Morrissey v. Boston Five Cents Savings Bank

54 F.3d 27 | 1st Cir. | 1995


                UNITED STATES COURT OF APPEALS
                            UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                FOR THE FIRST CIRCUIT
                                         

No. 94-2220

                    WILLIAM P. MORRISSEY,

                    Plaintiff, Appellant,

                              v.

         THE BOSTON FIVE CENTS SAVINGS BANK, ET AL.,

                    Defendants, Appellees.

                                         

          [Hon. Patti B. Saris, U.S. District Judge]
                                                               

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

                                         

                            Before

                    Boudin, Circuit Judge,
                                                     
                Bownes, Senior Circuit Judge,
                                                        
                  and Stahl, Circuit Judge.
                                                      

                                         

Robert H.  Quinn, with whom John  P. Morrissey and  Quinn & Morris
                                                                              
were on brief for appellant. Robert B. Gordon, with whom David M. Mandel  and Ropes & Gray were
                                                                         
on brief for appellees.

                                         

                         May 15, 1995
                                         


          BOWNES, Senior Circuit Judge.   Plaintiff-appellant
                      BOWNES, Senior Circuit Judge.
                                                  

William  Morrissey,  a  twenty-year  employee  of  defendant- appellee Boston Five Cents Savings Bank, F.S.B. ("the Bank"), was involuntarily retired from his position as Executive Vice President  for  Corporate  Affairs   on  November  1,   1992, approximately one  month after his sixty-fifth  birthday, and approximately  one week  after  he  filed age  discrimination claims against the Bank and  its holding company, the  Boston Five  Bancorp,  with  the  Massachusetts  Commission  Against Discrimination   and   the   Equal   Employment   Opportunity Commission.    It   is  undisputed   that  the   Bank  forced Morrissey  to retire because of his age.  The question before us is whether  the Bank's  action was lawful  under a  narrow exemption  to the  Age Discrimination  in Employment  Act, 29 U.S.C.       621-34   ("ADEA"),   which  permits   compulsory retirement, at age sixty-five and older, of certain employees who  occupy  "bona  fide  executive"  or  "high policymaking" positions  for  the  two-year  period  immediately  preceding retirement, if such employees are entitled upon retirement to an immediate  nonforfeitable annual retirement benefit  of at least  $44,000.  See 29  U.S.C.   631(c)(1).   We answer this
                                

question  in  the  affirmative,  and   therefore  affirm  the district court's order granting  summary judgment in favor of the Bank.  

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                        I.  Background
                                    I.  Background
                                                  

          On appeal from a grant of summary judgment, we view the  facts and all inferences  that may fairly  be drawn from them in  the light  most  favorable to  the nonmoving  party. Coll v. PB Diagnostic Systems, Inc., No. 94-1680, slip op. at
                                               

10-11 (1st Cir. March 30, 1995). 

          The  Bank hired  Morrissey as  a Vice  President in June  of  1972, and  later promoted  him  to the  position of Senior  Vice President.   In  1978 or  1979, the  Bank's then Chief  Executive  Officer ("CEO"),  Robert  Spiller, promoted Morrissey  to Executive Vice President for Corporate Affairs. Morrissey  continued to  hold  this position  until the  Bank forced him  to retire, at which time he was the fifth highest paid employee at the Bank.  

          In  his  capacity as  Executive Vice  President for Corporate Affairs, Morrissey reported directly to the CEO and was  responsible   for  (i)  monitoring   state  and  federal regulations  and  advising  the  Bank  with  respect  to  the influence and  effect of these regulations  upon the business of the Bank, and  recommending action where appropriate; (ii) developing   and   recommending   merger    and   acquisition candidates; and (iii) developing sources of  loan and deposit business  for  the  Bank.    In  addition  to  these  duties, Morrissey  served as  a  member of  the  Asset and  Liability Committee, and  regularly attended the meetings  of the Board

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of  Directors.  He also  attended the weekly  meetings of the Bank's six most senior officers ("Senior Officers Group"). 

           In  1990,  Robert  Spiller retired  and  defendant Peter  Blampied  succeeded him  as CEO.    The Bank  does not contest  Morrissey's  assertion  that this  event  took place shortly  before  the  statutory two-year  period  immediately prior to his involuntary retirement.  By Morrissey's account, his  role  in  the  formulation of  Bank  policy  was greatly diminished  after  Blampied  took  over as  CEO.    Morrissey contends, for example, that whereas under former CEO Spiller, the  weekly meeting of the Senior Officers Group served as an opportunity for the officers to discuss and to participate in policymaking  decisions, under  CEO  Blampied,  this  meeting ceased to serve the same policymaking function.  Instead, all high policy decisions were made by the Board of Directors, or by  a  subset   of  senior  officers  that  did  not  include Morrissey, which  specifically excluded him  from high policy discussions of important issues such as the Bank's distressed real estate  holdings, its dealings with  regulators, and its three-year strategic  business plan.  Morrissey  also asserts that   Blampied   did   not   specifically   solicit   policy recommendations  from  him,  and  that,  at  his  deposition, Blampied could  recall  specific comments  by Morrissey  with respect to only one policy matter.       

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          On July 28, 1992, Blampied  advised Morrissey that, in view  of  the  fact  that  his  sixty-fifth  birthday  was approaching, he should be thinking about retiring.  Morrissey replied  that he  had no  intention of  retiring and  that he could not afford  to retire because he had to provide for his young family.   Morrissey turned sixty-five  on September 29, 1992.   On  October 6,  1992, Blampied  again told  Morrissey that,  because he was  sixty-five, he  should be  thinking of retiring.  Blampied also suggested the possibility of a year- to-year  paid consulting  arrangement.   The  following  day, Morrissey  received a memorandum  outlining this arrangement, to  which  he responded  later in  the  day.   Morrissey told Blampied that  he had not agreed to  the proposed arrangement and asked  whether Blampied had consulted  with any attorneys on the matter.   Blampied replied that he had  "checked every base," that he  was going  to "play hardball,"  and that  the proposed consulting arrangement was rescinded.  At some point during this  meeting, Morrissey asked for  the opportunity to review the matter with attorneys and other consultants. 

          On October  13,  1992, Morrissey  received  written notification that his retirement  would be effective November 1, 1992.   At the  time of this  notification, Morrissey  was entitled  to  receive  $38,352  annually   in  nonforfeitable pension benefits  under his Qualified  Benefit Plan  ("QBP"), plus $17,592 annually in pension benefits under his Executive

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Supplemental Benefits Plan ("SERP").   The SERP benefits were forfeitable   upon  certain   conditions  specified   in  the contract.   On  October 26, 1992,  Morrissey filed  state and federal  age discrimination  claims  with  the  Massachusetts Commission  Against Discrimination  and the  Equal Employment Opportunity Commission.   By his account,  Morrissey gave the Bank written notice of  these claims on his October  28, 1992 application for pension benefits.  

          On October 29, 1992, the Executive Committee of the Board  of  Directors held  a  special  meeting via  telephone conference,   during  which  the  Committee  voted  to  waive irrevocably the forfeitability conditions of Morrissey's SERP as to  $6,000 of the annual  pension benefit to  which he was entitled under that plan, as of November 1, 1992.  The effect of the Committee's vote  was to increase the total  amount of Morrissey's  nonforfeitable annual  pension benefit  from the $38,352 to which he  was entitled under his QBP,  to slightly more  than  the  $44,000  minimum  required  under  the  ADEA exemption.  Morrissey  was informed  of the  increase in  the amount of  his nonforfeitable pension benefit  on October 30, 1992.  On November 1, 1992, he was forced to retire.  

          On  August  20,  1993  (after having  been  granted permission to withdraw his administrative  claims), Morrissey filed suit  in the  Massachusetts Superior Court  against the Bank, the Boston  Five Bancorp, the individual members of the

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Executive  Committee,  and the  administrators of  the Bank's pension  benefits   plan.1     The   complaint  alleged   age discrimination and retaliation in  violation of the ADEA, the Massachusetts Unlawful Discrimination Act, Gen. L. ch. 151B  

4,  and the Massachusetts Equal Rights Under Law Act, Gen. L. ch. 93     102 and 103.2   The Bank removed  the case to  the United   States   District   Court  for   the   District   of Massachusetts pursuant to 28  U.S.C.   1441, and subsequently filed  a motion for summary judgment on all claims, which the district court granted. 

                   II.  Standard of Review
                               II.  Standard of Review
                                                      

          On appeal, we review a grant of summary judgment de
                                                                         

novo, evaluating the  record in the  light most favorable  to
                

the  party opposing  the motion,  and drawing  all reasonable inferences in  that party's favor.   Coll, No.  94-1680, slip
                                                     

op. at 10-11.   Summary judgment is appropriate 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

                    
                                

1.  The individuals  named as defendants are  John R. Furman, William F. McCall, Jr., Richard  J. Testa, George R. Baldwin, Peter  J. Blampied,  Allan  W. Fulkerson,  Ernest E.  Monrad, Webster Collins, and Karen Hammond. 2.  Mass.  Gen. L.  ch. 151B  is the  exclusive remedy  under Massachusetts law for employment discrimination claims.   See
                                                                         
Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir.
                                             
1994).  Thus, we need not consider the ch. 93 claims.

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and that  the moving party  is entitled  to a  judgment as  a matter of law."  Fed. R. Civ. P. 56(c).  

          "By its very terms, this standard provides that the mere existence  of some  alleged factual dispute  between the
                                   

parties  will not  defeat  an  otherwise  properly  supported motion for summary judgment; the requirement is that there be no  genuine issue  of material  fact."   Anderson  v. Liberty
                                                                         

Lobby, Inc., 477 U.S. 242, 247-48 (1986).  Material facts are
                       

those  "that might affect the  outcome of the  suit under the governing law."   Id. at  248.  See  also Coll, No.  94-1680,
                                                          

slip op. at 11.   A dispute as to a  material fact is genuine "if  the evidence is such that a reasonable jury could return a verdict for the nonmoving party."  Id.  "If the evidence is
                                                    

merely colorable, or is  not significantly probative, summary judgment  may be  granted."   Anderson,  477  U.S. at  249-50
                                                  

(internal citations omitted).  

                      III.  Discussion 
                                  III.  Discussion
                                                  

          Morrissey raises three issues on appeal.  First, he argues  that during the last two years of his employment with the Bank, he was not, in fact, a  high policymaker within the meaning of  the ADEA exemption,  and that the  district court erred  by failing to apply a functional test to determine his status.  Second, he contends that the district court erred in interpreting the pension benefit prong of the exemption so as to permit an employer to increase the amount of an employee's

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nonforfeitable  pension  benefit  after  the alleged  act  of discrimination in order to meet the statutory minimum amount. Finally, Morrissey argues that  the district court's grant of summary   judgment  was  improper  because  the  supplemental affidavits he submitted  in support  of his Fed.  R. Civ.  P. 56(f) ("Rule  56(f)") motion demonstrated a  genuine issue of material fact.   Alternatively,  he argues  that, in view  of these affidavits, the  district court  should have  exercised its discretion  under Rule 56(f)  to defer judgment  until he had  an opportunity to depose the affiants.  We address these issues in turn.

  A.  The Bona Fide Executive or High Policymaker Exemption
              A.  The Bona Fide Executive or High Policymaker Exemption
                                                                       

          The  ADEA  makes it  unlawful  for  an employer  to "discriminate  against any  individual  with  respect to  his compensation, terms, conditions, or privileges of employment, because  of such individual's age."   29 U.S.C.   623(a)(1).3 The prohibition applies only to individuals who  are at least forty years of  age.  29 U.S.C.   631(a).   The ADEA provides the following narrow exemption from this prohibition:

          Nothing   in   this   chapter  shall   be
          construed    to    prohibit    compulsory
          retirement  of  any   employee  who   has
          attained 65 years of age and who, for the
          2-year    period    immediately    before
          retirement,  is employed  in a  bona fide
          executive   or    a   high   policymaking

                    
                                

3.  Because  Massachusetts  age  discrimination   law  tracks federal  law in all relevant respects,  see Mass. Gen. L. ch.
                                                       
151B   4(1B), we will confine our discussion to federal law.

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          position, if such employee is entitled to
          an   immediate    nonforfeitable   annual
          retirement   benefit   from  a   pension,
          profit-sharing,   savings,   or  deferred
          compensation plan, or any  combination of
          such  plans,  of  the  employer  of  such
          employee, which equals, in the aggregate,
          at least $44,000. 29 U.S.C.   631(c)(1).

          The parties  agree that  Morrissey was not  a "bona fide executive" under the  ADEA; the dispute concerns whether he was a "high policymaker."  The ADEA itself does not define the  term "high  policymaking  position,"  and few  published opinions address  the exemption.  We  find guidance, however, in the EEOC interpretive regulations set forth in 29 C.F.R.  

1625.12 (1994).     

          Section  1625.12(e)  defines  high policymakers  as "`certain  top  level  employees   who  are  not  "bona  fide executives,"'"  and as  "`individuals who  have little  or no line authority but whose position and responsibility are such that  they  play a  significant  role in  the  development of corporate policy and effectively recommend the implementation thereof.'"   29 C.F.R.   1625.12(e)  (quoting H.R. Conf. Rep. No. 950,  95th Cong., 2d Sess. 10  (1978)).  For example, the chief economist or chief  research scientist of a corporation would likely be a high policymaker:

          His    duties    would    be    primarily
          intellectual as opposed  to executive  or
          managerial.  His responsibility  would be
          to   evaluate  significant   economic  or
          scientific trends and issues,  to develop

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          and recommend policy direction to the top
          executive  officers  of the  corporation,
          and he would have a significant impact on
          the ultimate decision on such policies by
          virtue of his expertise and direct access
          to the decisionmakers.  Such  an employee
          would  meet the  definition  of  a  `high
          policymaking' employee. Id.
               

          As to the  scope of the exemption,    1625.12(b) of the  regulations  admonishes  that  it  should  be  construed narrowly,  and  that "the  burden is  on  the one  seeking to invoke  the exemption  to show  that every  element has  been clearly and unmistakably met."

          Morrissey does not dispute that,  as Executive Vice President  for Corporate Affairs, he held the title of a high policymaker.    Indeed, he  concedes  that  under former  CEO Spiller,  he was a high policymaker.  Instead, he argues that the district court failed to apply the proper standard in its analysis  and overlooked  genuine  issues  of material  fact. Morrissey's argument  rests upon two premises,  one legal and one factual.  The legal premise is that the law requires that his  status as a high  policymaker be determined,  not on the basis of what  he calls the  "appearances" or "trappings"  of his position -- i.e., title, salary, access to decisionmakers -- but on the basis of his effectiveness as a policymaker, as judged   by   his   actual   impact  on   Bank   policy   and decisionmaking.  The factual premise is that, although he may have been  a high policymaker  under former CEO  Spiller, and

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while  he continued  to hold  the same  title until  the Bank forced him  to retire, he no longer functioned as a true high policymaker  during  the   two-year  statutory  period,  with Blampied as CEO.  

          We find  that, even assuming arguendo  the truth of
                                                           

Morrissey's legal premise and applying the effectiveness test he urges,  the undisputed  facts clearly demonstrate  that he was  a  high policymaker  during  the  relevant time  period. Significantly, Morrissey does not dispute the following:  (i) He  reported directly to the CEO and had direct access to the Bank's decisionmakers.  (ii)  He attended the weekly meetings of the Senior Officers Group.  (iii) He alone was responsible for monitoring  state and federal legislative  and regulatory developments, and  in that  capacity recommended  policies to ensure  that the Bank remained in compliance with them.  (iv) He worked closely with  state legislators on legislation that was  important to the savings  bank industry, and  that had a substantial impact on the  welfare of the  Bank.  (v) He  was responsible  for  monitoring and  coordinating  important tax litigation  involving  the  Bank,  and  made  recommendations regarding the choice of legal counsel to handle it.  (vi) The Bank  acted  upon Morrissey's  strong recommendation  that it lower  the interest  rate on  its passbook  savings accounts. (vii) He recommended that the Bank acquire the First American

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Bank.   (viii) He was responsible  for the sale of the Bank's deposits in a branch office.

          Even assuming  that a high  policymaker within  the meaning  of the ADEA must  function at some  minimum level of effectiveness, Morrissey  was more  than effective enough  to make precise line-drawing unnecessary  here.  As the district court stated:

          Morrissey  had direct  access to  the top
          decisionmakers,  he  was responsible  for
          evaluating  significant  legislative  and
          regulatory trends and issues  and working
          with  legislators on these issues, and he
          recommended  policy  on acquisitions  and
          mergers, capitalization,  and other areas
          of   importance  to   the   Bank.      If
          Morrissey's  position, the  fifth highest
          in  the Bank,  were not  to qualify  as a
          high policymaking position,  it would  be
          difficult to find a position that did. Morrissey  v.  Boston Five  Cents Sav.  Bank, F.S.B.,  866 F.
                                                                

Supp. 643, 647 (D. Mass. 1994).

          Given  our  conclusion,  based  on  the  undisputed facts,  that  Morrissey was  a  high  policymaker during  the statutory two-year period, we need  not dwell on his argument that  the  district court  failed  to  apply the  "functional analysis" set forth in Whittlesey v. Union Carbide Corp., 567
                                                                    

F. Supp. 1320 (S.D.N.Y.  1983), aff'd, 742 F.2d 724  (2d Cir.
                                                 

1984) (concluding  that the test Congress intended is "one of function," and  rejecting the argument that  plaintiff's high salary and title as chief labor counsel automatically brought him within the ADEA  exemption).  We note, however,  that the

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court  in Whittlesey  anticipated  and  rejected  Morrissey's
                                

attempt to turn 

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the   functional   test   into   a   test   of   policymaking effectiveness:
                         

          I would be inclined  to agree that if the
          organizational    structure     of    the
          enterprise makes clear that  the position
          in question has  bona fide executive rank
          or serves a  high policymaking  function,
          courts  probably  should  not  allow  the
          occupant to disavow the attributes of his
          position   by   seeking  to   prove,  for
          example,  that no  one paid  attention to
          his  policy  recommendations or  followed
          his   executive   orders.      But   such
          considerations are not  involved in  this
          dispute. 

Id.  at 1328.   See  also Colby v.  Graniteville Co.,  635 F.
                                                                

Supp. 381,  386  (S.D.N.Y.  1986)  ("Plaintiff's  attempt  to diminish  the  importance  of  his  duties  as  a  bona  fide executive not only flies in the face of the undisputed facts, but also  common sense.").   Moreover, as the  district court below stated,  "[i]t is  unlikely that Congress  intended, in amending the  ADEA, to  allow compulsory retirement  for only the most effective movers and shakers, while prohibiting such retirement  for high  level employees  who have  less impact, despite  their significant responsibilities."  Morrissey, 866
                                                                    

F. Supp. at 648.

          It follows  from this  analysis that  any remaining facts  that truly are in dispute are not material.  Anderson,
                                                                        

477 U.S. at 247-48. 

    B.  The Pension Benefit Prong of the High Policymaker
                B.  The Pension Benefit Prong of the High Policymaker
                                                                     
Exemption
            Exemption
                     

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          The  ADEA  exemption  applies  only "if  [the  high
                      

policymaker]  is  entitled  to  an  immediate  nonforfeitable annual  retirement benefit  from  a pension,  profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of  the employer of such  employee, which equals, in  the aggregate, at least $44,000."  29 U.S.C.   631(c)(1). The Bank  contends that  this requirement has  been satisfied because, as of the first day of his retirement, Morrissey was immediately  entitled  to  receive  slightly  more  than  the statutory  minimum  nonforfeitable annual  benefit  through a combination of his QBP benefit and the nonforfeitable portion of his SERP  benefit.  Morrissey argues  that the requirement has  not  been  met  because  the  law  forbids  "last-minute manipulations  of the  pension benefit  to bring  an employee within the exemption."  The district court's analysis  of the intended function of the pension benefit provision compels us to agree with the Bank. 

          The   district   court   considered  two   possible interpretations  of the  pension  benefit prong.   Under  one interpretation, the  exemption would  apply to  employees who qualify as  high policymakers "provided that  these employees
                                                        

receive  an adequate  pension."  Morrissey,  866 F.  Supp. at
                                                      

649.   This view holds that  the pension benefit prong is not "part of the test to determine if an employee can be retired,
                                             

but rather [i]s  simply a requirement imposed on the employer

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to  pay  out  $44,000 annually  in  benefits  for every  high policymaker  compelled to  retire."   Id.   Under  the second
                                                     

interpretation,  both the  job  function and  pension benefit
                                 

prongs  of  the  exemption  comprise the  test  to  determine whether compulsory retirement is permitted.  Id. 
                                                            

          We think the first  interpretation is more faithful to the statute.  After all, Congress did not impose the  same two-year minimum on  both prongs  of the exemption.   By  the district  court's   analysis,  the  exemption   contains  two distinct temporal  restrictions, one of which  applies to the high policymaker prong, and the other of which applies to the pension benefit prong:

          On  the  one  hand,   Congress  prevented
          manipulation  of   the  high  policymaker
          prong of the exemption by  requiring that
          high  policymakers  serve  for two  years
                                                               
          before   the  exemption   applies;  thus,
          promotions  followed by  quick retirement
          are not permissible.  On the  other hand,
          more modest time  restrictions attach  to
          the pension funds prong:  Congress merely
          required  that an employee be entitled to
          an immediate benefit of  $44,000 annually
                                  
          upon retirement. Id.
               

          Had Congress meant for both prongs to be subject to the two-year  minimum, it  presumably would have  limited the exemption  to  the  employee   who  "for  the  2-year  period immediately  before retirement, is employed  in a .  . . high policymaking  position,  [and]  .  .  .  is  entitled  to  an
                                         

immediate nonforfeitable annual retirement benefit  . . . . "

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That, however, is not  what Congress wrote.  Under  the ADEA, the  high policymaker who is compelled to retire need only be entitled to  the statutory minimum  amount in  nonforfeitable annual pension benefits immediately upon retirement.

          In sum, we find the district court's analysis to be persuasive and consistent with what the plain language of the exemption would seem to require.4    

                  C.  The Rule 56(f) Motion
                              C.  The Rule 56(f) Motion
                                                       

          In opposition  to  the Bank's  motion  for  summary judgment, Morrissey submitted a Rule 56(f) affidavit,  urging that summary judgment  be denied or,  alternatively, deferred on the ground that he had not had an opportunity to engage in

                    
                                

4.  Our reading of the exemption forecloses Morrissey's other argument, that both prongs of the exemption must be satisfied at least as of the date  the employee receives notice of  his involuntary retirement.  Morrissey  characterizes the date of notice   of  retirement   as   the  time   of   the  act   of discrimination.  As we  construe the statute, as long  as the employee  is entitled to the  statutory minimum benefit as of the day of  his involuntary  retirement, and as  long as  the employee  is  otherwise  within  the exemption,  the  act  of compelling the high policymaking  employee to retire does not constitute an act of discrimination.
    It   also  forecloses   his  argument  that   the  Bank's modification   of   his   benefits   should  be   viewed   as "manipulation."  In support of this argument, Morrissey urges the  case of  Passer v.  American Chem.  Soc'y, 935  F.2d 322
                                                          
(D.C. Cir. 1991).   As  the district court  noted, Passer  is
                                                                     
distinguishable from  the case before us  because it involved "a  material dispute of fact  as to whether  the employee was `genuinely  entitled by  the terms  of the  governing pension
                                                                         
plan  to  at least  $44,000  in  annual retirement  income.'"
                
Morrissey, 866 F. Supp.  at 650 (quoting Passer, 935  F.2d at
                                                           
330) (emphasis added).  The "manipulation" in that case was a matter  of interpretive  and accounting  legerdemain.   Here, there is no question that Morrissey was genuinely entitled to at least this amount by the terms of his plan as amended.

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"meaningful discovery."5   At the  summary judgment  hearing, the court responded  to the Rule 56(f) affidavit  by ordering the Bank to produce documents,  including minutes of Board of Directors meetings  that Morrissey had requested.   The court also ordered  Morrissey to  file a  more specific  Rule 56(f) affidavit.   Morrissey  responded  by  filing a  supplemental memorandum  and affidavits  by  four  individuals,6 which  he contends clearly demonstrated that he was removed from a high policymaking   position  when  Blampied   became  CEO.    The memorandum   also  requested   permission  to   depose  these individuals.   On appeal,  Morrissey  contends that,  because these  affidavits  demonstrated  the existence  of  a genuine dispute  of material  fact,  the district  court should  have

                    
                                

5.  Fed. R. Civ. P. 56(f) provides as follows:

          Should it appear from the affidavits of a
          party  opposing  the motion  [for summary
          judgment]  that  the  party   cannot  for
          reasons stated present by affidavit facts
          essential   to    justify   the   party's
          opposition,  the  court  may  refuse  the
          application  for judgment or  may order a
          continuance  to  permit affidavits  to be
          obtained  or depositions  to be  taken or
          discovery to  be  had or  may  make  such
          other order as is just. 6.  The   affiants  were  Vernon  L.  Blodgett,  Senior  Vice President and Treasurer of the Boston Five Bancorp from 1990- 1993; J.  Barbara Magnuson,  Corporate Secretary at  the Bank from  1986-1993;  Melissa  J.  Howard,  Vice   President  for Marketing from  1987-1993; and Robert Spiller,  President and CEO of the Boston Five and the Boston Five Bancorp from 1970- 1990.

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denied  or deferred  summary  judgment to  allow for  further discovery under Rule 56(f). 

          Rule 56(f) is  the means by which  a party opposing summary judgment may obtain a denial or deferral of  judgment upon  a  demonstration of  "an  authentic  need for,  and  an entitlement to,  an additional  interval in which  to marshal facts essential  to mount  an opposition."   Resolution Trust
                                                                         

Co. v. North  Bridge Assocs.,  22 F.3d 1198,  1203 (1st  Cir.
                                        

1994).  Although the  rule is "intended to safeguard  against judges swinging the summary judgment axe too hastily," id., a
                                                                      

party  who  seeks  to  invoke  the  rule  must  (i)  make  an authoritative and  timely proffer;  (ii) show good  cause for the failure to have  discovered these essential facts sooner; (iii) present a  plausible basis for the  party's belief that facts  exist that would likely suffice to raise a genuine and material issue; and (iv) show that the facts are discoverable within a reasonable amount of time.   Id.  See also Paterson-
                                                                         

Leitch v.  Massachusetts Mun.  Wholesale Elec. Co.,  840 F.2d
                                                              

985,  988  (1st Cir.  1988).   We  review a  district court's denial of a Rule  56(f) motion only for abuse  of discretion. Resolution Trust Co., 22 F.3d at 1203.
                                

          The  supplemental  affidavits support  the argument that, under CEO Blampied,  the Bank's high policymaking group was no longer the Senior Officers Group, as it had been under CEO Spiller, but rather comprised a subset of senior officers

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                                          20


that  did  not include  Morrissey.   These affidavits  do not address  any of  the undisputed  facts  set forth  supra that
                                                                    

unequivocally   establish   that   Morrissey   was   a   high policymaker.   Accordingly, the district court  did not abuse its discretion by refusing to  deny or defer summary judgment on the basis of these affidavits.

                       IV.  Conclusion
                                   IV.  Conclusion
                                                  

          For the foregoing  reasons, we affirm the  district
                                                  we affirm the  district
                                                                         

court's order  granting summary judgment for the Bank.  Costs
            court's order  granting summary judgment for the Bank.  Costs
                                                                         

awarded to defendants.
            awarded to defendants.
                                  

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