
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-2191                                     OTIS GRANT,                                Plaintiff, Appellant,                                          v.                               NEWS GROUP BOSTON, INC.,                                 D/B/A BOSTON HERALD,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Anthony W. Neal, with  whom Law Offices of  Anthony W. Neal was on            _______________             _______________________________        brief for appellant.            M. Robert  Dushman, with whom Brown,  Rudnick, Freed  & Gesmer was            __________________            ________________________________        on brief for appellee.                                 ____________________                                    April 28, 1995                                 ____________________                      BOWNES,  Senior  Circuit Judge.    In  this appeal,                      BOWNES,  Senior  Circuit Judge.                               _____________________            plaintiff-appellant Otis Grant, an African-American  male and            a former substitute paperhandler in defendant-appellee Boston            Herald's pressroom,  assigns error  to  the district  court's            entry  of  summary judgment  in favor  of  the Herald  on his            claims of discriminatory treatment, discriminatory discharge,            and  retaliatory discharge  brought  under Title  VII of  the            Civil Rights Act  of 1964,  42 U.S.C.     2000e et seq.,  and                                                            __ ____            Mass. Gen. L. ch.  151B.  Grant also challenges  the district            court's  denial  of  his   late-filed  motion  to  amend  the            complaint.    While the  record  contains troubling  evidence            regarding the  Herald's pressroom  hiring practices, it  does            not support  Grant's claim  that the complained-of  acts were            prompted by  racial discrimination  or a  retaliatory animus.            Nor  does it persuade us  that the district  court abused its            discretion in refusing to allow Grant to amend his complaint.            We therefore affirm.                                          I.                                          I.                                          __            A.  The Initial Complaint            A.  The Initial Complaint            _________________________                      The initial complaint made the following claims:              (1) the  Herald reduced  Grant's hours  in December  1991 and            January 1992  because of his race; (2)  the Herald terminated            Grant  as  a  substitute  paperhandler in  February  1992  in            retaliation for his complaining about this reduction in hours            and other alleged  acts of discrimination; and (3) the Herald                                         -2-                                          2            terminated  Grant  as a  substitute paperhandler  in February            1992   because  of  his  race.    In  so  characterizing  the            complaint,  we  obviously  reject  Grant's  argument  that it            stated  a claim that the Herald refused to promote Grant from            the   position  of   substitute  paperhandler   to  full-time            paperhandler  because of his race.   Nothing in the complaint            even  remotely intimates  that this  is a  failure-to-promote            case.  See Mack  v. Great Atlantic and Pacific Tea Co., Inc.,                   ___ ____     ________________________________________            871 F.2d 179, 183-84 (1st Cir. 1989) (warning the bar that we            will  hold  litigants to  their  duty "to  spell  out [their]            theories clearly and distinctly  before the nisi prius court,            on pain of preclusion").                       The following  facts are  directly relevant  to the            claims made in the initial complaint.  Grant began working as            a substitute paperhandler in  November 1989, after he learned            of  the position from his brother Jeffrey, who is a full-time            employee of the Herald.  A substitute paperhandler is a part-            time  employee   who  does  the  same  work  as  a  full-time            paperhandler  -- moving  large rolls  of  newsprint, removing            wrapper  heads  from  the  rolls, bringing  plates  from  the            pressroom to the  presses, and cleaning the  pressroom -- but            works only on an as-needed basis.  A substitute  paperhandler            does  not need  a high  school diploma,  technical vocational            training, or other education.  He is an at-will employee and,            unlike  full-time paperhandlers (who are unionized), does not                                         -3-                                          3            have employee benefits such as paid vacation leave, sick pay,            or health  insurance.   Of paramount concern to the Herald is            a substitute  paperhandler's willingness and  availability to            "cover the job"  -- i.e., to work when scheduled or called at            the  last minute.    As Grant  himself  admits, there  is  an            expectation  that substitutes  will "never  say no"  and that            they will show up at work "dead or alive."                      The   Herald  has  several   methods  of  notifying            substitute paperhandlers to come  to work.  If the  pressroom            superintendent, Robert Reilly, knows  in advance that he will            need substitutes,  he posts a list  -- the "work list"  -- of            the  substitutes  who are  scheduled to  work  each day  of a            particular  week.   Sometimes, he includes  next to  the work            list  a  "next  list,"  which contains  the  names  of  those            substitutes  who will  be  called at  the  last minute  if  a            previously  scheduled full-time or substitute paperhandler is            absent.  Also, substitutes  are told that if they  want work,            they should call the  Herald before the beginning of  a shift            to see if there are any openings.                      Grant had two tenures  as a substitute paperhandler            at  the Herald.  The  first, which lasted  from November 1989            through  April  1990, ended  when  Reilly  terminated Grant's            employment after  a fight with a  full-time, white co-worker,            Joseph  Gauthier.   During  the course  of this  altercation,            Gauthier  subjected Grant  to racial  slurs and  spat  in his                                         -4-                                          4            face.    Although  Reilly  fired  Grant,  he  only  suspended            Gauthier.  The Herald explains this differential treatment in            two ways.   First, Gauthier, as a union member,  could not be            terminated without  cause, and  was entitled to  certain pre-            termination procedures set forth in the collective bargaining            agreement.   Second, Reilly allegedly had  warned Grant a few            times  about failing  to cover  the job,  and  viewed Grant's            involvement in the altercation as "the last straw."                      Subsequent  to his  April  1990 termination,  Grant            went to the  Massachusetts Commission Against  Discrimination            ("MCAD") and charged  the Herald with  racial discrimination.            On  January 11,  1991,  Grant  and the  Herald  settled  this            charge.   As part  of  the settlement  agreement, the  Herald            restored Grant  to the substitute paperhandler  list and paid            him a sum  of money.  In return, Grant  agreed to release the            Herald  from all claims arising out of his employment to that            point  in time.   Grant  returned to  his former  position on            January 14, 1991.                      Although  Grant always  performed his  duties well,            his   ability  and   willingness  to   cover  the   job  were            consistently at  issue.   From January 1991  through December            1991, there were nine occasions on which Grant was  scheduled            in  advance to  cover  a shift  but failed  to come  to work.            Without  notice,   Reilly  discontinued  using   Grant  as  a            substitute in December 1991.   When Grant inquired as  to why                                         -5-                                          5            he  was  no  longer  getting  any hours,  Daniel  Messing,  a            pressroom  supervisor, informed him  that no substitutes were            getting any hours.   Grant  then checked the  work lists  and            discovered  that, in fact, two white substitute paperhandlers            were working.       Grant thereafter requested a meeting with            Reilly and, on January 21, 1992, Grant and Reilly convened to            discuss Grant's work status.  At that meeting, it was decided            that  Grant would be put back on  the substitute list.  Grant            worked nine times in the  next few weeks, but then failed  to            appear  on February 12, 1992  and called in  sick on February            20, 1992.  By letter dated February 21, 1992, Reilly informed            Grant  that he would be  removed from the  list of substitute            workers.   Although  Grant labors  mightily to  circumvent or            obscure some basic facts,  the record reveals:  (1)  no other            substitute  paperhandler  failed to  cover an  assigned shift            more  frequently than  Grant during  the period  from January            1991 through  February 1992;  (2) Grant often failed  to work            when his name  was on the next list  during this same period;            (3) the  two white substitute paperhandlers with job-coverage            records most similar  to Grant's (and to whom  Grant compares            himself  in making  his  disparate  treatment argument)  were            terminated   in  the   fifteen   months   following   Grant's            termination  for failing to cover the job; and (4) many other            substitute paperhandlers  were terminated over  the years for            failing to cover the job.                                         -6-                                          6            B.  The Proposed Amended Complaint            B.  The Proposed Amended Complaint            __________________________________                      Grant sought to  add to this case, via  the amended            complaint, the following  claims:  (1) the  Herald refused to            promote Grant  to  the  position  of  full-time  paperhandler            because  of his  race;  (2) the  Herald  engaged in  unlawful            retaliatory behavior  beyond terminating him; (3)  the Herald            engaged  in unlawful  employment practices  which have  had a            disparate impact on qualified African Americans and qualified            Hispanic Americans as classes;  (4) the Herald engaged in  an            unlawful,  race-motivated pattern  and  practice  of  hiring,            promoting,  disciplining, and terminating  its substitute and            full-time paperhandlers; and (5)  the Herald denied Grant the            right  to make  and enforce  contracts and  to enjoy  all the            benefits  of  a  contractual relationship  enjoyed  by  white            citizens.                      The  following facts are  directly relevant  to the            new claims.  Grant asserts that they also constitute indirect            evidence of  the claims set  forth in the  initial complaint.            In 1989, at the time of Grant's initial hiring, Grant was one            of  only  two  African-American   employees  working  in  the            Herald's pressroom.  The other  was his brother Jeffrey, from            whom he learned about  the position.  During that  same year,            there  were  a  total  of   147  employees  in  the  Herald's            pressroom.   The Herald has  not hired a  full-time, African-            American pressroom  employee since February 1987.   From 1989                                         -7-                                          7            through  the  present, a  period during  which the  number of            pressroom employees  has ranged  from 129 to  165, there  has            been only  one full-time African-American  employee.   During            this   same  period,  there  have  been  no  African-American            pressroom supervisors.                        African Americans constitute 18.69% of those in the            local labor market having the requisite skills for the job of            paperhandler.  Despite this  fact, from December 1989 through            April  1994, the  Herald  hired at  least twenty-three  white            substitute paperhandlers  and no African  Americans.   During            the same time period, the Herald promoted eight or more white            substitute paperhandlers, and no  African-American substitute            paperhandlers,  to  full-time status.    There  are no  women            working in the Herald's pressroom.                      Robert  Reilly --  the pressroom  superintendent --            has  been solely responsible  for the  promotion, discipline,            and discharge of all substitute paperhandlers since 1989.  He            also   has  been  solely  responsible  for  hiring  full-time            paperhandlers.   By  his own  admission, Reilly  maintains no            written criteria governing the  discipline and termination of            substitute  paperhandlers.   Reilly maintains  that "covering            the  job"  takes  precedence  over   seniority  in  decisions            regarding  whom to  promote to  full-time status.   At  least            twice --  in April 1990  (shortly after Grant  was terminated            for fighting with Joseph Gauthier) and October 1991 -- Reilly                                         -8-                                          8            promoted white substitute  paperhandlers with less  seniority            than Grant.  Earlier  in 1991, Grant had protested  to Reilly            that the latter of these two paperhandlers was racist because            he and a co-worker left Grant a disproportionate share of the            workload.   Reilly had not seen any merit in Grant's protest.            After  the October  1991  elevation of  the white  co-worker,            Grant complained to  a union representative about his not yet            having been promoted to full-time status.  Grant asserts that            this complaint not  only failed  to bear fruit,  but that  it            also resulted in the  December 1991-January 1992 reduction in            hours he experienced.                      The  only written  criterion  Reilly considered  in            determining whom to promote was the substitute paperhandler's            initial  employment application.   This application requests,            inter alia, that the applicant list all friends and relatives            _____ ____            employed by  the Herald.   The white  substitute paperhandler            promoted  in  October  1991  had listed  four  relatives  and            friends on his employment  application; Grant had listed one.            Reilly admits that  word-of-mouth communication and  nepotism            heavily   inform  who   learns  about   available  substitute            paperhandler  positions  (which  are neither  advertised  nor            posted).  Grant  maintains that the  same factors inform  the            promotion of substitute paperhandlers to full-time status.            C.  Procedural History            C.  Procedural History            ______________________                                         -9-                                          9                      On July  13, 1992, Grant filed  an MCAD/EEOC charge            against   the  Herald  and   the  Boston  Newspaper  Printing            Pressmen's  Union  No. 3  (the  paperhandlers'  union).   The            charge alleged  that the Herald retaliated  against Grant and            terminated his employment because  he is an African American;            it  further   alleged  that  the  union   excluded  him  from            membership and  otherwise retaliated  against him  because of            his  race.   On April 29,  1993, with  the permission  of the            MCAD,  plaintiff  initiated   this  action  in  Massachusetts            Superior  Court.  The union removed the case to federal court            in late May 1993.  In August 1993, Grant dismissed all claims            against the union.                      The district court initially ordered that discovery            be completed  by February 28,  1994, and scheduled  the final            pretrial conference for March 21, 1994.  The court thereafter            twice  extended these  deadlines,  eventually  ordering  that            discovery  close on May  30, 1994,  and scheduling  the final            pretrial conference for August 3, 1994.                      On July 13, 1994, Grant served and filed his motion            to amend the  complaint.  The amended complaint  increased by            eighty-seven  the  number  of   allegations  in  the  "Facts"            section.  It also added the five new legal theories set forth            supra.   The Herald  opposed this motion,  and simultaneously            _____            moved  for summary judgment on the initial complaint.  At the            pretrial  conference  on August  3,  1994,  the court  orally                                         -10-                                          10            denied  the  motion  to amend.    On  November  7, 1994,  the            district  court  granted  the  Herald's  motion  for  summary            judgment and denied Grant's motion for reconsideration of the            order denying the motion to amend.  This appeal followed.                                         II.                                         II.                                         ___                      As stated above, Grant makes two basic arguments on            appeal.  First, he asserts that the district court abused its            discretion in not allowing  him to amend his complaint  so as            to  press the  claims outlined  in Section  I-B.   Second, he            argues that the court  erred in allowing the  Herald's motion            for summary judgment  on the claims outlined in  Section I-A.            We discuss each argument in turn.            A.  The Motion to Amend            A.  The Motion to Amend            _______________________                      The district  court denied Grant's motion  to amend            for two reasons.  First, the court stated that the motion was            unduly late because  the court  was "ready now  to deal  with            this  case after discovery is complete. . . .  If I allow the            Amended Complaint, it brings theories into this case that are            going  to delay it.  It is  like an entirely different case."            Second,  the court  indicated  that most  of the  newly-added            claims were  futile because Grant  had not presented  them in            the  first instance  to  the  MCAD.    Because  there  is  no            reversible error in the court's lateness determination, we do            not reach the question of futility.                                             -11-                                          11                      We  review a denial of leave to amend under Fed. R.            Civ.  P. 15  for an  abuse of  discretion,  and defer  to the            district  court if  any  adequate reason  for  the denial  is            apparent on the record.   Resolution Trust Corp. v.  Gold, 30                                      ______________________     ____            F.3d 251, 253 (1st Cir. 1994).   We are mindful, however,  of            Rule  15(a)'s admonition  that "leave  shall be  freely given            when  justice so requires."  Thus, unless there appears to be            an  adequate reason for  the denial  (e.g., undue  delay, bad            faith, dilatory motive on the part of the movant, futility of            the  amendment), we will not affirm the denial.  See Foman v.                                                             ___ _____            Davis, 371 U.S. 178, 182 (1962).              _____                      We also  are aware that Title  VII plaintiffs often            lack  access  to  statistical  evidence such  as  the  racial            composition of the  job applicant pool until  after they have            filed their  complaints and engaged  in discovery.   For this            reason, we think that a denial of leave to amend to add Title            VII claims  supported by statistics should  be evaluated with            some  caution.  Too  casual a review  of such a  denial might            encourage  the   abandonment  of   (or  failure  to   pursue)            potentially meritorious claims.  It might also precipitate an            increase in unsubstantiated pleading.   See generally Phyllis                                                    ___ _________            Tropper Baumann,  Judith Olans Brown, and  Stephen N. Subrin,            Substance in  the Shadow  of Procedure:   The  Integration of            _____________________________________________________________            Substantive and Procedural Law  in Title VII Cases, 33  B. C.            __________________________________________________            L. Rev. 211, 289-90 (1992).                                         -12-                                          12                      Having  carefully  evaluated  the court's  lateness            determination  in light of the record, we discern no abuse of            discretion in this case.  At the time Grant filed his motion,            discovery was  already complete,  and Grant all  but concedes            that it  would have  to have been  reopened in order  for the            Herald to defend itself  properly against the claims asserted            in the amended  complaint.  Moreover,  the Herald had  nearly            completed its motion for summary judgment and undoubtedly was            well  into  its  trial preparation.    When  these  facts are            considered in  conjunction with  the radical remaking  of the            case  contemplated by the amended complaint, Grant's argument            that the Herald  would not have been  prejudiced by allowance            of  the  amendment  rings  hollow.    Cf.  Tiernan  v. Blyth,                                                  ___  _______     ______            Eastman,  Dillon &  Co.,  719 F.2d  1,  4-5 (1st  Cir.  1983)            _______________________            (finding  prejudice  to party  opposing late-filed  motion to            amend even where additional  discovery was not necessary; the            additional claims "may well have affected defendants' planned            trial strategy  and tactics" and would  likely have "required            additional time to prepare for trial").                        Perhaps  more importantly, while  the slightly more            than fourteen-month  delay between the initial  complaint and            the motion to amend is not unprecedented, it is considerable,            especially in view of the fact that the motion came after the            close of  discovery (which had already  been twice extended).            And  we have  stated:   "Where .  . .  considerable time  has                                         -13-                                          13            elapsed between the filing of the complaint and the motion to            amend, the  movant  has the  burden  of showing  some  `valid                        ______            reason  for  his  neglect   and  delay.'"    Stepanischen  v.                                                         ____________            Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.            ________________________________            1983) (quoting Hayes v. New England Millwork Distribs., Inc.,                           _____    ____________________________________            602 F.2d  15, 19-20 (1st  Cir. 1979))  (deeming a  seventeen-            month  delay between the initiation  of the action and filing            of a motion to amend -- served ten days prior to the close of                                                    _____ __            discovery --  to be undue)  (emphasis supplied).   Under this            circuit authority, it is incumbent upon Grant to give a valid                                                    _____            reason for having waited so long to file his motion.  This he            has failed to do.                      Grant  explains  the  lateness  of  his  motion  by            asserting  that he  was "stonewalled"  by the  Herald in  his            effort  to  obtain  documents  -- i.e.,  the  Herald's  EEO-1            reports -- purportedly  underlying the five  new claims.   He            points  out that he did  not receive the  EEO-1 reports until            June 1994, and that  he filed the amended complaint  within a            month  of  receiving them.   This  explanation fails  for two            reasons.   First, the  Herald did not  stonewall Grant; Grant            did  not request the documents until April 28, 1994.  Grant's            suggestion  that  the  Herald  is responsible  for  the  late            introduction of  the  statistical evidence  derived from  the            EEO-1 reports is therefore unjustified.                                         -14-                                          14                      Second,  Grant  clearly  possessed   the  knowledge            necessary  to  make the  claims he  sought  to assert  in the            amended complaint even without the EEO-1 reports.  Nothing in            the EEO-1  reports was  essential  to his  failure-to-promote            claim, for  example.  Grant  acknowledges as much  by arguing            that the  failure-to-promote claim  actually was  included in            the original complaint.   And Grant cannot claim that  he was            unaware, prior to receiving the EEO-1 reports, of the general            racial composition of the pressroom staff, the discretion the            Herald invested in  Robert Reilly  on matters  of hiring  and            promotion, the lack  of written criteria to guide  hiring and            promotion decisions,  the nepotism  that pervaded the  Herald            pressroom's  hiring  practices,  or  the  identity  of  those            persons actually promoted to  full-time status during Grant's            periods of  employment.  This simply is  not a case where the            plaintiff could not, without risking sanctions,  have pleaded            the late-added claims until after, or at least well into, the            discovery process.   Grant  was aware,  or  should have  been            aware,  of  information tending  to support  each of  the new            claims well before July 1994.  Cf. Baumann  et al., supra, at                                           ___          __ ___  _____            289-96 (discussing the  danger Fed.  R. Civ. P.  11 poses  to            Title VII plaintiffs who do not plead carefully).                      For all  these reasons, the district  court did not            abuse  its discretion in denying Grant's  motion to amend the            complaint on lateness grounds.                                         -15-                                          15            B.  The Motion for Summary Judgment            B.  The Motion for Summary Judgment            ___________________________________                      The  court granted the  Herald summary  judgment on            Grant's claims.  In so doing, the court ruled that the Herald            had  articulated  a legitimate,  non-discriminatory  and non-            retaliatory reason  for Grant's  termination, and that  Grant            had failed to demonstrate  a triable issue as to  whether the            Herald's justification was pretextual.   Although the court's            analysis overlooked one of Grant's  claims -- i.e., that  the            reduction  in hours Grant  suffered in  December 1991-January            1992  was  motivated by  racial discrimination  -- we  see no            error in the award of summary judgment.                      There is no  dispute over whether Grant  has made a            prima  facie case  of  racial discrimination  or whether  the            Herald,  by pointing  to  Grant's  excessive absenteeism  and            unavailability for work,  has articulated a legitimate,  non-            discriminatory   and   non-retaliatory  reason   for  Grant's            termination.   See  generally  Woods v.  Friction  Materials,                           ___  _________  _____     ____________________            Inc., 30  F.3d 255, 259-60  (1st Cir. 1994)  (summarizing the            ____            first two  stages of the burden-shifting paradigm established            in  McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and                _______________________    _____            applicable in Title VII cases); Mesnick v. General Elec. Co.,                                            _______    _________________            950 F.2d  816, 827 (1st Cir. 1991)  (noting the applicability            of the  McDonnell  Douglas paradigm  in  retaliation  cases),                    __________________            cert. denied, 112  S. Ct. 2965 (1992).  Nor  can there be any            _____ ______            dispute  that,  in order  to  escape  summary judgment  under                                         -16-                                          16            federal  and  state  law,   Grant  must  at  least  introduce                                                     __  _____            sufficient evidence  to permit  the factfinder to  infer that            the   Herald's  stated   reason   for  the   termination  was            pretextual.     See  Woods,  30  F.3d  at   263  (noting  the                            ___  _____            immateriality  of  the  now-established   difference  between            federal  and  Massachusetts   discrimination  law  where  the            plaintiff has not offered  enough evidence for the factfinder            to infer pretext); Greenberg v. Union Camp Corp., 48 F.3d 22,                               _________    ________________            29 (1st  Cir. 1995) (plaintiff making  retaliation claim must            show that employer's stated reason for  the adverse action is            pretextual)  (citing Mesnick,  950 F.2d  at  827).   Thus, we                                 _______            restrict our inquiry to  whether the district court correctly            concluded  that the  evidence,  construed in  the light  most            favorable to Grant, would not  allow a factfinder to conclude            that Grant's race or a retaliatory animus on the part  of the            Herald was a  motivating factor in  Grant's termination.   We            believe that the district court's conclusion was correct.                        We  point out  that the  Herald has done  more than            articulate  a   reason  for   Grant's  termination;  it   has            introduced  significant  evidence  tending  to  establish the            reason's veracity.   Not  only does the  documentary evidence            confirm that, during the relevant time period, Grant had  the            poorest overall record  for covering  the job of  any of  the            Herald's  substitute paperhandlers,  it  also indicates  that            Reilly  subsequently terminated the two white co-workers with                                         -17-                                          17            the most  similar job-coverage  records -- the  co-workers to            whom Grant compares himself in making his disparate treatment            argument -- for failing to cover  the job.  The evidence also            reveals  that  many   other  substitute  paperhandlers   were            terminated over the years for failing  to cover the job.   In            light of  the  evidence  of  the Herald's  refusal  to  abide            substitute  paperhandlers  who  fail  to cover  the  job  and            Grant's  very  poor   job-coverage  record,  Grant  faces   a            formidable hurdle in arguing  that the Herald's stated reason            for his termination was pretextual.                      Grant  seeks  to support  his  pretext argument  in            three specific  ways.   First, he  points to  the statistical            evidence  summarized  in  Section  1-B, arguing  that  it  is            indirect proof  of Reilly's discriminatory animus.   Next, he            recites  three  allegedly  discriminatory  actions  taken  by            Reilly, again arguing that they constitute  indirect evidence            of Reilly's discriminatory animus.  Third, he asserts that he            was  treated  differently  than  two  white  co-workers  with            "similar  or worse  attendance records  from January  6, 1991            through February  21, 1992."   We already  have rejected  the            last of these three  arguments.  It bears repeating  that the            record,  read   in  the   light  most  favorable   to  Grant,            conclusively establishes  that Grant failed to  cover the job            more  often during  the  relevant time  period  than the  two                                         -18-                                          18            (subsequently  terminated) co-workers  to  whom  he  compares            himself.                        We therefore focus on Grant's first two  arguments,            disregarding other arguments made only in Grant's reply brief            and/or  which fall  outside  the  parameters  established  by            Grant's complaint.   See, e.g., Sandstrom  v. Chemlawn Corp.,                                 ___  ____  _________     ______________            904 F.2d 83, 86  (1st Cir. 1990) (deeming waived  an argument            not  made below or  in appellant's opening  brief); Mack, 871                                                                ____            F.2d  at  183-84  (emphasizing  that  unpleaded   claims  and            theories will be subject to preclusion).  We note in passing,            however,  that,  had  they  been  properly  preserved,  these            arguments would not have affected our conclusion that summary            judgment was correctly entered for the Herald.                      As we  have  stated, Grant's  statistical  evidence            does  paint a  disturbing picture  of the  Herald's pressroom            hiring practices and  their possible effects.  It is apparent            that   qualified   African   Americans    are   significantly            underrepresented in the Herald's pressroom.  Moreover, Robert            Reilly concedes that word-of-mouth communication and nepotism            play a large role in determining who learns about and obtains            available paperhandler positions.  Finally, in response to an            inquiry posed  at his  deposition, Reilly, who  enjoys nearly            unfettered discretion over pressroom hiring, expressed little            or no  concern about the exclusionary  effect these facially-            neutral practices might be  having on potential applicants of                                         -19-                                          19            color.  We  think it  important for the  Herald to  recognize            that the facial  neutrality of such hiring policies  does not            necessarily  take them outside the  reach of Title  VII.  See                                                                      ___            EEOC  v. Steamship Clerks Union, Local 1066, 48 F.3d 594, ___            ____     __________________________________            (1st  Cir. 1995)  ("`[W]hen the  work force  is predominantly            white,  nepotism  and  similar  practices  which  operate  to            exclude  outsiders may  discriminate  against  minorities  as            effectively as any intentionally  discriminatory policy[.]'")            (quoting Thomas  v. Washington County Sch. Bd., 915 F.2d 922,                     ______     __________________________            925 (4th Cir. 1990)) (evaluating disparate impact claim).                      The  fact of the matter is, though, that we are not            evaluating a disparate impact,  or a failure-to-hire, or even            a  failure-to-promote claim;  we  are  considering whether  a            rational jury could find, by a preponderance of the evidence,            that  the Herald  is lying  when it  says that  it terminated            Grant  because of  his  failure to  cover  the job  (and  not                                                                      ___            because  of  his  race  or  his  engagement  in  statutorily-            protected  activities).   In  our  view, Grant's  statistical            evidence --  whether considered alone or  in conjunction with            the  other evidence  we  will  discuss  infra  --  is  not  a                                                    _____            sufficient foundation upon which a  jury could premise such a            finding.    While the  evidence does  tend  to show  that the            Herald's  hiring policies, as  implemented by  Robert Reilly,            operate to  exclude African  Americans from the  hiring pool,            and  while it may allow  for a reasonable  inference that the                                         -20-                                          20            Herald and Reilly are insensitive to the need to provide fair            and  equal access to  its pressroom employment opportunities,            it is inadequate to prove that Reilly takes race into account            (or,  for that  matter,  that Reilly  takes participation  in            protected activities  into account)  when he makes  discharge            decisions.   Along these lines, we  note that Grant's brother            obtained full-time  status and apparently still  works at the            Herald.  More to the point, this evidence in no way undercuts            the Herald's evidence that a willingness and ability to cover            the  job  is  the   foremost  quality  sought  in  substitute            paperhandlers,  and that  Grant  and others  who lacked  this            quality were terminated precisely because they lacked it.                      Grant's  second  argument,  that   three  allegedly            discriminatory actions  taken by Reilly prove  illicit motive            in Grant's termination,  also fails.   We do  not think  that            two, if  not  all  three, of  the  delineated  actions  could            reasonably be  considered discriminatory.   And even  if they            could  be  so considered,  we do  not  believe that  they are            sufficient to call into  question the non-discriminatory  and            non-retaliatory explanation the Herald  has given for Grant's            termination:  that Grant was not covering the job.                      The first  of the three actions Grant  points to --            that Reilly fired Grant while only suspending Joseph Gauthier            after their April 1990 fight (and shortly thereafter promoted            a white substitute  with less seniority  than Grant to  full-                                         -21-                                          21            time status) -- is  at least plausibly explained by  the fact            that   Gauthier,  as  a   union  employee,   enjoyed  greater            procedural protections than did  Grant, and by the allegation            that  Grant was  already on  shaky ground  because of  a poor            attendance record prior  to the  fight.  The  second --  that            Reilly found unworthy of  credence Grant's complaint that two            co-workers  were racists who gave him too much work (and that            Reilly subsequently promoted one of these co-workers to full-            time status) -- is  so sparsely explained and supported  that            no  rational factfinder  could find  racism on  Reilly's part            based  on the record  evidence.  Similarly,  the third (which            coincides  with the  claim that  the district  court did  not            explicitly consider  in its  summary judgment order)  -- that            Reilly  reduced  Grant's  work  hours in  December  1991  and            January 1992 because of Grant's race -- is unsupported by any            evidence  to this  effect.   The fact  that, during  the same            period,  a  pressroom  supervisor  informed  Grant  that   no            substitutes were getting any  hours when, in fact, two  white            substitutes  were getting  hours is  not probative  of racial            discrimination  on Reilly's  part.   Daniel Messing,  and not            Reilly,  was  the pressroom  supervisor  who  gave Grant  the            incorrect information,  and there is no reason  to infer that            Messing misinformed Grant at Reilly's direction.                      Because Grant  has failed to  demonstrate that  the            Herald's  stated justification  for  the  adverse  employment                                         -22-                                          22            actions  of which  he complains  is pretextual,  the district            court  did not err in granting the Herald summary judgment on            Grant's  federal  and  state discrimination  and  retaliation            claims.                                         III.                                         III.                                         ____                      For  the  reasons  stated   above,  we  affirm  the            district court's  entry of  summary judgment in  the Herald's            favor.  Costs awarded to the Herald.                      Affirmed.                      Affirmed                      ________                                                                                    -23-                                          23
