
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-2084                                  HUGH G. PILGRIM,                                Plaintiff, Appellant,                                         v.                           THE TRUSTEES OF TUFTS COLLEGE,                               Defendants, Appellees.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Richard G. Stearns, U.S. District Judge]                                ____________________                                       Before                                Selya, Circuit Judge,                       Aldrich and Cyr, Senior Circuit Judges.                                ____________________            William F.  Green with  whom  Robert A.  Rossi was  on brief  for       appellant.            David  C. Henderson  with  whom Victoria  L.  Botvin and  Nutter,       McClennen & Fish were on brief for appellees.                                ____________________                                    July 10, 1997                                ____________________                      ALDRICH, Senior Circuit  Judge.  Plaintiff Hugh  G.            Pilgrim ("Pilgrim") commenced this journey, pro se, with a 24            page complaint  of  employment discrimination  containing  19            counts, his  opponents being  the Trustees  of Tufts  College            ("Tufts")                      and                         several                                 named individuals.  After a number of not            now                relevant                         steps he ended, with counsel, with 6 counts, some            old, some new, and with Tufts as the sole adversary.  At  one            time or another he faced the following procedures -- a motion            to               dismiss;                        multiple motions to strike; and defendant's motion            for summary  judgment.   On his  own part  Pilgrim moved  for            summary judgment.  In  due course the court denied this,  and            granted all of Tufts' motions.  We affirm.                                   I.  Background                      We take  the facts favorably  to plaintiff, or,  if            against                    him,                         if                           not                               rebutted.  Pilgrim was an African-American,            a native of Barbados.  He had many qualifications, for which,            in November  1987,  he became  employed as  an  environmental            research analyst in Tufts Center for Environmental Management            ("CEM").    In  January of  1989  his  promotion  to  Program            Development Analyst brought him under the supervision of Kurt            Fischer ("Fischer"), a white male.  In April of 1990  Fischer            gave Pilgrim an  "inconsistent" performance rating.   Despite            Pilgrim's                      request for the full account, Fischer did not supply            it               until                     July 30.  The writing was even more negative than the            oral review. Fischer required Pilgrim to sign for its receipt                                         -2-            without                    any                       opportunity                                   either to read or discuss.  Under Tufts            policy                   Pilgrim should have been allowed  to discuss a negative            review                   with                        the                           next                                level of management, in this case, William            Moomaw ("Moomaw") a director of CEM and Fischer's supervisor.            Moomaw, however, refused to meet with Pilgrim.                      Beginning in June of 1990, Fischer began   imposing            disciplinary  restrictions  on  Pilgrim.  These  included   a            requirement                        that,                              for                                 a                                   three week period, he submit daily logs            recording all of his activities (including telephone calls in            and                out,                     and                         all meetings held), and that he submit in advance            abstracts                      of                         papers intended for publication or acceptance for            presentation at conferences.   He was also denied funding  to            attend professional  conferences.   Fischer  imposed  further            disciplinary  restrictions   in  September  1990,   including            reimplementation                             of                               the                                   daily log requirement and an order that            Pilgrim cease participating  in an ad hoc committee on  race,            justice and the environment.                      According to Pilgrim's affidavit, during the period            Fischer supervised Pilgrim,  he called  him "space  pilgrim,"            "lazy" and accused him of "shifting positions all the  time."            Pilgrim took these comments as racial slurs.                      On                         September                                   24, 1990, Pilgrim initiated an internal            grievance  procedure  alleging  discrimination  by   Fischer.            Pilgrim's  claims were  initially  evaluated  by  Moomaw  who            subsequently informed  Pilgrim by  letter that  there was  no                                         -3-            evidence                     of                        discrimination by Fischer.  Pilgrim proceeded with            the  grievance.     A  grievance  committee  (sometimes   the            "Committee")  composed of  three Tufts  faculty members,  was            convened.  We note, in  passing, that in March of 1991,  Dean            Anthony Cortese ("Cortese") refused to provide Pilgrim with a            reference to  accompany his  application for  admission to  a            workshop.  According  to Pilgrim, Cortese  told him that  the            refusal  was based on  the fact that  Pilgrim had filed  this            grievance.                      In  January of  1991, the  Tufts Budget  Department            directed  CEM to  cut its  payroll expenses  by ten  percent.            Moomaw and two other directors decided to eliminate ten staff            positions and  to reconfigure others.   As a result of  these            moves, Pilgrim's  job was deemed superfluous.   A few of  the            designated                       employees                                left voluntarily while the rest, including            Pilgrim,                     were scheduled for termination.  On the advice of the            Human                  Resources                           Department, however, Pilgrim was spared because            of his pending grievance.  The other employees (including  an            African-American woman who  was rehired three months  later),            were terminated on June 10, 1991.                      On March 27, 1991, the Committee had forwarded  the            results of its investigation  of Pilgrim's grievance to  Jean            Mayer ("Mayer"),  then  President  of Tufts.    When  Pilgrim            attempted to obtain a copy of the Committee's report, he  was            told                 that                      Mayer had determined that it was "classified."  As a                                         -4-            result                   of                     the                         Committee's recommendations, however, Fischer was            relieved                     of                        all supervisory duties and Pilgrim began reporting            to Moomaw.                      In July of 1991, six weeks after the new  reporting            relationship began,  Moomaw  gave Pilgrim  an  "inconsistent"            performance                        rating,                               repeating criticisms made by Fischer a year            earlier.                                           Also that summer, Pilgrim applied for a promotion to            Executive                      Director                              of                                 the Sustainability Consortium, a position            which was eventually given to a white female.                      On October 2, 1991, Pilgrim filed a complaint  with            the Massachusetts Commission Against Discrimination  ("MCAD")            claiming various acts of  alleged racial and national  origin            discrimination on the part of  Tufts.  On October 31, he  was            notified that he would  be terminated on December 31, and  he            amended his  MCAD complaint to reflect  the fact that he  was            being                  "laid-off."                                                            He                                 filed an amended complaint in this action            on June 2,  1994, charging, inter  alia, racial and  national            origin-based  harassment,   failure  to   promote,   wrongful            discharge,                       and                          retaliatory discharge1 in violation of Title VII            1.  Not to by-pass anything, we recognize in a footnote,            Pilgrim's retaliatory discharge claim, on the very difficult            to make assumption that it was inferentially pleaded in his            complaint to the MCAD.  Even assuming that amending his MCAD            complaint as to his "laid off" status was enough to encompass            a claim of retaliatory discharge in this action, see            Lattimore v. Polaroid Corp., 99 F.3d 456, 464 (1st Cir. 1996)            (construing liberally pro se plaintiff's administrative            complaint), it is precluded by the undisputed fact that Tufts            was not notified of the MCAD complaint until more than two            months after Pilgrim was notified of his termination, see                                         -5-            of               the                   Civil                        Rights                               Act                                   of 1964, 42 U.S.C. S 2000e et seq., and            pendent state discrimination claims brought under Mass.  Gen.            Laws ch. 151B, and the Massachusetts Civil Rights Act.                                   II.  Discussion                      Prior to  any  analysis  of  Pilgrim's  substantive            claims,                    we                       first                            dispose                                    of several procedural grounds alleged.            Pilgrim maintains  that the court  erred in striking  certain            exhibits and portions of his affidavits, wrongly  disregarded            his showing of a continuing violation which would have pushed            back                 the                     barriers                             of                                the                                    statutes of limitation, and abused its            discretion  in refusing  to  admit  the  Committee's  report,            virtually  the  only  piece  of  evidence  presented  in  his            opposition to summary judgment.  We review seriatim.                      A.   Motions to Strike                      Pilgrim appeals the  allowance of Tufts' motion  to            strike 18 of 19 documents submitted in support of his  motion            for                summary                        judgment2 and the partial striking of "incompetent            hearsay"  in the 19th  document: his affidavit.   One of  the            Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st            Cir. 1996) (requiring a plaintiff to show knowledge of            protected conduct by employer).            2.  Although Pilgrim is not appealing the denial of his            motion for summary judgment, he apparently subsequently            resubmitted some or all of these previously stricken            documents in conjunction with his opposition to Tufts' motion            for summary judgment and now argues that they should have            been considered as part of the court's analysis of that            motion.                                         -6-            stricken documents was the report of the grievance committee,            which we address separately, post.                      Without further explanation for the disallowance of            these documents, we  will assume that  the court's basis  for            striking was the one stated in Tufts' motion, that the  court            had  used to grant  an earlier motion  to strike:   Pilgrim's            failure to certify  the documents in accordance with Fed.  R.            Civ. P. 56(e), or his failure to state an inability to do so.            See                              Fed.                     R.                        Civ. P. 56(f).  Pilgrim makes no excuses, arguing,            instead, that  Tufts' motion to  strike was untimely,  coming            after the 20 days allowed by Fed. R. Civ. P. 12(f).  As Tufts            points out, however, Rule 12(f) applies only to pleadings and            has no  applicability to  motions made  in pursuit  of or  in            opposition to summary judgment.                      In                         regard                                to                                  Pilgrim's                                            affidavit, we are unsure which            of               the                   statements the court struck.  However, we will consider            statements Pilgrim  alleges  were  made directly  to  him  by            Fischer, Cortese, Rebecca  Flewellyn, Mayer's assistant,  and            Kathe Cronin, the Human Resource Director, as admissions by a            party opponent under  Fed. R. Evid.  801(d)(2).  The  alleged            statement by Professor Gerard Gill, one of the members of the            Committee,                       to                         Pilgrim                                 that "race was a factor in Kurt Fischer's            treatment                      of                         [him]"                               was                                   inadmissible hearsay against Tufts.  We            concur with the court that all other alleged statements  were            hearsay and therefore excludable.                                         -7-                                         -8-                      B.   Continuing Violations                      As part of  its motion to dismiss, Tufts sought  to            limit Pilgrim's Title VII and Chapter 151B claims to  conduct            occurring                      outside                             the                                 parameters set by the respective statutes            of limitation.   The court held  that any conduct alleged  to            violate                    Title VII that occurred before February 4, 1991 -- 240            days                 prior                       to                         the                             MCAD                                  complaint -- and any conduct relevant to            his claim under Chapter 151B occurring before June 2, 1991 --            180                days                     prior to the MCAD complaint, could not be considered.            See  42  U.S.C.  S  2000e-5(e);  29  C.F.R.  SS   1601.70(a),            1601.74(a);  Mass. Gen.  Laws ch.  151B S  9.   To avoid  the            strictures of the limitations periods, Pilgrim contends  that            the periods should be extended due to a continuing violation.                      In the Title VII arena:                      [I]f  a  violation  is  of  a  continuing                      nature,                              the                                  charge of discrimination filed                      with the appropriate agency may be timely                      as to all discriminatory acts encompassed                      by the violation so long as the charge is                      filed during the life of the violation or                      within the statutory  period . . .  which                      commences     upon    the     violation's                      termination.            Kassaye v. Bryant College, 999 F.2d 603, 606 (1st Cir. 1993).            The same holds true of Chapter 151B.  See Lynn Teachers Union            v. Massachusetts Comm'n Against Discrim., 406 Mass. 515,  520            (1990).                      A  continuing violation  may  be either  serial  or            systemic.                                             La                        wton v. State Mut. Life Assur. Co., 101 F.3d 218,                                         -9-            221                (1st                     Cir. 1996).  A systemic violation has its "roots in a            discriminatory policy or  practice; so long as the policy  or            practice  itself continues  into  the  limitation  period,  a            challenger may be  deemed to have filed a timely  complaint."            Id.                              at                   222                      (citing                              Jensen                                    v. Frank, 912 F.2d 517, 522 (1st Cir.            1990)).  Pilgrim argues only for a serial violation.  This is            one "compris[ing] a  number of discriminatory acts  emanating            from                 the                     same discriminatory animus, each of which constitutes            a separate wrong actionable under Title VII."  Id. at 221-22.            The  series  must  contain  a  specific  beachhead  violation            occurring within the  limitations period.   Muniz-Cabrero  v.            Ruiz, 23  F.3d 607,  610 (1st  Cir. 1994).   Mere  subsequent            effects of earlier discriminatory action will not extend  the            limitations                        period.  Kassaye, 999 F.2d at 606.  As a threshold            requirement,                         Pilgrim must identify at least one discriminatory            act or practice occurring after February 4, 1991.                      Pilgrim maintains  that  Cortese's refusal  of  the            letter                   of                      reference on March 1, 1991 and Moomaw's negative May            1991 review establish that beachhead.  We disagree.   Pilgrim            has  not shown  either  of  these actions  to  constitute  an            actionable violation of Title VII or Chapter 151B.  Pilgrim's            affidavit testimony that Cortese told him he was denying  the            letter                   of                      reference because Pilgrim had filed a discrimination            grievance is not of  itself evidence of, nor an admission  of            racial                   or                     national                              origin bias.  Nor has Pilgrim identified any                                        -10-            evidence                     that would lend an inference of illegal motivation to            Moomaw's review.  Thus, there is no continuing violation that            would serve to extend the limitations period.                      C.   Denial of Extension of Discovery Deadline                      On                         April                               24,                                  1995,                                        the                                            court set December 29, 1995 as            the deadline for  discovery.  On December 11 Pilgrim  noticed            five  Tufts employees,  including  Fischer  and  Moomaw,  for            depositions to be taken  in mid-January 1996.  On January  4,            1996,                  Tufts                        objected                                to                                   the proposed depositions as being after            the discovery deadline.  On January 9, Pilgrim  moved for  an            extension                      of                         the deadline that the court then denied.  We will            overturn                     a                       court's denial of a motion to extend discovery only            for abuse of discretion.  Coyante v. Puerto Rico Ports Auth.,            105                F.3d                     17,                         22 (1st Cir. 1997).  There is no such abuse here.            Pilgrim acknowledges that his failure to ask for an extension            prior to the deadline's expiration was an error in  judgment.            In the  next breath, however,  he accuses  Tufts of  delaying            delivery of  documents, without which  he could not  properly            depose its employees.                      We cannot agree.  First, Tufts did not, as  Pilgrim            implies,                     delay in the delivery of these documents.  The record            reflects that  an  overly broad  discovery order  by  Pilgrim            resulted  in a motion  to quash and  finally in a  protection            order.   Second,  Pilgrim's own  brief  tells us  that  these            documents                      were                          delivered                                    on December 21, 1995, 10 days after he                                        -11-            noticed                    the                       depositions.                                     We fail to understand how Pilgrim can            claim that he scheduled  the depositions after receiving  the            documents and then admit  that the documents came later.   If            there was any error here, it was Pilgrim's own.                      D.   The Grievance Report3                      Central  to  almost  every  substantive  ground  in            Pilgrim's appeal  is a report  (the "Report")  issued by  the            Committee                      on                         March 27, 1991.  When Pilgrim attempted to submit            it as part of his summary judgment motion, the court found it            inadmissible  as   "a  collection   of  multi-level   hearsay            statements."                          We understand Pilgrim's distress at this ruling,            the Report being his only hope of withstanding Tufts'  motion            for summary  judgment.  On appeal,  as he did below,  Pilgrim            contends  that  the  Report  was  not  hearsay,  but  instead            qualifies, inter alia,  as an admission  of a party  opponent            under Fed. R. Evid. 801(d)(2)(B), as an adoptive admission.                      Rule                           801(d)(2)(B)                                       provides that "[a] statement is not            hearsay                    if                       .                         .                          .                            [the]                                  statement is offered against a party and            is . .  . a statement  of which the  party has manifested  an            adoption                     or                        belief                              in                                 its truth . . . ."  The burden of showing            the manifestation is on the party offering the evidence.  Cf.            Riccardi                                        v.                        Children's                                  Ho                                   sp. Medical Ctr., 811 F.2d 18, 24 (1st            3.  As we noted, ante, the Report was one of the documents            earlier stricken for lack of certification.  However, since            the court ruled on its admissibility in its memoranda denying            Pilgrim's motion for summary judgment, we assume this            deficiency was repaired.                                        -12-            Cir. 1987).   We have identified  the correct approach  where            documents are concerned  as asking  whether "the  surrounding            circumstances tie the possessor and the document together  in            some                 meaningful                            way."                                                                   Un                                   ited States v. Paulino, 13 F.3d 20, 24            (1st  Cir. 1994).   We believe that  Pilgrim has carried  his            burden,                    at                       least                            to                               an                                  extent.  The question is to what extent?            The                answer                       is:  to the extent that the adoptive party accepted            and acted upon the evidence.                      "Adoption or acquiescence may be manifested in  any            appropriate manner."  Fed. Rules of Evid., Advisory Committee            Notes.  The Committee  was convened under Tufts'  established            grievance procedures, and its recommendations given to Mayer.            The  major  ones  were that  Fischer  be  relieved  from  all            supervisory                        responsibilities, that Pilgrim, instead, report to            Moomaw, and that  an independent overseer  outside of CEM  be            appointed to monitor the new reporting relationship.                      Tufts does not  dispute that Mayer implemented  all            three  of these  recommendations.   In  particular,  removing            Fischer                    from                        all                            supervisory duties was a serious enough action            that                 we                    cannot                          but                              think                                    that Mayer would not have carried this            out unless he accepted the Report's conclusions as the truth.            As such, his acceptance of the contents of the Report and his            implementation of  its recommendations,  without  disclaimer,            served as an adoption of the Report for the purposes of  Rule            801(D)(2)(B).  We  note, however, that  while the Report  was                                        -13-            generated during the limitations period, most of its contents            detail conduct that occurred prior to that period, and  hence            barred                   from                        consideration.  We will, nevertheless, discuss it.                      In                         essence,                                  the Committee concluded that Fischer had            failed                   to                      give Pilgrim a fair and impartial review and that he            had                exaggerated                           complaints about Pilgrim's performance in order            to justify an "apparent desire . . . to terminate [him]."  It            also  stated a  finding that  "Pilgrim appears  to have  been            singled                    out                        for                           certain                                   types of disciplinary actions."  On the            question  of racial  and  national origin  discrimination  it            stated:                      [N]o                           substantive evidence that Mr. Fischer                      intended  to  discriminate  against   Mr.                      Pilgrim on the basis of race, color, [or]                      national                               origin . . . although Mr. Fischer                      could have  been motivated by  prejudices                      against Mr. Pilgrim.  It is plausible  to                      the Committee that Mr. Fischer's  actions                      were motivated by other factors, such  as                      personality  conflicts.    However,   the                      Committee could  not fully evaluate  this                      component                                of                                   the grievance, as performance                      reviews of other CEM personnel supervised                      by  Fischer   could  not   be   obtained.                      Therefore,                                 the Committee could not compare                      Mr. Fischer's  decisions with respect  to                      performance ratings and salary increases.                      Nonetheless,  the  Committee  finds  that                      several                              of                                 Mr. Fischer's actions . . . did                      result                             in                                the perception of discrimination                      by Mr. Pilgrim.  Such restrictions  could                      have had  discriminatory impacts  to  the                      extent that  Mr. Pilgrim  was in  several                      instances treated differently from  other                      professional staff at CEM.            Having                   determined that this finding, along with party opponent            admissions from Pilgrim's affidavit, compose all of Pilgrim's                                        -14-            evidence,                      we                         turn                             next                                  to the court's grant of summary judgment            to Tufts.                      E.   Summary Judgment                      We  review grants  of  summary  judgment  de  novo,            indulging,                       as                          must                              the                                  court below, in all inferences favorable            to               the                   non-moving                             party.                                     Lehman v. Prudential Ins. Co. of Am.,            74  F.3d 323,  327  (1st Cir.  1996).   Summary  judgment  is            appropriate only  when the record,  viewed in this  favorable            light, produces  no genuine issue  of material fact,  thereby            entitling the moving party to a judgment as a matter of  law.            Fed. R. Civ. P. 56(c).   This standard is applicable even  in            employment                       discrimination                                    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."  Lehman, 74 F.3d at            327 (quoting Medina-Munoz v.  R.J. Reynolds Tobacco Co.,  896            F.2d 5, 8 (1st  Cir. 1990)).  The  bare fact is that  Pilgrim            failed                   to                      present evidence of the quality and type adequate to            stave off summary judgment within the context of the familiar            McDonnell-Douglas framework for  discrimination claims.   See            McDonnell                      Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973);            Lattimore                                          v.                         Polaroid Corp., 99 F.3d 456, 465 (1st Cir. 1996).            Pilgrim's                      perception is not evidence.  The Report's deficiency            we               have                    already referred to.  As we noted, ante, the Report is            the                cornerstone upon which Pilgrim attempts to build his case.                                        -15-            But a close  reading of the Committee's conclusions fails  to            provide the required inference of bias behind Tufts' actions.            Read                 closely                         in                           the                               light most favorable to Pilgrim, the Report            concludes that  the restrictions  placed on  him resulted  in            Pilgrim being  treated "differently  from other  professional            staff."  In the same breath, the Committee reported that they            were unable  to find any  "substantive evidence that  Fischer            intended                     to                        discriminate against Pilgrim on the basis of race,            color [or] national origin .  . . and that [i]t is  plausible            that Mr. Fischer's actions  were motivated by other  factors,            such as personality conflicts."                      The                          only                               inference                                        that                                             can be drawn here is that for            whatever                     reason                           Pilgrim                                   received  "different" treatment, it was            as likely due to  a clash of personalities as anything  else.            And although the Committee found that Fischer's behavior left            Pilgrim                    with                         the perception he had been discriminated against,            Pilgrim's  perception is  not  enough  to  withstand  summary            judgment.   The relevant  inquiry here is  the intent of  the            defendant which the Committee was unable to define.                      Nor  do any  of statements  in Pilgrim's  affidavit            alleged to have  been made by the defendant's employees  lend            assistance to this uphill battle.  These statements, for  the            most                 part,                       serve                            to                               show                                    that Pilgrim was told by certain Tufts            employees, first, that he would receive a copy of the Report,            and                later                      by                        those                              same                                   employees, that he would not be able to                                        -16-            obtain a  copy because it  was "classified."   The  inference            Pilgrim  would like  us to  draw  from this  -- that  he  was            initially denied access to the Report because Tufts feared it            would be damaging -- is belied by the actual contents.                      Cortese's alleged comment that he would not provide            a reference for  a workshop Pilgrim wanted to attend  because            Pilgrim "filed a  discrimination grievance  against CEM  with            Tufts," as we observed, ante, does not disclose the actuating            motive.   As is  the  case with  virtually all  of  Pilgrim's            evidence, it  can be construed  as supporting  the fact  that            Pilgrim                    was                       treated                               differently, however, it does not show that            this treatment  resulted from any  racial or national  origin            bias.                      To avoid summary judgment Pilgrim must, at the very            least, present a single piece of evidence that would allow  a            reasonable juror  to infer this  bias.  He  has not done  so;            accordingly,                         his claims must fail.  The orders of the district            court are                      Affirmed.                                        -17-
