UNITED STATES COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
No. 96-1609
MARYANN E. LAWTON,
Plaintiff, Appellant,
v.
STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Selya, Circuit Judge,
Aldrich, Senior Circuit Judge,
and Boudin, Circuit Judge.
Roy A. Bourgeois, with whom Nadia R. Totino Beard and
Bourgeois, Dresser & White were on brief, for appellant.
Neil Jacobs, with whom Daniel W. McCarthy and Hale and Dorr
were on brief, for appellee.
December 2, 1996
SELYA, Circuit Judge. Plaintiff-appellant Maryann E.
SELYA, Circuit Judge.
Lawton alleges that her former employer, defendant-appellee State
Mutual Life Assurance Company of America, discriminated against
her on account of her gender, in violation of both federal and
state law. See 42 U.S.C. 2000e-5 (1994); Mass. Gen. L. ch.
151B, 4(1) (1996). The district court granted summary judgment
in the employer's favor. See Lawton v. State Mut. Life Assur.
Co., 924 F. Supp. 331 (D. Mass. 1996). Lawton appeals.
We have long proclaimed that when a lower court
produces a comprehensive, well-reasoned decision, an appellate
court should refrain from writing at length to no other end than
to hear its own words resonate. See, e.g., Ayala v. Union de
Tronquistas, 74 F.3d 344, 345 (1st Cir. 1996); In re San Juan
Dupont Plaza Hotel Fire Litig., 989 F.2d 36, 38 (1st Cir. 1993).
Today, we practice what we preach: having read the record and
the parties' briefs with care, we affirm the judgment for
substantially the reasons elucidated in the opinion below. We
add only a few comments.
First: The plaintiff claims that her dismissal on
First:
August 23, 1991, after more than four years in State Mutual's
employ, constituted a discriminatory act. In order to prevail on
such a claim in an abolition-of-position case here, the
defendant contends that its business plan changed, rendering the
management post that Lawton occupied anachronistic an ousted
employee must adduce some proof that the employer did not treat
gender neutrally in arriving at the challenged employment
2
decision. See Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 479
(1st Cir. 1993); Holt v. Gamewell Corp., 797 F.2d 36, 37-38 (1st
Cir. 1986). The district court determined that the summary
judgment record in this case affords no such substantiation. See
Lawton, 924 F. Supp. at 345. The plaintiff disputes this
assessment, primarily on the basis that "the sworn testimony of a
highly qualified and experienced expert [statistician]" supplies
the missing link.
This argument confuses prunes with pomegranates.
Assuming, arguendo, that the statistician's affidavit is
probative at all,1 it proves only that men, on average, earn more
in the defendant's employ than women, and that men, on average,
are more likely to be promoted than women. Even if these
aspersions are taken as true (and, thus, cast certain of the
defendant's employment practices into disrepute), salary level
discrimination, in and of itself, is not probative of
discrimination in layoffs. Indeed, a coldly calculating employer
might well seek to dismiss its higher-paid employees while
retaining their lower-paid counterparts. Therefore, the court
did not err in granting summary judgment on the abolition-of-
position claim.
Second: Prior to filing a Title VII action in a
Second:
federal district court, a plaintiff must exhaust her
administrative remedies. Tight time limits constrain this
1State Mutual hotly contests not only the expert's
conclusions, but also his methodology and the adequacy of his
data base. We need not resolve this contretemps.
3
protocol. Lawton worked in Massachusetts, and Massachusetts is a
so-called "deferral jurisdiction" the commonwealth has its own
civil rights statute and agency so exhaustion depends on the
filing of a charge with the Equal Employment Opportunity
Commission within 300 days of the purported discriminatory act.
See 42 U.S.C. 2000e-5(3) (1994); see also Mack v. Great Atl. &
Pac. Tea Co., 871 F.2d 179, 181-82 (1st Cir. 1989) (describing
operation of statutory scheme). Under state law, the timetable
is even more compressed. See Mass. Gen. L. ch. 151B, 5 (1996)
(providing that an administrative complaint must be filed within
six months after the alleged discriminatory act occurs).
In this case the plaintiff contends that, in addition
to unlawfully cashiering her, the defendant also refused to
promote her on several occasions due to her gender. She filed an
administrative complaint attacking both the discharge and the
failure to promote on February 17, 1992. The first of the
withheld promotions took place in 1987, and the other two
occurred in 1990.2 Since all the promotions transpired prior to
April 24, 1991, more than 300 days elapsed between the last of
them and the date of the administrative filing. Thus, they all
fell outside the applicable limitations period.
The plaintiff tries to detour around this temporal
2The plaintiff makes a halfhearted effort to implicate a
fourth (more recent) promotion but, as the district court pointed
out, her belated reliance on this incident involving a
promotion for which she never applied came too late because,
among other things, she never included any reference to it in her
administrative complaint. See Lawton, 924 F. Supp. at 338 n.6.
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barrier. She clings to the notion that her case presents a
"continuing violation," thereby allowing her to reach back beyond
the normal limitations period to the earlier promotions. See,
e.g., Sabree v. United Bhd. of Carpenters and Joiners, 921 F.2d
396, 400 (1st Cir. 1990) (explicating continuing violation
theory); Jensen v. Frank, 912 F.2d 517, 522 (1st Cir. 1990)
(same); Mack, 871 F.2d at 182-83 (same). The district court
acknowledged the legitimacy of the continuing violation theory,
but found it inapplicable to Lawton's circumstances. Lawton, 924
F. Supp. at 339-40. We agree.
In general, continuing violations arise in one of two
incarnations. The first incarnation encompasses serial
violations, that is, violations which comprise a number of
discriminatory acts emanating from the same discriminatory
animus, each of which constitutes a separate wrong actionable
under Title VII. See Jensen, 912 F.2d at 522; Mack, 871 F.2d at
183. To give purchase to this type of continuing violation, at
least one act in the series must have occurred within the
limitations period. See Mack, 871 F.2d at 183.
Lawton cannot clear this hurdle: as we already have
indicated, the foregone promotions all occurred more than 300
days before she initiated agency-level proceedings. Her firing
(which took place within the 300-day period) does not fill the
void: that act is of a wholly different character, and,
moreover, it has not been traced to any discriminatory animus.
See supra. Common sense teaches that a plaintiff cannot
5
resuscitate time-barred acts, said to be discriminatory, by the
simple expedient of linking them to a non-identical, non-
discriminatory, non-time-barred act.
The other method by which a plaintiff can establish a
continuing violation is by demonstrating the existence of a
systemic violation. "A systemic violation has its roots in a
discriminatory policy or practice; so long as the policy or
practice itself continues into the limitation period, a
challenger may be deemed to have filed a timely complaint."
Jensen, 912 F.2d at 523. Lawton asserts that she meets this
criterion, and that, therefore, her claim is not pretermitted.
This assertion cannot withstand scrutiny.
First and foremost, the plaintiff never articulated any
particular discriminatory policy or practice in the district
court. In the absence of such an articulation, her systemic
violation claim fails. See Mack, 871 F.2d at 184 (describing the
plaintiff's burden to demonstrate that "a discernible
discriminatory policy was in effect, and injured her, during the
limitations period"). The generalized references made by the
plaintiff in the lower court were patently insufficient to
satisfy the applicable standard.
Confronted with this omission at oral argument before
us, the plaintiff's attorney, in what amounts to confession and
attempted avoidance, defined the alleged discriminatory policy as
"the practice of not open-posting those jobs which are gateways
into the mainstream career path [at State Mutual], with the
6
result that those are reserved for the domain of men making
decisions about men." This rhetorical flourish comes too late,
for the plaintiff did not enunciate the supposed policy in the
proceedings below (administrative or judicial). No precept is
more firmly settled in this circuit than that theories not
squarely raised and seasonably propounded before the trial court
cannot rewardingly be advanced on appeal.3 See, e.g., Teamsters,
Chauffers, Warehousemen & Helpers Union, Local No. 59 v.
Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992); McCoy v.
Massachusetts Inst. of Tech., 950 F.2d 13, 22 (1st Cir. 1991),
cert. denied, 504 U.S. 910 (1992).
In all events, the late-blooming articulation offers
too little substance; the stated policy, even if fully
considered, would not support the weight of Lawton's case. The
record is devoid both of evidence that might explicate the
parameters of the policy (e.g., there is no proof as to which
positions are "gateways" or how one might distinguish "mainstream
career paths"), and of evidence that might show the continued
existence of the policy during the limitations period. What is
more, there is no evidence that Lawton herself was injured by any
such policy during the 300 days preceding her initiation of
administrative proceedings. Consequently, she has not
established the kind of systemic violation which would permit her
to evade the time bar that blocks her path.
3For that matter, the plaintiff did not enunciate the policy
in her appellate briefs. This, too, is a disqualifying factor.
See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).
7
Third: The plaintiff's fallback position is that the
Third:
district court acted precipitously. She asseverates that her
claims should not have been adjudicated on summary judgment, but,
at the very least, ought to have gone to trial. This
asseveration lacks merit.
The proper province of summary judgment "is to pierce
the boilerplate of the pleadings and assay the parties' proof in
order to determine whether trial is actually required." Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992),
cert. denied, 507 U.S. 1030 (1993). Though the district court
must "interpret the record in the light most hospitable to the
nonmoving party, reconciling all competing inferences in that
party's favor," McIntosh v. Antonino, 71 F.3d 29, 33 (1st Cir.
1995), the nonmovant has a corresponding obligation to offer the
court more than steamy rhetoric and bare conclusions. See id.;
see also Morris v. Government Dev. Bank, 27 F.3d 746, 748 (1st
Cir. 1994); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d
5, 7-8 (1st Cir. 1990). This principle is accentuated where, as
here, a Rule 56 motion targets an issue on which the nonmoving
party must carry the devoir of persuasion. In that setting, the
nonmovant must "produce specific facts, in suitable evidentiary
form," sufficient to limn a trialworthy issue. Morris, 27 F.3d
at 748. Failure to do so allows the summary judgment engine to
operate at full throttle. See, e.g., Kelly v. United States, 924
F.2d 355, 358 (1st Cir. 1991) (warning that "the decision to sit
idly by and allow the summary judgment proponent to configure the
8
record is likely to prove fraught with consequence").
The district court faithfully applied these tenets in
determining that no genuine issue of material fact loomed in
respect to either the abolition-of-position or failure-to-promote
claims. Although Lawton labors to show discrepancies here and
there, "genuineness and materiality are not infinitely elastic
euphemisms that may be stretched to fit whatever pererrations
catch a litigant's fancy." Blackie v. State of Me., 75 F.3d 716,
721 (1st Cir. 1996). On the key factual issue related to her
ouster the presence or absence of the requisite discriminatory
intent the probative evidence points in only one direction. A
factfinder, drawing reasonable inferences from the nisi prius
roll, could not conclude without undue speculation that the
defendant acted from a gender-based animus in eliminating the
plaintiff's job. Thus, brevis disposition was appropriate on
that issue. See Medina-Munoz, 896 F.2d at 8 (explaining that
summary judgment may be granted on "intent" issues). So, too,
with the promotion-related claims; questions dealing with the
applicability and effect of the passage of time on particular
sets of facts often are appropriately disposed of at the summary
judgment stage, see, e.g., Rivera-Muriente v. Agosto-Alicea, 959
F.2d 349, 352 (1st Cir. 1992); Jensen, 912 F.2d at 520, and this
case fits snugly within that paradigm.4
4When a defendant moves for summary judgment based in part
on a plausible claim that the plaintiff's suit is outlawed by the
passage of time, "the onus of identifying a trialworthy issue
customarily falls on the plaintiff." McIntosh, 71 F.3d at 33.
Here, Lawton has not identified any such issue.
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Mindful of the district court's more exegetic treatment
of these, and other, matters, we need go no further.
Affirmed.
Affirmed.
10