TORRUELLA, Circuit Judge.
Jamilya Pina ("Pina") appeals from the district court's grant of summary judgment in favor of her former employer, The Children's Place Retail Stores, Inc. ("TCP"), and TCP District Manager Jean
Because Pina challenges the grant of Appellees' motion for summary judgment, we review the facts in a manner as favorable to Pina as the record allows, "keenly aware that we cannot accept conclusory allegations, improbable inferences, and unsupported speculation." Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134 (1st Cir. 2013) (internal quotation marks omitted).
Pina, an African-American woman, worked periodically as a per diem sales associate at TCP's South Shore Plaza store beginning in June 2006.
During this time, Pina was in a romantic relationship with Michael Williams ("Williams"), an African-American male who worked for TCP at the South Shore Plaza store. Pina, however, began to suspect that Williams was being unfaithful, and she accused multiple TCP employees of sleeping with Williams. Among those Pina suspected were two South Shore Plaza ASMs: Melody Mowatt ("Mowatt"), an African-American female, and Stephanie Giordano ("Giordano"), a white female.
On the night of July 20, 2007, Pina called the South Shore Plaza Store Manager Kristen Fernándes ("Fernándes") and accused Mowatt and Giordano of falsifying Williams's time cards. Pina asserts that while she was driving Williams to work, he told her that arriving late was not a problem because one of the ASMs would "take care of it." Because she continued receiving full child support payments from Williams even though she knew he was arriving late, Pina believed that Giordano and Mowatt were altering Williams's time cards so that he was paid as if he had arrived on time.
According to her deposition testimony, Pina believes that she mentioned only the time card fraud and that she did not discuss any romantic relationships or allegations of sexual impropriety during her conversation with Fernándes. Pina also now claims that after telling Fernándes about the time card fraud, she made an additional report regarding Giordano's alteration of Williams's time cards by calling TCP's loss prevention hotline. Pina believed that she would be paid for her report because TCP's loss prevention program advertised rewards of up to $100 for hotline reports leading to the termination of an employee for theft.
Two days later, on July 23, 2007, Pina accused another TCP employee — this time her own manager, Trench — of having an affair with Williams. While at a Dunkin' Donuts before work, Pina recognized one of the other patrons: Joe Leslie ("Leslie"), Trench's partner. In the presence of Trench's young daughter, Pina told Leslie that Trench was sleeping with Williams.
Later that same day, Raymond went to the Cambridgeside store to inquire further about Pina's behavior. His investigation revealed that Pina had also told a Cambridgeside sales associate that Trench was sleeping with Williams, although Pina could not recall having that conversation. In addition, Raymond received a call from Mowatt, who revealed that Pina had left harassing messages on Mowatt's cell phone, accusing her of having an affair with Williams as well.
On January 10, 2008, Pina filed a charge of discrimination with the Massachusetts Commission against Discrimination ("MCAD"), alleging that TCP and Raymond terminated her employment on the basis of her race because they did not want to compensate her, an African-American woman, for reporting internal theft.
Three months later, on April 2, 2011, Pina applied for a position as an ASM at TCP's Downtown Crossing location. Pina admits that she did not know if the store had any openings for that position at the time she applied. Believing that she missed a call from the Downtown Crossing store around May 12, 2011, Pina later returned to the store and spoke with the same TCP employee to whom she originally handed her application. Based on this conversation, Pina believed that the hiring manager would contact her. According to Appellees, however, there were no available ASM positions at the Downtown Crossing store at the time that Pina applied. Pina was never contacted or interviewed for the ASM position.
When an ASM position later opened up at the Downtown Crossing store in late April or early May 2011, Cynthia Henry ("Henry"), the District Manager responsible for the Downtown Crossing store, selected an internal candidate to fill the position. The candidate she selected was an African-American female with a year of experience as an ASM in TCP's Saugus store. Henry promoted her without considering any external candidates or advertising the position.
On June 14, 2011, Pina filed a second charge with the MCAD, this time claiming that TCP failed to interview and re-hire her on the basis of race and in retaliation for her first MCAD charge, all in violation of Massachusetts law and Title VII. The MCAD eventually dismissed Pina's second charge, but prior to that decision, Pina initiated the present action on July 19, 2011. After the case was removed to district court, many of Pina's state law claims were dismissed for failure to file within the limitations period and failure to state a claim. On March 9, 2012, Appellees moved for summary judgment on Pina's remaining claims: supervisor harassment and discriminatory firing in violation of 42 U.S.C. § 1981, and retaliatory failure to rehire in violation of both § 1981 and chapter 151B of the Massachusetts General Laws. On March 27, Pina filed motions to reopen Raymond's deposition, to strike Henry's affidavit, for an extension of time, and for leave to file a cross-motion for summary judgment. After a hearing, the district court denied Pina's discovery-based motions, and on March 14, 2013, it granted Appellees' motion for summary judgment. After an unsuccessful motion for reconsideration, Pina's timely appeal followed.
On appeal, Pina argues that the district court erroneously denied three of her discovery-related motions: her motion to re-open Raymond's deposition, her motion to strike Henry's affidavit, and her motion for an extension of time. Additionally, Pina argues that the court erred by granting Appellees' motion for summary judgment. We begin with Pina's discovery-based claims.
We review challenges to a district court's discovery determinations under an abuse of discretion standard. See, e.g., Dennis v. Osram Sylvania, Inc., 549 F.3d 851, 859 (1st Cir.2008). It is well settled that "[a]ppellate courts seldom intervene in discovery questions" and that
The district court originally imposed a deadline of December 16, 2011 for the completion of depositions. Pina allowed the deadline to lapse and then sought permission to amend her complaint to include a failure to rehire claim. The district court allowed the amendment and set a second deposition deadline of January 26, 2012. On January 24, 2012, Pina's counsel deposed Raymond in his capacity as a representative of TCP pursuant to Federal Rule of Civil Procedure 30(b)(6).
By way of support, Pina cites Tingley Sys., Inc. v. CSC Consulting, Inc., 152 F.Supp.2d 95, 120 (D.Mass.2001) for the proposition that a deposition may be reopened where "the changes contained in the errata sheets make the deposition incomplete or useless without further testimony." Id. (internal quotation marks omitted). Pina points to three changes in Raymond's testimony that she believes show that re-opening was required.
Pina thus concludes that reopening was required since the changes were material, not "mere `corrections' of stenographic errors," and because she needed to "explore the myriad inconsistencies" in Raymond's testimony.
In seeking to advance her argument, Pina has lost sight of the law. Rule 30(e) does not limit a party to the correction of stenographic errors; it permits changes "in form or substance." Fed. R.Civ.P. 30(e)(emphasis added); Glenwood Farms, Inc. v. Ivey, 229 F.R.D. 34, 35 (D.Me.2005) ("Changes in the substance of a deponent's testimony are contemplated by the rule."). When witnesses make substantive changes to their deposition testimony, the district court certainly has the discretion to order the depositions reopened so that the revised answers may be followed up on and the reasons for the corrections explored. See Tingley, 152 F.Supp.2d at 121 (permitting reopening where revisions "materially alter[ed] the answers such as to render those portions of the deposition incomplete absent further testimony"). Here, though, Pina is unable to establish that the district court abused that discretion. The changes at issue constituted clarifications or corrections consistent with Raymond's original testimony. For example, Raymond's original deposition testimony — like his revised answers — included statements to the effect that interviews would not be conducted absent job openings, that there were no available ASM positions at the Downtown Crossing store when Pina applied, and that the Associate Handbook prohibited Pina's behavior. In sum, any changes to Raymond's deposition testimony were either not substantive or were not material to the summary judgment motion. Accordingly, the district court acted well within its discretion in denying Pina's motion to reopen Raymond's deposition.
Pina next argues that the district court erred by denying her motion to strike Henry's affidavit, which Appellees filed along with their motion for summary judgment after the close of discovery. Pina argues that Henry was not listed as a potential person with knowledge in Appellees' initial disclosures as required by Federal Rule of Civil Procedure 26(a)(1), which instructs parties to "provide to the other parties ... the name ... of each individual likely to have discoverable information ... that the disclosing party may use to support its claims or defenses." Fed.R.Civ.P.
Pina's claims are unavailing. First, the parties' initial disclosures preceded Pina's amendment of her complaint to include the retaliatory failure to rehire claim. Thus, Appellees cannot be faulted for failing to list Henry before she became relevant to the case when the district court allowed Pina's amended complaint on January 5, 2012.
Second, although Pina argues that Appellees should have supplemented their disclosures to include Henry once she became relevant to the case, Federal Rule of Civil Procedure 26(e) exempts a party from the supplementation requirement where "the additional or corrective information has ... otherwise been made known to the other parties during the discovery process or in writing." Fed. R.Civ.P. 26(e)(1). TCP first identified Henry as an individual relevant to Pina's failure to rehire claim on July 29, 2011 in its MCAD position statement, which was signed and verified by Henry and stated that "[t]he decision to transfer [a TCP employee] into the open A[S]M position in [the Downtown Crossing store] was made by, among others, Cindy Henry, the district Manager for the Boston North District." Raymond likewise testified as to Henry's role in the hiring process during his deposition on January 24, 2012, two days prior to the close of discovery. The district court thus concluded that there was no discovery violation because Pina knew of Henry's role, at the very latest, on January 24, 2012, so the Rule 26(e) exception to the supplementation requirement applied.
Even assuming for a moment that we were inclined to view Appellees' failure to supplement their initial disclosures as a discovery violation, Pina has shown only that the district court could have stricken Henry's testimony, not that such a sanction was necessary in this case. Poulin v. Greer, 18 F.3d 979, 985 (1st Cir.1994) ("[E]ven if defendants did commit a discovery violation, the district court could reasonably determine that plaintiffs did not suffer any prejudice, and, given defendants' plausible explanation for their failure to supplement, that any violation was not willful. The district court did not, therefore, abuse its discretion when it ... allowed [the witness's] testimony."). In order to establish an abuse of discretion meriting reversal, Pina must show that she was "substantially prejudiced" by the district court's "plainly wrong" discovery ruling. Curet-Velázquez v. ACEMLA de P.R., Inc., 656 F.3d 47, 55-56 (1st Cir. 2011) ("[T]he court's abuse of discretion must have resulted in prejudice to the complaining party." (internal quotation marks omitted)). She is unable to meet this burden.
Pina's third and final discovery-related claim is that the district court abused its discretion when it denied as moot her Federal Rule of Civil Procedure 56(d) motion requesting additional time to respond to TCP's motion for summary judgment.
Pina begins by correctly noting that district courts should liberally grant Rule 56 continuances where the Rule's preconditions for relief have been satisfied. Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 46 (1st Cir.1999). Typically, a successful Rule 56(d) motion must: 1) be timely; 2) be authoritative; 3) show good cause for failure to discover the relevant facts earlier; 4) establish a plausible basis for believing that the specified facts probably exist, and 5) indicate how those facts will influence the outcome of summary judgment. See id. at 45 n. 4; Resolution Trust Corp. v. N. Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1st Cir. 1994). Pina argues that she filed her Rule 56 motion well in advance of the filing deadline for her opposition to summary judgment, that she asked for a reasonable extension of three weeks based upon Appellees' failure to supplement their initial disclosures, and that the extension was critical to the success of her case, so the district court's decision to deny her motion constituted an abuse of discretion.
As we have often observed, however, Rule 56(d) "is designed to minister to the vigilant, not to those who slumber upon perceptible rights." Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n,
More significantly, however, Pina's Rule 56 affidavit stated as the basis for the continuance that she sought to "examine Ms. Henry, under oath, to determine whether there is any veracity to these contentions or whether they were manufactured." Notably lacking from this speculation as to Henry's veracity is any plausible basis for the court to conclude that specified, material facts probably existed. "A `Rule 56(f) affidavit [that] merely conjectures that something might be discovered but provides no realistic basis for believing that further discovery would disclose evidence' is insufficient to delay summary judgment." Mowbray v. Waste Mgmt. Holdings, Inc., 45 F.Supp.2d 132, 143 (D.Mass.1999) (alteration in original) (quoting Mattoon v. City of Pittsfield, 980 F.2d 1, 8 (1st Cir.1992)); see also Rivera-Torres v. Rey-Hernández, 502 F.3d 7, 12 (1st Cir.2007) ("Speculative conclusions, unanchored in facts, are not sufficient to ground a Rule 56(f) motion."). Pina's asserted desire to "explore" is perhaps more accurately characterized as a desire to "fish," and in either case, it falls well short of establishing entitlement to Rule 56(d) relief. See Mowbray, 45 F.Supp.2d at 143 (denying Rule 56(d) motion where movant "merely expressed a `hope' or `hunch' that unspecified facts might be found" because "[a]llowing a continuance in such a case would undermine the entire summary judgment procedure") (citation omitted).
The district court thus acted well within its discretion when it elected to deny Pina's Rule 56(d) motion.
Having disposed of Pina's discovery-based claims, we turn now to her claim that the district court erred by granting Appellees' motion for summary judgment. We review a grant of summary judgment de novo, affirming 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." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Although we will draw all reasonable inferences in the nonmovant's favor, we will not "draw unreasonable inferences or credit bald assertions, empty conclusions, rank conjecture, or vitriolic invective." Cabán Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.2007). It bears repeating that genuine issues of material fact are "not the stuff of an opposing party's dreams," Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), and a party cannot successfully oppose a motion for summary judgment by resting "upon mere allegations or denials of his pleading," LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir.1993) (internal quotation marks omitted). If a nonmovant
Where, as here, there is no direct evidence of discrimination, a plaintiff seeking to establish a prima facie case of race discrimination under § 1981 must successfully navigate the familiar McDonnell Douglas burden shifting framework. Straughn v. Delta Air Lines, Inc., 250 F.3d 23, 33 (1st Cir.2001). The burden of production starts with the plaintiff. In order to establish a prima facie case of discriminatory termination, a plaintiff must show: 1) she was a member of a protected class, 2) she was qualified for her position, 3) she was subjected to an adverse employment action, and 4) the position remained open or was filled by someone with similar qualifications. Id. Such a showing creates a rebuttable presumption that the employer engaged in discrimination. This is not the end of the matter, however, and if the employer is able to articulate a legitimate, non-discriminatory reason for the termination, the presumption of discrimination disappears.
In this case, the district court found that Pina failed to establish a prima facie case of race discrimination under § 1981 because she did not show that she was qualified for the position from which she was fired. The court went on to say that in any case, Pina presented no evidence to rebut the legitimate, nondiscriminatory reasons Appellees presented as the basis for her termination. The district court thus concluded that summary judgment was appropriate. Unsatisfied with this result, Pina lets loose a prodigious number of arguments on appeal, all of which — as we will explain — are meritless.
We begin with Pina's argument that she established a prima facie case of discrimination because, contrary to the district court's finding that she was not qualified for her position, she showed that she "was performing [her] job at a level that
Appellees satisfied the second step of the McDonnell Douglas framework by producing competent evidence that Pina was terminated because she made inappropriate, unprofessional, and harassing statements to TCP employees that were disruptive and created safety concerns. Pina, while disputing the severity of the allegations, admits that she accused multiple TCP employees — including her manager — of having sex with Williams. She further admits to telling her manager's partner, in front of the couple's young child, that Trench was having sex with Williams. Raymond testified that multiple TCP employees reported concerns about Pina's behavior after these incidents, which prompted him to terminate Pina to ensure a safe environment for TCP's employees.
At this point, the burden shifted back to Pina to show that Appellees' explanation for her termination was mere pretext and that their true motive was discriminatory. To show pretext, a plaintiff may point to "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons such that a factfinder could infer that the employer did not act for the asserted non-discriminatory reasons." Straughn, 250 F.3d at 42 (internal quotation marks omitted). Plaintiffs can use the same evidence to show both pretext and discriminatory motive, "`provided that the evidence is adequate to enable a rational factfinder reasonably to infer that unlawful discrimination was a determinative factor in the adverse employment action.'" Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir.2000) (quoting Thomas v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir.1999)).
Pina claims that the complaints about her behavior are mere pretext and that she was fired because she reported misconduct that, if investigated, would have revealed an interracial relationship between TCP employees that Appellees did not want to acknowledge. This, Pina concludes, constitutes a case of discriminatory termination,
To put it mildly, the record does not bear out Pina's claims.
We begin with the allegation of violations of company policy and procedure. In sum, Pina argues that Raymond failed to consider TCP policy when firing her and that her report of time card fraud was not investigated in accordance with TCP policy.
We turn next to Pina's argument that Appellees' failure to investigate her theft report, as required by company policy, evidences a discriminatory motive. According to Pina, TCP policy dictated that reports of internal theft made to the company's designated hotline would be fully investigated, meaning that she would be interviewed, kept informed about the status of the investigation, compensated for her report, and shielded from retaliation. Appellees' failure to take these steps, she contends, shows that they were unwilling to fully investigate a report that would have revealed an interracial relationship, thus evidencing their discriminatory motive.
We cannot agree, as "to reach any such conclusion on this record, a juror would
Pina's final argument in support of her discrimination claim is that white men in both the past and present dislike interracial relationships between white women and black men. In Pina's view, the court should have taken judicial notice of this historical fact and denied summary judgment. At the risk of redundancy, we note again that "conjecture cannot take the place of proof in the summary judgment calculus." Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir.2007); see also Kearney v. Town of Wareham, 316 F.3d 18, 22 (1st Cir.2002) ("Creating a genuine issue of material fact requires hard proof rather than spongy rhetoric."). As the district court properly held, the historical fact that many interracial couples have faced bias and prejudice is not evidence that Raymond or anyone at TCP harbored such discriminatory animus, and Pina's attribution of these discriminatory views to Appellees without any factual predicate or evidence to support her claim does not enable her to avoid summary judgment. See Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 190-91 (4th Cir.2004) (affirming grant of summary judgment to
Accordingly, because Pina was unable to rebut Appellees' legitimate, nondiscriminatory basis for her termination with evidence of pretext and discriminatory motive, the district court properly granted summary judgment to Appellees on Pina's claims of race discrimination.
Pina's final claim on appeal is that the district court erred in finding that she failed to establish a prima facie case of retaliatory failure to hire in violation of § 1981 and Massachusetts General Laws, chapter 151, section 4.
The district court found that Appellees were entitled to summary judgment because Pina failed to establish a prima facie case of retaliation; she did not show that she applied for a vacant position, that she was qualified for the position to which she applied, or that Henry had any knowledge of her MCAD claim. Pina disagrees, arguing that there was no evidence there were no vacancies, that she was qualified for an ASM position because she competently worked in that role before she was fired, and that Henry knew of her MCAD claim as a matter of law.
Pina's arguments defy both established legal precedent and logic. First, Pina bore the burden of establishing the existence of a vacant position; TCP was under no obligation to prove the non-existence of a vacancy. See id. at 807-08. Accordingly, Pina cannot credibly expect us to entertain her argument that Appellees' failure to prove that there were no vacancies in stores to which Pina did not apply somehow shows that she has satisfied her burden. Pina admitted that she had no knowledge of an ASM position vacancy at the time she applied for the position, and Appellees have testified that there was no vacancy until approximately one month after Pina applied, at which time an internal promotion was made and no external candidates were considered. Although Pina argues that TCP was obligated to consider her application for a position that opened weeks later, we need not address this contention. Even if Pina is correct, she nevertheless has failed to establish at least two additional elements necessary to make out a claim of retaliatory failure to hire.
First, Pina has not shown that she was qualified for the ASM position that she sought. The fact upon which Pina rests her claim of qualification appears to be that during her one-month tenure as an ASM, she performed adequately before she was fired for inappropriate behavior. Appellees, however, have correctly pointed out that Pina's application clearly states that she desires an ASM position but is only available to work from 9:00 a.m. to 3:00 p.m. on Saturdays. According to TCP's Standard Operating Procedure regarding staffing, ASMs must be available open to close, including on weekends. Pina thus failed to qualify for the position even if one had been vacant at the time she applied.
Second, at the risk of piling on, we note that Pina has also failed to establish a causal connection between her protected conduct and the adverse employment action because she failed to show that Henry knew about the MCAD charge Pina filed three years prior. See Medina-Rivera, 713 F.3d at 139; Pomales v. Celulares Telefónica, Inc., 447 F.3d 79, 85 (1st Cir. 2006) ("[T]here must be proof that the decisionmaker knew of the plaintiff's protected conduct when he or she decided to take the adverse employment action."). Pina argues that Henry had the requisite knowledge "as a matter of law" because Henry worked for TCP, which had opposed the MCAD charge Pina filed more than three year prior in relation to events at a different TCP store in a different
It is well-settled that a judge must not engage in making credibility determinations or weighing the evidence at the summary judgment stage, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), but it is equally clear that judges cannot allow conjecture to substitute for the evidence necessary to survive summary judgment, Bennett, 507 F.3d at 31. Thus, the district court can hardly be faulted for failing to adopt Pina's speculative and unsupported assertion of Henry's knowledge of her MCAD charge. In the absence of any evidence that Henry or any other TCP employee involved in the ASM hiring decision had knowledge of Pina's protected activity, her retaliatory failure to hire claim fails. The district court properly granted summary judgment to Appellees as to Pina's retaliation claim in light of her failure to establish a prima facie case.
For the foregoing reasons, the district court judgment is affirmed and Pina's request for attorney's fees is denied.
