Richard DENNIS, Plaintiff, Appellant, v. OSRAM SYLVANIA, INC., Defendant, Appellee.
No. 07-2670.
United States Court of Appeals, First Circuit.
Heard June 5, 2008. Decided Dec. 10, 2008.
549 F.3d 851
Bruce W. Felmly, with whom Jennifer L. Parent and McLane, Graf, Raulerson & Middleton Professional Association, was on brief for appellee.
Before LYNCH, Chief Judge, TORRUELLA, and LIPEZ, Circuit Judges.
TORRUELLA, Circuit Judge.
Plaintiff-Appellant Richard Dennis appeals the district court‘s decision to grant Defendant-Appellee Osram Sylvania, Inc.‘s (“Sylvania“) motion for summary judgment on a claim involving New Hampshire‘s anti-discrimination statute,
I. Background
Dennis was employed with Sylvania from August 1995 to March 24, 2004, at which date he was terminated. At the time of his firing, Dennis was the Associate Development Program Manager in Sylvania‘s human resources department. His responsibilities included representing the company at recruitment fairs on campuses and overseeing Sylvania‘s internship program.
Dennis claims that Sylvania retaliated against him because he gave deposition testimony critical of the company in an internal matter brought by Nancy Green, a former employee of Sylvania. Green had alleged that Sylvania retaliated against her because she had filed a sexual harassment complaint against a co-worker. As the lead investigator of Green‘s complaint, Dennis was deposed on February 5, 2004. Dennis cites to several instances in his deposition where he was critical of Sylvania‘s response to Green‘s claims, such as the company‘s “soft punishment” of the alleged harassers and the slow pace with which it conducted the investigation of her claims.1
In addition, Dennis points to certain actions and statements by Sylvania‘s lawyers demonstrating their dissatisfaction with his testimony. For example, Dennis claims that Paul Beckwith, Sylvania‘s legal counsel, was “hostile” to him during the deposition. Dennis also alleges that Beckwith raised his voice in response to Dennis’ inquiries about the strength of the Green case, exclaiming that he “doesn‘t have time for this shit.” Dennis further claims that during a break, when he sought guidance from Beckwith regarding whether he had to reveal his knowledge of a company manager‘s romantic involvement with a subordinate, Beckwith, “in a forceful manner, ordered him to answer ‘yes,’ ‘no,’ or ‘I don‘t recall.‘”2 Dennis states that Beck-
Sylvania disagrees that Dennis gave testimony critical of the company, arguing instead that the testimony “strongly supported” Sylvania‘s defense of Green‘s claims.3 Furthermore, Vient does not recall if she rolled her eyes during Dennis’ deposition and insists that she “did not in any way criticize his performance at the deposition.” Beckwith, for his part, denies instructing Dennis during a break to answer questions in any particular way.
On February 6, 2004, the day after Dennis’ deposition testimony, Vient began investigating Dennis in reference to a complaint, received by the company on January 28, 2004, from Miguel Molina. Molina, an unsuccessful applicant for re-employment, claimed that Dennis had subjected him to “inappropriate and unprofessional” conduct. The investigation revealed that Dennis, when meeting with Molina, had made reference to Molina‘s problems with his taxes and his rent. Also, it revealed that Dennis had shared these details as well as details regarding Molina‘s marital life with Molina‘s potential supervisor at the company.
Pamela Tracey, Sylvania‘s in-house counsel who oversaw Vient‘s investigation, subsequently met with Dennis’ supervisors, Geoffrey Hunt and William Franz, to discuss these incidents.4 They decided that a warning should be placed in Dennis’ file. Franz documented Dennis’ conduct towards Molina in a February 23, 2004 internal communication to Dennis. He concluded that Dennis’ actions were “entirely inappropriate” and requested Dennis to sign a statement to that effect. Dennis refused to sign the statement and told Franz that he viewed the Molina investigation and warning letter as retaliation for his deposition testimony in the Green matter. Dennis also accuses Franz of “look[ing] away” and responding that “he knew nothing about [the deposition].” Franz confirmed that he told Dennis that he did not know anything about the deposition, but does not recall “looking away.”
On March 24, 2004, Sylvania terminated Dennis. In his deposition testimony, Franz stated that Dennis’ position was “severely weakened” by the Molina matter as well as by a 2001 complaint by another former employee, Kim Serrechia.5 Franz
After initially filing his complaint with the New Hampshire Commission for Human Rights (“Commission“), Dennis filed an action in Rockingham County Superior Court in New Hampshire alleging retaliation under
II. Sylvania‘s Motion for Summary Judgment
A. Standard of Review
“Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law based on the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits.” Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008) (citing
“Even in retaliation cases, ‘where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests mere-
We will reverse “only if, after reviewing the facts and making all inferences in favor of the non-moving party ... the evidence on record is sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.” Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008) (internal quotations omitted).
As a preliminary matter, we note Dennis’ citation to the the Supreme Court‘s ruling in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), for the proposition that this court at summary judgment must “disregard all evidence favorable to the moving party that the jury is not required to believe.” According to Dennis, our consideration of Sylvania officials’ declarations are impermissible under Reeves because the officials are interested parties. See id. (“[T]he court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.“) (internal quotations omitted).
Dennis misreads the scope of Reeves. At summary judgment we need not exclude all interested testimony, specifically testimony that is uncontradicted by the nonmovant. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-72 (3d Cir.2007) (“We cannot believe that the law precludes a party from presenting his own testimony on a summary judgment motion.... The fact is that in considering a motion for summary judgment the court should believe uncontradicted testimony unless it is inherently implausible even if the testimony is that of an interested witness.“). Indeed, the exclusion of interested testimony would make it difficult for an employer to present a legitimate non-discriminatory reason when defending against a retaliation claim. As the Sixth Circuit has noted, a rule barring all testimony from interested witnesses would “lead[] to absurd consequences because defendants will often be able to respond only through the testimony of their employees.” Stratienko v. Cordis Corp., 429 F.3d 592, 598 (6th Cir.2005) (internal quotations omitted). Here, Dennis’ argument is unpersuasive given his failure to present evidence to contradict the declarations of Sylvania officials in which they present a non-retaliatory motive.
B. Applicable Law
The New Hampshire Supreme Court looks to and finds “instructive” federal standards established under Title VII,
Under New Hampshire law, “[i]f there is only circumstantial evidence of retaliation,” as Dennis alleges here, a “‘pretext’ approach applies.” In re Montplaisir, 147 N.H. 297, 300, 787 A.2d 178, 181 (2001) (citing Texas Dep‘t of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). This “pretext” approach provides that “an employee who carries her burden of coming forward with evidence establishing a prima facie case of retaliation creates a presumption of discrimination, shifting the burden to the employer to articulate a legitimate, non-discriminatory reason for the challenged actions.” Billings v. Town of Grafton, 515 F.3d 39, 55 (1st Cir.2008). “‘If the employer‘s evidence creates a genuine issue of fact, the presumption of discrimination drops from the case, and the plaintiff retains the ultimate burden of showing that the employer‘s stated reason for [the challenged actions] was in fact a pretext for retaliating....‘” Id. (quoting Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir.2005) (alteration in original)). Pretext can be demonstrated by “such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer‘s proffered legitimate reasons ... that a reasonable factfinder could rationally find them unworthy of credence and [with or without the additional evidence and inferences properly drawn therefrom] infer that the employer did not act for the asserted non-discriminatory reasons.” Id. at 55-56 (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir.1998) (alteration in original)).
C. Discussion
In the instant case, it is a close question whether Dennis can establish a prima facie case of retaliation. Sylvania does not dispute that Dennis met the first two prongs of the prima facie test: Dennis (1) engaged in protected conduct by participating in the Green deposition and (2) experienced an adverse employment action by way of his termination. However, with respect to the third prong, Dennis relies on a series of strained inferences to establish a causal connection between the two. He states:
if a jury believed Dennis‘s testimony ... then it could infer ... the attorneys believed that some of Dennis‘s testimony could have a negative effect on the company‘s position in the Green case; that [Vient] conducted her investigation into the Molina allegations with anger or resentment over Dennis‘s unflattering testimony the day before; and that the lawyers conveyed their concerns about the testimony to one or more of Sylvania‘s in-house personnel.
(Emphasis in original).
Dennis further emphasizes that Tracey, as Vient‘s direct supervisor, was responsible for supervising Vient‘s investigation into Molina‘s complaint. Dennis reasons that “[a] jury could infer that Tracey and [Vient] talked regularly about [Vient‘s] investigation of Dennis, and that Tracey heard [Vient‘s] concerns about Dennis‘s deposition testimony which had taken place the day before the investigation began.” (Emphasis in original). Because Tracey “directly advised” Franz on the proper course to take in the Molina matter, Dennis contends that a jury could infer that Franz’ decision to recommend Dennis’ termination was influenced by Dennis’ testimony in the Green matter.
For purposes of summary judgment we are required to draw every reasonable inference in favor of the nonmoving party. However, at this stage we need not credit inferences that “rely on tenuous insinuation.” Nat‘l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 743 (1st Cir.1995) (internal quotations omitted). Moreover, the nonmovant still has “the burden of producing specific facts sufficient to deflect ... summary judgment....” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003).
While Dennis insists that his retaliation claim naturally flows from “a straightforward series of reasonable inferences,” he has failed to provide specific facts indicating that his termination was caused by his allegedly unfavorable testimony in the Green matter. Instead, Dennis speculates about alleged communications between Sylvania‘s counsel and his direct supervisors and imputes these attorneys’ alleged motives and displeasure with Dennis’ testimony to Franz and Hunt, the actual decisionmakers responsible for his firing.
Dennis’ contention that a jury could reasonably string together these inferences is speculative, especially in view of the fact that the only evidence that Dennis provides to demonstrate that Franz and Hunt knew about his deposition testimony is Franz’ alleged reaction when conversing with Dennis about the Molina warning letter. Franz’ body language of “looking away” and his statement that “he knew nothing about [Dennis’ unfavorable testimony]” in response to Dennis’ allegation that the firing was in retaliation for Dennis’ deposition in the Green case is insufficient for a jury reasonably to infer that Franz or Hunt shared Vient and Tracy‘s alleged retaliatory sentiments. In addition, Dennis offers no evidence that Franz or Hunt, in arriving at their decision to terminate Dennis, consulted with anyone possessing a motive to retaliate against Dennis. “Nothing in the record supports an inference of complicity.” Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31-32 (1st Cir.2007) (holding that causation prong was unmet where plaintiff failed to provide sufficient proof that individual responsible for plaintiff‘s discharge consulted with and shared sentiments with middle manager who allegedly possessed retaliatory motive).
In addition to Dennis’ inferential reasoning, we also consider the nearness in time between Dennis’ deposition testimony in the Green case and his termination. As we have stated, “Our law is that temporal proximity alone can suffice to ‘meet the relatively light burden of establishing a prima facie case of retaliation.‘” DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.2008) (quoting Mariani-Colón v. Dep‘t of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir.2007)). Given our analysis below, however, we need not decide whether the mere fact that less than two months elapsed between Dennis’ deposition and his termination is sufficient to establish a prima facie case of retaliation.
Though we doubt Dennis could prove causation, we nevertheless recognize that the employee‘s burden to establish a prima facie case in the retaliation context “is not an onerous one.” Calero-Cerezo, 355 F.3d at 26. However, even assuming that Dennis has established a prima facie case, his claim still fails because he cannot show that his termination was pretextual. Specifically, Dennis has not adequately countered the legitimate non-discriminatory reasons Sylvania has proffered for ter-
As evidence of pretext, Dennis argues (1) that Sylvania had “shifting rationales” for firing Dennis and (2) that there is a material dispute as to whether Dennis actually had a history of misconduct. With respect to the former, Dennis asserts that Sylvania‘s March 2005 response to Dennis’ complaint to the Commission cited only his history of misconduct, while Franz’ November 2006 deposition identified the reduction in force as the true reason for Dennis’ dismissal. Regarding the alleged material dispute as to his history of misconduct, Dennis argues that the Serrechia matter should not be given any credence because it was allegedly purged from his file and that the Molina matter by itself did not warrant his termination.
Both of Dennis’ arguments suggesting pretext are unconvincing. First, Sylvania did not shift its rationale for terminating Dennis. The mere fact that Sylvania failed to include the reduction in force reasoning in its March 2005 response does not mean that it changed its story. This is especially true given the fact that the record reflects that Franz presented the reduction in force argument as early as October 2005 in a Commission interview—over a year before the November 2006 deposition that Dennis cites for the alleged inconsistency.
Second, the dispute surrounding Dennis’ history of misconduct is not material because Sylvania had another reason to terminate Dennis’ employment which was not contradicted. Franz explicitly stated in his deposition testimony that even if Molina had fabricated his complaint against Dennis, he would still have replaced Dennis with Weinberg because of the reduction in force. Thus, even if we credit Dennis’ argument that the Serrechia complaint was removed from his file and that Dennis’ misconduct in the Molina matter by itself does not rise to a “firing offense,” Dennis would still lose: Sylvania‘s decision to replace Dennis with the better performing Weinberg as part of its reduction in force argument is a “clear, specific reason[]” for his termination separate from any retaliatory animus.7 Id. at *7. Dennis “has failed to point to specific facts that would demonstrate any sham or pretext intended to cover up defendant‘s retaliatory motive.” Id. Moreover, we should exercise caution in second guessing Sylvania‘s employment decisions. Courts should not act as “‘super personnel departments,’ substituting their judicial judgments for the business judgments of employers.” Bennett, 507 F.3d at 32 (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir.1991)).
III. Dennis’ Discovery Motions
Dennis additionally appeals the district court‘s denial of his motion to compel and his motion for extension of time under
In the proceeding below, Dennis moved to compel six documents Sylvania withheld on the basis of attorney client and work product privilege. Four of these documents pertain to the Serrechia complaint and the other two deal with the Molina matter. Dennis argues that these documents are relevant because they could shed light on the misconduct Sylvania partially relied upon for terminating Dennis.
We need not reach the question of whether the district court abused its discretion in denying Dennis’ motion to compel because Dennis’ access to those documents would not have changed the outcome in this case. As we noted above, Dennis has not met his burden of showing that Sylvania‘s reduction in force rationale for terminating Dennis was pretextual. Dennis does not allege that these documents would yield any information linking Sylvania‘s reduction in force argument to retaliatory animus.9
We are equally unsympathetic to Dennis’ appeal of the district court‘s ruling on his
We have stated that ”
the litigant must submit to the trial court an affidavit or other authoritative document showing (i) good cause for his inability to have discovered or marshaled the necessary facts earlier in the proceedings; (ii) a plausible basis for believing that additional facts probably exist and can be retrieved within a reasonable time; and (iii) an explanation of how those facts, if collected, will suffice to defeat the pending summary judgment motion.
Id. We have warned that ”
For the forgoing reasons, we affirm the district court‘s order.
Affirmed.