district court's grant

of summary judgment.

$10,000 Pay Disparity: Dodi next contests the district

court's decision to strike a series of statements which alleged

that for several years Dodi was paid a salary well below that of

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white individuals, until he complained. The court struck the

statements as conclusory. Having reviewed the cited deposition

pages and statements from the second affidavit, we find no abuse

of discretion in the ruling. Indeed, we agree with Putnam that

Dodi's deposition does not support the premise that he perceived

it as a race-based discrepancy in wages, but rather that

allegation seems to arise only after the motion for summary

judgment has appeared on the horizon. See Colantuoni v. Alfred

Calcagni & Sons, Inc., 44 F.3d 1, 45 (1st Cir. 1994) ("When an

interested witness has given clear answers to unambiguous

questions, he cannot create a conflict and resist summary

judgment with an affidavit that is clearly contradictory, but

does not give a satisfactory explanation of why the testimony has

changed."). Further, any error would be harmless, as the

evidence of a pay disparity does not tend to prove retaliatory

action, but rather goes to the discrimination claim waived on

appeal.

Qualifications of Michelle Whalen: Dodi contests the

district court's decision to strike portions of statements

alleging that although Whalen was given a higher position than

Dodi, she was less qualified for the position than Dodi. The

cited deposition pages offer no evidence other than it was Dodi's

belief that Whalen was less qualified, and inadmissible hearsay

that she was management's choice. Dodi now points to excerpts

from Whalen's personnel file and the job description, which have

not been stricken, to support his position; Putnam in turn points

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out that the promotion was based on managerial abilities, not

just narrow technical expertise, and that Dodi fell far short of

Whalen in the former category, even if he surpassed her in the

latter.

We need not address this debate, for even if the

district court erred in striking the statements, the error was

harmless. First, the evidence of whether Whalen was more or less

qualified than Dodi goes to the waived discrimination claim, and

not to the retaliation claim discussed below. Second, we remind

Dodi of our repeated holding that "[c]ourts may not sit as super

personnel departments, assessing the merits -- or even the

rationality -- of employers' nondiscriminatory business

decisions." Mesnick v. General Elec. Co., 950 F.2d 816, 835 (1st

Cir. 1991), cert. denied, 504 U.S. 985 (1992); see also Hoeppner

v. Crotched Mountain Rehabilitation Ctr., 31 F.3d 9, 17 (1st Cir.

1994).

Bresnahan Memorandum: Dodi seeks to admit a memorandum

sent from Leslee Bresnahan to Ray Lambert. However, once again,

the fact that Putnam provided the document to Dodi in discovery

does not establish its authenticity, and the fact that Putnam is

required to generate and maintain a personnel file, providing

employees a copy of it on demand, does not fulfill the

foundational requirements of either Rule 801(d)(2)(D) or Rule

803(6), as simply set out in those rules. The district court did

not abuse its discretion in striking the memorandum.

Pattern of Isolation: In his Opposition, Dodi claims

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that after he complained about the reorganization, Jeff Levering,

to whom Dodi was supposed to report, "altered his behavior

towards Dodi, . . . no longer said positive things about Dodi's

job performance, and . . . avoided talking with Dodi." He also

alleges that he was ostracized, kept out of meetings, and that

his co-workers "ceased interacting" with him. The district court

struck the opinions as opinion and characterizations. Our review

of the cited pages from Dodi's depositions and the second

affidavit yields no grounds to find the district court abused its

discretion in striking the statements. Dodi does not give

specific incidents, place them in time, or give a yardstick by

which to measure either the timeliness of his reviews or their

content -- indeed, while he repeatedly discusses the supposed

content of Levering's weekly status reports, he never actually

refers to one.

Failure to Provide Staff: Dodi challenges the district

court's decision to strike from the Opposition the statement that

Putnam "failed to give Dodi the permanent staff he requested."

We find no abuse of discretion here, as Dodi cited no support for

the statement in his Opposition. See Garside v. Osco Drug, Inc.,

895 F.2d 46, 49 (1st Cir. 1990). Indeed, we agree with Putnam

that, even if admitted as within Dodi's personal knowledge, Fed.

R. Civ. P. 56(e), at best this statement can show only that Dodi

did not get all the resources he requested: Dodi points to no

evidence regarding Putnam's treatment of analogous request made

by non-minority employees, or employees who had not filed MCAD

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complaints, besides his own assertion that "other departments

under McGue" were fully staffed.

Other stricken statements: The district court properly

struck the statement that McGue "failed to provide Dodi the

supplies and materials necessary" to become more visible within

the organization, as instructed. The cited deposition pages

offer no admissible support for the proposition, and the passage

he cites from the second affidavit constitutes argument and

hearsay. Again, however, we note that even if admitted, the

statement would at most have shown that Dodi did not get all the

supplies he requested, since he does not point to evidence of the

treatment of other, non-minority or non-complaining employees.

Merely pointing out that other departments received printers or

the like tells us very little.

Finally, Dodi objects to the striking of four

statements to the effect that after he made his complaint his

work was reviewed in a less timely manner, he stopped receiving

positive feedback or necessary information, and other employees

received instructions to keep tabs on his actions and note

everything he did. After review of the cited passages from his

deposition and the second affidavit, we find that the district

court did not abuse its discretion in striking the passages.

SUMMARY JUDGMENT
SUMMARY JUDGMENT

Dodi references his cause of action for termination due

to race or national origin in his statement of issues, but makes

no more than the most cursory reference to it in his brief, and

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makes no attempt at a developed argument that the district court

erred in granting summary judgment on the claim. Accordingly, we

deem it waived, Zannino, 895 F.2d at 17, and only consider his

argument that the district court erred in granting summary

judgment on his claim that he was retaliated against because of

his opposition to discrimination.

"We review a grant of summary judgment de novo and are

guided by the same criteria as the district court; a grant of

summary judgment cannot stand on appeal 'unless the record

discloses no trialworthy issue of material fact and the moving

party is entitled to judgment as a matter of law.'" Green, 76

F.3d at 23, quoting Alexis v. McDonald's Restaurants of Mass.,

Inc., 67 F.3d 341, 346 (1st Cir. 1995). We note that "our review

will be most searching in cases, such as this, that turn upon the

issue of motivation or intent." Rossy v. Roche Prods., Inc., 880

F.2d 621, 624 (1st Cir. 1989).

We apply the McDonnell Douglas framework to Dodi's

retaliation claim. See McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973); Oliver v. Digital Equip. Corp., 846 F.2d 103, 10

(1st Cir. 1988). First, Dodi must establish a prima facie case

by showing that:

(1) [he] engaged in a protected activity
as an employee, (2) [he] was subsequently
discharged from employment, and (3) there
was a causal connection between the
protected activity and the discharge.

Hoeppner, 31 F.3d at 14. Under Massachusetts law, the framework

is slightly different. To succeed,

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the plaintiff must prove that she
reasonably and in good faith believed
that [Putnam] was engaged in wrongful
discrimination, that [he] acted
reasonably in response to [his] belief,
and that [Putnam's] desire to retaliate
against [him] was a determinative factor
in its decision to terminate [his]
employment.

Tate v. Department of Mental Health, 645 N.E.2d 1159, 1165 (Mass.

1995).

Next, the burden shifts to Putnam to articulate a

legitimate, nondiscriminatory reason for the discharge. If it

does so, "in order to escape summary judgment under federal and

[Massachusetts] law, [Dodi] must at least introduce sufficient

evidence to permit the factfinder to infer that [Putnam's] stated

reason for the termination was pretextual."2 Grant v. News Group

Boston, Inc., 55 F.3d 1, 7 (1995); see, e.g., Hoeppner, 31 F.3d

at 14; LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842-43

(1st Cir. 1993), cert. denied, U.S. , 114 S. Ct. 1398

(1994); Blare v. Husky Injection Molding Sys., Boston, Inc., 646

N.E.2d 111, 117 (Mass. 1995).

The district court found that Dodi had not satisfied

the third element of the prima facie case. Assuming nonetheless

that Dodi could establish a prima facie case, it found that

2 Dodi argues that proof of pretext is not always required.
However, his reliance on Patterson v. McLean Credit Union, 491

U.S. 164, 187 (1989), for that proposition is misplaced, since
the cited passage notes that a petitioner can present a variety
of types of evidence to establish pretext, not that it need not
be established. Our case law offers no doubt that in retaliation
claims, the McDonnell Douglas analysis requires a showing of

pretext. See, e.g., Grant, 55 F.3d at 7; Greenberg v. Union Camp

Corp., 48 F.3d 22, 29 (1st Cir. 1995).

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Putnam easily cleared the hurdle of articulating a reason for the

dismissal -- that Dodi's work was viewed as sub-standard and that

he received poor performance reviews, suggesting missed deadlines

and poor communication between Dodi and his supervisors and his

staff. Thus the court moved to the third step of the analysis,

where it found that Dodi could not show that Putnam's asserted

reason was pretextual.

We also doubt that Dodi can make a prima facie case.

However, even assuming that Dodi could meet the prima facie

requirement, and acknowledging that Putnam has articulated a

reason for the dismissal, we find that Dodi cannot meet the third

requirement of the McDonnell Douglas analysis. Put simply, even

given the benefit of all inferences, he has not shown that

Putnam's asserted reason was false, much less that its real

motivation was retaliation. Like the district court before us,

we have found no evidence on this record which supports a finding

that his evaluations were inaccurate, or which reveals that Dodi

was treated differently than his non-minority or non-complaining

counterparts. See Wynne v. Tufts Univ. Sch. of Medicine, 976

F.2d 791, 796 (1st Cir. 1992) ("When pretext is at issue in a

discrimination case, it is a plaintiff's duty to produce specific

facts which, reasonably viewed, tend logically to undercut the

defendant's position."), cert. denied, 507 U.S. 1030 (1993).

Dodi makes much of the fact that McGue learned of

Dodi's MCAD complaint on the day he decided to terminate Dodi, at

a meeting in which McGue and Swinney -- who testified at his

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deposition that he was very angry about the claim -- discussed

Dodi's termination. We do not doubt that the timing of when the

relevant decision maker learned that a complaint was filed and

when the dismissal occurred can be demonstrative of retaliation.

See Oliver, 846 F.2d at 110. Indeed, the timing of the

discussion here weighs in favor of Dodi having made a prima facie

case. See Wyatt v. City of Boston, 35 F.3d 13, 16 (1st Cir.

1994) (finding that timing of employer's knowledge of protected

activity and dismissal helps establish a prima facie case);

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 202 (1st Cir.

1987) (same).

However, "[t]he filing of an MCAD complaint is not some

magic shield that insulates the employee from termination

regardless of the circumstances." District Court Memorandum and

Order, at 15. Dodi himself notes that the reference to his MCAD

claim was made "in passing." We fail to see how a passing

reference can suffice to show that Putnam's asserted reason for

firing Dodi was a pretext,3 especially as Dodi points to nothing

else of real substance in his support: the "history" of

retaliation he argues existed, as well as the alleged

inconsistencies in who claimed authority to fire him, and why, do

3 Dodi's reliance on College-Town, Division of Interco, Inc. v.

Massachusetts Comm'n Against Discrimination, 508 N.E.2d 587

(Mass. 1987), is misplaced. There, the reference to the
complaint was dramatically greater than here: the employee was
told "'Loretta, it has come to my attention that you are suing
College-Town. It's been done before. Here is your vacation,
your severance pay or whatever, and good luck. May I have your
badge?'" Id. at 590. The circumstances here in no way rise to

the level of these facts.

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little, if anything, to further his cause. "In this circuit, we

have always required not only 'minimally sufficient evidence of

pretext,' but evidence that overall reasonably supports a finding

of [retaliation]," and Dodi has not met that mark. LeBlanc, 6

F.3d at 842-43 (quoting Goldman v. First Nat'l Bank of Boston,

985 F.2d 1113, 1117 (1st Cir. 1993)).

CONCLUSION
CONCLUSION

For the foregoing reasons, the decision of the district

court granting Putnam summary judgment is affirmed.
affirmed

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