Mulvihill v. Top-Flite Golf Co.

United States Court of Appeals
For the First Circuit

No. 02-2494

MARTIN J. MULVIHILL,
Plaintiff, Appellant,

v.

THE TOP-FLITE GOLF COMPANY, F/K/A
SPALDING SPORTS WORLDWIDE, INC., ET AL.,
Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

Selya, Circuit Judge,
Coffin and Porfilio,* Senior Circuit Judges.

Edward J. McDonough, Jr., with whom Egan, Flanagan and Cohen,
P.C. was on brief, for appellant.
Jay M. Presser, with whom Skoler, Abbott & Presser, P.C. was
on brief, for appellee Spalding Sports Worldwide, Inc.
G. Gordon Atcheson, with whom Blake & Uhlig, P.A. was on
brief, for appellee Int'l Bhd. of Boilermakers, Etc., Local 1851.

July 2, 2003

__________
*Of the Tenth Circuit, sitting by designation.
 SELYA, Circuit Judge. Having become convinced that

Spalding Sports Worldwide, Inc. (Spalding) had terminated his

employment without proper cause,1 plaintiff-appellant Martin J.

Mulvihill asked his union — Local 1851 of the International

Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths,

Forgers and Helpers (the Union) — to prosecute a grievance against

Spalding pursuant to the collective bargaining agreement then in

effect (the CBA). The Union did so. But when Spalding rejected

the grievance, the Union refused to bring the matter to

arbitration.

Mulvihill subsequently brought suit in the United States

District Court for the District of Massachusetts against Spalding

and the Union. In due course, the district court granted summary

judgment in favor of both defendants. Mulvihill appeals.

Concluding, as we do, that Spalding acted with proper cause, we

affirm the judgment below.

I. BACKGROUND

We present the facts derived from the record in the light

most favorable to the party opposing summary judgment (here, the

plaintiff). See Plumley v. S. Container, Inc., 303 F.3d 364, 367

(1st Cir. 2002).

1
By virtue of certain corporate transactions not relevant
here, Spalding is now known as The Top-Flite Golf Company.

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 Mulvihill began his tour of duty at Spalding in 1969. At

the times material hereto, a CBA was in effect between Spalding and

the Union. The CBA included a management rights provision, which

stated, inter alia, that Spalding would "continue to direct working

forces, including the right to . . . discharge [employees] for

proper cause." The CBA also mapped out a standard grievance

mechanism. Under it, an offended employee could lodge a grievance

with a Union-organized committee and expect the grievance committee

to press Spalding to resolve the complaint. If that failed, the

Union had the right to compel Spalding to proceed to binding

arbitration.

Mulvihill, a long-time Union member, held a job within

the bargaining unit. In 2000, a coworker, Amy Charest, accused him

of sexual harassment. Acting on Charest's formal complaint,

Spalding conducted an investigation. The results of that probe led

it to terminate Mulvihill's employment. Contending that Spalding

had discharged him without proper cause, Mulvihill submitted a

grievance.

Buoyed by Mulvihill's thirty-two years of service, the

Union's grievance committee lobbied Spalding to reconsider its

decision, reinstate Mulvihill, and award him back pay. The main

thrust of the Union's argument was that discharge was "too serious"

a remedy for the asserted misconduct. Spalding rejected the

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Union's importunings, pointing to Charest's complaint and the

results of its investigation.

In her complaint, Charest had accused Mulvihill of:

spreading "false rumors" within the company to the effect that she

was "having an affair" with a fellow employee named Mike Rattell;

telling Rattell's wife — who also worked for Spalding — about the

alleged affair; "interfering with [Charest's] personal life" and

making her feel "violated"; and creating a situation in which

Charest found it "emotionally and physically . . . hard [to]

concentrat[e] on [her] work." Spalding's investigation into these

remonstrances revealed the following undisputed facts. On

September 7, 2000, Charest's husband, Todd, had gone to Mulvihill's

home on matters unrelated to this dispute. The two discussed

Charest's putative involvement in a sexual relationship with

Rattell and Mulvihill agreed to give Todd Charest's telephone

number to Rattell's wife (Melissa) so that she could contact him

regarding their spouses' suspected infidelity. Mulvihill passed

the telephone number to Melissa Rattell at work the following day.

He proceeded to tell two other Spalding employees (Domenic Montessi

and Ray Perreault) about the alleged affair. According to them, he

supplied graphic detail.

Spalding's sexual harassment policy prohibits "sexual

discrimination or harassment which undermines the employment

relationship by creating an intimidating, hostile, and offensive

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work environment." The policy specifically defines verbal

harassment to include "spreading rumors about a coworker's sex

life" and forbids any such conduct that may "unreasonably

interfere[] with an employee's work performance." The executive in

charge of the investigation, Robert Bourdeau, concluded that

Mulvihill's behavior transgressed the policy and created a working

environment that Charest reasonably found offensive. After

consulting with senior management, Bourdeau terminated Mulvihill's

employment.

As said, the Union initially processed a grievance on

Mulvihill's behalf. When Spalding resisted, the Union accepted

Spalding's response, ignored Mulvihill's protests, and allowed the

matter to die on the vine. After the deadline for submitting the

grievance to arbitration had passed, Mulvihill filed suit against

Spalding and the Union. His complaint asserted, inter alia, that

(1) Spalding had violated section 301 of the Labor Management

Relations Act (LMRA), 29 U.S.C. § 185, by cashiering him without

proper cause (in derogation of the CBA), and (2) the Union had

failed to heed its duty fairly to represent him with respect to

Spalding's breach.

This sort of double-barreled suit is known as a hybrid

section 301 action. See, e.g., Arriaga-Zayas v. Int'l Ladies'

Garment Workers' Union, 835 F.2d 11, 12 (1st Cir. 1987). While it

is composed of two causes of action — one against the employer and

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the other against the union — the claims are inextricably

intertwined. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S.

151, 164-65 (1983). This imbrication is underscored by the fact

that in order to prevail against either defendant, the employee

must establish that the employer breached the CBA. Id. at 165.

The district court determined, at the summary judgment

stage, that Spalding had acted with proper cause in discharging

Mulvihill (and, therefore, had not breached the CBA). On this

basis, the court disposed of the section 301 claims. Mulvihill also

had asserted a defamation claim, and the court found that claim

wanting as well. This appeal ensued.

II. ANALYSIS

We begin our analysis with a reiteration of the by-now-

familiar summary judgment standard. We then provide an overview of

the interaction between hybrid section 301 actions and Title VII.

Finally, we turn to the merits of Mulvihill's claims.

A. The Summary Judgment Standard.

The role of summary judgment is to look behind the facade

erected by the pleadings and assay the parties' proof in order to

determine whether a trial will serve any useful purpose. Plumley,

303 F.3d at 368. Conventional summary judgment practice requires

the moving party to assert the absence of a genuine issue of

material fact and then support that assertion by affidavits,

admissions, or other materials of evidentiary quality. Quintero de

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Quintero v. Aponte-Roque, 974 F.2d 226, 227-28 (1st Cir. 1992).

Once the movant has done its part, the burden shifts to the summary

judgment target to demonstrate that a trialworthy issue exists.

Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53 (1st Cir. 2000).

When all is said and done, summary judgment will lie 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." Fed. R. Civ. P.

56(c).

In conducting this tamisage, the district court must

scrutinize the record in the light most flattering to the party

opposing the motion, indulging all reasonable inferences in that

party's favor. Morris v. Gov't Dev. Bank, 27 F.3d 746, 748 (1st

Cir. 1994). This standard is notoriously liberal — but its

liberality does not relieve the nonmovant of the burden of

producing specific facts sufficient to deflect the swing of the

summary judgment scythe. Id. Moreover, the factual conflicts

relied upon by the nonmovant must be both genuine and material.

See Fed. R. Civ. P. 56(c). For this purpose, "genuine" means that

the evidence is such that a reasonable factfinder could resolve the

point in favor of the nonmoving party, and "material" means that

the fact is one that might affect the outcome of the suit under the

applicable law. Morris, 27 F.3d at 748.

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 This same paradigm governs our de novo review of a

district court's summary judgment rulings. Plumley, 303 F.3d at

369. There is, however, one important distinction. The court of

appeals "is not restricted to the district court's reasoning but

can affirm a summary judgment on any independently sufficient

ground" made manifest in the record. Mesnick v. Gen. Elec. Co.,

950 F.2d 816, 822 (1st Cir. 1991).

B. The Governing Law.

Federal common law supplies the substantive rules for

adjudicating interlocked claims against an employer and a trade

union for breach of a CBA. See Crider v. Spectrulite Consortium,

Inc., 130 F.3d 1238, 1242 (7th Cir. 1997); see also Fant v. New

Engl. Power Serv., 239 F.3d 8,14 (1st Cir. 2001) ("In creating §

301 of the LMRA, Congress intended that a comprehensive, unified,

body of federal law should govern actions concerning the

interpretation and enforcement of collective bargaining

agreements.") (internal quotation marks omitted).

In this case, the CBA allowed Spalding to take certain

personnel actions (including dismissal) for "proper cause."

Spalding concluded that it had such cause and fired Mulvihill. The

Union refrained from testing that conclusion through arbitration.

In run-of-the-mine actions, the finality provisions of the CBA

would operate to preclude judicial review of such a determination.

See Abernathy v. United States Postal Serv., 740 F.2d 612, 617 (8th

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Cir. 1984). But hybrid section 301 cases are fundamentally

different. Because a hybrid section 301 action, by definition,

involves a claim of inadequate union representation, the employer's

determination can be overcome if the claimant can show, inter alia,

that the adverse employment action contravened the CBA. Hines v.

Anchor Motor Freight, Inc., 424 U.S. 554, 567 (1976). In this way,

the law opens a remedial avenue for an employee "who has been

injured by both the employer's and the union's breach." Bowen v.

United States Postal Serv., 459 U.S. 212, 222 (1983).

Although this remedial avenue can lead to make-whole

relief, there is no guarantee of safe passage. Typically,

claimants attempting to make the requisite showing in hybrid

section 301 actions must carry a heavy burden. Such claimants "are

not entitled to relitigate their discharge[s] merely because they

offer newly discovered evidence that the charges against them were

false and that they in fact were fired without [sufficient] cause."

Hines, 424 U.S. at 571. Rather, such a case may proceed only if,

and to the extent that, the claimant can show that the checks and

balances built into the CBA's internal dispute resolution process

have failed to function. See McCreedy v. Local Union No. 971, 809

F.2d 1232, 1238 (6th Cir. 1987). To reach this safe harbor, the

claimant must prove an erroneous discharge, a breach of duty on the

union's part, and a causal nexus between the two, that is, "that

[the] union's breach of its duty 'seriously undermine[d] the

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integrity of the [grievance] process.'" United Parcel Serv., Inc.

v. Mitchell, 451 U.S. 56, 61 (1981) (quoting Hines, 424 U.S. at

567).

Let us be perfectly clear. Proof of the required nexus

does not entail a "but for" causal connection between the union's

breach of duty and the erroneous discharge. Webb v. ABF Freight

Sys., Inc., 155 F.3d 1230, 1242 (10th Cir. 1998). It does,

however, require the claimant to produce sufficient evidence from

which a reasonable factfinder can conclude not only that the

discharge was improper but also that the union's breach undermined

the grievance process and thereby contributed to the error. See

Thomas v. United Parcel Serv., Inc., 890 F.2d 909, 915 (7th Cir.

1989); Apperson v. Fleet Carrier Corp., 879 F.2d 1344, 1355 (6th

Cir. 1989); see also Sear v. Cadillac Auto. Co. of Boston, 654 F.2d

4, 7 (1st Cir. 1981) (Breyer, J.) (noting that "[t]he burden . . .

upon a union member is particularly heavy if he attacks the union's

failure to appeal from . . . a proceeding untainted by any union

failure to represent its members in good faith").

This case follows the classic pattern for a hybrid

section 301 action. It involves an assessment of the actions of

Spalding and the Union against the background understanding of

"proper cause" as that term is used in the CBA. The matter is

complicated, however, because the principal allegation against

Mulvihill — the charge of sexual harassment — implicates Title VII

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of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17.

Employee-claimants in hybrid section 301 actions that impinge upon

an employer's responsibilities under Title VII must carry an

especially heavy burden. That is so because the presence of Title

VII transforms the case from a relatively simple two-variable

equation that aspires to strike a suitable balance between an

employee's rights and an employer's hegemony into a more complex

three-variable analysis in which that balance must be struck while

simultaneously ensuring that important federal anti-discrimination

policies are honored. See Malik v. Carrier Corp., 202 F.3d 97, 106

(2d Cir. 2000).

Although the case law is sparse, we think that our

conclusion as to the relative weight of the employee's burden is

solidly based. Title VII "vest[s] federal courts with plenary

powers to enforce the statutory requirements." Alexander v.

Gardner-Denver Co., 415 U.S. 36, 47 (1974). Consequently, "an

employer's investigation of a sexual harassment complaint is not a

gratuitous or optional undertaking[] under federal law." Malik,

202 F.3d at 105 (citing Faragher v. City of Boca Raton, 524 U.S.

775 (1998)). To the contrary, federal law exerts considerable

pressure on employers to make certain that employees refrain from

sexually harassing conduct. See id. at 106; see also Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 764 (1998) (explaining that

"Title VII is designed to encourage the creation of antiharassment

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policies and effective [complaint] mechanisms" for reporting

harassing conduct).

Following this logic, it is evident that when sexually

charged innuendo contaminates a workplace and creates an abusive

environment, Title VII is violated — and the violation constitutes

an unlawful employment practice. See Oncale v. Sundowner Offshore

Serv. Inc., 523 U.S. 75, 78 (1998) (citing 42 U.S.C. § 2000e-

2(a)(1)). But there is a rub: the pressure to enforce Title VII

is in obvious tension with the fundamental doctrine upon which

employer liability under section 301 is premised — a doctrine that

holds employers liable for misunderstandings between its

investigators and accused employees. See Malik, 202 F.3d at 107

(explaining that "if employers must fear . . . liability based on

ex post findings, they will be deterred from taking reasonable

corrective action . . . as required by federal law"). Easing that

tension requires courts to erect a decisional framework that allows

a certain amount of play in the joints. We pause briefly to

explain.

"Congress gave private individuals a significant role in

the enforcement process of Title VII." Alexander, 415 U.S. at 45.

It would be counterproductive for federal courts, in whom Congress

has vested "final responsibility for enforcement of Title VII," id.

at 44, to insist upon de novo review of actions taken by an

employer to eradicate sexual harassment in the workplace. If

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federal courts are to give effect to the antiharassment policies

encouraged by Title VII, they must defer, within wide limits, both

to an employer's determination that sexual harassment has sullied

the workplace and to its conception of an appropriate response.

Cf. Williams v. Maremont Corp., 875 F.2d 1476, 1485 (10th Cir.

1989) (applying this rationale in wrongful discharge case based on

state law). The law should not require an employer, charged with

responsibilities under Title VII, to wait until it is sued and

found liable in a gender discrimination case before it can take

steps necessary to prevent or eliminate a hostile work environment.

This brings us to the degree of deference. Because the

employer in such cases vindicates the important congressional

policies against discriminatory employment practices, it fulfills

a quasi-administrative function. See Alexander, 415 U.S. at 47

(explaining that "legislative enactments in this area have long

evinced a general intent to accord parallel or overlapping remedies

against discrimination"). By analogy, then, a court should uphold

the employer's actions so long as those actions are justified by

substantial evidence. Cf. Universal Camera Corp. v. NLRB, 340 U.S.

474, 488 (1951) (elucidating "substantial evidence" standard);

Providence Hosp. v. NLRB, 93 F.3d 1012, 1016 (1st Cir. 1996)

(same). We adopt this rule for hybrid section 301 actions that

implicate Title VII concerns. Thus, when an employer discharges an

employee in the exercise of its Title VII responsibilities, and the

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employee retorts by suing the employer and his union, we think that

the vector of these competing forces requires the employee to

demonstrate that the record is devoid of any substantial evidence

supporting the discharge.2

C. The Breach of Contract Claim.

With these precepts in mind, we proceed to the merits of

the case. Mulvihill hypothesizes that Spalding discharged him

without "proper cause" as that term is used in the CBA. We test

this hypothesis.

Whether the undisputed facts in a specific case establish

— or fail to establish — proper cause for discharge within the

contemplation of a given CBA is a question of law (and, thus, a

question for the court). Crider, 130 F.3d at 1242. The concept of

proper cause demands a close, albeit not exact, correlation between

the employee's conduct and the employer's response. Boston Med.

Ctr. v. Serv. Employees Int'l Union, 260 F.3d 16, 22 (1st Cir.

2001).

In this case, the question of whether proper cause exists

to sustain the employee's discharge intersects with the question of

whether the record contains substantial evidence. After all, to

2
Such deference to factual determinations and interpretations
of private contract disputes is consistent with federal labor law
when issues of well-defined and dominant public policy are at
stake. See E. Associated Coal Corp. v. United Mine Workers, 531
U.S. 57, 62 (2000); Boston Med. Ctr. v. Serv. Employees Int'l
Union, 260 F.3d 16, 23 (1st Cir. 2001).

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find substantial evidence supporting the adverse employment action

for Title VII purposes but not for purposes of a broadly worded

management rights provision in the CBA would frustrate the

legislative policies at stake. See id. at 23; see also Williams,

875 F.2d at 1485. It follows, therefore, that if Spalding's

actions rested on substantial evidence, then Spalding acted with

proper cause within the meaning of the CBA. Accordingly, we

scrutinize the record to determine whether substantial evidence

supported Spalding's conclusion that Mulvihill had engaged in

sexually harassing conduct, warranting dismissal.

In sexual harassment cases, "the objective severity of

harassment should be judged from the perspective of a reasonable

person in the [employee]'s position considering all the

circumstances." Oncale, 523 U.S. at 81 (internal quotation marks

omitted). We caution, however, that Title VII was not meant to

protect thin-skinned employees. The statutory scheme "forbids only

behavior so objectively offensive as to alter the conditions of the

victim's employment. Conduct that is not severe or pervasive

enough to create an objectively hostile or abusive work environment

. . . is beyond Title VII's purview." Id. (internal quotation

marks omitted). By the same token, we caution that because the

analysis requires an objective test, any subjectively benevolent or

constructive intent on the part of the putative harasser will not

justify a court in second-guessing the employer's decision.

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Rather, "[c]ommon sense, and an appropriate sensitivity to social

context" must guide the analysis. Id. at 82.

Here, substantial evidence in the summary judgment record

shows that Spalding had proper cause to discharge Mulvihill. The

social context in which Mulvihill's behavior occurred was an

industrial workplace. Spalding had adopted an explicit sexual

harassment policy, administered pursuant to Title VII and the

counterpart state statute, Mass. Gen. Laws ch. 151B, § 3A(b), and

had warned its work force that it took that policy seriously.

Common sense suggests that a reasonable person, aware of the

policy, could not have justified discussing the involvement of two

coworkers in an extra-marital affair with a third-party member of

the work force who had no legitimate interest in the subject

matter. More importantly, from an objective standpoint Mulvihill's

comments altered the conditions of Charest's employment and

unreasonably interfered with her work performance. Thus,

substantial record evidence provides a firm foundation for

Spalding's conclusion that Mulvihill's conduct violated the

company's published sexual harassment policy.

This same evidence also validates Spalding's claim that

the discharge was a reasonable response to Mulvihill's misconduct.

Spalding's sexual harassment policy stated unequivocally that

potential punishments for violations included dismissal. The

record makes manifest that once Charest filed a formal complaint,

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Spalding assigned the matter to a senior officer (Bourdeau).

Bourdeau promptly interviewed key witnesses to determine the

veracity of the allegation that Mulvihill was telling tawdry tales.

When Bourdeau afforded Mulvihill the opportunity to explain his

behavior, Mulvihill did not disclaim the substance of the comments

attributed to him by others. Instead, he insisted that he had

acted appropriately because his discussion of the affair with

Charest's husband related only to the truth of the situation (and,

thus, the discussion could not constitute harassment). The

tortured nature of this logic itself lends support to the

employer's ultimate decision. It is bad enough when an employee

acts in a sexually harassing manner; it is even worse when he

cannot see the failings in his own conduct.

Based on Bourdeau's investigation, Spalding deemed

termination to be the appropriate remedy. As the record contains

substantial support for a finding that Mulvihill's behavior

constituted sexual harassment, we have no basis to second-guess the

decision to fire him. See Mesnick, 950 F.2d at 825 ("Courts may

not sit as super personnel departments, assessing the merits . . .

of employers' nondiscriminatory business decisions."). By like

token, we cannot disturb that decision under a proper application

of the substantial evidence standard. See Providence Hosp., 93

F.3d at 1016. Mulvihill's refusal to acknowledge the wrongfulness

of his conduct gave Spalding all the more reason to discharge him

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because there could be no assurance that Mulvihill would cease his

harassing activities. See Malik, 202 F.3d at 107 (reasoning that

worst-case scenarios must govern review when employer cannot assume

that harassing behavior is likely to stop).

This ends our inquiry into whether the record contains

substantial evidentiary support sufficient to ground Mulvihill's

discharge. We hold that it does. As explained above, this holding

necessarily means that Spalding acted with proper cause within the

purview of the CBA. See Boston Med. Ctr., 260 F.3d at 23;

Williams, 875 F.2d at 1485.

To be sure, Mulvihill resists the conclusion that

Spalding had proper cause to discharge him under the terms of the

CBA. To this end, he makes a litany of arguments. None has merit.

He starts with the strange proposition that, by embedding

the "proper cause" standard in the CBA, Spalding had surrendered

the right to determine the existence vel non of proper cause and

left that determination to an arbitrator. Building on this shaky

foundation, he argues that Spalding was contractually bound to

submit the propriety of any proposed discharge to arbitration.

This argument flies in the teeth of both federal labor law and the

plain language of the CBA.

"[F]ederal labor law is chiefly designed to promote []

the formation of the collective agreement and the private

settlement of disputes under it." Int'l Union, UAW v. Hoosier

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Cardinal Corp., 383 U.S. 696, 702 (1966). As a general matter,

therefore, arbitration is preferred over litigation in resolving

private labor disputes. See generally United Steelworkers v.

Warrior & Gulf Navig. Co., 363 U.S. 574, 581-82 (1960) (discussing

benefits of arbitration). But it is not arbitration per se that

federal policy favors; rather, it is the settlement of disputes by

the means mutually agreed upon by the parties themselves — whatever

those means may be. See McCreedy, 809 F.2d at 1237. By enforcing

the results of choices freely made by labor and management, acting

in concert, federal law "promote[s] a higher degree of

responsibility upon the parties to such agreements, and . . .

thereby promote[s] industrial peace." Textile Workers Union v.

Lincoln Mills, 353 U.S. 448, 454 (1957).

In this case, the process to which the parties agreed for

settling differences is embodied in Article 9 of the CBA. That

article outlines a two-step procedure for resolving grievances.

The first step sets various time limits for processing written

grievances. The second step contemplates that "[i]f the Company's

[first-step] answer is unsatisfactory to the Union," then the

grievance "shall be submitted to arbitration." That clause further

provides, however, that "[i]f the Union has not submitted a request

for arbitration with[in] thirty (30) calendar days of receipt of

the step one answer, the grievance shall be considered settled on

the basis of [the employer's] answer."

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 There is no language in the CBA that guarantees

individual employees that every grievance will be arbitrated. To

the contrary, the grievance procedure leaves to the Union's sole

discretion the decision as to whether to request arbitration. Such

provisions are common fare in CBAs — and where they exist, courts

typically cede the union considerable leeway in evaluating the

merit associated with a particular grievance and the resources that

it will expend to prosecute that grievance. Miller v. United

States Postal Serv., 985 F.2d 9, 12 (1st Cir. 1993).

Viewed against this backdrop, it is evident that Spalding

and the Union reached a final settlement of Mulvihill's grievance

when Spalding denied it and the Union elected not to pursue the

matter further.3 As between the parties to the CBA, that

determination was "valid, binding, and enforceable." Textile

Workers, 353 U.S. at 454. Since Spalding surrendered authority to

discharge for proper cause only to the extent specified in the CBA,

Mulvihill's argument that he had an absolute right to arbitration

will not wash.

Mulvihill next asseverates that deferring to the results

of Spalding's investigation violates the summary judgment standard

and, in the bargain, denigrates the importance of employee rights

3
As an aside, the record indicates that the Union at first
intended to arbitrate the grievance but chose not to do so after
assessing the strength of Spalding's case.

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under collective bargaining agreements. This asseveration lacks

force.

As we have explained, Mulvihill bears the burden of

demonstrating that Spalding discharged him in derogation of the

CBA. Hines, 424 U.S. at 570. Because he has failed to do so, we

are bound to honor the final settlement reached by the parties

under the terms of the CBA. See E. Associated Coal Corp. v. United

Mine Workers, 531 U.S. 57, 62 (2000); Boston Med. Ctr., 260 F.3d at

21. In this context, we are not deferring to Spalding's

determination that proper cause existed, but, rather, to the

outcome of the grievance procedure described in the CBA. See

DelCostello, 462 U.S. at 164 ("Subject to very limited judicial

review, [parties to a CBA] will be bound by the result according to

the finality provisions of the agreement."). The federal policy of

settling labor disputes by privately arranged procedures would be

compromised if courts had the final say on the merits of every

settlement. See El Dorado Tech. Servs., Inc. v. Union Gen. De

Trabajadores, 961 F.2d 317, 319 (1st Cir. 1992).

In a related vein, Mulvihill contends that several

factual issues surrounding Spalding's investigation preclude

summary judgment. None of his prolix argumentation exposes any

material fact sufficient to derail the summary judgment train.

First, Mulvihill posits that a reasonable juror could

find that his conduct was that of a concerned employee hoping to

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diffuse a potentially explosive situation, not that of a sexual

harasser. This thesis runs along the following lines. Mulvihill

says that it is reasonable to infer that Spalding acted without

proper cause because a more thorough investigation would have

revealed the following facts. (1) While Todd Charest was at

Mulvihill's home to estimate the costs of a needed roof repair, he

inquired whether Mulvihill had heard any rumors that his wife was

involved in a sexual liaison with Mike Rattell. (2) Mulvihill

replied that he had heard "shop talk" about such a tryst. (3) When

Todd Charest asked for Melissa Rattell's telephone number,

Mulvihill told him that he did not have it but that he would give

Todd's number to Melissa so that she could contact him if she so

chose. (4) Mulvihill then gave Melissa Rattell the telephone

number and told her of his conversation with Todd Charest. (5) He

then recounted these conversations to his supervisor, Montessi,

believing that the situation could have detrimental effects for the

working environment. (6) According to Mulvihill, Montessi wanted

nothing to do with the matter and walked away. (7) Later the same

day, Perreault noticed that Amy Charest was not at work and

expressed concern about her increased absenteeism and substandard

job performance. (8) When Perreault asked Mulvihill if he knew of

anything that might be affecting her work, Mulvihill told Perreault

of his conversations with Todd Charest and Melissa Rattell.

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 Even if the record supports this chain of sanguine

inferences — a matter on which we take no view — Mulvihill's

analysis is misguided. The question here is not whether Amy

Charest and Mike Rattell were actually engaged in an extra-marital

affair. Nor is the question whether Mulvihill's actions were well-

intentioned. The fact is that Spalding, after due investigation,

reasonably concluded that Mulvihill's remarks about the alleged

affair, regardless of either their accuracy or their purpose,

unnecessarily created a hostile work environment for Amy Charest

(and, thus, violated Spalding's published sexual harassment

policy). This reasonable conclusion constituted proper cause for

Spalding to discharge Mulvihill. Seen in this light, Mulvihill's

inferential chain, even if credited, would not alter any material

fact. See Morris, 27 F.3d at 748 (explaining that a fact, to be

material, must have the capacity to affect the outcome of the

suit); see also Malik, 202 F.3d at 107.

The next factual dispute to which Mulvihill alludes

involves the extent of Spalding's investigation. In this regard,

he draws our attention to the statement in Spalding's sexual

harassment policy that "no disciplinary action will be taken

without a thorough investigation of the facts which shall include

gathering of statements from all parties and witnesses involved in

the matter." From this launching pad, he jumps to the conclusion

that Spalding's investigation was not conducted in good faith (or,

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at least, that a jury could so find) because Bourdeau neglected to

interview three potential witnesses. This suggestion cannot

withstand scrutiny.

The persons that Bourdeau decided not to interview were

Mike Rattell, Melissa Rattell, and Todd Charest. Mulvihill's

attack overlooks that Bourdeau reasonably concluded that he did not

need to talk to these individuals because the issue was not whether

a meretricious relationship existed, but, rather, whether Mulvihill

was conversing with his coworkers about Amy Charest's sex life.

There is no evidence in the record that suggests that the three

named individuals had any personal knowledge as to whether

Mulvihill engaged in gossip-mongering. Thus, the decision not to

interview them was well within the employer's broad discretion. A

fortiori, that decision was insufficient to raise a genuine issue

of material fact anent Spalding's good faith.4 See Williams, 875

F.2d at 1485.

Mulvihill also maintains that there are factual issues

regarding the validity of the accusations against him. This is

4
We hasten to add that even were we to assume that the failure
to interview one or more of these individuals constituted a
violation of Spalding's announced protocol, it would not
necessarily undercut the entry of summary judgment. After all,
"[t]he grievance processes cannot be expected to be error-free.
The finality provision has sufficient force to surmount occasional
instances of mistake." Hines, 424 U.S. at 571. Because
"[e]fficiency is a fundamental concern of both union and
management" in hybrid section 301 actions, minor errors are
tolerable. McCreedy, 809 F.2d at 1238.

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true as far as it goes — but it does not go very far. The

investigation reveals that all of the witnesses agreed that

Mulvihill had commented in the most crude and offensive terms about

a sexual liaison between Amy Charest and Mike Rattell. Although

Mulvihill admits his role in the discussions, he denies that he

used uncouth language. That asserted factual dispute has no

bearing on our analysis. There is no evidence that Charest herself

was exposed to Mulvihill's comments at first hand and, in all

events, the violation that sparked Mulvihill's ouster did not

depend on the phraseology that he used. Whether Mulvihill spoke to

his coworkers with the saltiness of a sailor or the eloquence of a

Shakespearean scholar, it was the essence of his statements that

created the hostile work environment. The linguistic trappings

were, at most, the icing on the cake. Hence, Mulvihill again fails

to limn a material dispute sufficient to block summary judgment.

Finally, Mulvihill asserts that Spalding's sexual

harassment policy only prohibited "spreading false rumors." To

bolster this argument, he points to a company manual describing "on

the job conduct," which specifically cites the spreading of false

rumors as violative of "proper standards of conduct."

This argument is hopeless. For one thing, the record is

devoid of any evidence that Spalding ever limited its sexual

harassment policy to conform to this description. For another

thing, the fact that Mulvihill's salacious statements may have been

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true — a matter that we need not decide — would not alter the fact

that his dissemination of them to Charest's coworkers violated the

company's sexual harassment policy and fomented a hostile work

environment.

Although Mulvihill's asseverational array contains a

smattering of other arguments, none warrants discussion. We

conclude, therefore, that Spalding had proper cause for cashiering

Mulvihill and that, under the CBA, it bears no liability for

wrongful discharge.

D. The Fair Representation Claim.

Our conclusion that Spalding did not breach the CBA when

it terminated Mulvihill's employment serves to dispose of his case

against the Union as well. To prevail against either defendant in

a hybrid section 301 action, a plaintiff must show that the

employer discharged him in derogation of the CBA. DelCostello, 462

U.S. at 165. Because we have determined that Mulvihill failed to

carry this burden, see supra Part II(C), his suit against the Union

necessarily fails.

E. The Defamation Claim.

Mulvihill's complaint also contained a claim that

Spalding, by labeling him as a sexual harasser, defamed him. The

district court entered summary judgment against him on this claim,

and Mulvihill appeals.

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 This aspect of the case need not occupy us for long. "We

have steadfastly deemed waived issues raised on appeal in a

perfunctory manner, not accompanied by developed argumentation."

United States v. Bongiorno, 106 F.3d 1027, 1034 (1st Cir. 1997).

An issue falls into this category when, for example, the proponent

mentions it as "a possible argument in the most skeletal way,

leaving the court to do counsel's work." United States v. Zannino,

895 F.2d 1, 17 (1st Cir. 1990). So it is here.

After citing to his own self-serving testimony to the

effect that some of his associates told him that they had heard he

was fired for sexual harassment, Mulvihill makes the general

assertion that the "record before the court contains an abundance

of evidence which a jury could credit showing this charge to be

false, and that defendant Spalding knew that Mulvihill did not

sexually harass anyone." Appellant's Br. at 45. That is the

beginning and the end of his argument vis-à-vis the defamation

count. He makes no attempt either to marshal the pertinent facts

or to engage in reasoned analysis.

This treatment is too perfunctory to preserve the issue

for appeal. Mulvihill has done no more than point in a desultory

manner to a welter of paper — the record appendix comprises almost

1,400 pages — without "array[ing] these plethoric evidentiary

materials in any systematic way" with respect to his putative cause

of action. Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n,

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142 F.3d 26, 43 (1st Cir. 1998). That amounts to an invitation

that we ransack the record, research the law, and make his argument

for him. We decline the invitation. See Zannino, 895 F.2d at 17.

Consequently, we deem the argument waived.5

III. CONCLUSION

We need go no further. While courts should give broad

latitude to employers in investigating charges of sexual harassment

in the workplace, the federal interest in eradicating sexual

harassment must nonetheless be balanced against the equally strong

federal interest in protecting inadequately represented union

employees from wrongful discharge. To achieve this balance, the

law allows an employee who is fired for sexual harassment to

prevail in an ensuing hybrid section 301 action only if he can show

that the employer lacked a substantial evidentiary basis for its

determination that he was guilty of sexual harassment. Mulvihill

has failed by a wide margin to make this showing. He also has

failed to make out a prima facie case of defamation. Accordingly,

we affirm the entry of summary judgment in the defendants' favor.

Affirmed.

5
In all events, there was no discernible defamation. Based
upon the undisputed facts, Mulvihill, while at work, discussed
Charest's sex life with their coworkers. He thereby contravened
Spalding's sexual harassment policy. See supra Part II(C). For
workplace purposes, that made him guilty of sexual harassment.
Under those circumstances, it is hard to imagine how Spalding's
alleged publication could have been actionable.

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