January 13, 1993

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 92-1952

                         MICHAEL PAGANO,

                      Plaintiff, Appellant,

                                v.

           ANTHONY M. FRANK, POSTMASTER GENERAL, ETC.,

                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT

                FOR THE DISTRICT OF MASSACHUSETTS

           [Hon. Robert E. Keeton, U.S. District Judge]
                                                      

                                             

                              Before

                      Selya, Circuit Judge,
                                          

                  Coffin, Senior Circuit Judge,
                                              

                     and Cyr, Circuit Judge.
                                           

                                             

     Norman Jackman, with  whom Martha M.  Wishart and Jackman  &amp;
                                                                 
Roth were on brief, for appellant.
    
     David  G. Karro, Attorney, Office of Labor Law, U. S. Postal
                    
Service, with  whom A.  John Pappalardo, United  States Attorney,
                                       
and  Annette Forde,  Assistant  United States  Attorney, were  on
                  
brief, for appellee.

                                             

                                             

          SELYA, Circuit Judge.  The United States Postal Service
          SELYA, Circuit Judge.
                              

prides itself on surmounting obstacles that nature  places in its

path.1    In this  bitterly  contested  case, plaintiff-appellant

Michael Pagano, a veteran postal worker, complains that, whatever

success the Service may have encountered in its struggle with the

elements,  it has  been unable  to surmount a  man-made obstacle:

prejudice in the workplace.  The district court ruled in favor of

the defendant.  Finding appellant's arguments to be unpersuasive,

we affirm.  

I.  BACKGROUND

          The Lynnfield  Post Office  hired appellant as  a part-

time mail carrier in  1973.  He  became a full-time employee  two

years later, working primarily as a clerk at a branch office.  In

1983, 

appellant became a dispatcher  at the main post office  under the

direct  supervision of  James Walsh.   Walsh  and Pagano  did not

enjoy a cordial  working relationship   a situation  that perhaps

stemmed from the latter's propensity for unauthorized absences.

          When Walsh was promoted to postmaster in mid-1984, Paul

Hentschel  became  Pagano's supervisor.    On  December 2,  1984,

Hentschel sent  appellant an admonitory letter regarding frequent

tardiness  and excessive  use of  sick leave.   A  second warning

letter, issued exactly one year later, cited continuing instances

                    

     1An  inscription on the exterior  of the main  New York City
post  office,  often thought  to be  the Postal  Service's motto,
reads:  "Neither snow,  nor rain,  nor heat,  nor gloom  of night
stays these couriers from  their appointed rounds." (adapted from
VIII Herodotus, Histories 98).
                         

                                2

of unpunctuality and sick leave abuses during a two-month  period

ending December 2, 1985.

          Notwithstanding these  admonitions, appellant persisted

in  his moratory ways.  Hentschel suspended him for seven days in

January (later reduced to five) and fourteen days in March (later

reduced to seven).  Seeing no improvement, Hentschel issued a so-

called "notice of  removal" on July  15, 1986 (later  withdrawn),

and  reissued it  on  October  22,  1986.    During  the  ensuing

grievance  proceedings,  Walsh  overrode Hentschel's  action  and

authorized  a "last  chance" agreement.   Although  the agreement

contained  a  promise  that   appellant  would  report  for  work

regularly and punctually, this covenant was honored mainly in the

breach:  appellant was  absent or late nineteen times  during the

four-month period  ending March  23, 1987.   Hentschel discharged

appellant  in May of that year, citing his "lack of dependability

in reporting and not being available for duty."  

          Three months after  his termination, appellant filed  a

formal  administrative complaint with  the Postal Service's equal

employment  opportunity office,  alleging  that he  was dismissed

because  of  his employer's  animus  against  persons of  Italian

origin.2  For the next three years, appellant  vigorously pursued

                    

     2Appellant  originally claimed that  a second discriminatory
animus, arising  out of his role in the investigation of a sexual
harassment complaint,  contributed to his difficulties.   He has,
however, abandoned this  theory on appeal.   Accordingly, we pass
over it.  See United States v. Slade,     F.2d     ,     n.3 (1st
                                    
Cir.  1992) [No.  92-1176, slip  op. at  6 n.3]  (reiterating the
general  rule that "theories neither briefed nor argued on appeal
are deemed to have been waived").

                                3

his case on the administrative level.  Receiving no satisfaction,

he  brought suit  against the  Postmaster General  in the  United

States District Court for the District of Massachusetts.  

          Appellant docketed his complaint in the  district court

on August  7, 1990.   On  February 19,  1992, a  magistrate judge

denied  his motion  for  leave  to  file  an  amended  complaint.

Several  months   thereafter,  the  district  court  granted  the

defendant's motion for summary judgment.  This appeal ensued.

II.  THE NEED TO OBJECT TO A MAGISTRATE'S ORDER

          As a preliminary  matter, appellant  contends that  the

district court erred in denying his motion to add counts alleging

wrongful  discharge and  breach of  contract.   The facts  are as

follows.   Appellant's motion to amend his complaint was filed on

January  10, 1992.   The district judge referred  the motion to a

magistrate  judge who  denied it  on grounds of  futility, ruling

that the additional claims  were both preempted by Title  VII and

that, moreover,  the wrongful  discharge claim failed  to comport

with  the Federal  Tort Claims  Act.   Appellant took  no further

action.   Because appellant failed to object  to the magistrate's

order within the prescribed  ten-day period, see Fed. R.  Civ. P.
                                                

72(a), we cannot consider this assignment of error.3

                    

     3We analyze this point under Fed. R. Civ. P. 72(a) partially
because  appellant,   in   post-argument  briefing   before   us,
explicitly invited  that characterization.   However, even  if we
viewed  the  magistrate's  denial  of  the  motion  to  amend  as
implicating  28 U.S.C.   636(b)(1)(B)  and Fed. R.  Civ. P. 72(b)
rather than 28 U.S.C.    636(b)(1)(A) and Rule 72(a),  the result
that we reach  would not be affected.  See  Park Motor Mart, Inc.
                                                                 
v. Ford  Motor Co., 616  F.2d 603, 605  (1st Cir. 1980)  (holding
                  
that, in respect to  a magistrate's recommended disposition under

                                4

          Under  ordinary  circumstances  a  motion  to  amend  a

complaint is "a  pretrial matter  not dispositive of  a claim  or

defense of a party" within the  purview of Fed. R. Civ. P. 72(a).

See Walker v. Union Carbide Corp., 630 F. Supp. 275,  277 (D. Me.
                                 

1986);  see  also  28  U.S.C.    636(b)(1)(A)  (providing  that a
                 

district judge  "may designate a magistrate to hear and determine

any  pretrial  matter,"  with certain  enumerated  exceptions not

relevant here).  A party displeased  by a magistrate's order on a

nondispositive motion must serve and file objections to the order

within ten days.   See Fed.  R. Civ. P.  72(a); see generally  28
                                                             

U.S.C.    636(d) (congressional grant  of rulemaking power).   If

the aggrieved  party preserves his  rights in  this fashion,  the

district  judge can set aside the magistrate's ruling if he finds

it  to be "clearly  erroneous or contrary  to law."   28 U.S.C.  

636(b)(1)(A);  Fed. R. Civ. P. 72(a).  If, however, the aggrieved

party  sits idly  by and  fails to  object within  the prescribed

period, he  "may not thereafter  assign as error a  defect in the

magistrate's order  . . . ."  Id.;  see also Rule 2(b), Rules for
                                            

U.S. Magistrates  in the  United  States District  Court for  the

District   of   Massachusetts   (implementing   28    U.S.C.     

636(b)(1)(A), (d) and Civil Rule 72 (a)).

          In  this  instance,  Pagano   did  not  object  to  the

                    

section 636(b)(1)(B),  "a party 'may' file  objections within ten
days or he may  not, as he  chooses, but he 'shall'  do so if  he
wishes  further consideration"); accord  Davet v.  Maccarone, 973
                                                            
F.2d 22, 30-31 (1st  Cir. 1992); Templeman v. Chris  Craft Corp.,
                                                                
770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021 (1985);
                                          
Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983).
                  

                                5

magistrate's  denial of  the  motion to  amend.   That  ends  the

matter.  Congress  granted the courts of  appeals jurisdiction to

hear  appeals "from all final decisions of the district courts of

the United States."  28 U.S.C.    1291.  We have held that  for a

magistrate's  decision to be  "final" within  the meaning  of the

statute  it "must have been reviewed by the district court, which

retains ultimate decision-making power."  United States v. Ecker,
                                                                

923 F.2d 7, 8 (1st Cir. 1991) (quoting Siers v. Morrash, 700 F.2d
                                                       

113,  115 (3d  Cir. 1983)).4   In  other words,  when, as  now, a

litigant could  have tested a magistrate's ruling  by bringing it

before  the  district  judge, but  failed  to  do  so within  the

allotted ten-day period, he cannot later leapfrog the trial court

and appeal  the ruling  directly to  the court  of appeals.   See
                                                                 

Unauthorized Practice of Law  Comm. v. Gordon,     F.2d     ,    
                                             

(1st  Cir. 1992)  (per  curiam) [No.92-1710,  slip  op. at  7-8];

McKeever  v. Block, 932 F.2d 795, 799 (9th Cir. 1991); Singletary
                                                                 

v. B.R.X., Inc., 828 F.2d 1135, 1137 (5th Cir.  1987); Siers, 700
                                                            

F.2d at  116; see  also Ecker,  923 F.2d at  9 (holding  that the
                             

court of appeals cannot undertake direct review of a magistrate's

order on  a nondispositive pretrial  motion in a  criminal case);

United States v.  Renfro, 620  F.2d 497, 500  (5th Cir.)  (same),
                        

cert. denied, 449 U.S. 921 (1980).  
            

          Because appellant  took no  steps to have  the district

                    

     4Of course, when magistrates sit as de facto district judges
                                                 
by consent of  the litigants under  28 U.S.C.   636(c),  they can
enter  final, appealable judgments.   See 28  U.S.C.   636(c)(3).
                                         
However, section 636(c) has no applicability in the instant case.

                                6

judge review the magistrate's  denial of the motion to  amend, he

is  precluded from  contesting the  merits of  that order  in the

present proceeding.   See Rittenhouse  v. Mabry,  832 F.2d  1380,
                                               

1387  (5th  Cir.  1987)  (refusing  to  entertain  a  plaintiff's

challenge to a  magistrate's denial  of his motion  to amend  his

complaint because  "no appeal therefrom to the district court was

ever taken or attempted and the district court did not in any way

review or confirm th[e] order").

III.  THE PROPRIETY OF SUMMARY JUDGMENT

          We  divide  our  examination  of the  summary  judgment

entered below into two segments.  We  begin by outlining the Rule

56 standard and then proceed to the underlying Title VII claim.

                A.  The Summary Judgment Standard.
                                                 

          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 a judgment as  a matter of law."  Fed. R.  Civ. P.

56(c).  Where, as in this case, the defendant has invoked Rule 56

and asserted  a lack of  supporting evidence, the  plaintiff must

establish  the existence of a triable issue which is both genuine

and material to his claim.  See  Anderson v. Liberty Lobby, Inc.,
                                                                

477 U.S. 242, 247-48  (1986).  "In this context,  'genuine' means

that  the evidence about the fact is  such that a reasonable jury

could resolve the  point in  favor of the  nonmoving party  [and]

'material'  means  that the  fact is  one  that might  affect the

                                7

outcome of the  suit under the governing law."   United States v.
                                                              

One  Parcel  of  Real  Property, Etc.  (Great  Harbor  Neck,  New
                                                                 

Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992) (citations and
               

internal quotation marks omitted).

          On issues where the nonmovant bears the ultimate burden

of  proof at  trial,  he may  not  defeat  a motion  for  summary

judgment by relying upon  evidence that is "merely  colorable" or

"not significantly probative."  Anderson, 477 U.S. at 249-50.  To
                                        

the  contrary, the  nonmovant must  "present definite,  competent

evidence to rebut the motion."  Mesnick v. General Elec. Co., 950
                                                            

F.2d 816, 822  (1st Cir.  1991), cert.  denied, 112  S. Ct.  2965
                                              

(1992).  Even when elusive concepts like motive or intent are  in

play,  "summary judgment  may  be appropriate  if the  non-moving

party  rests  merely  upon  conclusory   allegations,  improbable

inferences, and  unsupported speculation."  Medina-Munoz  v. R.J.
                                                                 

Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
                    

          We afford plenary review to a district court's grant of

summary judgment.  In the course thereof, we must read the record

in  the light  most  amicable  to  the party  contesting  summary

judgment, indulging  all reasonable  inferences  in that  party's

favor.  See, e.g., Griggs-Ryan v.  Smith, 904 F.2d 112, 115  (1st
                                        

Cir. 1990).

                     B.  The Title VII Claim.
                                            

          Title  VII  renders  it  unlawful for  an  employer  to

"discharge  any  individual .  . .  because of  such individual's

race,  color, religion,  sex, or  national origin  . .  . ."   42

                                8

U.S.C.    2000e-2(a)(1).   To  prevail  on a  Title VII  claim, a

plaintiff must prove that the defendant discriminated against him

for  a proscribed reason.  See Cumpiano v. Banco Santander Puerto
                                                                 

Rico,  902  F.2d 148,  153 (1st  Cir.  1990).   Because appellant
    

produced  no direct  evidence of  discriminatory intent,  we must

initially analyze his  claim under the  burden-shifting framework

of  McDonnell  Douglas  Corp.  v.  Green, 411  U.S.  792,  802-05
                                        

(1973).5  

          McDonnell  Douglas requires,  first, that  the claimant
                            

state a prima facie case.   This showing transfers the burden  of

production,  requiring  the  employer  to  articulate   (but  not

necessarily  prove)  some  legitimate,  nondiscriminatory  reason

justifying the adverse  employment action.  Cumpiano, 902 F.2d at
                                                    

153.  Satisfying this  burden of production effectively dissolves

the  inference of  discrimination  arising  from the  plaintiff's

prima facie  case.6  See White  v. Vathally, 732 F.2d  1037, 1040
                                           

(1st 

                    

     5In  general, the  McDonnell Douglas  model operates  in the
                                         
same way  for  Title VII  cases as  for cases  brought under  the
federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.   
621-634 (1988).   See Villanueva v.  Wellesley College, 930  F.2d
                                                      
124, 127 n.2 (1st Cir.) cert. denied, 112 S. Ct. 181 (1991); Loeb
                                                                 
v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir. 1979).  Hence, we
                
cite  interchangeably  to Title  VII  and ADEA  decisions  in the
succedent analysis.

     6Even though the  McDonnell Douglas inference  vanishes, the
                                        
evidence  submitted in  support of  the prima facie  case remains
under  consideration.     See  Mesnick,  950  F.2d   at  825  n.6
                                      
(explaining  that, although the burden-shifting framework becomes
inconsequential  at this point, the district  court, faced with a
Rule 56 motion, "must still examine the evidence that the parties
adduced in proceeding under the framework").

                                9

Cir.), cert. denied, 469 U.S. 933 (1984).  Once the parties reach
                   

this  stage, therefore,  the  plaintiff, if  he  is to  defeat  a

properly documented motion for summary judgment, "must offer some

minimally  sufficient  evidence,  direct  or  indirect,  both  of

pretext and  of the employer's discriminatory  animus."  Mesnick,
                                                                

950 F.2d at 825; accord Villanueva v. Wellesley College, 930 F.2d
                                                       

124,  127-28 (1st  Cir.), cert.  denied, 112  S. Ct.  181 (1991);
                                       

Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.
                                    

1988).   

          In  this  case, the  district court  apparently assumed

that appellant stated a  prima facie case7 and that  the employer

articulated a  facially valid, nondiscriminatory  reason (chronic

absenteeism and tardiness) for the dismissal.  From that starting

point,  the court ruled against  appellant on two  bases.  First,

the court  determined that appellant failed to submit evidence of

pretext.  Second,  the court found that "there is  no evidence in

the  record  .  . .  that  would  justify  even a  circumstantial

inference  that plaintiff  was dismissed  because of  his Italian

heritage."    Either  conclusion  would  have  warranted   brevis

disposition.   Having  scrutinized the  record, we  are persuaded

that both are supportable.

                    

     7In employment termination cases, a  prima facie case may be
established by demonstrating that "(1) the plaintiff was within a
protected  class;  (2)  she  was qualified  for,  and  adequately
performed, her job; (3)  she was nevertheless dismissed; and  (4)
after  her  departure, the  employer  sought  someone of  roughly
equivalent  qualifications  to  perform  substantially  the  same
work."   Cumpiano,  902  F.2d at  153.   Following  the  district
                 
court's lead,  we also  assume arguendo that  appellant stated  a
                                       
prima facie case.   

                                10

          1.   Pretext.  Appellant's effort  to establish pretext
          1.   Pretext.
                      

takes an  unexpected twist.   The Postal Service's  stated reason

for cashiering Pagano focused on his rotten attendance record and

unremitting lack of  punctuality.  Usually, a Title VII plaintiff

seeks to show pretext  by attacking the factual premise  on which

the employer's professed reason  rests.  Here, however, appellant

concedes the truth of  the Service's factual predicate    he was,

by his own admission, often absent and frequently late   but says

that the proffered reason  was nonetheless pretextual because the

employer's  attendance policy was not applied to other, similarly

situated, non-Italian employees in the same way.  

          This uncommon  claim hinges on  appellant's attempt  to

compare  his work record and  treatment with the  work record and

treatment  of  one  Patrick  Rafferty,  a  co-employee  of  Irish

descent.  In appellant's view, Rafferty committed equivalent sins

but received much milder punishment.   The court below jettisoned

this claim, finding that Rafferty's case was not a fair congener.

We agree.  

          In  contending that  he  and Rafferty  were  "similarly

situated," appellant limits  his analysis to the  number of times

the two men were late during a finite period.  Yet, appellant had

a  substantially longer  and  more varied  history of  attendance

problems than did Rafferty and appellant, unlike Rafferty, failed

to mend his ways following receipt of formal warnings.  Appellant

also  racked  up many  more  violations of  the  Postal Service's

attendance policy than did Rafferty when items such as sick time,

                                11

absences without leave, and the like are taken into account.8 

          In short, the record shows beyond hope of contradiction

that the  two men were  not similarly situated  vis-a-vis overall

attendance and  that Rafferty,  like Pagano, was  disciplined for

provable infractions at a level corresponding to the infractions'

severity.   In the absence of  any other evidence that the Postal

Service applied the attendance rules unevenly, the district court

did  not err  in  holding  that there  was  no  genuine issue  of

material  fact  on  the question  of  pretext.9    See Oliver  v.
                                                             

Digital Equip. Corp., 846 F.2d 103, 109 (1st Cir. 1988).
                    

          2.   Discriminatory Animus.   Appellant likewise failed
          2.   Discriminatory Animus.
                                    

to  adduce any  evidence  tending to  prove defendant's  supposed

discriminatory intent.    Appellant  produced  no  evidence  that

Hentschel, the official responsible for monitoring the attendance

policy  and initiating  disciplinary  proceedings,   harbored  an

anti-Italian animus.  Rather, he attempted to establish animus by

showing  that Walsh,  the Lynnfield  postmaster, nursed  a grudge

                    

     8For example,  in the seventeen months  prior to appellant's
dismissal, he  was involved  in fifty-three  separate occurrences
that called  the attendance  rules into  question.   Rafferty was
involved in only fourteen such instances during the same period.

     9Relatedly, appellant  asserts that there is  a fact dispute
about  whether the  Postal  Service  consistently recorded  every
instance  of  employee  lateness or  absence.    Even  if such  a
question  exists,  however,  it  is not  material  to  this case.
Appellant adduced  no proof  that  the Service  either failed  to
record transgressions based  upon employees'  national origin  or
placed  ersatz  infractions on  his  work  record.   Indeed,  his
evidence  suggests  that  the  Service  may  have  been  somewhat
charitable  in not  recording  all violations  of the  attendance
rules.  If this is so, appellant, as a habitual latecomer, likely
benefitted from the employer's laxity.  

                                12

against persons of Italian descent.  The sum total of appellant's

evidence consists of three statements  attributed to Walsh.  When

reacting  to  news  that  he  had  become  appellant's  immediate

superior, Walsh allegedly  remarked, "Good, now we can fire you."

On  another occasion, Walsh  allegedly told  a co-worker  that he

hoped appellant would quit.  Finally, upon hearing an employee of

Italian lineagecough, Walsh reputedly said, "I hope he chokes."  

          This evidence  is manifestly  insufficient to  create a

trialworthy  issue  regarding  the  existence  of  a  statutorily

proscribed  animus.   To  be  sure,  the attributed  remarks  are

concededly  coarse     but  there  is  nothing  about them  which

suggests  to  an   objectively  reasonable  observer   that  they

constituted  expressions  of  discrimination  based  on  national

origin.   Sporadic instances of  rude behavior, without  more, do

not comprise competent proof of nationality-based discrimination.

See, e.g., Mesnick, 950 F.2d at 826; Medina-Munoz, 896 F.2d at 9-
                                                 

10;  Robinson v.  Montgomery Ward &amp;  Co., 823 F.2d  793, 797 (4th
                                        

Cir.  1987),  cert.  denied,  484  U.S.  1042  (1988);  Clark  v.
                                                             

Atchison, Topeka &amp; Santa Fe Ry. Co., 731 F.2d 698, 702 (10th Cir.
                                   

1984).   We  hold,  therefore, that  this  smattering of  offhand

comments,  spread over a fourteen-year  period, fails as a matter

of law to show anti-Italian animus.10

                    

     10In view of this ruling, we need not reach, and, thus, take
no  view anent,  the  district court's  alternative holding  that
Walsh's  comments, even  if probative  of ethnic  hostility, were
inconsequential absent evidence  that he had some input  into, or
impact upon, Hentschel's decision  to end appellant's employment.

                                13

IV.  CONCLUSION  
IV.  CONCLUSION

          We  need go no further.  We are without jurisdiction to

consider appellant's belated challenge to the magistrate's denial

of his motion to file an amended complaint.  And,  given the lack

of a triable issue of fact regarding either pretext or animus, we

conclude,  without  serious   question,  that  the   lower  court

appropriately entered judgment in defendant's favor.  See Oliver,
                                                                

846 F.2d  at 109 (holding  that summary  judgment is proper  in a

Title  VII case  where plaintiff's  opposition, at  bottom, rests

solely upon "unsupported allegations and speculation").  

Affirmed.
         

                    

See, e.g.,  Medina-Munoz, 896 F.2d at 10  ("The biases of one who
                        
neither makes  nor influences the  challenged personnel  decision
are not probative in an employment discrimination case.").

                                14
