Stonkus v. City of Brockton School Department

          United States Court of Appeals
                     For the First Circuit


No. 02-2223

                        FRANCES STONKUS,

                      Plaintiff, Appellant,

                               v.

      CITY OF BROCKTON SCHOOL DEPARTMENT; RICHARD E. ZOINO;
                        ANTONIO M. CABRAL,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Reginald C. Lindsay, U.S. District Judge]


                             Before

                      Lynch, Circuit Judge,
                  Stahl, Senior Circuit Judge,
                   and Howard, Circuit Judge.



     Michael M. Kramer on brief for appellant.
     Rebecca J. Wilson, Sandra P. Criss and Peabody & Arnold LLP,
on brief, for appellees.



                         March 14, 2003
           STAHL,     Senior     Circuit   Judge.       In    this   wrongful

termination case, plaintiff-appellant Frances Stonkus appeals from

the district court's grant of summary judgment to her former

employers, defendant-appellees City of Brockton School Department,

Brockton High School Science Department Head Antonio M. Cabral and

Brockton High     School   Housemaster     Richard   Zoino    (collectively,

"defendants").      We affirm.

I.         BACKGROUND

A.         Factual background

           The following facts are undisputed.1          Stonkus was hired

as a biology teacher at Brockton High School beginning September,

1994.    She was fifty-two years old at the date of hire.                 She

received satisfactory performance evaluations for her first two

years of teaching, and was twice reappointed for successive year-

long terms.

              On or about October 2, 1996, while teaching a biology

class, Stonkus and a male student engaged in a verbal exchange

about the male reproductive organ.            The student complained to

Zoino, who     conducted   an    investigation   into   the   matter.     The

investigation included interviewing several students from the class



     1
      Except where otherwise noted, we draw the factual background
from the defendants' Statement of Undisputed Material Facts in
Support of their Motion for Summary Judgment. As discussed in more
detail infra, these facts were properly deemed admitted in the
absence of opposition by Stonkus pursuant to the District of
Massachusetts Local Rule 56.1.

                                     -2-
and holding a conference with the student’s parents.             Cabral and

Zoino also observed Stonkus's classroom performance and concluded

that certain areas "needed improvement."

            On or about February 5, 1997, Stonkus filed a grievance

with the assistance of the Brockton Education Association alleging

that Zoino's handling of the student's complaint violated the terms

of an applicable collective bargaining agreement.          In May, 1997,

while the grievance process was still ongoing, Stonkus received

notification that she would not be rehired for the following school

year.     In August, 1997, Stonkus entered into a "Memorandum of

Agreement" with Brockton, in which it agreed to rehire Stonkus

without   tenure    for   the   1997-98   school   year.   The    Agreement

contained an explicit waiver of any and all claims Stonkus could

bring to challenge a decision the defendants might later make not

to reappoint Stonkus for the 1998-99 school year.

            Stonkus alleges in her complaint that following her

initial termination in May, 1997, Cabral hired two new female

teachers, aged 21 and 30.         Upon Stonkus’s return to teaching in

September, 1997, the classroom regularly assigned to her for the

past three years was given to one of the new hires.                 Stonkus

alleges that she was given as her space the corner of a small

project room.      According to her, as a result she had to use three

carts to move her materials from room to room each day.

            Stonkus's superiors found her teaching performance during


                                    -3-
the 1997-98 school year to be unsatisfactory, and she was not

rehired for the following school year.               In her complaint, Stonkus

alleges that she has not been able to secure other employment.                       In

her subsequent job search, she claims, two school systems advised

Stonkus that she was their first choice for a position as a science

teacher before      calling     Brockton       for   a   reference.         After   the

conversations with Brockton, Stonkus was not hired for either

position.    Later, the positions were re-advertised.

B.          Procedural history

            On February 2, 2001, Stonkus filed a complaint in the

Massachusetts Superior Court alleging violations of the state

constitution, the Massachusetts Civil Rights Act, and 42 U.S.C. §

1983; breach of contract, both express and implied; age and gender

discrimination in violation of Mass. Gen. Laws ch. 151B; wrongful

termination; defamation by Cabral; and intentional interference

with contractual relationships by Zoino.                  The defendants removed

this action to the United States District Court.

            On   July    18,    2001,    the    district        court   conducted     a

scheduling conference and ordered the completion of all discovery

by November 16, 2001, the filing of dispositive motions by April

19, 2002, and the filing of responsive pleadings by May 20, 2002.

In November, 2001, near the end of the discovery period, the

parties filed     a     Joint   Motion    to    Extend     the    Scheduling    Order

Deadline,   which     the   court   allowed.             This    provided    for    the


                                         -4-
completion of discovery by April 19, 2002, the filing of motions by

June 18, 2002, and the filing of responsive pleadings thirty days

thereafter.

          On June 18, 2002, the defendants filed a Motion for

Summary Judgment on all of the claims set forth in Stonkus's

complaint.     Stonkus failed to file an opposition.            On August 15,

2001, the District Court allowed the Summary Judgment Motion with

the following order: “The Plaintiff has filed no opposition to this

motion.      Based   on   the   undisputed   facts   as     presented   in   the

defendants’ papers, the defendants are entitled to judgment as a

matter of law on all claims.               Judgment shall enter for the

defendants accordingly.”        On August 19, 2002, judgment entered in

favor of the defendants on all counts.

             Stonkus filed a Motion for Relief from Judgment pursuant

to Fed. R. Civ. P. 60(b) and for Late Filing of Responsive

Pleading, which the defendants opposed.          The District Court denied

the motion, and Stonkus appealed.

II.          DISCUSSION

A.        Rule 60(b)(1) ruling

          Stonkus     contends     that    the   district    court   erred   in

refusing to allow her to belatedly file her opposition to the

defendants' motion for summary judgment. She maintains, on appeal,

that her failure to timely file was due to her counsel's confusion

over the filing deadlines and "frenetic activity to complete


                                     -5-
discovery," and that these circumstances constituted "excusable

neglect" warranting relief under Fed. R. Civ. P. 60(b)(1).2

          Rule 60(b)(1) provides, in relevant part:

          On motion and upon such terms as are just, the
          court may relieve a party or a party's legal
          representative from a final judgment, order,
          or proceeding for the following reasons: (1)
          mistake, inadvertence, surprise, or excusable
          neglect . . .. The motion shall be made within
          a reasonable time, and for reasons (1), (2),
          and (3) not more than one year after the
          judgment, order, or proceeding was entered or
          taken.

Motions brought under Rule 60(b) are committed to the district

court's sound discretion.   Torre v. Continental Ins. Co., 15 F.3d

12, 14 (1st Cir. 1994). Accordingly, we review orders denying such

motions only for abuse of discretion.   Id.   Because Rule 60(b) is

a vehicle for "extraordinary relief," motions invoking the rule

should be granted "only under exceptional circumstances."     Id. at

14-15 (quoting Lepore v. Vidockler, 792 F.2d 272, 274 (1st Cir.

1986)).


     2
      In the Motion for Relief from Judgment, Stonkus did not
specifically identify excusable neglect as a basis for her failure
to file an opposition; rather, she stated that "Plaintiff's counsel
believed that consent of the court would be necessary to allow for
consideration of [defendants' motion for summary judgment] filed
beyond the agreed-upon filing deadlines."         (This excuse is
unavailing, as the record indicates that in fact the summary
judgment motion was filed on the last day permitted by the amended
scheduling order.)     Accordingly, the defendants contend that
Stonkus should be precluded from asserting on appeal that she
failed to file an opposition for any other reasons. Because we
hold that in this case, Stonkus's excuses presented on appeal do
not compel reversing the district court, we do not address the
defendants' waiver argument.

                               -6-
               We   interpret   these   authorities       in   light   of   Pioneer

Investment Services Co. v. Brunswick Associates Ltd. Partnership,

507 U.S. 380 (1993), in which the Supreme Court explored the

meaning of excusable neglect in the context of a parallel provision

in the federal bankruptcy rules.3               Davila-Alvarez v. Escuela de

Medicina Universidad Central Del Caribe, 257 F.3d 58, 63 (1st Cir.

2001).       The Court held that "the determination is at bottom an

equitable       one,   taking   account    of    all     relevant   circumstances

surrounding the party's omission."                Pioneer, 507 U.S. at 395.

These       circumstances   include     "the    danger    of   prejudice    to   the

[nonmoving party], the length of the delay and its potential impact

on judicial proceedings, the reason for the delay, including

whether it was within the reasonable control of the movant, and

whether the movant acted in good faith."                 Id.

               Even under the flexible standard prescribed by Pioneer,

we see no abuse of discretion in the district court's decision

refusing to allow Stonkus to belatedly oppose the defendants'

motion for summary judgment. The stated reasons for the neglect --

confusion over filing dates and busyness -- hold little water.                    It

is uncontested that Stonkus's counsel received several written

documents, both from the defendants' counsel and from the district

court, concerning the extended scheduling deadlines; that counsel


        3
      Fed. R. Bankr. P. 9006(b)(1) permits the enlargement of time
for certain actions "where the failure to act was the result of
excusable neglect."

                                        -7-
engaged in telephone and in-person discussions concerning the

extended deadlines; and that prior to filing the motion for summary

judgment, defendants' counsel again advised Stonkus's counsel of

their intent to file a summary judgment motion on June 18, 2002,

and reminded Stonkus's counsel that he had thirty days to respond

under the extended scheduling order.

            We have repeatedly held this type of counsel error to be

inadequate to support a determination of excusable neglect within

the meaning of Fed. R. Civ. P. 60(b)(1).                 Torre, 15 F.3d at 15

(fact    that   appellant's   attorney       was   "preoccupied"   with   other

matters did not constitute excusable neglect), and cases cited.

"Most attorneys are busy most of the time and they must organize

their work so as to be able to meet the time requirements of

matters they     are   handling   or    suffer     the   consequences."     Id.

(quoting Pinero Schroeder v. FNMA, 574 F.2d 1117, 1118 (1st Cir.

1978) (internal quotation marks omitted)).

            We question, too, the good faith behind these excuses:

there is little indication, for example, of the "frenetic activity

to complete discovery" Stonkus's counsel cites.4 And Stonkus never

proffered a proposed opposition to summary judgment in her filings



     4
      At no time in this litigation did Stonkus's counsel propound
interrogatories, requests for documents or requests for admissions.
Nor did he take any depositions of the defendant School Department
employees or representatives other than the individual defendants
Zoino and Cabral.

                                       -8-
to the district court.        As to prejudice, although there are no

unusual circumstances in this case, the delay incurred by Stonkus's

failure to respond serves to hamper the defendants' interest in

certainty   and   resolution    and    to     further    diminish   witnesses'

memories concerning the events surrounding Stonkus's claims, now

more than six years old.         In sum, Stonkus's counsel's conduct

simply does not warrant relief from judgment under an excusable

neglect theory.

B.          Summary judgment

            Although we affirm the district court's decision to bar

Stonkus's opposition to defendants' motion for summary judgment, it

does not automatically follow that the defendants' motion was

properly granted.      Fed. R. Civ. P. 56(e) of the Federal Rules of

Civil Procedure provides:

            [W]hen a motion for summary judgment is made
            and supported as provided in this rule, an
            adverse party may not rest upon the mere
            allegations or denials of the adverse party's
            pleading, but the adverse party's response, by
            affidavits or as otherwise provided in this
            rule, must set forth specific facts showing
            that there is a genuine issue for trial. If
            the adverse party does not so respond, summary
            judgment, if appropriate, shall be entered
            against the adverse party.

(emphasis    added).     We    also    take    into     account   District   of

Massachusetts Local Rule 56.1, which provides, "[m]aterial facts of

record set forth in the statement required to be served by the



                                      -9-
moving party will be deemed for purposes of the motion to be

admitted    by   the    opposing   parties     unless    controverted   by   the

statement required to be served by opposing parties."

            Because Stonkus did not controvert the statement of

undisputed material facts that the defendants filed with their

summary judgment motion, we deem those facts admitted and consider

whether summary judgment was appropriate.               We review the district

court's grant of summary judgment de novo, construing the record in

the light    most      favorable   to   the    nonmovant   and   resolving   all

reasonable inferences in that party's favor.                 Carroll v. Xerox

Corp., 294 F.3d 231, 237 (1st Cir. 2002).               Under Fed. R. Civ. P.

56(c), summary judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show 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."

            Defendants contend that they are entitled to summary

judgment because in August, 1997, Stonkus signed a Memorandum of

Agreement under which she waived all claims with respect to non-

reappointment.      The Agreement states, in relevant part,

            [I]f the decision is ultimately made not to
            reappoint her for the 1998-99 school year, Ms.
            Stonkus hereby waives any ability to challenge
            such decision in any forum whatsoever,
            including, but not limited to, G.L. Chapter
            71, Section 42, via the grievance procedure in
            the collective bargaining agreement, or via a

                                        -10-
          complaint to any court or administrative
          agency.
          In Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112

F.3d 9, 11 (1st Cir. 1997), we noted that in the employment law

context, courts have routinely upheld releases given in exchange

for additional     benefits.   "Such    releases   provide   a   means   of

voluntary resolution of potential and actual legal disputes, and

mete out a type of industrial justice."       Id.    Nearly all of the

claims set forth in Stonkus's complaint explicitly focus on the

defendants' failure to reappoint her to an additional term of

employment.5    Accordingly, we conclude that Stonkus's claims are

barred under the Agreement.

          Stonkus offers only one argument in opposition: that the

Agreement was not a "knowing and voluntary" waiver within the

meaning of the Older Workers Benefit Protection Act amendments to

the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §

626(f)(1).     The amendments provide, in relevant part:

          1) an individual may not waive any right or
          claim under this Act unless . . .


     5
      The only claims that do not directly center on reappointment
are Stonkus's express breach of contract claim (which concerns the
collective bargaining agreement between the Brockton School
Committee and the Brockton Education Association) and her
defamation claim (which concerns Cabral's representations to
potential employers following her termination).        We need not
grapple with whether these claims are implicitly barred by the
Agreement, or, as defendants contend, fail on their merits, because
Stonkus does not raise the issue on appeal. Rather, as set forth
infra, Stonkus's only argument regarding the Agreement on appeal is
that it did not conform with ADEA requirements.

                                 -11-
             (B) the waiver specifically refers to rights
             or claims arising under this chapter;

                                   * * * *

             (F)(i) the individual is given a period of at
             least 21 days within which to consider the
             agreement;
                                * * * *

             (G) the agreement provides that for a period
             of at least 7 days following the execution of
             such agreement, the individual may revoke the
             agreement . . . .

Id.       Stonkus contends that the Agreement lacked the foregoing

elements.

             This argument gets Stonkus nowhere, however, in light of

the fact that she apparently did not bring an ADEA claim in this

case.6     Rather, her age discrimination claim is pursuant to Mass.

Gen. Laws. ch. 151B, which requires none of the pertinent elements

of section 626(f)(1).       Nor is Stonkus's ADEA argument relevant to

any   of    the   other   claims   she   sets   forth   in   her   complaint.

Accordingly, we hold that the defendants were entitled to judgment



      6
      The heading of the age discrimination claim in her complaint
reads "Age Discrimination, MGL 151B." Stonkus does mention the
ADEA elsewhere in her complaint, but appears to refer to the waiver
requirements set forth at 29 U.S.C. § 626(f)(1). Furthermore, she
does not argue on appeal that she asserted an ADEA claim in her
complaint.    In any event, taking the defendants' statement of
material facts as true, we must conclude that Stonkus's termination
was based on her job performance rather than discriminatory animus.
Accordingly, her age discrimination claim fails on its merits as
well.

                                     -12-
as a matter of law on the ground that the Agreement barred

Stonkus's claims.

          For the reasons set forth supra, we AFFIRM the district

court's award of summary judgment to the defendants.




                              -13-