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.
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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
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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
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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
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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.
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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."
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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.
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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
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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
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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.
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(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.
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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.
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