          United States Court of Appeals
                     For the First Circuit


No. 07-2670

                         RICHARD DENNIS,

                      Plaintiff, Appellant,

                               v.

                      OSRAM SYLVANIA, INC.,

                      Defendant, Appellee.



          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF NEW HAMPSHIRE

         [Hon. Steven J. McAuliffe, U.S. District Judge]


                             Before

                       Lynch, Chief Judge,
              Torruella, and Lipez, Circuit Judges.



     Kenneth J. Barnes, with whom Upton & Hatfield, LLP, Nancy
Richards-Stower, and Law Offices of Nancy Richards-Stower, was on
brief for appellant.
     Bruce W. Felmly, with whom Jennifer L. Parent and McLane,
Graf, Raulerson & Middleton Professional Association, was on brief
for appellee.



                        December 10, 2008
            TORRUELLA, Circuit Judge.      Plaintiff-Appellant Richard

Dennis appeals the district court's decision to grant Defendant-

Appellee Osram Sylvania, Inc.'s ("Sylvania") motion for summary

judgment on a claim involving New Hampshire's anti-discrimination

statute, N.H. Rev. Stat. Ann. § 354-A.           Dennis also appeals the

district court's decision to deny "as moot" two discovery motions:

(1) a motion to compel discovery of privileged documents and (2) a

motion for an extension of time pursuant to Fed. R. Civ. P. 56(f).

For the reasons stated below, we affirm.

                              I.   Background

            Dennis was employed with Sylvania from August 1995 to

March 24, 2004, at which date he was terminated.          At the time of

his firing, Dennis was the Associate Development Program Manager in

Sylvania's   human   resources     department.     His   responsibilities

included representing the company at recruitment fairs on campuses

and overseeing Sylvania's internship program.

            Dennis   claims   that   Sylvania    retaliated   against   him

because he gave deposition testimony critical of the company in an

internal matter brought by Nancy Green, a former employee of

Sylvania.    Green had alleged that Sylvania retaliated against her

because she had filed a sexual harassment complaint against a co-

worker.   As the lead investigator of Green's complaint, Dennis was

deposed on February 5, 2004.       Dennis cites to several instances in

his deposition where he was critical of Sylvania's response to


                                     -2-
Green's claims, such as the company's "soft punishment" of the

alleged harassers and the slow pace with which it conducted the

investigation of her claims.1

          In   addition,   Dennis    points    to   certain   actions   and

statements     by   Sylvania's       lawyers        demonstrating   their

dissatisfaction with his testimony.        For example, Dennis claims

that Paul Beckwith, Sylvania's legal counsel, was "hostile" to him

during the deposition.     Dennis also alleges that Beckwith raised

his voice in response to Dennis' inquiries about the strength of

the Green case, exclaiming that he "doesn't have time for this

shit."   Dennis further claims that during a break, when he sought

guidance from Beckwith regarding whether he had to reveal his

knowledge of a company manager's romantic involvement with a

subordinate, Beckwith, "in a forceful manner, ordered him to answer

'yes,''no,' or 'I don't recall.'"2        Dennis states that Beckwith


1
  Dennis further noted in his deposition that Sylvania's employees
perceived that the alleged harassers "could do what they wanted
because they were friends with [the manager]"; that there was a
justified perception that it would be futile to file complaints
against the manager's friends; that it was inappropriate for
Sylvania to have a public team meeting on the Green matter; that
Green was "justified in being upset" by Sylvania's handling of her
complaint; and that Sylvania's issuance of a warning letter to
Green in response to her reaction at the team meeting was "the
stupidest thing [Dennis] heard."
2
    Dennis also notes a dispute regarding whether he met with
Beckwith for a deposition preparation session at Sylvania on
January 22, 2004.    Dennis states that he does not recall any
meeting with Beckwith prior to his February 5, 2004 deposition and
contends that he was out of the country on January 22, 2004. This
dispute is not material to the outcome of this case.

                                    -3-
told him that the second part of his testimony was not as helpful

as the first part. In addition, Dennis alleges that Sylvania's in-

house counsel, Nicole Vient (formerly Nicole "Buba"), "rolled her

eyes"    during    his   deposition,    indicating      her   unhappiness    with

Dennis' testimony.

            Sylvania disagrees that Dennis gave testimony critical of

the     company,   arguing    instead    that     the      testimony   "strongly

supported" Sylvania's defense of Green's claims.3                  Furthermore,

Vient does not recall if she rolled her eyes during Dennis'

deposition and insists that she "did not in any way criticize his

performance at the deposition."              Beckwith, for his part, denies

instructing Dennis during a break to answer questions in any

particular way.

            On February 6, 2004, the day after Dennis' deposition

testimony, Vient began investigating Dennis in reference to a

complaint, received by the company on January 28, 2004, from Miguel

Molina.     Molina, an unsuccessful applicant for re-employment,

claimed    that    Dennis   had    subjected    him   to    "inappropriate    and

unprofessional" conduct.          The investigation revealed that Dennis,

when meeting with Molina, had made reference to Molina's problems


3
  In the proceeding below, the district court stated that "[w]hile
Dennis did make several comments critical of Sylvania at his
deposition, his testimony does not appear to have been particularly
harmful to Sylvania's legal position, and actually strongly
supported the company's position on a key issue of retaliation."
Dennis v. Osram Sylvania, Inc., No. 06-CV-029-SM, 2007 WL 2783369,
at *8 n.6 (D.N.H. Sept. 24, 2007).

                                       -4-
with his taxes and his rent.           Also, it revealed that Dennis had

shared these details as well as details regarding Molina's marital

life with Molina's potential supervisor at the company.

          Pamela Tracey, Sylvania's in-house counsel who oversaw

Vient's investigation, subsequently met with Dennis' supervisors,

Geoffrey Hunt and William Franz, to discuss these incidents.4              They

decided that a warning should be placed in Dennis' file.               Franz

documented Dennis' conduct towards Molina in a February 23, 2004

internal communication to Dennis.               He concluded that Dennis'

actions were "entirely inappropriate" and requested Dennis to sign

a statement to that effect.          Dennis refused to sign the statement

and told Franz that he viewed the Molina investigation and warning

letter as retaliation for his deposition testimony in the Green

matter.      Dennis   also   accuses    Franz    of   "look[ing]   away"   and

responding that "he knew nothing about [the deposition]."              Franz

confirmed that he told Dennis that he did not know anything about

the deposition, but does not recall "looking away."

          On March 24, 2004, Sylvania terminated Dennis.              In his

deposition    testimony,     Franz    stated   that   Dennis'   position   was

"severely weakened" by the Molina matter as well as by a 2001




4
  Tracey is Sylvania's Senior Labor and Employment Counsel; Hunt
is Sylvania's Senior Vice President of Communications and Human
Resources; and Franz is Sylvania's Human Resources Director.

                                       -5-
complaint by another former employee, Kim Serrechia.5                 Franz also

states   that   he       recommended    terminating      Dennis    because      his

performance was affected by "extreme duress" due to family issues

and   because   of   a    reduction    in   force   in   Sylvania's      equipment

development department, the latter forcing Franz to choose between

Dennis and Leah Weinberg, whom Franz referred to as a "high

achieving human resources manager."            Franz subsequently informed

Hunt, his supervisor, of his decision and Hunt approved.

           After     initially    filing     his    complaint     with    the   New

Hampshire Commission for Human Rights ("Commission"), Dennis filed

an action in Rockingham County Superior Court in New Hampshire

alleging retaliation under N.H. Rev. Stat. Ann. § 354-A.6                 The case

was then removed to the United States District Court for the


5
   On April 11, 2001, Dennis signed a written warning statement
that concluded that Dennis had engaged in the inappropriate use of
company e-mail by sending religious and inspirational messages to
Serrechia.   Also, the warning stated that Dennis failed to use
"appropriate managerial judgment expected from a Human Resources
professional in an employee relations matter," citing Dennis'
"numerous conversations of an intensely personal nature" with
Serrechia. Dennis maintains that Franz told him that "he did not
believe Serrechia's allegations" and all references to the
Serrechia matter would be removed from Dennis' file. He further
points out that although his post-termination file made no
reference to the Serrechia matter and that his performance
evaluations during this period praised him for his "fine work" and
did not mention the Serrechia allegations, the matter "reappeared"
after Dennis filed a complaint with the New Hampshire Commission
for Human Rights.
6
   Dennis successfully removed his case to the Superior Court
because he had exhausted his administrative remedies and because it
had been over 180 days since he had filed his complaint with the
Commission. N.H. Rev. Stat. Ann. § 354-A:21-a.

                                       -6-
District of New Hampshire.           In the proceeding below, the district

court granted Sylvania's motion for summary judgment stating that

Dennis had failed to establish a prima facie case of retaliation

because Franz and Hunt, the individuals responsible for terminating

Dennis, "knew nothing about plaintiff's Green deposition."              Dennis

v. Osram Sylvania, Inc., No. 06-CV-029-SM, 2007 WL 2783369, at *8

(D.N.H.   Sept.       24,   2007).     The    district    court   alternatively

concluded that even if Dennis had established a prima facie case,

Sylvania had fired Dennis for legitimate non-discriminatory reasons

such as his poor work performance and the fact that Franz wanted to

retain another employee instead of Dennis because of the company's

reduction in force.         Id. at *7.       Furthermore, the district court

explained that summary judgment was appropriate because the factual

disputes arising during Dennis' deposition testimony in the Green

matter with Beckwith and Vient were not material to the resolution

of Dennis' case.        Id. at *8-9.

                II.    Dennis' Motion for Summary Judgment

           A.     Standard of Review

           "Summary judgment is appropriate when there is no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law based on the pleadings, depositions,

answers   to     interrogatories,        admissions      on   file,   and   any

affidavits."      Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st

Cir. 2008)(citing Fed. R. Civ. P. 56(c)).                "A 'genuine' issue is


                                        -7-
one that could be resolved in favor of either party, and a

'material fact' is one that has the potential of affecting the

outcome of the case." Calero-Cerezo v. U.S. Dep't. of Justice, 355

F.3d 6, 19 (1st Cir. 2004) (citing Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248-50 (1986)).   "We review summary judgment rulings

de novo, construing the record evidence in the light most favorable

to the nonmoving party."    Benoit v. Technical Mfg. Corp., 331 F.3d

166, 173 (1st Cir. 2003).

          "Even in retaliation cases, 'where elusive concepts such

as motive or intent are at issue, summary judgment is appropriate

if the non-moving party rests merely upon conclusory allegations,

improbable inferences, and unsupported speculation.'" Vives v.

Fajardo, 472 F.3d 19, 21 (1st Cir. 2007) (quoting Benoit, 331 F.3d

at 173); see also Thompson, 522 F.3d at 175 ("When considering

arguments for summary judgment, 'we must disregard improbable or

overly attenuated inferences, unsupported conclusions, and rank

speculation.'" (quoting Abbott v. Bragdon, 107 F.3d 934, 938 (1st

Cir. 1997))).

          We will reverse "only if, after reviewing the facts and

making all inferences in favor of the non-moving party . . . the

evidence on record is sufficiently open-ended to permit a rational

factfinder to resolve the issue in favor of either side."   Maymí v.

P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008) (internal

quotations omitted).


                                 -8-
             As a preliminary matter, we note Dennis' citation to the

the    Supreme     Court's      ruling    in     Reeves    v.     Sanderson      Plumbing

Products, Inc., 530 U.S. 133, 151 (2000), for the proposition that

this   court     at    summary    judgment       must     "disregard     all     evidence

favorable to the moving party that the jury is not required to

believe."        According to Dennis, our consideration of Sylvania

officials' declarations are impermissible under Reeves because the

officials are interested parties.                  See id. ("[T]he court should

give credence to the evidence favoring the nonmovant as well as

that evidence supporting the moving party that is uncontradicted

and unimpeached, at least to the extent that that evidence comes

from disinterested witnesses.")(internal quotations omitted).

             Dennis misreads the scope of Reeves. At summary judgment

we    need   not      exclude    all     interested       testimony,         specifically

testimony that is uncontradicted by the nonmovant.                       See Lauren W.

ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-72 (3d Cir. 2007)

("We cannot believe that the law precludes a party from presenting

his own testimony on a summary judgment motion . . . . The fact is

that in considering a motion for summary judgment the court should

believe      uncontradicted           testimony     unless        it    is     inherently

implausible      even    if     the    testimony    is     that    of   an    interested

witness.").        Indeed, the exclusion of interested testimony would

make it difficult for an employer to present a legitimate non-

discriminatory reason when defending against a retaliation claim.


                                           -9-
As the Sixth Circuit has noted, a rule barring all testimony from

interested witnesses would "lead[] to absurd consequences because

defendants will often be able to respond only through the testimony

of their employees." Stratienko v. Cordis Corp., 429 F.3d 592, 598

(6th Cir. 2005) (internal quotations omitted).            Here, Dennis'

argument is unpersuasive given his failure to present evidence to

contradict the declarations of Sylvania officials in which they

present a non-retaliatory motive.

            B.   Applicable Law

            N.H. Rev. Stat. Ann. § 354-A:19 states that "[i]t shall

be an unlawful discriminatory practice for any person engaged in

any activity to which this chapter applies to discharge, expel, or

otherwise retaliate or discriminate against any person because he

has . . . testified or assisted in any proceeding under this

chapter."

            The New Hampshire Supreme Court looks to and finds

"instructive" federal standards established under Title VII, 42

U.S.C. § 2000e et seq., in resolving retaliation claims under N.H.

Rev. Stat. Ann. § 354-A.     Madeja v. MPB Corp., 149 N.H. 371, 378-

79, 821 A.2d 1034, 1043 (2003).       Thus, to establish a prima facie

case of retaliation under either Title VII or N.H. Rev. Stat. Ann.

§ 354-A, the plaintiff must show that "(1) she engaged in a

statutorily-protected     activity;    (2)   she   suffered   an   adverse

employment action; and (3) the protected activity and the adverse


                                  -10-
employment action were causally connected."           Id. at 378 (citing

Marrero v. Goya of P.R., Inc., 304 F.3d 7, 22 (1st Cir. 2002)).

          Under   New   Hampshire      law,   "[i]f     there   is   only

circumstantial evidence of retaliation," as Dennis alleges here, a

"'pretext' approach applies."    In re Montplaisir, 147 N.H. 297,

300, 787 A.2d 178, 181 (2001) (citing Texas Dep't of Cmty. Affairs

v. Burdine, 450 U.S. 248, 252-53 (1983)).     This "pretext" approach

provides that "an employee who carries her burden of coming forward

with evidence establishing a prima facie case of retaliation

creates a presumption of discrimination, shifting the burden to the

employer to articulate a legitimate, non-discriminatory reason for

the challenged actions." Billings v. Town of Grafton, 515 F.3d 39,

55 (1st Cir. 2008). "'If the employer's evidence creates a genuine

issue of fact, the presumption of discrimination drops from the

case, and the plaintiff retains the ultimate burden of showing that

the employer's stated reason for [the challenged actions] was in

fact a pretext for retaliating . . . .'" Id. (quoting Colburn v.

Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 336 (1st Cir.

2005) (alteration in original)).       Pretext can be demonstrated by

"such weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions in the employer's proffered legitimate reasons

. . . that a reasonable factfinder could rationally find them

unworthy of credence and [with or without the additional evidence

and inferences properly drawn therefrom] infer that the employer


                                -11-
did not act for the asserted non-discriminatory reasons." Id. at

55-56 (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168

(1st Cir. 1998) (alteration in original)).

            C.    Discussion

            In the instant case, it is a close question whether

Dennis can establish a prima facie case of retaliation.         Sylvania

does not dispute that Dennis met the first two prongs of the prima

facie     test:   Dennis   (1)    engaged   in   protected   conduct   by

participating in the Green deposition and (2) experienced an

adverse employment action by way of his termination. However, with

respect to the third prong, Dennis relies on a series of strained

inferences to establish a causal connection between the two.           He

states:

            if a jury believed Dennis's testimony . . .
            then it could infer . . . the attorneys
            believed that some of Dennis's testimony could
            have a negative effect on the company's
            position in the Green case; that [Vient]
            conducted her investigation into the Molina
            allegations with anger or resentment over
            Dennis's   unflattering   testimony  the   day
            before; and that the lawyers conveyed their
            concerns about the testimony to one or more of
            Sylvania's in-house personnel.

(Emphasis in original).

            Dennis further emphasizes that Tracey, as Vient's direct

supervisor, was responsible for supervising Vient's investigation

into Molina's complaint. Dennis reasons that "[a] jury could infer

that    Tracey    and   [Vient]   talked    regularly   about   [Vient's]


                                    -12-
investigation of Dennis, and that Tracey heard [Vient's] concerns

about Dennis's deposition testimony which had taken place the day

before the investigation began." (Emphasis in original).                    Because

Tracy "directly advised" Franz on the proper course to take in the

Molina matter, Dennis contends that a jury could infer that Franz'

decision to recommend Dennis' termination was influenced by Dennis'

testimony in the Green matter.                Moreover, Dennis asserts that

Beckwith and Vient's concern with his testimony showed that they

had a "motive to retaliate against him and a motive to communicate

among the management group about these issues."

              For purposes of summary judgment we are required to draw

every    reasonable     inference   in    favor    of   the   nonmoving      party.

However, at this stage we need not credit inferences that "rely on

tenuous insinuation." Nat'l Amusements, Inc. v. Town of Dedham, 43

F.3d 731, 743 (1st Cir. 1995) (internal quotations omitted).

Moreover, the nonmovant still has "the burden of producing specific

facts sufficient to deflect . . . summary judgment . . . ."

Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).

              While Dennis insists that his retaliation claim naturally

flows from "a straightforward series of reasonable inferences," he

has     failed    to   provide   specific      facts    indicating      that    his

termination was caused by his allegedly unfavorable testimony in

the   Green      matter.    Instead,     Dennis    speculates       about   alleged

communications         between   Sylvania's       counsel     and     his    direct


                                       -13-
supervisors    and    imputes      these   attorneys'    alleged      motives     and

displeasure with Dennis' testimony to Franz and Hunt, the actual

decisionmakers responsible for his firing.

            Dennis' contention that a jury could reasonably string

together these inferences is speculative, especially in view of the

fact that the only evidence that Dennis provides to demonstrate

that Franz and Hunt knew about his deposition testimony is Franz'

alleged reaction when conversing with Dennis about the Molina

warning letter.       Franz' body language of "looking away" and his

statement     that    "he   knew    nothing    about     [Dennis'     unfavorable

testimony]" in response to Dennis' allegation that the firing was

in   retaliation     for    Dennis'    deposition   in    the    Green     case    is

insufficient for a jury reasonably to infer that Franz or Hunt

shared Vient and Tracy's alleged retaliatory sentiments.                           In

addition, Dennis offers no evidence that Franz or Hunt, in arriving

at their decision to terminate Dennis, consulted with anyone

possessing a motive to retaliate against Dennis.                "Nothing in the

record supports an inference of complicity."                Bennett v. Saint-

Gobain Corp., 507 F.3d 23, 31-32 (1st Cir. 2007) (holding that

causation    prong    was   unmet     where   plaintiff    failed     to   provide

sufficient    proof    that     individual    responsible       for   plaintiff's

discharge consulted with and shared sentiments with middle manager

who allegedly possessed retaliatory motive).




                                       -14-
              In addition to Dennis' inferential reasoning, we also

consider the nearness in time between Dennis' deposition testimony

in the Green case and his termination.                As we have stated, "Our law

is   that     temporal     proximity        alone    can    suffice    to    'meet   the

relatively light burden of establishing a prima facie case of

retaliation.'"          DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir.

2008)(quoting Mariani-Colón v. Dep't of Homeland Sec., ex rel.

Chertoff, 511 F.3d 215, 224 (1st Cir. 2007)).                   Given our analysis

below, however, we need not decide whether the mere fact that less

than    two    months     elapsed      between      Dennis'    deposition      and   his

termination is sufficient to establish a prima facie case of

retaliation.

              Though     we    doubt    Dennis      could     prove    causation,    we

nevertheless recognize that the employee's burden to establish a

prima facie case in the retaliation context "is not an onerous

one."   Calero-Cerezo, 355 F.3d at 26.               However, even assuming that

Dennis has established a prima facie case, his claim still fails

because     he   cannot       show   that    his    termination       was   pretextual.

Specifically, Dennis has not adequately countered the legitimate

non-discriminatory reasons Sylvania has proffered for terminating

Dennis.       These reasons include Dennis' history of misconduct as

well as Sylvania's reduction in force argument.

              As evidence of pretext, Dennis argues (1) that Sylvania

had "shifting rationales" for firing Dennis and (2) that there is


                                            -15-
a material dispute as to whether Dennis actually had a history of

misconduct.         With respect to the former, Dennis asserts that

Sylvania's    March       2005   response       to   Dennis'    complaint     to     the

Commission cited only his history of misconduct, while Franz'

November 2006 deposition identified the reduction in force as the

true reason for Dennis' dismissal.              Regarding the alleged material

dispute as to his history of misconduct, Dennis argues that the

Serrechia matter should not be given any credence because it was

allegedly purged from his file and that the Molina matter by itself

did not warrant his termination.

             Both    of     Dennis'     arguments       suggesting       pretext     are

unconvincing.        First, Sylvania did not shift its rationale for

terminating Dennis.         The mere fact that Sylvania failed to include

the reduction in force reasoning in its March 2005 response does

not mean that it changed its story.              This is especially true given

the   fact   that     the   record    reflects       that     Franz   presented      the

reduction    in     force    argument      as   early    as    October    2005     in    a

Commission interview –- over a year before the November 2006

deposition that Dennis cites for the alleged inconsistency.

             Second,      the    dispute    surrounding       Dennis'     history       of

misconduct is not material because Sylvania had another reason to

terminate Dennis' employment which was not contradicted.                           Franz

explicitly stated in his deposition testimony that even if Molina

had fabricated his complaint against Dennis, he would still have


                                         -16-
replaced Dennis with Weinberg because of the reduction in force.

Thus,   even    if   we   credit    Dennis'   argument    that    the   Serrechia

complaint was removed from his file and that Dennis' misconduct in

the Molina matter by itself does not rise to a "firing offense,"

Dennis would still lose: Sylvania's decision to replace Dennis with

the better performing Weinberg as part of its reduction in force

argument is a "clear, specific reason[]" for his termination

separate from any retaliatory animus.7           Id.     Dennis "has failed to

point to specific facts that would demonstrate any sham or pretext

intended   to    cover    up    defendant's    retaliatory       motive."     Id.

Moreover, we should exercise caution in second guessing Sylvania's

employment decisions.          Courts should not act as "'super personnel

departments,'        substituting    their    judicial    judgments     for   the

business judgments of employers." Bennett, 507 F.3d at 32 (quoting

Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991)).

                       III.    Dennis' Discovery Motions

           Dennis additionally appeals the district court's denial

of his motion to compel and his motion for extension of time under

Fed. R. Civ. P. 56(f).8         This court reviews both motions under an



7
   Because Dennis does not dispute much of the conduct that formed
the basis of the Molina warning letter, Sylvania still could have
partially relied on the conduct in the Molina matter in deciding
that Weinberg was the more valuable employee.
8
   As noted above, after granting Sylvania's motion for summary
judgment, the district court denied both these discovery motions as
moot.

                                       -17-
abuse of discretion standard. Ayala-Gerena v. Bristol Myers-Squibb

Co., 95 F.3d 86, 91 (1st Cir. 1996)("It is well settled that the

trial judge has broad discretion in ruling on pre-trial management

matters, and we review the district court's denial of discovery

[and   its   denial   of   a   Rule   56(f)   motion]   for   abuse   of   its

considerable discretion.")(internal citations omitted)).              We note

that "[a]ppellate courts seldom intervene in discovery questions"

and that "[t]he standard of review in discovery matters is not

appellant-friendly." Modern Cont'l/Obayashi v. Occupational Safety

& Health Review Comm'n, 196 F.3d 274, 281 (1st Cir. 1999) (internal

quotations omitted). "The court of appeals will intervene in such

matters only upon a clear showing of manifest injustice, that is,

where the lower court's discovery order was plainly wrong and

resulted in substantial prejudice to the aggrieved party."             Id.

             In the proceeding below, Dennis moved to compel six

documents Sylvania withheld on the basis of attorney client and

work product privilege.        Four of these documents pertain to the

Serrechia complaint and the other two deal with the Molina matter.

Dennis argues that these documents are relevant because they could

shed light on the misconduct Sylvania partially relied upon for

terminating Dennis.

             We need not reach the question of whether the district

court abused its discretion in denying Dennis' motion to compel

because Dennis' access to those documents would not have changed


                                      -18-
the outcome in this case.             As we noted above, Dennis has not met

his burden of showing that Sylvania's reduction in force rationale

for terminating Dennis was pretextual. Dennis does not allege that

these documents would yield any information linking Sylvania's

reduction in force argument to retaliatory animus.9

               We are equally unsympathetic to Dennis' appeal of the

district court's ruling on his Rule 56(f) motion.                    Dennis argues

that the district erred by denying him additional time to file his

opposition          to   Sylvania's   motion    for    summary   judgment.      In

particular, Dennis contends that he was awaiting the court's

rulings on his motion to compel and needed more time to obtain

discovery of Weinberg's personnel documents and other documents

pertaining to Sylvania's reduction in force.

               We have stated that "Rule 56(f) serves a salutary purpose

within the summary judgment framework.                When a party confronted by

a motion for summary judgment legitimately needs additional time to

marshal the facts necessary to mount an opposition, the rule

provides a useful safety valve."            Rivera-Torres v. Rey-Hernández,

502 F.3d 7, 10 (1st Cir. 2007).             "Deployed appropriately, '[t]he

rule   .   .    .    safeguard[s]     against   judges    swinging    the   summary

judgment axe too hastily.'" Id. (quoting Resolution Trust Corp. v.



9
   Notably, the Serrechia documents were dated prior to Dennis'
deposition in the Green matter; thus, they cannot possibly contain
any relevant information relating to Sylvania's alleged retaliatory
motives with respect to its reduction in force.

                                         -19-
N.    Bridge    Assocs.,   Inc.,   22     F.3d   1198,   1203   (1st   Cir.

1994))(alterations in original).        Under Rule 56(f):

            the litigant must submit to the trial court an
            affidavit or other authoritative document
            showing (i) good cause for his inability to
            have discovered or marshaled the necessary
            facts earlier in the proceedings; (ii) a
            plausible basis for believing that additional
            facts probably exist and can be retrieved
            within a reasonable time; and (iii) an
            explanation of how those facts, if collected,
            will suffice to defeat the pending summary
            judgment motion.

Id.   We have warned that "Rule 56(f) is not designed to give relief

to those who sleep upon their rights" and that one who seeks a

favorable ruling under Rule 56(f) "must demonstrate due diligence

both in conducting discovery before the emergence of the summary

judgment motion and in pursuing an extension of time once the

motion has surfaced."      Id. at 10-11.

            Here, even if the documents Dennis were to obtain through

this additional discovery raised a material dispute concerning

Sylvania's reduction in force rationale, the request was untimely.

The record indicates that on January 25, 2006, Dennis' counsel

requested the Commission's October 2005 interview notes with Franz.

In these notes, Franz discusses the company's plan to eliminate

Weinberg's position and Franz' opinion that she was a more valuable

employee.      Although Dennis states that Sylvania "fails to allege

what date Dennis received the copies and that the interview notes

(taken by the Commission investigator) do not contain the expanded


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information revealed during Franz' deposition on November 16,

2006,"    he    does   not   deny   receiving   these   notes   well   before

Sylvania's motion for summary judgment.           Furthermore, even if we

accept Dennis' contention that he only learned the true extent to

which Sylvania relied on the reduction in force rationale during

Hunt and Franz' November 16, 2006 depositions, Dennis still did not

file his Rule 56(f) motion until more than thirty days after the

depositions, and nearly three weeks after Sylvania filed its motion

for summary judgment.         Regardless of whether Dennis' Rule 56(f)

motion was a delaying tactic as Sylvania maintains, Dennis should

not be entitled to the benefits of Rule 56(f) given the amount of

time he allowed to lapse between his knowledge of Sylvania's

reduction in force justification and the filing of his Rule 56(f)

motion.    Dennis neither suffered any manifest injustice nor any

substantial prejudice.

               For the forgoing reasons, we affirm the district court's

order.

               Affirmed.




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