
USCA1 Opinion

	




                            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.                                           -2-                                          2                                    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                                         -3-                                          3            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.                                                -4-                                          4                      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                                         -5-                                          5            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                                         -6-                                          6            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.                                         -7-                                          7            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                                         -8-                                          8            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.                                         -9-                                          9                      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                                         -10-                                          10                      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                                         -11-                                          11            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                                         -12-                                          12            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                                         -13-                                          13            court  in Whittlesey  anticipated  and  rejected  Morrissey's                      __________            attempt to turn                                          -14-                                          14            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            _________                                         -15-                                          15                      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                                         -16-                                          16            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  . . . . "                                         -17-                                          17            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.                                         -18-                                          18            "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.                                         -19-                                          19            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                                         -20-                                          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.            ______________________                                                         -21-                                          21
