Lawton v. State Mutual

USCA1 Opinion









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
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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


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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.

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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 ___ _____


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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


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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). ___ _________ ______________

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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


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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. ________














































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