United States Court of Appeals
For the First Circuit
No. 05-1543
ARNOLD HOFFMAN,
Plaintiff, Appellant,
v.
APPLICATORS SALES AND SERVICE, INC., d/b/a
PARADIGM WINDOW SOLUTIONS, ANDREW SEVIER, and RICHARD ROBINOV.
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene A. Carter, District Judge]
Before
Lynch, Circuit Judge,
Campbell and Cyr, Senior Circuit Judges.
David M. Hoffman for appellant.
Louis B. Butterfield with whom Bernstein, Shur, Sawyer, &
Nelson was on brief for appellees.
February 22, 2006
CAMPBELL, Senior Circuit Judge. Appellant plaintiff
Arnold Hoffman appeals from the district court's granting of
summary judgment for appellee defendants Applicators Sales and
Service, Inc., Paradigm Window Solutions, Andrew Sevier, and
Richard Robinov (collectively, "defendants" or "the Company"), and
from the court's striking of the plaintiff's designation of an
expert witness. We affirm.
I. Background and Facts
Hoffman filed in the Maine Superior Court a three-count
complaint alleging age discrimination, defamation, and breach of
employment agreement. On July 21, 2004, the defendants removed the
action from the state to the federal court.
The district court thereupon issued a scheduling order
setting dates for the parties to designate expert witnesses, to
complete discovery, and to file dispositive motions. Discovery
took place in the form of requests for documents, depositions, and
interrogatories, following which the defendants moved for summary
judgment. The court granted judgment as a matter of law in favor
of the company on Count 1 for age discrimination and remanded the
remaining claims to the state court.1
1
Sometime after the deadline set by the district court for
designating expert witnesses, Hoffman designated an expert, and the
Company moved to strike the designation. The court granted the
Company's motion to strike, a ruling from which Hoffman now
appeals. Because, however, we affirm the grant of summary judgment
to defendants, we need not review the status of Hoffman's witness
designation. Even if the court erred on the witness designation,
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We view the record on summary judgment in the light most
favorable to the nonmovant. See Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 50 (1st Cir. 2000).
Applicators Sales and Service, Inc. ("Applicators") is a
wholesale distributor that sells building products to professional
contractors. Part of Applicators' business included manufacturing
windows under a franchise agreement with a national company. At
some point, Applicators decided to end its relationship with the
franchisor in order to start a new venture with its own products.
This new venture resulted in the creation of defendant Paradigm
Window Solutions ("Paradigm"). Defendant Sevier is Paradigm's
General Manager. A semi-autonomous division, Paradigm makes and
distributes windows under its own name and for a private label.
Before joining the defendants' company, Arnold Hoffman
was employed for seven years by MBF Windows in Portland, Maine. He
served as the head of MBF's Portland operation, performing a wide
range of duties, and supervised one or two employees at any given
time. Responding to an advertisement for an outside sales position
at Applicators, Hoffman submitted his resume to the company in
March or April of 2000. He interviewed first with defendants
Robinov and Sevier and two other employees. They did not explain
much about the position because Applicators had not yet announced
plans to sever ties with its franchisor. About three weeks after
the summary judgment would still stand.
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the first interview, Hoffman was called in for a follow-up
interview and offered the job, which would be with the new entity,
Paradigm. He accepted and began work in May 2000. He was 54 or 55
years old when he began with the company.
Sevier was Hoffman's supervisor throughout his employment
at Paradigm. Hoffman viewed Sevier as an irrationally demanding
supervisor, and the relationship between the two deteriorated over
time. Hoffman testified in his deposition that Sevier "was a very
poor manager [who] . . . motivated by intimidation and
negative . . . comments, not by positives and encouragement." He
also wrote in a letter to Jerry Robinov, one of the founders of
Applicators, that "Most of the salesmen hate dealing with [Mr.
Sevier] and will do everything they can to avoid him. . . . I am
not the first employee to have experienced [Mr. Sevier's] wrath or
his poor personnel management skills. I'm sure I won't be the
last." He testified that "it was a general consensus behind
[Sevier's] back that people did not like him. They didn't like the
way he treated them."
Hoffman was very successful in sales, achieving a 56
percent sales increase in his last fiscal year of employment, an
increase which the Company's Sales Manager, Steve Zerbinopolous,
acknowledged as unmatched. His May, 2002 performance evaluation
rated him as "exceeds requirements" (a score of 4 on a scale of 1-
5) for problem solving, communication, initiative, and innovation
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and rated him as "meets job requirements" (a 3 on a scale of 1-5)
for quantity of work, job knowledge, planning/organizing,
adaptability, and cost consciousness. He was given a rating of
"needs improvement" (a 2 on a scale of 1-5) in the categories of
managing people, judgment, safety awareness, and leadership. He
received a merit pay increase after that evaluation.
On May 22-23, 2003, Hoffman underwent another annual
performance review. In the written review, Sevier was critical of
Hoffman's performance and declined to grant him a merit pay
increase. Hoffman and Sevier agreed to meet on August 29, 2003 for
a follow-up, at which time Hoffman's performance would be re-
evaluated and a determination would be made about whether to
increase Hoffman's salary. In the performance review, Hoffman
received a rating of "meets job requirements" in problem solving,
adaptability, dependability, communication, innovation, appearance,
cost consciousness, and safety. He was given a rating of "needs
improvement" in the categories job knowledge, judgment, leadership,
and training. The overall rating stated:
There are concerns with the manner in which you manage
your territory and time. It appears as [though] you have
not systematically scheduled to visit your accounts and
you do not follow up with the requests made by your
customers. You need to improve your presentation skills.
You need to make dramatic improvement in these areas.
Hoffman sent Sevier a written rebuttal to his criticisms
immediately following the May review. Sevier responded in writing
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to the rebuttal and reiterated his plan for the August review.
Hoffman sent Sevier a second rebuttal on June 22, 2003.
On or about June 25, 2003, Hoffman and Sevier had a
dispute about the status of a work-related project. Hoffman missed
a deadline for the production of sell sheets for window products,
and Sevier became impatient with Hoffman's attempts to explain the
reason he missed the deadline. Hoffman argued that the sell sheets
were substantially complete but for information that was to be
supplied by Sevier and the inclusion of a few photos which, Hoffman
claimed, Hoffman or a photographer "could have taken in an
afternoon." Sevier lost his temper with Hoffman, and, on June 27,
2003, the Company terminated Hoffman's employment. Scott Frazier,
a long-time Company employee, assumed Hoffman's position about
three months after Hoffman's termination. Frazier was less than
forty years old at the time he was promoted.
The district court, reviewing the defendants' motion for
summary judgment, assumed arguendo that the plaintiff had made out
a prima facie case of employment discrimination. The court also
found that the defendants had put forward a legitimate reason for
his termination (the flawed 2003 performance review and the June
25, 2003 missing of a project deadline). Addressing next whether
Hoffman had carried his burden to establish that the defendants'
stated reason for termination was a pretext for age discrimination,
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the district court found that Hoffman had not introduced sufficient
evidence to establish that it was such a pretext.
Hoffman relied on what he called "Exhibit E," attached to
his Offer of Proof, a chart which purported to summarize the number
of employees at Applicators and Paradigm and of those over the age
of 50 at each division. The district court struck Exhibit E from
the summary judgment record on the grounds that it was inadmissible
because it was not properly authenticated and was based on data
that had not been authenticated or presented in the summary
judgment record. Further, the district court noted, the accuracy
of the information in Exhibit E had not been sworn to under oath.
The district court concluded that without Exhibit E,
Hoffman had not placed in the record any evidence of age
discrimination or age-based animus and held that no rational fact-
finder could infer from the record as it existed an employment
action based upon age discrimination. The court entered summary
judgment for the defendants on the age discrimination claim and
remanded the remaining two state claims to the Maine state court.
This appeal followed.
II. Discussion -- Summary Judgment
On appeal, Hoffman argues that the district court erred
in striking Exhibit E and in ruling that Hoffman had introduced
insufficient evidence of pretext and age-based motivation. We
disagree.
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A. Standard of Review
We review de novo the district court's decision to grant
summary judgment. Roldan-Plumey, 115 F.3d at 61. However, we
review the district court's decision to exclude an exhibit from
evidence only for abuse of discretion. "[P]rior to turning to its
de novo summary judgment examination," the Court should review the
district court's evidentiary rulings made as part of its decision
on summary judgment for abuse of discretion. Alternative Sys.
Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 31 (1st Cir. 2004)
(citing Schubert v. Nissan Motor Corp., 148 F.3d 25, 29 (1st Cir.
1998)). "[A] trial court should have as much leeway in dealing
with those [evidentiary] matters at the summary judgment stage as
at trial." Id. at 31-32.
The phrase "abuse of discretion"
sounds worse than it really is. All it need mean is
that, when judicial action is taken in a discretionary
matter, such action cannot be set aside by a reviewing
court unless it has a definite and firm conviction that
the court below committed a clear error of judgment in
the conclusion it reached upon a weighing of the
relevant factors.
Schubert, 148 F.3d at 30 (quotation omitted). A "court of appeals
ordinarily will not find an abuse of discretion unless
perscrutation of the record provides strong evidence that the trial
judge indulged in a serious lapse in judgment." Texaco P.R., Inc.
v. Dep't of Consumer Affairs, 60 F.3d 867, 875 (1st Cir. 1995).
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B. Exclusion of Exhibit E
Under Federal Rule of Civil Procedure 56(e), on summary
judgment, the parties in their supporting affidavits "shall set
forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the
matters stated therein. Sworn or certified copies of all papers or
parts thereof referred to in an affidavit shall be attached thereto
or served therewith." See Carmona v. Toledo, 215 F.3d 124, 131
(1st Cir. 2000) (emphasis supplied). The district court held that
Exhibit E was not admissible because it was not authenticated and
was based on data not authenticated or presented in the summary
judgment record. "In reviewing a summary judgment, we are limited
to the . . . evidence available to the court at the time the motion
was made." Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003).
According to Hoffman, Exhibit E should nonetheless have
been admitted as it was a tabulation of "documentary evidence
provided in discovery by Defendants." Hoffman says the tabulated
data in the Exhibit demonstrates age discrimination because it
shows that Paradigm employed only one person over the age of fifty,
while twenty-two percent of Applicators' employees were over fifty.
The Exhibit consists of a chart with attached explanatory notes
purporting to list the total number of employees at Paradigm and
Applicators and breaking down the number of salaried employees and
the number of salaried employees over fifty years of age. A
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footnote states that some employees have been excluded from
consideration in the calculations. Other footnotes to the chart
indicate that the data therein is based on disclosures provided by
the defendants in document discovery at pages D492 through D509.
Exhibit E's preparer is not named, and the cited underlying pages
of documentary discovery are neither attached to Exhibit E nor
included elsewhere in exhibits or attachments filed by either party
in connection with the summary judgment motion or opposition.
Hoffman does not deny in his appellate and reply briefs
the district court's assertion, echoed by defendant appellees in
their brief, that the discovery documents allegedly underpinning
Exhibit E were not presented to the district court. Indeed,
nothing in the docket below indicates the discovery documents
referenced in Exhibit E had in any manner been filed with the
court. Hence, to have located them, the court would have had to
initiate a search going beyond any of the documents filed with the
case. Only on appeal has Hoffman, for the first time, submitted
several Bates-numbered pages from the defendants' discovery
disclosures listing employees and their birthdates and dates of
hire.2
2
Defendants have moved to strike the pages tendered on appeal
on the ground that they were not submitted to the district court.
We denied the motion without prejudice to reconsideration at the
time we resolved this appeal. We now allow the motion as the pages
have not been shown to have been a part of the record below. See
infra pp. 11-12.
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Hoffman argues that, even though the supporting pages now
tendered may not actually have been before the district court, they
reflect data disclosed by the defendants themselves during
discovery. Moreover, he asserts, the disclosures would be
admissible at trial as business records. Therefore, Hoffman says,
their authenticity cannot now be questioned and "[t]his critical
piece of evidence [i.e., Exhibit E] should have been considered by
the District Court when considering Defendants' motion for summary
judgment . . . regardless of what may appropriately be required for
its admission into evidence at trial."3
But Hoffman overlooks the crucial point that documents do
not automatically become a part of the record simply because they
3
Hoffman points to language in Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986), in which the Supreme Court stated,
[w]e do not mean that the nonmoving party must produce
evidence in a form that would be admissible at trial in
order to avoid summary judgment. Obviously, Rule 56 does
not require a nonmoving party to depose her own
witnesses. Rule 56(e) permits a proper summary judgment
motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings
themselves, and it is from this list that one would
normally expect the nonmoving party to make the showing
to which we have referred.
In context, however, the quotation addresses the specific point in
Celotex that a nonmoving party who bore the burden of proof on a
dispositive issue could rely on her own affidavits and the
"depositions, answers to interrogatories, and admissions on file"
without having to depose her own witnesses. Id. (quoting Rule
56(c))(emphasis supplied). The reference is not availing for
Hoffman here when the issue is the court's refusal to accept a
chalk supported only by discovery disclosures that were never "on
file" with the district court.
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are the products of discovery. See Fed. R. Civ. P. 56(e) ("[s]worn
or certified copies of all papers or parts thereof referred to in
an affidavit shall be attached thereto or served therewith"); In re
Citric Acid Litig., 191 F.3d 1090, 1101-02 (9th Cir. 1999) ("The
document on which [the plaintiff] relies for its market share
figures was not submitted as part of the summary judgment record,
and thus we do not consider it."). If a party wishes the court to
consider matters disclosed during discovery, he must take
appropriate steps to have them included in the record: merely
citing to pages of discovery materials not of record does not
suffice.
Hence, whatever argument Hoffman may have had for
admission of Exhibit E as a "chalk" grounded on data found in
defendant appellees' business records, required that the discovery
documents containing such records be brought first before the
court, by being placed in the summary judgment record. Where that
was not done, the district court did not abuse its discretion in
not seeking out the referenced documentation on its own and in
rejecting the Exhibit. See 11 James Wm. Moore et al., Moore's
Federal Practice § 56.10 (Matthew Bender 3d ed.) ("Courts generally
accept use of documents produced in discovery as proper summary
judgment material; but, if such documents are not on file with
court, they must be provided to the court.").
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We thus reject Hoffman's argument that Exhibit E was
admissible as, in essence, a "chalk" accurately summarizing the
Company's own employment information. See United States v.
Patrick, 248 F.3d 11, 25 (1st Cir. 2001). Without having the
discovery disclosures before it, the district court was in no
position to determine if Exhibit E properly reflected admissible
data. A chalk "must be fully supported in all respects by
corroborating admissible evidence." United States v. Morse, 491
F.2d 149, 153 n.6 (1st Cir. 1974), cited with approval in Patrick,
248 F.3d at 25. Even supposing arguendo such corroborating
evidence existed in the discovery documents, those documents were
not before the judge, and the judge had no duty to search for them
outside the record in order to see if they contained proper
supporting data.
Hoffman is also wrong to rely on Carmona, in which we
held that documents supporting a motion for summary judgment could
not be considered because they had not been properly authenticated.
215 F.3d at 131. Focusing only on Carmona's statement that an
authenticating affidavit complying with Rule 56(e) is required
under summary judgment, id., Hoffman argues that he submitted a
"fully conforming Offer of Proof and Affidavit." Rule 56(e),
however, as already noted, requires that the affidavit be made on
personal knowledge, set forth facts that would be admissible in
evidence, and show affirmatively that the affiant is competent to
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testify to the matters stated therein. Moreover, "sworn or
certified copies of all papers" referred to in the affidavit must
be attached. Id.
Hoffman's affidavit opens with a general statement that
the affidavit is based on his personal knowledge, but he makes no
mention of how he came to have personal knowledge of the facts
contained in Exhibit E, nor does he affirm in the affidavit that he
would be able to testify to the facts contained in Exhibit E at
trial.4 The chart he attached to his offer of proof is not
authenticated in any way, nor, as already discussed at length
above, did he identify the source of the facts and figures listed
4
Paragraph 11 of the affidavit focuses on Exhibit E:
While Defendants contend that they did not fire me
because of my age, it is clear that their stated reasons
for firing me are not true and are pretextual. Moreover,
Exhibit E attached hereto is powerful affirmative
evidence of age discrimination by Sevier, Robinov and
Paradigm....Exhibit E shows that Paradigm's age
employment profile is skewed to the point where a
conclusion of age discrimination can clearly and cogently
be found. Buttressing this conclusion is the fact that
the sole Paradigm employee, except for Sevier, over 50,
Stephen Fisk, is classified as a Maintenance
Administrator, and is the practically irreplaceable
technician/engineer who takes care of Paradigm's
production machinery. He should be exempted from any
general salaried employee list, just as have been the
Applicators' shareholders, one half of whom are retired.
If Mr. Fisk were excluded along with Sevier and now
Hoffman, Paradigm, would show -0- employees over 50 out
of 263 total and 28 salaried; while the balance of the
Company would show 12 over 50 out of 159 total and 55
salaried. Such a discrepancy is clear evidence of age
discrimination.
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in the chart beyond reference to Bates-numbered pages from
discovery documents not attached to the chart. No independent
basis for admitting the chart--such as that it was a business
record of the companies, see, e.g., United States v. O'Connell, 890
F.2d 563, 566-67 (1st Cir. 1989)--and no authenticating
foundational information was provided. The chart in Exhibit E was
clearly not itself a business record, nor was it admissible under
some other evidentiary rule.
We hold, therefore, that the district court did not abuse
its discretion in refusing to consider Exhibit E.
C. Age Discrimination Claim
As we uphold the exclusion of Exhibit E, we also uphold
the entry of summary judgment for defendants. Under the Age
Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. §§ 621
et seq., "it is unlawful for an employer . . . to fail or refuse to
hire or to discharge any individual or otherwise discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's age." Id., § 623(a)(1). In order to prevail in a
lawsuit under the ADEA, the plaintiff's age must actually have
played a role in the employer's decision-making process and have
had a determinative or motivating influence on the outcome. See
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141
(2000).
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To establish a prima facie case of age discrimination,
"an ADEA claimant must adduce evidence that: (1) [he] was at least
forty years of age; (2) [his] job performance met the employer's
legitimate expectations; (3) the employer subjected [him] to an
adverse employment action (e.g., an actual or constructive
discharge); and (4) the employer had a continuing need for the
services provided by the position from which the claimant was
discharged." Gonzalez v. El Dia, Inc., 304 F.3d 63, 68 (1st Cir.
2002). The prima facie showing creates a rebuttable presumption
that the defendant-employer violated the ADEA. Id. at 69-70.
After the creation of such a presumption, the burden of production
shifts to the defendant-employer to articulate "a legitimate,
nondiscriminatory basis for its adverse employment action." Id. at
70.
If the employer is able to articulate a legitimate, non-
discriminatory reason, the presumption afforded to the plaintiff's
prima facie case disappears, and the plaintiff must "adduce
sufficient creditable evidence that age was a motivating factor in
the challenged employment action." Id. at 69. The plaintiff may
meet his burden of going forward by showing that the employer's
articulated reason for the challenged employment action was
pretextual, Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424,
430 n.5 (1st Cir. 2000); the ultimate burden on the plaintiff is to
show that discrimination is the or a motivating factor, a showing
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which may, but need not be, inferred, depending on the facts, from
the showing of pretext. Fite v. Digital Equip. Corp., 232 F.3d 3,
7 (1st Cir. 2000) (citing Reeves).
The district court presumed that Hoffman had made out a
prima facie case of age discrimination and found that the
defendants had put forward a legitimate, non-discriminatory basis
for Hoffman's termination: his performance review and the missed
project deadline. Having excluded Exhibit E as inadmissible, the
court found that Hoffman had "placed in the summary judgment record
no other evidence of age discrimination or of any age-based
animus." The only facts even suggesting age discrimination were
that Hoffman was over forty when he was terminated and his
replacement was slightly under the age of forty. Offset against
this, however, was the fact that Hoffman was over fifty years old
when he was initially hired.
Hoffman makes much of the fact that the district court
cited Reeves for the proposition that a pretextual reason for
termination without other evidence of a motivation based on age-
bias can be enough to defeat summary judgment. Reeves, 530 U.S. at
147. The Reeves Court wrote:
a plaintiff's prima facie case, combined with sufficient
evidence to find that the employer's asserted
justification is false, may permit the trier of fact to
conclude that the employer unlawfully
discriminated. . . . This is not to say that such a
showing by the plaintiff will always be adequate to
sustain a jury's finding of liability. Certainly there
will be instances where, although the plaintiff has
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established a prima facie case and set forth sufficient
evidence to reject the defendant's explanation, no
rational factfinder could conclude that the action was
discriminatory.
Id. The district court wrote that "[t]his case, where there is an
absence of any persuasive evidence of a motivation based on age-
bias, is precisely that case which the Reeves Court excluded from
its rule." Later in the opinion, the court also wrote that "[o]n
this summary judgment record, there is simply no admissible
evidence countering the employer's termination reason, let alone
any admissible evidence to believe Plaintiff's claim that any
consideration of age motivated his discharge."
Hoffman argues the district court found the defendants'
proffered reason for terminating him was pretextual. This
characterization is not easily squared with the court's own
statement ("The record is devoid of any credible evidence that
Defendants' employment actions were a pretext for age
discrimination."). But in any event, pretext or no, we do not find
on de novo review sufficient evidence to support a finding that age
discrimination was a factor motivating the termination. Hoffman
argues that the evidence shows defendants' complaints about his
work performance were "blatant fabrications." However, his
performance evaluation indicated that he struggled in some areas.
Immediately before he was fired, he had missed a deadline for the
completion of a project, a mistake in character with one of the
criticisms outlined on his performance evaluation. He himself,
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moreover, described Sevier as an irrationally demanding and
difficult manager to work with. Evidence of their deteriorating
relationship suggests that bad feeling may have been another
ingredient in Sevier's decision to discharge him. What is lacking
is evidence from which a reasonable inference can be drawn that age
discrimination was also a factor. We believe that regardless of
whether the defendants' stated reasons for termination could be
found to be pretextual, no factfinder could rationally conclude
from the record before the district court that the termination--
whatever its precise motivation--was motivated by discrimination
based upon Hoffman's age. Reeves, 540 U.S. at 147.
III. Conclusion
The district court's judgment is affirmed.
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