
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                FOR THE FIRST CIRCUIT                              _________________________          No. 96-1609                                  MARYANN E. LAWTON,                                Plaintiff, Appellant,                                          v.                   STATE MUTUAL LIFE ASSURANCE COMPANY OF AMERICA,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Aldrich, Senior Circuit Judge,                                     ____________________                              and Boudin, Circuit Judge.                                          _____________                              _________________________               Roy  A.  Bourgeois,  with whom  Nadia  R.  Totino Beard  and               __________________              _______________________          Bourgeois, Dresser & White were on brief, for appellant.          __________________________               Neil  Jacobs, with whom Daniel W. McCarthy and Hale and Dorr               ____________            __________________     _____________          were on brief, for appellee.                              _________________________                                   December 2, 1996                              _________________________                    SELYA, Circuit Judge.   Plaintiff-appellant Maryann  E.                    SELYA, Circuit Judge.                           _____________          Lawton alleges that her former employer, defendant-appellee State          Mutual Life Assurance  Company of America, discriminated  against          her  on account of her  gender, in violation  of both federal and          state  law.  See  42 U.S.C.    2000e-5 (1994); Mass.  Gen. L. ch.                       ___          151B,   4(1) (1996).  The district court granted summary judgment          in the  employer's favor.  See  Lawton v. State  Mut. Life Assur.                                     ___  ______    _______________________          Co., 924 F. Supp. 331 (D. Mass. 1996).  Lawton appeals.          ___                    We  have  long  proclaimed  that  when  a  lower  court          produces  a comprehensive,  well-reasoned decision,  an appellate          court should refrain from writing at length  to no other end than          to hear  its own words  resonate.  See,  e.g., Ayala v.  Union de                                             ___   ____  _____     ________          Tronquistas, 74 F.3d  344, 345  (1st Cir. 1996);  In re San  Juan          ___________                                       _______________          Dupont Plaza Hotel Fire Litig., 989 F.2d 36,  38 (1st Cir. 1993).          ______________________________          Today,  we practice what we  preach:  having  read the record and          the  parties'  briefs  with  care,  we affirm  the  judgment  for          substantially  the reasons elucidated  in the opinion  below.  We          add only a few comments.                    First:   The  plaintiff  claims that  her dismissal  on                    First:                    _____          August 23, 1991,  after more  than four years  in State  Mutual's          employ, constituted a discriminatory act.  In order to prevail on          such  a  claim in  an  abolition-of-position  case     here,  the          defendant contends that its  business plan changed, rendering the          management post  that Lawton  occupied anachronistic    an ousted          employee must adduce some  proof that the employer did  not treat          gender  neutrally  in  arriving  at  the  challenged   employment                                          2          decision.   See Vega  v. Kodak Caribbean,  Ltd., 3 F.3d  476, 479                      ___ ____     ______________________          (1st Cir. 1993); Holt  v. Gamewell Corp., 797 F.2d 36, 37-38 (1st                           ____     ______________          Cir.  1986).   The  district court  determined  that the  summary          judgment record in this case affords no such substantiation.  See                                                                        ___          Lawton,  924  F.  Supp. at  345.    The  plaintiff disputes  this          ______          assessment, primarily on the basis that "the sworn testimony of a          highly  qualified and experienced expert [statistician]" supplies          the missing link.                    This  argument  confuses   prunes  with   pomegranates.          Assuming,   arguendo,  that   the  statistician's   affidavit  is                      ________          probative at all,1 it proves only that men, on average, earn more          in the defendant's employ  than women, and that men,  on average,          are  more  likely  to be  promoted  than  women.   Even  if these          aspersions  are taken  as true  (and, thus,  cast certain  of the          defendant's  employment practices  into disrepute),  salary level          discrimination,   in  and   of  itself,   is  not   probative  of          discrimination in layoffs.  Indeed, a coldly calculating employer                         __ _______          might  well  seek  to  dismiss its  higher-paid  employees  while          retaining their  lower-paid counterparts.   Therefore, the  court          did not  err in  granting summary  judgment on  the abolition-of-          position claim.                    Second:   Prior  to  filing a  Title  VII action  in  a                    Second:                    ______          federal   district   court,   a  plaintiff   must   exhaust   her          administrative  remedies.    Tight  time  limits  constrain  this                                        ____________________               1State  Mutual   hotly  contests   not  only   the  expert's          conclusions, but  also his  methodology and the  adequacy of  his          data base.  We need not resolve this contretemps.                                          3          protocol.  Lawton worked in Massachusetts, and Massachusetts is a          so-called "deferral jurisdiction"    the commonwealth has its own          civil  rights statute and agency    so exhaustion  depends on the          filing  of  a  charge   with  the  Equal  Employment  Opportunity          Commission within  300 days of the  purported discriminatory act.          See 42 U.S.C.   2000e-5(3) (1994);  see also Mack v. Great Atl. &          ___                                 ___ ____ ____    ____________          Pac.  Tea Co., 871 F.2d  179, 181-82 (1st  Cir. 1989) (describing          _____________          operation of statutory  scheme).  Under state law,  the timetable          is even more compressed.  See Mass.  Gen. L. ch. 151B,   5 (1996)                                    ___          (providing that an administrative  complaint must be filed within          six months after the alleged discriminatory act occurs).                    In this  case the plaintiff contends  that, in addition          to  unlawfully  cashiering her,  the  defendant  also refused  to          promote her on several occasions due to her gender.  She filed an          administrative  complaint attacking  both the  discharge and  the          failure  to promote  on  February 17,  1992.   The  first of  the          withheld promotions  took  place  in  1987,  and  the  other  two          occurred  in 1990.2  Since all the promotions transpired prior to          April 24,  1991, more than 300  days elapsed between the  last of          them and  the date of the administrative  filing.  Thus, they all          fell outside the applicable limitations period.                    The  plaintiff tries  to  detour  around this  temporal                                        ____________________               2The  plaintiff makes  a halfhearted  effort to  implicate a          fourth (more recent) promotion but, as the district court pointed          out,  her  belated  reliance  on  this  incident     involving  a          promotion  for which she never  applied   came  too late because,          among other things, she never included any reference to it in her          administrative complaint.  See  Lawton, 924 F. Supp. at 338 n.6.                                     ___  ______                                          4          barrier.   She  clings to  the  notion that  her case  presents a          "continuing violation," thereby allowing her to reach back beyond          the normal  limitations period to  the earlier promotions.   See,                                                                       ___          e.g., Sabree v. United  Bhd. of Carpenters and Joiners,  921 F.2d          ____  ______    ______________________________________          396,  400  (1st  Cir.  1990)  (explicating  continuing  violation          theory);  Jensen  v. Frank,  912 F.2d  517,  522 (1st  Cir. 1990)                    ______     _____          (same);  Mack, 871  F.2d at  182-83 (same).   The  district court                   ____          acknowledged the  legitimacy of the continuing  violation theory,          but found it inapplicable to Lawton's circumstances.  Lawton, 924                                                                ______          F. Supp. at 339-40.  We agree.                    In general,  continuing violations arise in  one of two          incarnations.     The   first   incarnation  encompasses   serial          violations,  that  is,  violations  which comprise  a  number  of          discriminatory  acts  emanating  from  the   same  discriminatory          animus,  each of  which constitutes  a separate  wrong actionable          under Title VII.  See Jensen, 912 F.2d at 522; Mack,  871 F.2d at                            ___ ______                   ____          183.   To give purchase to  this type of continuing violation, at          least  one  act  in the  series  must  have  occurred within  the          limitations period.  See Mack, 871 F.2d at 183.                               ___ ____                    Lawton cannot  clear this hurdle:   as we  already have          indicated,  the foregone  promotions all  occurred more  than 300          days before  she initiated agency-level proceedings.   Her firing          (which  took place within the  300-day period) does  not fill the          void:   that  act  is  of  a  wholly  different  character,  and,          moreover, it has  not been traced  to any discriminatory  animus.          See  supra.    Common  sense  teaches  that  a  plaintiff  cannot          ___  _____                                          5          resuscitate time-barred  acts, said to be  discriminatory, by the          simple  expedient  of  linking  them  to  a  non-identical,  non-          discriminatory, non-time-barred act.                    The  other method by which  a plaintiff can establish a          continuing  violation  is by  demonstrating  the  existence of  a          systemic violation.   "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."          Jensen,  912 F.2d  at 523.   Lawton  asserts that she  meets this          ______          criterion, and  that, therefore,  her claim is  not pretermitted.          This assertion cannot withstand scrutiny.                    First and foremost, the plaintiff never articulated any          particular  discriminatory  policy  or practice  in  the district          court.   In  the absence  of such  an articulation,  her systemic          violation claim fails.  See Mack, 871 F.2d at 184 (describing the                                  ___ ____          plaintiff's   burden   to   demonstrate   that   "a   discernible          discriminatory policy was in effect,  and injured her, during the          limitations  period").   The generalized  references made  by the          plaintiff  in  the  lower  court were  patently  insufficient  to          satisfy the applicable standard.                    Confronted with  this omission at oral  argument before          us, the plaintiff's attorney, in  what amounts to confession  and          attempted avoidance, defined the alleged discriminatory policy as          "the practice of not  open-posting those jobs which  are gateways          into the  mainstream  career path  [at  State Mutual],  with  the                                          6          result  that  those are  reserved for  the  domain of  men making          decisions about men."   This rhetorical flourish  comes too late,          for  the plaintiff did not  enunciate the supposed  policy in the          proceedings below  (administrative or  judicial).  No  precept is          more  firmly  settled  in  this circuit  than  that  theories not          squarely raised and seasonably  propounded before the trial court          cannot rewardingly be advanced on appeal.3  See, e.g., Teamsters,                                                      ___  ____  __________          Chauffers,  Warehousemen  &  Helpers   Union,  Local  No.  59  v.          _____________________________________________________________          Superline Transp. Co., 953 F.2d 17, 21 (1st Cir. 1992);  McCoy v.          _____________________                                    _____          Massachusetts  Inst. of Tech., 950  F.2d 13, 22  (1st Cir. 1991),          _____________________________          cert. denied, 504 U.S. 910 (1992).          _____ ______                    In  all events,  the late-blooming  articulation offers          too  little   substance;  the   stated  policy,  even   if  fully          considered, would not support  the weight of Lawton's case.   The          record  is  devoid  both of  evidence  that  might  explicate the          parameters of  the policy (e.g.,  there is  no proof as  to which          positions are "gateways" or how one might distinguish "mainstream          career paths"),  and of  evidence that  might show  the continued          existence of the policy  during the limitations period.   What is                                   _____________________________          more, there is no evidence that Lawton herself was injured by any          such  policy during  the  300 days  preceding  her initiation  of                       ____________________________________________________          administrative   proceedings.     Consequently,   she   has   not          ____________________________          established the kind of systemic violation which would permit her          to evade the time bar that blocks her path.                                         ____________________               3For that matter, the plaintiff did not enunciate the policy          in her appellate briefs.   This, too, is a  disqualifying factor.          See Sandstrom v. ChemLawn Corp., 904 F.2d 83, 86 (1st Cir. 1990).          ___ _________    ______________                                          7                    Third:   The plaintiff's fallback position  is that the                    Third:                    _____          district  court acted  precipitously.   She asseverates  that her          claims should not have been adjudicated on summary judgment, but,          at   the  very  least,  ought  to  have  gone  to  trial.    This          asseveration lacks merit.                    The proper  province of summary judgment  "is to pierce          the  boilerplate of the pleadings and assay the parties' proof in          order to determine whether trial is actually required."  Wynne v.                                                                   _____          Tufts  Univ. Sch.  of Med., 976  F.2d 791,  794 (1st  Cir. 1992),          __________________________          cert.  denied, 507 U.S. 1030  (1993).  Though  the district court          _____  ______          must  "interpret the record in  the light most  hospitable to the          nonmoving  party, reconciling  all  competing inferences  in that          party's  favor," McIntosh v. Antonino,  71 F.3d 29,  33 (1st Cir.                           ________    ________          1995), the nonmovant has a corresponding obligation  to offer the          court more than steamy  rhetoric and bare conclusions.   See id.;                                                                   ___ ___          see also  Morris v. Government Dev.  Bank, 27 F.3d 746,  748 (1st          ___ ____  ______    _____________________          Cir. 1994); Medina-Munoz  v. R.J. Reynolds Tobacco Co.,  896 F.2d                      ____________     _________________________          5, 7-8  (1st Cir. 1990).  This principle is accentuated where, as          here, a  Rule 56 motion targets  an issue on which  the nonmoving          party must carry the devoir of persuasion.  In that  setting, the          nonmovant must "produce specific  facts, in suitable  evidentiary          form," sufficient to limn  a trialworthy issue.  Morris,  27 F.3d                                                           ______          at 748.  Failure to  do so allows the summary judgment  engine to          operate at full throttle.  See, e.g., Kelly v. United States, 924                                     ___  ____  _____    _____________          F.2d 355, 358 (1st Cir. 1991) (warning that  "the decision to sit          idly by and allow the summary judgment proponent to configure the                                          8          record is likely to prove fraught with consequence").                    The district  court faithfully applied these  tenets in          determining  that no  genuine  issue of  material fact  loomed in          respect to either the abolition-of-position or failure-to-promote          claims.   Although Lawton  labors to show  discrepancies here and          there,  "genuineness and  materiality are not  infinitely elastic          euphemisms  that may  be stretched  to fit  whatever pererrations          catch a litigant's fancy."  Blackie v. State of Me., 75 F.3d 716,                                      _______    ____________          721 (1st  Cir. 1996).   On the key  factual issue related  to her          ouster   the presence or absence of the requisite  discriminatory          intent   the probative evidence points in  only one direction.  A          factfinder,  drawing reasonable  inferences  from the  nisi prius                               __________          roll,  could  not conclude  without  undue  speculation that  the          defendant  acted from  a gender-based  animus in  eliminating the          plaintiff's  job.   Thus, brevis  disposition was  appropriate on                                    ______          that issue.   See Medina-Munoz,  896 F.2d at  8 (explaining  that                        ___ ____________          summary  judgment may be granted  on "intent" issues).   So, too,          with the  promotion-related  claims; questions  dealing with  the          applicability  and effect  of the passage  of time  on particular          sets  of facts often are appropriately disposed of at the summary          judgment stage,  see, e.g., Rivera-Muriente v. Agosto-Alicea, 959                           ___  ____  _______________    _____________          F.2d 349, 352 (1st Cir. 1992); Jensen, 912 F.2d at  520, and this                                         ______          case fits snugly within that paradigm.4                                          ____________________               4When a defendant  moves for summary judgment  based in part          on a plausible claim that the plaintiff's suit is outlawed by the          passage of  time, "the onus  of identifying  a trialworthy  issue          customarily  falls on the plaintiff."   McIntosh, 71  F.3d at 33.                                                  ________          Here, Lawton has not identified any such issue.                                           9                    Mindful of the district court's more exegetic treatment          of these, and other, matters, we need go no further.          Affirmed.          Affirmed.          ________                                          10
