Woodward v. Emulex Corporation

United States Court of Appeals
For the First Circuit

No. 12-1612

FRANK WOODWARD,

Plaintiff, Appellant,

v.

EMULEX CORPORATION and JEFF HOOGENBOOM,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Richard G. Stearns, U.S. District Judge]

Before

Howard, Stahl and Lipez,
Circuit Judges.

Paul H. Merry, with whom Law Offices of Paul H. Merry was on
brief, for appellant.
T. Dos Urbanski, with whom Michael J. Mazurczak, Andre
Sansoucy and Melick & Porter, LLP were on brief, for appellees.

April 18, 2013
 HOWARD, Circuit Judge. Plaintiff Frank Woodward appeals

a grant of summary judgment by the United States District Court for

the District of Massachusetts in his age discrimination suit

against Emulex Corporation. Woodward also appeals two discovery

orders. We affirm in all respects.

I. Background

Emulex, a technology company based in California,

manufactures components for large-scale computer networks and data

storage systems. Woodward joined Emulex in 2000 as a sales account

manager. Prior to joining Emulex, Woodward worked in sales for

another technology company where he developed a close relationship

with EMC Corporation, a large computer storage company based in

Hopkinton, Massachusetts. In his new position with Emulex,

Woodward continued that relationship with marked success. The

company provided him with an office in Newton, Massachusetts, where

he was the sole employee and could easily travel to his main client

EMC. His results speak for themselves: over $800 million in

revenue and over fifty "design wins," meaning that EMC incorporated

Emulex parts into its own products, ensuring a steady stream of

sales for the life cycle of those products. Woodward and his team

consistently outperformed their goals and Woodward received praise

and accolades for his success. The EMC team grew to five

employees, two of whom Woodward managed as a senior director.

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During this time, EMC was always either the third or fourth largest

Emulex client based on sales revenue.

Beginning in 2007, however, revenues from EMC began to

decline. Woodward interprets this decline as a function of two

factors. First, the general downturn in the economy affected

Emulex, as demonstrated by similarly sluggish numbers for other

sales teams. Second, Woodward alleges that Emulex undermined the

EMC team's ability to take advantage of growth opportunities.

Though Woodward requested more personnel for his team, Emulex

refused to increase the EMC sales force. Emulex also canceled

certain products after the EMC team had already obtained sales

agreements for them. Woodward also faults Emulex for failing to

address inefficient and counterproductive actions by other Emulex

employees. Part of Woodward's success was negotiating price

agreements with terms favorable to Emulex. Other Emulex employees,

seeing an opportunity to increase their own sales, offered EMC

better rates. According to Woodward, these sales teams not only

poached from his work, but also cannibalized Emulex's overall

profits. His complaints about this practice went unanswered.

Moreover, Emulex occasionally failed to deliver products on time to

EMC, and it did not heed Woodward's suggestions about improving its

delivery system.

In early 2009, Emulex let go two EMC team members.

Shortly thereafter, in March 2009, Woodward was notified that he

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too would lose his job. The two remaining EMC team members jointly

assumed Woodward's responsibilities when he left in July 2009.

While Emulex does not dispute these allegations, it

contends that its decisions were the result of diminishing EMC-

related profits, not the cause of them. According to Emulex, the

computer storage industry was undergoing a transition from

stand-alone systems (storage systems) to integrated systems (server

systems). Consequently, Emulex, which produced Host Bus Adapters

(HBAs) for both systems, began focusing on blade HBAs--removable

hardware compatible with server systems--as opposed to storage-

system HBAs. EMC does not make or sell server systems. Thus,

Emulex claims, the EMC business could no longer justify a five-

person sales team, as evidenced by the permanent reduction of the

EMC team to two employees.

Woodward, however, discounted Emulex's reasoning and

suspected that age discrimination played a role in his termination.

In January 2009--two months before Woodward's notice of

termination--Jeffrey Hoogenboom, Emulex's new vice president of

sales, commented that Woodward needed to "re-energize" the EMC

team. Woodward, who was fifty-five at the time, considered this a

disparaging remark about the ages of the EMC team members, which

ranged from forty-nine to fifty-nine. After his termination, he

filed a complaint with the Massachusetts Commission Against

Discrimination (MCAD), alleging age discrimination. MCAD dismissed

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Woodward's complaint for a lack of probable cause, and he

subsequently brought suit in state court, claiming, among other

things, age discrimination under Massachusetts law. Emulex removed

the case to the United States District Court for the District of

Massachusetts based on diversity jurisdiction, and then moved for

summary judgment on all counts. The district court granted this

motion, and Woodward appealed.

II. Discussion

A. Discovery

Woodward first challenges two discovery-related orders:

1) the district court's partial denial of his third motion to

compel; and 2) the district court's decision to quash deposition

notices for three Emulex employees, including Hoogenboom. We

review orders pertaining to discovery for abuse of discretion. See

Awuah v. Coverall N. Am., Inc., 585 F.3d 479, 481 (1st Cir. 2009).

1. Motion to Compel

From the outset of this case, discovery inched forward,

with both sides contending over its scope and refusing to accede to

the other's requests. During this acrimonious process, Emulex

resisted Woodward's attempts to obtain considerable information

about all employees at his management level or higher. Woodward

eventually limited his request to information about the age, date

of hire, positions and duties, date of termination, and grounds for

termination of all employees holding the titles of director, senior

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director, vice president, senior vice president or executive vice

president between 2008 and 2010. Woodward requested this

information in an interrogatory and in a document request filed in

September 2011. He included a list of twenty-one known employees

falling within these categories but did not limit his request to

the employees on this list. Emulex did not provide the

information, and Woodward moved to compel discovery. The district

court granted the motion to compel an answer to the interrogatory,

but only with respect to the twenty-one named employees. It did

not order Emulex to comply with the document request. Emulex

complied with the order. Woodward appeals the district court's

decision to limit discovery to the interrogatory request, and to

only the twenty-one named employees.

"[T]he standard of review in discovery matters is not

appellant-friendly." Dennis v. Osram Sylvania, Inc., 549 F.3d 851,

860 (1st Cir. 2008) (citations omitted) (internal quotation marks

omitted). "[T]he trier must be accorded considerable latitude in

gauging the extent of a party's compliance with [discovery]

precepts." Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 187

(1st Cir. 1989). Woodward claims that the district court's partial

denial of his motion to compel constituted an abuse of discretion.

We disagree. First, the denial of Woodward's document request was

within the district court's discretion. Woodward sought the same

information through the twin vehicles of an interrogatory and a

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document request. Thus, the district court did not deny discovery

of new information, but simply did not compel the production of an

arguably duplicative request for documents.

The district court was also within its power in limiting

Woodward's interrogatory to the twenty-one named employees. The

purpose of this interrogatory was to compare Woodward's treatment

to that of similarly situated employees. A sine qua non of such a

comparison is a congruence of work responsibilities. See Dartmouth

Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989)

(employees must be similarly situated "in all relevant aspects" to

establish disparate treatment in an employment discrimination suit

(internal quotation marks omitted)), overruled on other grounds by

Educadores Puertorriqueños en Acción v. Hernández, 367 F.3d 61 (1st

Cir. 2004). However, Woodward's request for information about all

directors and vice presidents went far beyond Emulex's sales force

and likely would have covered employees who had little or no

comparative value for Woodward's suit.

By contrast, every employee on Woodward's list was a

member of Emulex's sales force, working in the same area as

Woodward. Moreover, when Woodward filed this motion to compel,

discovery had proceeded, albeit haltingly, for eleven months,

giving Woodward time to identify the relevant employees for

comparison. The district court could have determined that, at this

late stage in discovery, the twenty-one named employees represented

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Woodward's best chance of finding some differential treatment

between younger and older employees. Given the alternative--a

fishing expedition into possibly barren waters--the district court

did not abuse its discretion by limiting discovery to those

individuals. See Fed. R. Civ. P. 26(b)(C)(ii) (requiring courts to

limit discovery when "the burden or expense of the proposed

discovery outweighs its likely benefit").

2. Motion to Quash

Woodward also appeals the district court's order quashing

deposition notices for three Emulex employees: Hoogenboom, Jeff

Benck, and Susan Bowman. At the discovery deadline, October 17,

2011, Woodward served the three employees with notices of

depositions to occur in a three-day period two weeks hence. The

parties struggled to find a time for these depositions that was

convenient to both sides. Much of the difficulty arose from

Woodward's insistence that he attend the depositions in person.

Indeed, Woodward proposed a number of possible dates, and Emulex,

relying on these dates, stated that its employees would be

available for depositions over three days from December 12-14,

dates that Woodward had indicated worked with his schedule.

Woodward, however, did not confirm his availability for these

dates, and he subsequently proposed new dates during the weeks of

December 19 and December 26, 2011. Because the deadline for

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dispositive motions was December 21, Emulex moved to quash the

notices, and the district court granted the motion.

The court did not abuse its discretion in quashing the

deposition notices. Woodward gave notice of the depositions at the

last available moment, and then he proved to be the major barrier

to their completion. When the defendants filed their motion to

quash, the parties still had not fixed a date for the depositions,

yet the deadline for dispositive motions was only five days away.

Woodward's desire to attend the depositions in person is not

compelling enough to overcome the burden that the defendants faced

from his constant scheduling demands. We see no abuse of

discretion in the district court's decision to quash these

depositions. We now turn to Woodward's appeal of the grant of

summary judgment.

B. Summary Judgment

Our review of a grant of summary judgment is de novo, and

we view the record in the light most favorable to the nonmoving

party. See Henry v. United Bank, 686 F.3d 50, 54 (1st Cir. 2012).

"Under [Federal Rule of Civil Procedure 56(a)], summary judgment is

proper 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."

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (internal

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quotation marks omitted). After the moving party has presented

evidence in support of its motion for summary judgment, "the burden

shifts to the nonmoving party, with respect to each issue on which

he has the burden of proof, to demonstrate that a trier of fact

reasonably could find in his favor." Hodgens v. Gen. Dynamics

Corp., 144 F.3d 151, 158 (1st Cir. 1998). Although the district

court granted summary judgment as to all of Woodward's claims, he

appeals only the dismissal of his state law age discrimination

claim.

Massachusetts has adopted the Supreme Court's approach to

employment discrimination. See Sullivan v. Liberty Mut. Ins. Co.,

825 N.E.2d 522, 530 (Mass. 2005). Under this framework, a

plaintiff must first state a prima facie case of discrimination.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1983). For an

age discrimination claim in Massachusetts, this constitutes showing

that: 1) the plaintiff was a member of the protected class, i.e.

over forty years old, see Mass. Gen. Laws ch. 151B, § 1(8); 2) he

had performed his job at an acceptable level; 3) he was terminated;

and 4) he was replaced by someone five or more years younger. See

Knight v. Avon Prods., Inc., 780 N.E.2d 1255, 1261-65 (Mass. 2003)

(discussing the elements of an age discrimination case and

concluding that "an age disparity of less than five years, by

itself, is too insignificant to support a prima facie case of age

discrimination"). The fourth prong, however, does not apply to a

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reduction-of-workforce case such as this, where the employer does

not replace the plaintiff with a new employee. In such cases,

"some evidence that [the employee's] layoff occurred in

circumstances that would raise a reasonable inference of unlawful

discrimination" is necessary to establish the fourth prong.

Liberty Mut. Ins. Co., 825 N.E.2d at 533-34.

Once the employee has stated his prima facie case, the

employer must provide "some legitimate, non-discriminatory reason"

for terminating the employee. McDonnell Douglas Corp., 411 U.S. at

802. The employer's obligation at this stage "is one of production

as opposed to persuasion, as the burden of persuasion remains with

[the employee]." Lewis v. City of Bos., 321 F.3d 207, 214 (1st

Cir. 2003). If the employer satisfies this step, the burden shifts

back to the plaintiff, who "must produce evidence sufficient to

support a jury verdict that it was more likely than not that the

articulated reason was pretext for actual discrimination."

Matthews v. Ocean Spray Cranberries, Inc., 686 N.E.2d 1303, 1309

(Mass. 1997) (citations omitted) (internal quotation marks

omitted).

The district court assumed, "for sake of completeness,"

that Woodward stated a prima facie case of discrimination.

Woodward v. Emulex Corp., 854 F. Supp. 2d 149, 158 (D. Mass. 2012).

We follow this approach, bypassing the first stage of the analysis

without deciding whether Woodward has in fact made his prima facie

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case. In response to Woodward's claim of discrimination, Emulex

argues that it could no longer afford Woodward's position because

of a market shift away from storage systems, as evidenced by the

precipitous fall in EMC-related revenue. Woodward offers three

reasons why this explanation is pretextual: 1) the decline in EMC

revenue was the result of Emulex's own irrational decisions; 2)

employees whose performance was similar to Woodward's were not

terminated; and 3) Hoogenboom's comments demonstrate discriminatory

animus. None of these is persuasive.

First, Woodward argues that Emulex permitted, even

accelerated, the drop in EMC revenues. Emulex discontinued

products that Woodward had already sold and rejected Woodward's

request for more sales personnel. Woodward claims that these

actions not only belie Emulex's claim that the market caused the

drop in EMC's revenues, but are so contrary to Emulex's own

interests that they amount to, in Woodward's terms, killing the

goose that laid the golden egg.

Far from showing pretext, however, these decisions

reinforce Emulex's proffered justification. Emulex, believing that

the market was moving toward server systems, saw strategic value in

diverting its limited resources away from the EMC sales team.

These actions are consistent with that strategy. Woodward contends

that Emulex's decisions unwisely assured the decline in EMC

revenues. He claims that EMC revenues were poised to rebound to

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their earlier levels, and that Emulex ignored this possibility to

its own detriment. This critique of Emulex's business judgment has

no purchase. We are not concerned with whether the stated purpose

"is unwise or unreasonable." DeMarco v. Holy Cross High Sch., 4

F.3d 166, 171 (2d Cir. 1993); see also Webber v. Int'l Paper Co.,

417 F.3d 229, 238 (1st Cir. 2005) ("[A]n employer is free to

terminate an employee for any nondiscriminatory reason, even if its

business judgment seems objectively unwise."). Instead, Woodward

must show that the stated purpose is untruthful. See Liberty Mut.

Ins. Co., 825 N.E.2d at 541 ("[O]ur task is not to evaluate the

soundness of Liberty's decision making, but to ensure it does not

mask discriminatory animus."). Nothing in Emulex's actions casts

doubt on the sincerity of its belief that the market had shifted

from storage systems to server systems.1

Woodward's next evidence of pretext is that Emulex

retained younger employees whose performance, like Woodward's,

suffered in this period. Disparate treatment between older and

younger employees is a familiar means of establishing pretext. See

Smith Coll. v. Mass. Comm'n Against Discrimination, 380 N.E.2d 121,

1
Woodward also cites two business practices--the failure to
deliver products on time and internal "poaching" of Woodward's
profits--that hurt his team's profitability. To the extent that
Emulex permitted these actions (Woodward provides no evidence that
Emulex encouraged them), the negative effects would impact all
sales teams, not just the EMC sales team. Consequently, we cannot
see how they show that Emulex's underlying motives were
discriminatory.

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125 (Mass. 1978) ("[A]lthough the fact of discriminatory motive

must be proved, it can be inferred from differences in the

treatment of two groups."). This requires, however, a showing that

the employees are "similarly situated in all relevant aspects."

Ocean Spray Cranberries, Inc., 686 N.E.2d at 1310 (citations

omitted) (internal quotation marks omitted). "The test is whether

a prudent person, looking objectively at the incidents, would think

them roughly equivalent and the protagonists similarly

situated. . . . Exact correlation is neither likely nor necessary,

but the cases must be fair congeners. In other words, apples should

be compared to apples." Dartmouth Review, 889 F.2d at 19.

As an initial matter, Emulex argues that the most

relevant aspect of Woodward's employment was his membership on the

EMC sales team. Though revenues were down across the company,

Emulex maintains that the rapid disassembling of the EMC sales team

was not merely a function of the economic downturn, but the result

of a specific market shift that rendered the EMC team overly

staffed. If we accept this proposition, then the only similarly

situated employees would be other members of the EMC sales team.

Ultimately, we need not narrow the field of congeners to

this degree, since even a broader approach does not suggest any

similarly situated employees. Of the six employees whom Woodward

mentions in his brief as similarly situated, two held positions

senior to Woodward, and therefore were not similarly situated. The

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remaining four employees were all forty years old or older at the

time that Woodward was terminated--also members of the protected

class. Moreover, while they all experienced similar percentage

declines in revenues, that metric cannot alone determine the value

of each employee, especially considering that their 2009 revenues

ranged from roughly $30 million to almost $380 million.2

Additionally, Woodward's focus on 2009 figures ignores Emulex's

claim that EMC declines began in 2007, which is supported by the

record. Finally, Woodward occupied a unique position within

Emulex, as the only employee working from a remote office in

Massachusetts. This arrangement likely entailed specific

administrative costs. Given this context, the fact that other

employees experienced declines in revenue similar to Woodward's

falls far short of the showing necessary to establish that they

were similarly situated to him for purposes of the pretext

inquiry.3

Moreover, a macroscopic view of Emulex's personnel

decisions reveals no pattern of age discrimination. As the

2
Woodward achieved approximately $65 million in revenues in
2009.
3
Woodward claims that the district court hampered his ability
to produce evidence of similarly situated employees through its
limits on discovery. See supra Part A.1. As we noted, however,
the district court's order curtailing discovery appears to have
targeted duplicative and immaterial requests. Thus we disagree
that indulging his entire discovery request would have provided
additional useful comparative evidence.

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district court noted, Emulex retained five senior directors--the

same management level as Woodward--who were older than he was.

Moreover, the median age at Emulex as of March 2009 was forty-five.

Woodward simply cannot show that Emulex's rationale was pretextual

by comparing himself to other Emulex employees.

Woodward's third argument is that Hoogenboom's comment

about the need to re-energize the EMC sales team constitutes direct

evidence of discriminatory animus. Woodward asks us to interpret

Hoogenboom's words as a critique of the age of the EMC team. Given

the context of Hoogenboom's comment, however, such a reading is too

strained. It is far more likely that the comment referred to the

performance of the EMC team. Hoogenboom made the comment in

January 2009; by March 2009 Emulex had decided to cut the team from

five employees to two. Hoogenboom was not discussing a plan to

reformulate the team with peppy, youthful salespersons. He was

presaging its possible performance-related demise. While we will

interpret any ambiguities in favor of the nonmoving party on

summary judgment, we will not ignore the obvious context of a

statement simply because the language is open to multiple

interpretations.

Even if we did accept Woodward's reading of Hoogenboom's

comments, it would not suffice to show discriminatory animus.

Massachusetts courts have held that isolated comments, even those

less ambiguous than Hoogenboom's, will not carry the plaintiff's

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burden of persuasion if the employer has articulated a legitimate

rationale for the termination. See Liberty Mut. Ins. Co., 825

N.E.2d at 536 n.24 (finding that employer's comments that "[y]ou

are part of the old guard[,] [y]ou have never adapted to the new

system at Liberty Mutual," and [y]ou simply do not fit in around

here anymore" did not constitute direct evidence that the layoff

was motivated by unlawful age discrimination); Lee v. President &

Fellows of Harvard Coll., 806 N.E.2d 463, 467 (Mass. App. Ct. 2004)

(concluding that the comment "younger is cheaper" did not "create

a genuine issue of material fact with respect to pretext").

Similarly, Hoogenboom's comment is not sufficient to show that

Emulex discriminated against Woodward.

III. Conclusion

For the foregoing reasons we affirm the district court on

all issues.

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