Professional Documents
Culture Documents
_________________________
In this
bitterly
contested
places in its
case, plaintiff-appellant
success the Service may have encountered in its struggle with the
elements,
it has
been unable
to surmount a
man-made obstacle:
I.
I.
BACKGROUND
BACKGROUND
The Lynnfield
Post Office
1973.
He
hired appellant as
a part-
two
In
1983,
appellant became a dispatcher
direct
supervision of
enjoy a cordial
James Walsh.
working relationship
Walsh
under the
and Pagano
a situation
did not
that perhaps
became
Hentschel sent
tardiness
Pagano's supervisor.
On
December 2,
1984,
and excessive
use of
sick leave.
second warning
period
called "notice of
and
reissued it
grievance
removal" on July
on
October
proceedings,
authorized
a "last
contained
22,
Walsh
During
that
the
overrode Hentschel's
chance" agreement.
promise
withdrawn),
Although
appellant
would
ensuing
action
and
the agreement
report
for
work
appellant was
four-month period
appellant
ending March
23, 1987.
during the
Hentschel discharged
employment
because
origin.2
opportunity office,
of
his employer's
alleging
animus
that he
against
was dismissed
persons of
Italian
vigorously pursued
____________________
brought suit
against the
Receiving no satisfaction,
Postmaster General
in the
United
7, 1990.
his motion
Several
months
On
for
February 19,
leave
thereafter,
to
1992, a
file
the
district
an
district court
magistrate judge
amended
court
complaint.
granted
the
matter, appellant
contends that
the
discharge and
follows.
January
breach of
10, 1992.
judge who
denied it
action.
The facts
are as
magistrate
with
contract.
on grounds of
the motion to a
futility, ruling
the wrongful
Tort Claims
Appellant took
VII and
to comport
no further
to the magistrate's
Civ. P.
Under
ordinary
complaint is "a
circumstances
pretrial matter
motion
to
not dispositive of
see
___
also
____
district judge
any
pretrial
relevant here).
28
U.S.C.
a claim
or
amend
636(b)(1)(A)
(providing
that a
with certain
A party displeased
enumerated
exceptions not
by a magistrate's order on a
district
636(b)(1)(A);
28
of rulemaking power).
rights in
period, he
erroneous or contrary
sits idly
by and
fails to
magistrate's order
U.S. Magistrates
District
this fashion,
If
the
to be "clearly
party
R. Civ. P.
the aggrieved
it
See Fed.
___
of
. . . ."
in the
Id.;
___
28 U.S.C.
object within
assign as error a
United
Massachusetts
to law."
the prescribed
defect in the
(implementing
28
Court for
the
U.S.C.
this
instance,
Pagano
did
not
object
to
the
____________________
magistrate's
matter.
hear
denial of
Congress
the
motion to
amend.
That
ends
the
appeals jurisdiction to
28 U.S.C.
decision to be
1291.
"final" within
for a
the meaning
of the
923 F.2d 7, 8 (1st Cir. 1991) (quoting Siers v. Morrash, 700 F.2d
_____
_______
113,
115 (3d
Cir. 1983)).4
litigant could
before
the
In
other words,
when, as
district
judge, but
failed
to
do
now, a
by bringing it
so within
the
the ruling
directly to
the court
of appeals.
Cir. 1992)
McKeever
________
(per
curiam) [No.92-1710,
slip
___, ___
op. at
7-8];
See
___
116; see
___
also Ecker,
____ _____
923 F.2d at
9 (holding
that the
a nondispositive pretrial
United States v.
_____________
Renfro, 620
______
motion in a
criminal case);
(5th Cir.)
(same),
____
______
Because appellant
took no
steps to have
the district
____________________
precluded from
contesting the
present proceeding.
1387
(5th
Cir.
challenge to a
See Rittenhouse
___ ___________
1987)
(refusing
magistrate's denial
complaint because
that order
v. Mabry,
_____
to
amend, he
in the
832 F.2d
entertain
of his motion
1380,
plaintiff's
to amend
his
ever taken or attempted and the district court did not in any way
review or confirm th[e] order").
III.
III.
divide
our
examination
We
of the
summary
judgment
A.
A.
Summary
appropriate when
"the pleadings,
together
show
with
genuine
the affidavits,
is entitled to a judgment as
56(c).
that there
is no
a matter of law."
Fed. R.
Civ. P.
and asserted
establish
a lack of
plaintiff must
if any,
See
___
(1986).
'genuine' means
point in
favor of the
nonmoving party
'material'
that the
fact is
that might
means
one
[and]
affect the
outcome of the
United States v.
_____________
Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992) (citations and
_______________
internal quotation marks omitted).
proof at
trial,
he may
not
contrary, the
(1992).
(1st Cir.
for
summary
colorable" or
nonmovant must
a motion
defeat
"present definite,
competent
1991), cert.
_____
denied, 112
______
S. Ct.
play,
"summary judgment
party
rests
merely
inferences, and
may
upon
To
be appropriate
conclusory
2965
in
if the
non-moving
allegations,
improbable
unsupported speculation."
Medina-Munoz
____________
v. R.J.
____
the light
most
judgment, indulging
favor.
amicable
to
all reasonable
the party
contesting
inferences
in that
summary
party's
(1st
Cir. 1990).
B.
B.
Title
"discharge
any
VII
renders
individual .
it
unlawful for
. .
because of
an
employer
to
such individual's
race,
color, religion,
sex, or
national origin
. .
. ."
42
U.S.C.
2000e-2(a)(1).
To
prevail
on a
Title VII
claim, a
a proscribed reason.
Rico,
____
902
produced
F.2d 148,
no direct
153 (1st
Cir.
evidence of
v.
Because appellant
discriminatory intent,
1990).
we must
burden-shifting framework
Green, 411
_____
U.S.
792,
802-05
(1973).5
McDonnell Douglas requires,
__________________
state a prima facie case.
production,
requiring
necessarily
prove)
some
Satisfying this
inference of
the
first, that
the claimant
to
articulate
(but
nondiscriminatory
employment action.
of
not
reason
discrimination
arising
from the
plaintiff's
prima facie
case.6
See White
___ _____
1037, 1040
(1st
____________________
5In
general, the
stage, therefore,
the
plaintiff, if
he
is to
defeat
sufficient
evidence,
direct
or
indirect,
both
of
pretext and
animus."
Mesnick,
_______
127-28 (1st
Cir.), cert.
_____
denied, 112
______
S. Ct.
181 (1991);
Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.
_______
_________________________
1988).
In
this
case, the
district court
the court
pretext.
the
the employer
reason (chronic
appellant on two
bases.
First,
record
inference
apparently assumed
. .
that
that plaintiff
heritage."
disposition.
Either
Having
would
justify
was dismissed
conclusion
would
scrutinized the
even a
no evidence in
circumstantial
because of
have
his Italian
warranted
record, we
brevis
are persuaded
1.
1.
takes an
Pretext.
Pretext.
_______
Appellant's effort
unexpected twist.
to establish pretext
stated reason
punctuality.
rests.
on which
he was,
but says
claim hinges on
one
Patrick
appellant's attempt
to
co-employee
of
Irish
this claim, finding that Rafferty's case was not a fair congener.
We agree.
In
contending that
he
and Rafferty
were
"similarly
substantially longer
and
more varied
number of times
history of
attendance
racked
up many
more
violations of
the
Appellant
Postal Service's
attendance policy than did Rafferty when items such as sick time,
11
absences without leave, and the like are taken into account.8
attendance and
that Rafferty,
vis-a-vis overall
disciplined for
In the absence of
not err
material
fact
in
holding
on
that there
the question
of
was
no
pretext.9
genuine issue
of
See Oliver
___ ______
v.
Digital Equip. Corp., 846 F.2d 103, 109 (1st Cir. 1988).
____________________
2.
2.
Discriminatory Animus.
Discriminatory Animus.
_____________________
to
adduce any
evidence
discriminatory intent.
tending to
Appellant
prove defendant's
produced
no
supposed
evidence
that
and initiating
disciplinary
proceedings,
harbored
an
anti-Italian animus.
showing
the Lynnfield
that Walsh,
postmaster, nursed
a grudge
____________________
to
news
that
he
had
attributed to Walsh.
become
appellant's
When
immediate
allegedly told
a co-worker
that he
This evidence
is manifestly
trialworthy
issue
proscribed
animus.
concededly
coarse
but
an
objectively
suggests
to
constituted
origin.
regarding
To
expressions
be
the
of
existence
sure,
there
insufficient to
of
the attributed
is
nothing
statutorily
remarks
about them
reasonable
observer
discrimination
based
Sporadic instances of
create a
are
which
that
they
on
national
more, do
See, e.g., Mesnick, 950 F.2d at 826; Medina-Munoz, 896 F.2d at 9___ ____ _______
____________
10;
Robinson v.
________
Cir.
1987),
cert.
_____
denied,
______
484
U.S.
1042
(1988);
Clark
_____
v.
Atchison, Topeka & Santa Fe Ry. Co., 731 F.2d 698, 702 (10th Cir.
___________________________________
1984).
comments,
We
hold,
therefore, that
this
smattering of
offhand
10In view of this ruling, we need not reach, and, thus, take
no view anent, the district court's alternative holding that
Walsh's comments, even if probative of ethnic hostility, were
inconsequential absent evidence that he had some input into, or
impact upon, Hentschel's decision to end appellant's employment.
13
IV.
IV.
CONCLUSION
CONCLUSION
We
need go no further.
And,
without
serious
question,
that
the
at 109 (holding
VII case
that summary
where plaintiff's
lower
See Oliver,
___ ______
judgment is proper
opposition, at
in a
bottom, rests
Affirmed.
Affirmed.
_________
court
____________________