Conto v. Concord Hospital, Inc.

United States Court of Appeals
For the First Circuit

No. 01-1017

CAROL CONTO,

Plaintiff, Appellant,

v.

CONCORD HOSPITAL, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]

Before

Torruella, Circuit Judge,

Cyr, Senior Circuit Judge,

and Lynch, Circuit Judge.

Charles A. Russell, for appellant.
Kathleen C. Peahl, with whom Wadleigh, Starr & Peters was on brief f

September 20, 2001
 CYR, Senior Circuit Judge. Appellant Carol Conto

challenges the summary judgment rulings which led the district

court to dismiss her gender and age discrimination claims, as

well as her sexual harassment claim, against her former

employer, the Concord Hospital ("the Hospital"), see 29 U.S.C.

§ 621 (Age Discrimination in Employment Act) ("ADEA"); 42 U.S.C.

§ 2000e ("Title VII"). See Conto v. Concord Hosp., Inc., No.

99-166, 2000 WL 1513798 (D.N.H. Sept. 27, 2000).1

We summarily affirm the district court judgment which

dismissed the gender and age discrimination claims.2 See Jackson

v. United States, 156 F.3d 230, 232 (1st Cir. 1998) (noting that

where district court issues “comprehensive, well-reasoned

decision,” we may affirm with little or no elaboration). Once

the Hospital articulated a nondiscriminatory basis for its

discharge decision, the burden shifted to Conto to prove (at the

very least) that the reason assigned for her discharge was

1
We review summary judgment rulings de novo, after assessing
the competent evidence and attendant reasonable inferences in
the light most favorable to the nonmoving party. See Straughn
v. Delta Airlines, Inc., 250 F.3d 23, 33 (1st Cir. 2000).
2
Although the record is unclear regarding the timeliness of
the discrimination charge filed with the Equal Employment
Opportunity Commission ("EEOC"), the Hospital did not raise this
issue below. Consequently, like the district court, we assume
arguendo that Conto duly exhausted her administrative remedies.
See O’Rourke v. City of Providence, 235 F.3d 713, 725 n.3 (1st
Cir. 2000) (noting that exhaustion of administrative remedies is
not a jurisdictional issue, but one which may be waived).

2
pretextual. See Straughn v. Delta Air Lines, Inc., 250 F.3d 23,

33-34 (1st Cir. 2000). The Hospital asserted that Conto was

discharged due to the fact that she failed, following repeated

warnings, to perform duties essential to her role as a hospital

security officer.3 As Conto acknowledges these deficiencies and

offered no evidence of pretext on the part of the Hospital, her

age and gender discrimination claims are not actionable. See

Williams v. Raytheon Co., 220 F.3d 16, 19 (1st Cir. 2000).4

The sexual harassment claim fares no better. The

determination as to whether the Hospital subjected Conto to a

hostile work environment necessarily entailed a fact-specific

assessment of all the attendant circumstances. See supra note

1; Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Yet

the appellate brief submitted by Conto fails to cite to any

3The Hospital states, inter alia, that Conto repeatedly
failed either to report or record vital hospital-security
information, to patrol the daycare center, to observe the no-
smoking policy, and to respond in proper fashion to a fire
alarm.
4Conto further contends, to no avail, that despite her
failure to prove pretext she adduced other weighty evidence that
the Hospital discriminated, such as general remarks by her
superiors and coworkers regarding her age and gender. As Conto
concedes, however, remarks by her superiors — that the Hospital
“wanted her fired” — were not only age-and-gender neutral, but
plainly based on her poor job performance reports. See
Straughn, 250 F.3d at 36. Moreover, remarks by
nondecisionmakers generally are not probative of an employer’s
intent. See Laurin v. Providence Hosp., 150 F.3d 52, 58 (1st
Cir. 1996).

3
record fact material to this factual inquiry. Instead, Conto

generally invites our attention to all the documents submitted

in evidence before the district court.5

Not surprisingly, the Federal Rules of Appellate

Procedure require that appellants, rather than the courts of

appeals, ferret out and articulate the record evidence

considered material to each legal theory advanced on appeal.

See, e.g., United States v. Candelaria-Silva, 162 F.3d 698, 707-

08 (1st Cir. 1998) (finding "waiver" where appellant

"request[ed] that we conduct 'a reading of the entire record

with care,'" yet failed to spell out pertinent facts in brief);

see also Michelson v. Digital Fin. Servs., 167 F.3d 715, 719-20

(1st Cir. 1999) (observing that counsel are not permitted to

“leav[e] the [appellate] court to do counsel’s work”) (citations

omitted). As the Federal Rules of Appellate Procedure are

sufficiently central to our judicial management responsibilities

to warrant substantial compliance, rather than discretionary

disregard at the convenience of counsel, Conto's fact-dependent

hostile work environment claim must be deemed waived.

In all events, however, Conto failed to generate any

5
For instance, referencing more than eighty pages of
deposition testimony, Conto casually suggests: "Because of the
multiplicity of the incidents which are recounted in those
pages, no specific page reference is given but attention is
directed to all those pages.” Brief for Appellant at 8-9.

4
genuine issue of material fact relating to her hostile work

environment claim. She assertedly witnessed male coworkers

uttering sexually-charged profanities and making obscene bodily

gestures to nurses (or to one another), but never to her. She

also states that security department workers repeatedly posed

personal questions regarding her celibacy, romantic

relationships, and marriage plans.6

It was for Conto to demonstrate that (1) “the

harassment [she experienced during the final four days of her

employment],7 was sufficiently severe or pervasive to alter the

6 Conto states that, at unspecified times, male coworkers
subjected her to unwanted physical touching, such as slapping
her buttocks. The district court initially held that these
incidents generated a triable issue, assuming arguendo that the
incidents occurred during the final four days of her employment
(hence were not time-barred), see infra note 7, then partially
denied summary judgment to the Hospital on Conto’s sexual
harassment claim. Thereafter, however, Conto requested that the
district court grant the Hospital summary judgment on her entire
harassment claim, so as to enable entry of an immediately
appealable final judgment. To that end, she expressly conceded
that these physical-touching allegations “more than likely would
result [at trial] in a directed verdict for defendant.” Given
her strategic concession, she may not now revisit these
allegations on appeal.
7 Although her claim was subject to the 180-day EEOC filing
requirement, see supra note 2, Conto deferred filing her EEOC
charge for 176 days. Thus, she concedes that only her final
four days on the job are material to her appeal. See 42 U.S.C.
§ 2000e-5(e)(1); Lawton v. State Mut. Life Assurance Co. of Am.,
101 F.3d 218, 221-22 (1st Cir. 1996); see also Provencher v. CVS
Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998) (citing Sabree v.
United Bhd. of Carpenters and Joiners, 921 F.2d 396, 401 (1st
Cir. 1990)).

5
conditions of [her] employment,” Provencher v. CVS Pharmacy, 145

F.3d 5, 13 (1st Cir. 1998), and (2) that the work environment

was "both objectively and subjectively offensive, one that a

reasonable person would find hostile or abusive, and one that

[Conto] in fact did perceive to be so," Faragher v. City of

Boca Raton, 524 U.S. 775, 787 (1998). As previously noted,

"whether an environment is 'hostile' or 'abusive' can be

determined only by looking at all the circumstances . . .

includ[ing] the frequency of the discriminatory conduct; its

severity; whether it is physically threatening or humiliating,

or a mere offensive utterance; and whether it unreasonably

interferes with an employee's work performance." Harris, 510

U.S. at 23 (emphasis added).

Given the evidentiary record before us, we cannot say

that the Rule 56 evidence submitted by Conto generated a

trialworthy hostile work environment claim under the multi-

factor test announced in Harris, supra. First, the greatly

abbreviated four-day period, during which the Hospital's conduct

remained actionable, substantially undermined Conto’s contention

that the Hospital's conduct was either sufficiently frequent8 or

8
Cf. id. at 23-24 (noting that claimants experienced
repeated, unwanted physical touching and demeaning comments for
over five years); O’Rourke, 235 F.3d at 728 (two years); White
v. New Hampshire Dep’t of Corrections, 221 F.3d 254, 260 (1st
Cir. 2000) (five months).

6
severe.9 Second, however insensitive, the inquiries regarding

Conto’s personal life were neither "physically threatening [n]or

humiliating, [but at most] mere offensive utterance[s]." Id.10

Finally, Conto has not demonstrated on appeal that any conduct

to which she was subjected during the actionable four-day period

“unreasonably interfered” with her work performance. Id.

Finally, although Conto waived her hostile work

environment claim on appeal, its dismissal on the merits would

be warranted as well, since the totality of the particular

circumstances extant during the actionable four-day period

preceding her discharge could not, as a matter of law, have

generated a trialworthy issue on the hostile work environment

claim.

Affirmed. Costs to appellee.

SO ORDERED.

9
Cf., e.g., Faragher, 524 U.S. at 782 (noting that female
employees repeatedly were touched, without invitation, subjected
to demeaning general comments about females, and themselves in
particular, and propositioned for sexual favors by supervisors).
10
Cf., e.g., Oncale v. Sundowner Offshore Servs., Inc., 523
U.S. 75, 77 (1998) (observing that male plaintiff was threatened
with rape, "forcibly subjected to sex-related, humiliating
actions" by male coworkers in the presence of others, and
"physically assaulted . . . in a sexual manner"); White, 221
F.3d at 260 (describing how corrections officer’s coworkers
undermined her authority with inmates and created an atmosphere
of intimidation and harassment by spreading false rumors about
her alleged sexual relations with an inmate).

7
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