

                United States Court of Appeals                            United States Court of Appeals
                    For the First Circuit                                For the First Circuit
                                         

No. 95-2294

                      RACHEL L. FENNELL,

                    Plaintiff, Appellant,

                              v.

         FIRST STEP DESIGNS, LTD, D/B/A HAND-IN-HAND,

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF MAINE

         [Hon. D. Brock Hornby, U.S. District Judge]                                                               

                                         

                            Before

                     Selya, Circuit Judge,                                                     
               Campbell, Senior Circuit Judge,                                                         
                  and Stahl, Circuit Judge.                                                      

                                         

Roy T.  Pierce with  whom Alfred C.  Frawley and Brann  &amp; Isaacson                                                                              
were on brief for appellant.
Peter  Bennett  with whom  Frederick B.  Finberg  and Bennett  and                                                                              
Associates, P.A. were on brief for appellee.                        

                                         

                         May 15, 1996
                                         

          STAHL, Circuit  Judge.  Rachel L.  Fennell sued her                      STAHL, Circuit  Judge.                                           

former employer,  First  Step Designs,  Ltd. ("First  Step"),

under Title VII and related state laws, claiming that she was

terminated  in retaliation  for making allegations  of sexual

harassment.     First  Step   moved  for  summary   judgment,

presenting evidence that the decision to lay off  Fennell had

been made prior to her complaint.  The district court granted

summary  judgment  for First  Step,  after  denying Fennell's

motion  for further  discovery under  Fed. R. Civ.  P. 56(f).

Fennell had hoped that  further discovery would uncover proof

in  First Step's  computer files  that  a memo  about planned

layoffs, dated  prior to her  report of harassment,  had been

fabricated.  Fennell appeals both rulings.  We affirm.

                              I.                                          I.                                            

                          Background                                      Background                                                

A.  Factual Background: Fennell's Retaliation Claim                                                               

          First   Step,   a   designer,   manufacturer,   and

distributor  of  play  equipment  for  children,  operates  a

warehouse  and customer  service  center  in  Oxford,  Maine.

Fennell worked as a Warehouse Lead, a supervisory position in

which she directed the  warehouse staff in fulfilling orders.

Although  Fennell was  a supervisor  and shared  office space

with the Warehouse Manager, she spent most of her time on the

warehouse  floor   working  alongside  the   other  warehouse

workers.    Her immediate  supervisor  was  Wayne Smith,  the

                             -2-                                          2

Warehouse Manager.   Kathleen Tucker, General  Manager of the

warehouse, was Smith's supervisor.

          1.     Fennell's  Report  of   Harassment  and  Her                                                                         

Subsequent Layoff                             

          Two First  Step employees had complained to Fennell

about  on-the-job sexual  remarks by  Smith, and  Fennell had

heard from other employees  about a sexually offensive remark

Smith  had made while performing  as a country  musician at a

company-sponsored  benefit  dance.    On  November 19,  1993,

Fennell  met  with Tucker  and recounted  what she  had heard

about Smith's inappropriate  remarks.  According  to Fennell,

Tucker was  hostile.  Smith's immediate  predecessor had been

fired  in May of 1993  for sexual harassment,  and Tucker was

incredulous  to  hear  that  First Step  might  have  another

harasser as Warehouse Manager.

          On December  20, 1993,  Fennell was laid  off,1 and

she believes her layoff was in retaliation for her complaints

to  Tucker.  Fennell also  alleges that, after  her report to

Tucker, she  was given inferior work  (regular packing duties

rather than  supervisory duties).  First  Step maintains that

Fennell's layoff was planned  before she complained to Tucker

about Smith, and  that her complaint was not a  factor in its

decision to lay her off.

                                                    

1.  Fennell asserts that she was terminated, while First Step
maintains  she was only laid off.  We address this dispute in
Part II.B.3, our discussion of the grant of summary judgment.

                             -3-                                          3

          2.  The October 25 Memo                                             

          A memorandum dated October 25, 1993, from Tucker to

Eric  Schultz,  First  Step's  Boston-based  Chief  Operating

Officer, indicated  that Fennell  was scheduled for  a layoff

the  week  before Christmas.2    The  memo, titled  "SUBJECT:

ANTICIPATED  LAYOFFS/STAFFING,"  listed twenty-eight  persons

and  their continuing  positions  in the  warehouse; it  also

listed Fennell and four  others under the subtitle "SCHEDULED

LAYOFFS WEEK OF CHRISTMAS."   According to the affidavits  of

Tucker and Schultz, the memorandum was a response to pressure

from  Schultz to  reduce  operating costs  at the  warehouse.

Tucker and  Schultz both state  in their affidavits  that the

memorandum  was faxed  to  Schultz  on  October 25,  and  the

document bears a hand stamp indicating that it was faxed that

day.   Brigitte Marston,  a customer service  supervisor also

reporting to Tucker, states  in her affidavit that she  saw a

"layoff  list" with  Fennell's  name on  it before  Fennell's

November 19 meeting with  Tucker. (Marston also attended that

meeting, at Fennell's request.)  On November 5, 1993, Marston

sent  an  internal  electronic  mail  message  ("E-mail")  to

another employee, in  which she referred to  the layoff list.

Marston implied in the E-mail that  she had seen the list and

knew who was on it.

                                                    

2.  Copies  of the  memorandum  have been  made  part of  the
summary  judgment record  as  exhibits to  the affidavits  of
Tucker and Schultz.

                             -4-                                          4

          Fennell contends that the memorandum was fabricated

after the November  19 meeting.  To support  this contention,                 

she  points to five facts that, she argues, are suggestive of

fabrication: (1) one of the employees that Tucker listed  for

an ongoing position in the  October 25 memorandum had already

left the  company  late  that  summer, before  the  memo  was

created; (2) Tucker  stated that she had sent other memoranda

regarding  earlier layoffs  to Schultz,  but neither  she nor

Schultz kept copies  of them  (only the October  25 memo  was

retained); (3) Tucker commented to Fennell earlier in October

1995 that  she was doing a  good job, that her  services were

needed,  and that she would not be required to cross-train as

a telemarketer;  (4) First Step employees  had inconsistently

described  the  job  action  taken with  respect  to  Fennell

(sometimes  as a layoff, other times as an elimination of her

position)  as well as the precise reasons for the action; and

(5)  certain other  employees  listed in  the memorandum  for

layoff  were ultimately not laid off.  For ease of reference,

we shall refer to these as "the five suspicious facts."

B.  Prior Proceedings                                 

          On January  23, 1995,  Fennell filed  a three-count

complaint in federal district  court alleging that First Step

fired her in retaliation for her report of sexual harassment,

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C.    2000e-3(a), the  Maine Human  Rights Act, Me.  Rev.

                             -5-                                          5

Stat.   Ann.   tit.   5,      4572(1)(E),   and   the   Maine

Whistleblower's Protection Act, Me.  Rev. Stat. Ann. tit. 26,

   833(1)(A).    On  August  4,  1995,  after  the  close  of

discovery, First Step moved for summary judgment on all three

counts, arguing primarily that  Fennell's layoff was  planned

before she  lodged her sexual harassment  complaint, and thus

was not retaliatory.   First Step asserted that there  was no

genuine  issue  as  to  the  fact  that the  layoff  decision

predated Fennell's complaint, because the October 25 memo and

the corroborating testimony of  three First Step managers was

essentially  uncontroverted.   On  August  25, 1995,  Fennell

opposed the motion, arguing that there was a genuine issue of

material  fact as to whether the October 25 memo was actually

written before  she complained to  Tucker or whether  it was,

instead,  fabricated  to  exonerate   First  Step.    In  her

opposition  to summary judgment, Fennell requested additional

time  for discovery under Fed. R. Civ. P. 56(f) to determine,

based on the computer word processing file, when the memo was

written.     On  August 28,  1995,  First Step  responded  by

providing a diskette containing a copy of the word processing

file of  the October 25  memo.  On  September 9, 1995,  First

Step submitted a  reply brief and  an objection to  Fennell's

request for  more discovery  time, supported by  an affidavit

averring that there was no way to determine from its computer

system when the document was first created.

                             -6-                                          6

          The district court determined that, in light of the

October 25 memo, Fennell had not shown evidence sufficient to

allow  a reasonable  jury  to find  that  her layoff  was  in

retaliation for her  complaints about sexual  harassment, and

it granted  "conditional" summary judgment in  favor of First

Step.   The condition was that Fennell would have, under Rule

56(f),  "seven  (7) days  in  which  to  file  any  affidavit

revealing competent testimony,  based on the magnetic  medium

[i.e. the diskette containing the word processing file], that

the memorandum was created  or modified (as opposed  to being

simply called up) on or after November 19, 1993."3

          Pursuant  to the  district  court's order  allowing

limited further discovery, Fennell submitted the affidavit of

her computer expert stating that the computer word processing

file containing  the October 25  memo on a  magnetic diskette

revealed  that the  document  was "autodated"4  on August  7,

                                                    

3.  There is  no  dispute that  the October  25, 1993,  memo,
listing  Fennell among those to  be laid off,  existed in May
1994,  when it was  submitted by  First Step  as part  of the
Maine Human Rights Commission fact finding process.  Thus, if
the  document  was  fabricated  as   Fennell  maintains,  the
fabrication occurred  sometime after  November 19, 1993,  and
before May 1994.  

4.  Fennell's  expert  actually  stated  that  the  memo  was
"modified"  on August 7, 1995.   However, the  expert did not
suggest  that there were any  textual changes to  the memo on                                                 
that date.   Rather,  the expert  referred  to the  automatic
modification of the date assigned to the document file by the
word processing  program  after certain  commands  have  been
entered.    For example,  the expert  stated,  "if a  file is
'called-up' to an application  such as Wordperfect, and saved
to a different location (whether changed or not), the date of

                             -7-                                          7

1995.  Fennell's  expert proposed that  the original date  of

creation  or  date  of  any  earlier  modification  could  be

determined by  a review of  the file  as it resided  on First

Step's  hard drive,  rather than the  diskette that  had been

provided by First Step.       The   district  court   held  a

hearing on  Fennell's request  for discovery of  First Step's

hard  drive  and  then  directed  the  parties  to  submit  a

"protocol"  under which  Fennell would  have access  to First

Step's  hard drive.   If  no joint  protocol could  be agreed

upon,  differences   were  to  be   resolved  by  conference.

Subsequently, the parties  submitted substantially  different

protocols.

          After  reviewing the protocols, and without holding

another  conference,  the  district court  decided  that  its

earlier decision to consider  further discovery had been ill-

advised.   Accordingly,  the  court denied  any further  Rule

56(f)  discovery, and  granted  First Step  summary judgment.

This appeal ensued.

                             II.                                         II.                                            

                          Discussion                                      Discussion                                                

                                                    

saving is shown as the modification date."  In an attempt  to
achieve some  clarity, we shall refer to such a change to the
date  of  a computer  file not  as  a "modification,"  but as
"autodating."   We consider "modification," as  that term was
used  by the district court, to mean  a change in the text of
the document that  would appear  on a paper  printout of  the
document, as opposed to  changes to the date assigned  to the
computer file containing the document text. 

                             -8-                                          8

          Fennell  appeals  the  district  court's  grant  of

summary  judgment  in favor  of First  Step,  as well  as its

denial  of  her request  for  additional  discovery of  First

Step's  computer  files  in  the  hope  that  she  might find

evidence that  the October 25  memo was fabricated  after the

fact.  Because summary judgment would have been inappropriate

if  Fennell  had presented  evidence  that  the  memo  was  a

perjurious fabrication, we  will address the discovery  issue

first.

A.  Denial of Rule 56(f) Discovery                                              

          We review a district  court's ruling on a discovery

request  under Fed. R. Civ. P. 56(f) for abuse of discretion.

Price  v. General Motors Corp.,  931 F.2d 162,  164 (1st Cir.                                          

1991).  Federal Rule of Civil Procedure 56(f) provides:

          Should it appear from the affidavits of a
          party  opposing  the  [summary  judgment]
          motion  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.

To  receive the benefit of  Rule 56(f), the  "movant must (1)

articulate a plausible basis for the belief that discoverable

materials exist  which would  raise a trialworthy  issue, and

(2) 'demonstrate good cause for failure to have conducted the

discovery  earlier.'"    Price,  931  F.2d  at  164  (quoting                                          

                             -9-                                          9

Paterson-Leitch  Co.  v. Massachusetts  Mun.  Wholesale Elec.                                                                         

Co.,  840 F.2d  985,  988 (1st  Cir.  1988)).   Although  the               

district court did not use these precise words, it denied any

further  Rule 56(f) discovery essentially because Fennell did

not  articulate  a  plausible   basis  for  the  belief  that

discoverable  materials existed  which  would  have raised  a

trialworthy issue.   For  purposes of  our analysis, we  will

assume, but  need  not decide,  that  Fennell met  the  "good

cause" element.

          Fennell argues that the district court should  have

allowed  Rule  56(f) discovery  of  First  Step's hard  drive

because her expert  established that the October  25 memo was

"autodated"  on   August  7,  1995.     Fennell  argues  that

regardless  of  whether  the autodating  was  intentional  or

inadvertent,  it obscured  the  date of  the document's  last

prior modification  or, if  there was no  prior modification,

the  date  of  its   creation,  thus  rendering  those  dates

uncertain.  Fennell maintains that First Step must "live with

that uncertainty," by which she means that there is a genuine

dispute  as  to  the date  on  which  the  memo was  written.

Fennell emphasizes that First  Step's summary judgment motion

is  based in  large  part  on the  memo,  as  proof that  the

business decision to  lay off Fennell predated  her report of

sexual  harassment.    Fennell   also  points  to  the  "five

suspicious facts" noted earlier as support for her contention

                             -10-                                          10

that there is a  plausible basis for her belief  that further

discovery will  yield evidence that the  memo was fabricated.

We begin our analysis with  a review of the discovery-related

proceedings below.

          We  note at the outset that First Step did not file

its  motion for  summary  judgment until  after the  close of

discovery pursuant  to the  district court's  pretrial order.

Fennell's  original  discovery  request  did not  make  clear

whether it called for a diskette  copy of the memo or a paper

"original."   In  any event,  there is  no indication  and no

allegation that First Step withheld the diskette from Fennell

in bad faith.

          Despite  the  district  court's determination  that

Fennell's opposition to summary judgment had not demonstrated

any genuine  dispute as to  First Step's contention  that its

decision to lay off Fennell preceded her complaint, the court

granted  a seven-day extension  to allow  Fennell to  file an

affidavit  providing some  computer-based  evidence that  the

memo  was fabricated and antedated.  By this time, a diskette

containing the memo's computer  file was already in Fennell's

hands,  thus  the  proposed  extension did  not  involve  any

intrusion or impose costs upon First Step.

          In compliance with the discovery extension, Fennell

submitted the affidavit of  her computer expert, which stated

that analysis of the  diskette containing the word processing

                             -11-                                          11

file  of the October 25  memo revealed that  the document was

"autodated" on August 7, 1995.  The district court determined

that the computer expert's affidavit  did not reveal that the

memorandum  was "created  or  modified (as  opposed to  being

simply called up) on or after  November 19, 1993."  In  other

words, the affidavit was not probative of any fabrication.

          Fennell's expert proposed that the original date of

creation  or  date  of  last textual  modification  could  be

determined  by  review of  the file  as  it resided  on First

Step's  hard drive.  On the other hand, a First Step employee

had  stated, in  an affidavit  previously  filed in  reply to

Fennell's opposition to summary  judgment, that First  Step's

computer  consultant determined  that  its  system could  not

reveal  the date on which  the document was  first created or

last textually modified.

          The district court held a conference  after Fennell

filed  her computer  expert's  affidavit.   After considering

Fennell's  proposal that  access to  First Step's  hard drive

might  reveal  the date  of creation  or modification  of the

October 25 memo,  the district court directed the  parties to

submit  a "protocol"  establishing  the  procedures by  which

Fennell  would have  access  to relevant  materials on  First

Step's  hard  drive.    The  district  court  cautioned  that

discovery would be allowed only if the protocol  ensured that

hard  drive access would have  a "minimal degree of intrusion

                             -12-                                          12

time-wise   and   interference-wise"   with    First   Step's

operations,  and  if  it  provided  "adequate  assurances  of

confidentiality."

          Fennell  provided a protocol requiring a specialist

to  "mirror" First  Step's entire  hard drive,  and take  the

mirror  copy to its facility in  Canada for complete analysis

and  ultimate erasure.5    First Step  objected to  Fennell's

protocol and provided its own protocol.6

          After  reviewing the  two protocols  and apparently

recognizing  that   the  parties  were   unlikely  to   reach

consensus,  the  district court  concluded  that its  earlier

                                                    

5.  Fennell's  protocol  proposed, in  sum: (1)  a conference
call between the parties  and their computer  representatives
to discuss the computer  system configuration; (2) an on-site
visit at  First Step's warehouse where  counsel would observe
Fennell's computer  representative create a  "mirror" of  the
target hard drive;  (3) an  off-site analysis  of the  mirror
hard drive by a specialty laboratory, whereby the technicians
would attempt to determine  the creation date or modification
date of the relevant files; (4) the erasure or destruction of
the  mirror hard  drive, certified  by affidavit;  and (5)  a
protective order stipulating, in sum, that all information on
the  mirror   hard  drive  not  relating   to  the  creation,
modification,   or  erasure,   of  the   relevant  files   is
confidential.

6.  First Step  objected to Fennell's protocol because, inter                                                                         
alia,  it: (1)  failed  to describe the  methodology by which                
the technicians  would attempt  to determine the  creation or
modification dates (First Step noted that its computer system
contains  many  hard  drives,  and  expressed  concerns  over
business   risks   resulting  from   accidental   data  loss,
incompatible  hardware,  and system  downtime);  (2)  did not
adequately address attorney-client privilege and work product
concerns as to  other documents  on the hard  drive; and  (3)
allowed  unsupervised possession  of the  mirror drive.   The
district  court described  the  detailed protocol  that First
Step proposed as "extremely cumbersome and expensive."

                             -13-                                          13

decision  to  permit  additional  discovery  had  been  "ill-

advised" because  it  would involve  "a 'fishing  expedition'

without   any   particularized   likelihood  of   discovering

appropriate information,"  while, "[a]t  the  same time,  the

process involves substantial risks and costs."  To inform our

judgment whether the denial of further discovery was an abuse

of  the district  court's  discretion, we  first address  the

district court's  conclusion that the "risks  and costs" were

substantial,  and  then  its  conclusion  that  the  proposed

discovery was a "fishing expedition."

          1.  Risks and Costs                                         

          A  party seeking  discovery under  Rule  56(f) must

"articulate   a  plausible   basis   for   the  belief   that

discoverable materials exist which  would raise a trialworthy                        

issue."    Price,  931 F.2d  at  164  (emphasis  added).   In                            

determining  whether  material is  "discoverable,"  the court

should  consider  not  only  whether  the  material  actually

exists, but  the burdens  and expenses entailed  in obtaining

the  material.   See Fed.  R. Civ.  P. 26(b)(2).7   Discovery                                

                                                    

7.  Fed. R. Civ. P. 26(b)(2) provides:

          The  frequency or  extent  of use  of the
          discovery  methods   otherwise  permitted
          under these rules .  . . shall be limited
          by the court if it determines that: . . .
          (iii)  the  burden  or  expense   of  the
          proposed  discovery outweighs  its likely
          benefit, taking into account the needs of
          the case, the amount in  controversy, the
          parties' resources, the importance of the

                             -14-                                          14

matters  are  for the  informed  discretion  of the  district

court,  and the breadth  of that discretion  in managing pre-

trial  mechanics  and discovery  is  very  great.   Fusco  v.                                                                     

General Motors  Corp., 11 F.3d 259, 267  (1st Cir. 1993).  In                                 

exercising this broad discretion,  the district court in this

case  balanced  the  costs,  burdens,  and  delays  that  the

proposed  discovery entailed,  as well  as the  likelihood of

discovering  evidence  of  fabrication,  against  the obvious

importance of the evidence  sought.  See Resolution Trust  v.                                                                     

North  Bridge  Assoc., 22  F.3d  1198, 1203  (1st  Cir. 1994)                                 

(party  seeking  Rule 56(f)  discovery  "should  set forth  a

plausible   basis  for   believing   that  specified   facts,

susceptible  of collection  within a  reasonable time  frame,                                                                        

probably exist")(emphasis added).

          The district court recognized First Step's concerns

over   Fennell's insufficiently  detailed description  of the

proposed  analysis  of  the  hard  drive,8  as  well  as  the

confidentiality  of information  on the  hard drive  that was

proprietary or  subject to attorney-client privilege or work-

                                                    

          issues  at stake  in the  litigation, and
          the importance of the  proposed discovery
          in resolving the issues.

8.  First Step argued that  Fennell's failure to disclose the
specific technical steps to  be taken in the analysis  of the
mirrored  drive rendered  her  protocol nothing  more than  a
proposal for a  fishing expedition.   First Step also  argued
that the unknown mirroring process and analysis of its system
might temporarily or permanently affect their computer system
and business operations.

                             -15-                                          15

product privilege.   The district court  also recognized that

resolving  the discovery dispute,  and the  discovery process

itself, would increase legal and  expert fees.  The protocols

alerted  the district  court to genuine  problems surrounding

the  proposed  discovery of  First  Step's  hard drive.    In

exercising  its  discretion,  the district  court  reasonably

concluded   that  the   discovery   process   would   involve

substantial risks and costs.  See id.                                                 

          2.  A Fishing Expedition?                                               

          The  district court  determined  not only  that the

risks and  costs of  further discovery were  substantial, but

also  that  Fennell  had not  demonstrated  "a particularized

likelihood  of  discovering  appropriate  information."    We

agree.   In our view, Fennell did not sufficiently "set forth

a  plausible  basis  for  believing   that  specified  facts,

susceptible of  collection  within a  reasonable time  frame,

probably exist."  Id. (party seeking discovery must show that                                 

it will not be an "exercise in futility").

           As  to "susceptibility of collection," all Fennell

was  able to  say was  that "there  may be  a way."   Fennell

submitted  the affidavit  of her  expert, proposing  that the

original date of creation or date of any earlier modification

of the October 25 memo could be determined by a review of the

memo  file as it resided  on First Step's  hard drive, rather

than  on  the diskette  originally  provided  by First  Step.

                             -16-                                          16

First Step  submitted a reply to  Fennell's expert affidavit,

which   argued  that   Fennell's  expert's   statements  were

conclusory,   without   foundation,   and    that   Fennell's

speculation  and  conjecture   did  not  warrant   additional

discovery.  The  district court  then held a  hearing on  the

discovery issue, at which the following was stated:

               [The Court:]  It's  my understanding
          that based  upon telephone communications
          as  recently as today,  that [Fennell] is
          informed  by  the  [computer experts  who
          were to analyze  the mirrored hard drive]
          that they cannot reach a  conclusion from
          the  disk that  has  been  provided,  but
          instead, that the only way they can reach
          any  kind of  conclusion is by  access to
          the   hard   drive   on  [First   Step's]
          premises.  That at this time, they cannot
          guarantee that  there  they can  reach  a
          conclusive  result,  but that  it's their
          position  there may  be a  way.   Is that
          essentially correct?  

               [Counsel   for  Fennell:]     That's
          correct, Your Honor.

The lack of detail in Fennell's protocol cast even more doubt

on  the soundness  of the technical  basis for  the discovery

venture.  The district court had good reason to be skeptical,

based  on  Fennell's  inadequate  showing  that the  proposed

analysis could determine the memo's creation date.

          As  to  whether "specified  facts  .  . .  probably

exist," Fennell presented precious little that suggested that

fabrication had occurred.   The "autodating" that occurred on

August  7, 1995, could  not have indicated  that the document

was fabricated on  that day,  as it had  been submitted  more

                             -17-                                          17

than  a  year  earlier   in  the  state  proceedings.     The

"autodating"  could  indicate  an  intentional  conspiracy to

cover  up  the  document's  fabrication  by  obliterating the

actual creation date, but that is mere speculation.  

          The  "five  suspicious facts,"  enumerated earlier,

are equally speculative.  We fail to see how the inclusion of

an employee who  had already left the company  on the list of

employees  to  be  retained  makes fabrication  more  likely.

Fennell argues that the  mistake indicates that the memo  was

prepared  at a later point  in time, when  Tucker's memory of

who was employed  would have  faded.  That  inference is,  at

best, extremely attenuated.

          The  fact that  the  October 25  memo was  retained

while  other  similar memos  are  no  longer extant  is  also

virtually non-probative.  It would be natural for an employer

to take care to retain a memo pertaining to an employee, soon

to be laid off, who had lodged a sexual harassment complaint.

Moreover, Fennell  filed a  state human rights  charge within

ninety days of her complaint, thus the desirability of saving

any documents relating to her termination became obvious soon

after the memo was  written.  Nothing in the  record suggests

any similar reasons for saving the earlier memos.

          The fact  that  Tucker had  made positive  comments

about Fennell's performance and job security and First Step's

future  shortly before she was  placed on the  layoff list is

                             -18-                                          18

not necessarily probative of fabrication, either.  First Step

does not assert that Fennell was let go for poor performance,

but rather that her termination  was part of a reorganization

dictated  by financial concerns unrelated to her performance.

The need for her services until the end of the Christmas rush

could have been one reason Tucker spoke as she did.

          Fennell   claims   that    First   Step    managers

inconsistently described  the nature  of and the  reasons for

the job action, but our review of all the statements shows no

sinister inconsistency.   It  appears that the  term "layoff"

was used  loosely, and  was not necessarily  indicative of  a

temporary, rather than a permanent,  action.  And the various

statements  about  why  she  was  let  go,  while  worded  in

different ways, all relate to First Step's business objective

of  improving  the  economic  efficiency   of  its  warehouse

operation.  We see nothing out-of-the-ordinary  or suspicious

about the statements.  

          Finally,  the fact  that some employees  slated for

layoff in the  memo were  ultimately not laid  off might  say

something  about the finality of the layoff list as a general

matter, but we fail  to see how it suggests  fabrication.  It

is  true that  only two  of the  five individuals  slated for

Christmas week  layoffs were actually laid  off as scheduled,

but  the  record  indicates  non-suspicious  reasons  for the

changes in First Step's plans.  Two of the three who survived

                             -19-                                          19

the  axe  stayed  on   in  telemarketing  because  two  other

telemarketers requested layoffs.   The other employee was out

with  an  injury   collecting  worker's  compensation  during

Christmas week; at  the urging of  First Step's insurer,  she

was called  back to  light duty after  the New Year  and then

laid  off  shortly  thereafter.     And,  even  ignoring  the

apparently legitimate reasons why  some of the slated layoffs

did  not occur, the changes in First Step's staffing plans do

not suggest  fabrication.  Why would a fabricated layoff list

be more likely to  name employees eventually retained  than a

real  layoff list?  Wouldn't a fabricated list, written after

the  fact, have  the benefit  of hindsight  and thus  be more                                                                         

accurate?  We see little  probative value in this, or  any of

the other "five suspicious facts."

          3.  Conclusion:  No Abuse of Discretion                                                             

          Even  if  we were  inclined  to  disagree with  the

district court's assessment of Fennell's arguments, which  we

are not,  we reverse a district court's discovery ruling only

for  abuse of  discretion.   While there  may be  cases where

discovery of word  processing files on a computer  hard drive

might  well be warranted, Fennell  has not met  her burden of

demonstrating that the  district court abused its  discretion

in denying that  opportunity here.   Thus, we  hold that  the

district  court acted  within  its discretion  in disallowing

further   Rule  56(f)   discovery,  given   its  conclusions,

                             -20-                                          20

supported by the record, that (1)  the discovery would entail

substantial  risks  and  costs,  and  (2)  there  was  little

particularized  basis   to  believe  that   any  evidence  of

fabrication could be discovered by Fennell's experts.

                             -21-                                          21

B.  Grant of Summary Judgment for the Defendant First Step                                                                      

          1. Standard of Review                                           

          We review a grant of  summary judgment de novo, and                                                                    

like the district court, we are obliged to view the  facts in

the light most favorable to the non-moving party, drawing all

reasonable  inferences in  that  party's favor.   Mesnick  v.                                                                     

General Elec. Co., 950  F.2d 816, 822 (1st Cir.  1991), cert.                                                                         

denied, 504 U.S. 985 (1992).  Summary judgment is appropriate                  

when "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 judgment as a matter

of law."   Fed. R. Civ.  P. 56(c).  "[T]he  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).   "Moreover,  summary  judgment may  be

appropriate `[e]ven  in cases where elusive  concepts such as

motive or  intent are at issue, . . . if the non-moving party

rests   merely   upon   conclusory  allegations,   improbable

inferences, and unsupported speculation.'"  Woods v. Friction                                                                         

Materials, Inc.,  30 F.3d 255,  259 (1st Cir.  1994) (quoting                           

Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st                                                     

Cir.  1990)).  Finally, Fed.  R. Civ. P.  56(c) "mandates the

                             -22-                                          22

entry of summary judgment, . . . upon motion, against a party

who fails  to  make a  showing  sufficient to  establish  the

existence of an  element essential to that  party's case, and

on which that party will bear the burden of proof  at trial."

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).                                    

2.  Retaliatory Discharge: The Legal Framework                                                          

          Although   Fennell   has  framed   her  retaliatory

discharge claims  in  one federal  count  and two  state  law

counts,   the  parties   agree   that  the   well-established

analytical  framework used  in  Title VII  retaliation claims

applies to the state law counts  as well.  Thus, for purposes

of this appeal, we treat all three counts as  subsumed in the

Title VII count.

          Where,  as in  this case  and in  retaliation cases

generally,  there is  no direct  evidence of  the defendant's

retaliatory  animus,  the  McDonnell Douglas  burden-shifting                                                        

framework  is  used  to  allocate and  order  the  burdens of

producing evidence.  See Mesnick, 950 F.2d at 827 (explaining                                            

the interplay between the burden-shifting framework set forth

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and                                               

the standards  for summary judgment).   To establish  a prima

facie case of  retaliation, Fennell must  show that: (1)  she

engaged  in  protected  conduct  under Title  VII  (or  here,

Maine's Human Rights Act or Whistleblower's Protection  Act);

(2)  she suffered  an adverse  employment action;  and  (3) a

                             -23-                                          23

causal connection existed  between the protected conduct  and

the adverse action.  See, e.g., Hoeppner v. Crotched Mountain                                                                         

Rehabilitation Ctr., 31 F.3d 9, 14 (1st Cir. 1994).                               

          Once  a  prima facie  showing  has  been made,  the

burden shifts  to the  defendant to articulate  a legitimate,

non-retaliatory  reason for  its employment  decision.   See,                                                                        

e.g., Mesnick, 950  F.2d at 827.9  If  the defendant does so,                         

the ultimate burden falls  on the plaintiff to show  that the

proffered legitimate reason is in fact a pretext and that the

job  action was  the  result of  the defendant's  retaliatory

animus. See St.  Mary's Honor  Ctr. v. Hicks,  509 U.S.  502,                                                        

510-11  (1993); Mesnick,  950  F.2d at  827-28.   On  summary                                   

judgment, the  need to  order  the presentation  of proof  is

largely obviated, and a court  may often dispense with strict

attention to the  burden-shifting framework, focusing instead

on whether the  evidence as a whole is sufficient to make out

a jury question as to pretext and discriminatory animus.  Id.                                                                         

at 827.

3.  Application to Fennell's Case                                             

                                                    

9.  Mesnick  dealt with  a claim  of retaliation  for conduct                       
protected  by  the  Age   Discrimination  in  Employment  Act
("ADEA"). 29 U.S.C.    621-634.  The analytical framework for
ADEA discrimination and retaliation cases was patterned after
the framework  for Title  VII cases,  and our  precedents are
largely interchangeable.  See, e.g., Hazel v. U.S. Postmaster                                                                         
General, 7  F.3d 1, 3-4  (1st Cir. 1993)  (applying McDonnell                                                                         
Douglas  framework  and  a  unified  retaliation  analysis to                   
claims under both the ADEA and Title VII).

                             -24-                                          24

          Although First Step  refutes that Fennell has  even

made  out a  prima facie  case  of retaliation,  the district

court apparently assumed that she did.  The plaintiff's prima

facie burden is  not onerous, and  we find that she  met that

burden  by   demonstrating,  among  other  things,  that  her

termination occurred shortly after her protected conduct, the

report of harassment.   See Oliver  v. Digital Equip.  Corp.,                                                                        

846 F.2d  103,  110 (1st  Cir.  1988) (discharge  soon  after

protected conduct is strongly suggestive of retaliation).

          Fennell  cannot seriously  dispute that  First Step

met  its burden of articulating a legitimate, non-retaliatory                                           

reason for her discharge:  that economic and business reasons

led  First Step  to  decide  to lay  her  off, and  that  the

decision was made prior to her complaint.  Thus, we arrive at

the dispositive question: whether Fennell has, on the summary

judgment record, established genuine  issues of fact that (1)

First Step's  business  reasons were  a pretext  and (2)  her

discharge  was  in  retaliation  for her  reports  of  sexual

harassment.

          The district court granted summary judgment because

it held that Fennell had not  shown a genuine issue as to the

fact that First Step decided to discharge her before she made

the  report  of  sexual  harassment.   The  linchpin  of  the

district  court's holding  was the  October 25  memo, listing

Fennell among those to be laid off.  Fennell asserts that the

                             -25-                                          25

memo was fabricated some time after her report of harassment.

We discussed Fennell's assertions of fabrication in analyzing

the discovery  issue, and we  found them to  be unpersuasive.

For the reasons stated in that analysis, we hold that Fennell

has not presented evidence that would allow a reasonable jury

to  find that  the  memorandum was  fabricated.   At  bottom,

Fennell's  fabrication   claims  amount   to  no   more  than

"conclusory    allegations,   improbable    inferences,   and

unsupported speculation."  Medina-Munoz, 896 F.2d at 8.                                                   

           In addition to the  memo, First Step also provided

the  uncontroverted affidavits  of three employees  who swear

that Fennell was  on a list of employees to  be laid off, and

they  saw  the  list  before  she  lodged  her  complaint  of

harassment.   Given  the memo  and the  three affidavits,  we

conclude  that Fennell  has failed  to demonstrate  a genuine

issue as to whether First Step's layoff decision predated her

complaint.   Thus, no  reasonable jury could  find that First

Step's   business-related,   non-retaliatory     reason   for

Fennell's layoff decision  was a  pretext --  it cannot  have

retaliated for conduct that had yet to occur.

          Fennell  also  argues that  even  if  the memo  was

legitimate   and   predated  her   report,  the   job  action

contemplated  in the memo was  vague and not  final, and that

retaliatory animus  motivated her ultimate  termination.   We

are  not  persuaded.   The  October  25  memo  used the  term

                             -26-                                          26

"layoff,"  and Smith used the  same term in  his December 20,

1993,  letter informing Fennell  of her discharge.   The next

day, Tucker wrote Fennell a  letter stating that her position

had been eliminated.  Fennell argues that the October 25 memo

contemplated a "layoff," from which  she would be called back

when  work was available, but that in fact she was terminated

and her position  eliminated.  First  Step counters that  she

was laid off because her position was eliminated, and that it

would  have  brought  Fennell  back from  layoff  if  another

supervisory  position opened  for  which she  was  qualified.

First Step states that it did  not transfer Fennell to a non-

supervisory  position because  it does  not  generally demote

supervisors to line positions, believing that morale problems

result.   Our  view of  the summary  judgment record,  viewed

favorably  to  Fennell, leads  to the  inescapable conclusion

that the pre-complaint  decision to "lay  off" Fennell was  a

decision to  eliminate her position, rather  than a temporary

measure with the expectation  that she would be called  back.

After reviewing the entire  record, we hold that  Fennell has

not  presented evidence that would allow a reasonable jury to

find that  First Step had  originally decided merely  to "lay

off"  Fennell but then later decided to take a more permanent

action in retaliation for her complaint.

          We  also reject  Fennell's  argument that  the pre-

complaint decision to lay  her off was not a  final decision,

                             -27-                                          27

and that it could  have been reconsidered later, but  was not

because of her complaint.   We agree with the  district court

that  "could have" is not  enough.  Fennell  has presented no

evidence  that there  was later  reconsideration or  that the

decision  was not  final.   We recognize  that certain  other

employees on  the layoff list  were ultimately  not laid  off

because of changed circumstances  relevant to their jobs, but

that  fact standing alone  says little  or nothing  about any

changes   in   circumstance   that   might   have    led   to

reconsideration of Fennell's job future.

          Fennell makes one other argument worthy of mention.

She claims that after her  complaint of sexual harassment she

was  "immediately demoted  to a lesser  position."   She does

not,  however, develop this argument in her brief, and we are

not clear  whether she raises  it as a  separately actionable

act  of retaliation or as  evidence of the retaliatory animus

behind  her termination.  In  either case, we  agree with the

district court's rejection of  her demotion argument.  It  is

difficult to see how her assignment  to packing duties during

the Christmas season  rush amounts to a demotion,  given that

in her  affidavit she described  her earlier duties  thus: "I

spent  most of  my time  as Warehouse  Lead on  the warehouse

floor  working alongside  other warehouse  employees."    The

demotion  argument has not raised any  genuine issues of fact

as  to retaliation, and in  any event the  argument is waived

                             -28-                                          28

for failure  to develop it  fully in her  brief.   See, e.g.,                                                                        

Ryan  v. Royal  Ins. Co., 916  F.2d 731, 734  (1st Cir. 1990)                                    

(explaining  that   issues  adverted   to  on  appeal   in  a

perfunctory   manner,   unaccompanied   by   some   developed

argumentation, are deemed to have been abandoned).

          Fennell points to a variety of other facts as proof

that  First Step could not  have wanted to  discharge her for

legitimate business  reasons.  These other  facts include her

value  as an employee, her  awards for Employee  of the Month

and the Year, her utility in  performing the annual inventory

to be performed shortly  after her layoff, the fact  that the

First Step catalogue  was featured on the  Oprah Winfrey show

shortly before her layoff, and First Step's plans for a large

mailing  of catalogues  in  January 1994.    In essence,  she

attempts to second-guess First Step's  business judgment that

a leaner warehouse management team -- that is, a team without

Fennell  -- was desirable.   None  of these  other assertions

creates  a genuine issue of  fact as to  whether First Step's

reasons  for  termination were  a  pretext, in  light  of the

October  25 memo and  the three affidavits  averring that the

layoff list was made before Fennell's complaint.  "Courts may

not sit as super  personnel departments, assessing the merits

-- or even the rationality -- of employers' nondiscriminatory

business decisions."  Mesnick, 950 F.2d at 825.                                         

                             -29-                                          29

          In  the  absence  of  a  genuine issue  as  to  the

authenticity  of the October 25 memo scheduling Fennell for a

layoff,  Fennell is  left with  only conjecture  and innuendo

that her termination was an act of retaliation.  The district

court appropriately granted summary judgment for First Step.

                             -30-                                          30

                             III.                                         III.                                             

                         Conclusion                                      Conclusion                                                

          For  the foregoing  reasons,  the judgment  of  the

district court is affirmed.                                      

                             -31-                                          31
