
USCA1 Opinion

	




          January 13, 1993                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 92-1952                                   MICHAEL PAGANO,                                Plaintiff, Appellant,                                          v.                     ANTHONY M. FRANK, POSTMASTER GENERAL, ETC.,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                              _________________________               Norman Jackman, with  whom Martha M.  Wishart and Jackman  &               ______________             __________________     __________          Roth were on brief, for appellant.          ____               David  G. Karro, Attorney, Office of Labor Law, U. S. Postal               _______________          Service, with  whom A.  John Pappalardo, United  States Attorney,                              ___________________          and  Annette Forde,  Assistant  United States  Attorney, were  on               _____________          brief, for appellee.                              _________________________                              _________________________                    SELYA, Circuit Judge.  The United States Postal Service                    SELYA, Circuit Judge.                           _____________          prides itself on surmounting obstacles that nature  places in its          path.1    In this  bitterly  contested  case, plaintiff-appellant          Michael Pagano, a veteran postal worker, complains that, whatever          success the Service may have encountered in its struggle with the          elements,  it has  been unable  to surmount a  man-made obstacle:          prejudice in the workplace.  The district court ruled in favor of          the defendant.  Finding appellant's arguments to be unpersuasive,          we affirm.            I.  BACKGROUND          I.  BACKGROUND                    The Lynnfield  Post Office  hired appellant as  a part-          time mail carrier in  1973.  He  became a full-time employee  two          years later, working primarily as a clerk at a branch office.  In          1983,           appellant became a dispatcher  at the main post office  under the          direct  supervision of  James Walsh.   Walsh  and Pagano  did not          enjoy a cordial  working relationship   a situation  that perhaps          stemmed from the latter's propensity for unauthorized absences.                    When Walsh was promoted to postmaster in mid-1984, Paul          Hentschel  became  Pagano's supervisor.    On  December 2,  1984,          Hentschel sent  appellant an admonitory letter regarding frequent          tardiness  and excessive  use of  sick leave.   A  second warning          letter, issued exactly one year later, cited continuing instances                                        ____________________               1An  inscription on the exterior  of the main  New York City          post  office,  often thought  to be  the Postal  Service's motto,          reads:  "Neither snow,  nor rain,  nor heat,  nor gloom  of night          stays these couriers from  their appointed rounds." (adapted from          VIII Herodotus, Histories 98).                          _________                                          2          of unpunctuality and sick leave abuses during a two-month  period          ending December 2, 1985.                    Notwithstanding these  admonitions, appellant persisted          in  his moratory ways.  Hentschel suspended him for seven days in          January (later reduced to five) and fourteen days in March (later          reduced to seven).  Seeing no improvement, Hentschel issued a so-          called "notice of  removal" on July  15, 1986 (later  withdrawn),          and  reissued it  on  October  22,  1986.    During  the  ensuing          grievance  proceedings,  Walsh  overrode Hentschel's  action  and          authorized  a "last  chance" agreement.   Although  the agreement          contained  a  promise  that   appellant  would  report  for  work          regularly and punctually, this covenant was honored mainly in the          breach:  appellant was  absent or late nineteen times  during the          four-month period  ending March  23, 1987.   Hentschel discharged          appellant  in May of that year, citing his "lack of dependability          in reporting and not being available for duty."                      Three months after  his termination, appellant filed  a          formal  administrative complaint with  the Postal Service's equal          employment  opportunity office,  alleging  that he  was dismissed          because  of  his employer's  animus  against  persons of  Italian          origin.2  For the next three years, appellant  vigorously pursued                                        ____________________               2Appellant  originally claimed that  a second discriminatory          animus, arising  out of his role in the investigation of a sexual          harassment complaint,  contributed to his difficulties.   He has,          however, abandoned this  theory on appeal.   Accordingly, we pass          over it.  See United States v. Slade, ___ F.2d  ___, ___ n.3 (1st                    ___ _____________    _____          Cir.  1992) [No.  92-1176, slip  op. at  6 n.3]  (reiterating the          general  rule that "theories neither briefed nor argued on appeal          are deemed to have been waived").                                          3          his case on the administrative level.  Receiving no satisfaction,          he  brought suit  against the  Postmaster General  in the  United          States District Court for the District of Massachusetts.                      Appellant docketed his complaint in the  district court          on August  7, 1990.   On  February 19,  1992, a  magistrate judge          denied  his motion  for  leave  to  file  an  amended  complaint.          Several  months   thereafter,  the  district  court  granted  the          defendant's motion for summary judgment.  This appeal ensued.          II.  THE NEED TO OBJECT TO A MAGISTRATE'S ORDER          II.  THE NEED TO OBJECT TO A MAGISTRATE'S ORDER                    As a preliminary  matter, appellant  contends that  the          district court erred in denying his motion to add counts alleging          wrongful  discharge and  breach of  contract.   The facts  are as          follows.   Appellant's motion to amend his complaint was filed on          January  10, 1992.   The district judge referred  the motion to a          magistrate  judge who  denied it  on grounds of  futility, ruling          that the additional claims  were both preempted by Title  VII and          that, moreover,  the wrongful  discharge claim failed  to comport          with  the Federal  Tort Claims  Act.   Appellant took  no further          action.   Because appellant failed to object  to the magistrate's          order within the prescribed  ten-day period, see Fed. R.  Civ. P.                                                       ___          72(a), we cannot consider this assignment of error.3                                        ____________________               3We analyze this point under Fed. R. Civ. P. 72(a) partially          because  appellant,   in   post-argument  briefing   before   us,          explicitly invited  that characterization.   However, even  if we          viewed  the  magistrate's  denial  of  the  motion  to  amend  as          implicating  28 U.S.C.   636(b)(1)(B)  and Fed. R.  Civ. P. 72(b)          rather than 28 U.S.C.    636(b)(1)(A) and Rule 72(a),  the result          that we reach  would not be affected.  See  Park Motor Mart, Inc.                                                 ___  _____________________          v. Ford  Motor Co., 616  F.2d 603, 605  (1st Cir. 1980)  (holding             _______________          that, in respect to  a magistrate's recommended disposition under                                          4                    Under  ordinary  circumstances  a  motion  to  amend  a          complaint is "a  pretrial matter  not dispositive of  a claim  or          defense of a party" within the  purview of Fed. R. Civ. P. 72(a).          See Walker v. Union Carbide Corp., 630 F. Supp. 275,  277 (D. Me.          ___ ______    ___________________          1986);  see  also  28  U.S.C.    636(b)(1)(A)  (providing  that a                  ___  ____          district judge  "may designate a magistrate to hear and determine          any  pretrial  matter,"  with certain  enumerated  exceptions not          relevant here).  A party displeased  by a magistrate's order on a          nondispositive motion must serve and file objections to the order          within ten days.   See Fed.  R. Civ. P.  72(a); see generally  28                             ___                          ___ _________          U.S.C.    636(d) (congressional grant  of rulemaking power).   If          the aggrieved  party preserves his  rights in  this fashion,  the          district  judge can set aside the magistrate's ruling if he finds          it  to be "clearly  erroneous or contrary  to law."   28 U.S.C.            636(b)(1)(A);  Fed. R. Civ. P. 72(a).  If, however, the aggrieved          party  sits idly  by and  fails to  object within  the prescribed          period, he  "may not thereafter  assign as error a  defect in the          magistrate's order  . . . ."  Id.;  see also Rule 2(b), Rules for                                        ___   ___ ____          U.S. Magistrates  in the  United  States District  Court for  the          District   of   Massachusetts   (implementing   28    U.S.C.               636(b)(1)(A), (d) and Civil Rule 72 (a)).                    In  this  instance,  Pagano   did  not  object  to  the                                        ____________________          section 636(b)(1)(B),  "a party 'may' file  objections within ten          days or he may  not, as he  chooses, but he 'shall'  do so if  he          wishes  further consideration"); accord  Davet v.  Maccarone, 973                                           ______  _____     _________          F.2d 22, 30-31 (1st  Cir. 1992); Templeman v. Chris  Craft Corp.,                                           _________    __________________          770 F.2d 245, 247 (1st Cir.), cert. denied, 474 U.S. 1021 (1985);                                        _____ ______          Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983).          _____    _________                                          5          magistrate's  denial of  the  motion to  amend.   That  ends  the          matter.  Congress  granted the courts of  appeals jurisdiction to          hear  appeals "from all final decisions of the district courts of          the United States."  28 U.S.C.    1291.  We have held that  for a          magistrate's  decision to be  "final" within  the meaning  of the          statute  it "must have been reviewed by the district court, which          retains ultimate decision-making power."  United States v. Ecker,                                                    _____________    _____          923 F.2d 7, 8 (1st Cir. 1991) (quoting Siers v. Morrash, 700 F.2d                                                 _____    _______          113,  115 (3d  Cir. 1983)).4   In  other words,  when, as  now, a          litigant could  have tested a magistrate's ruling  by bringing it          before  the  district  judge, but  failed  to  do  so within  the          allotted ten-day period, he cannot later leapfrog the trial court          and appeal  the ruling  directly to  the court  of appeals.   See                                                                        ___          Unauthorized Practice of Law  Comm. v. Gordon, ___ F.2d  ___, ___          ___________________________________    ______          (1st  Cir. 1992)  (per  curiam) [No.92-1710,  slip  op. at  7-8];          McKeever  v. Block, 932 F.2d 795, 799 (9th Cir. 1991); Singletary          ________     _____                                     __________          v. B.R.X., Inc., 828 F.2d 1135, 1137 (5th Cir.  1987); Siers, 700             ____________                                        _____          F.2d at  116; see  also Ecker,  923 F.2d at  9 (holding  that the                        ___  ____ _____          court of appeals cannot undertake direct review of a magistrate's          order on  a nondispositive pretrial  motion in a  criminal case);          United States v.  Renfro, 620  F.2d 497, 500  (5th Cir.)  (same),          _____________     ______          cert. denied, 449 U.S. 921 (1980).            ____  ______                    Because appellant  took no  steps to have  the district                                        ____________________               4Of course, when magistrates sit as de facto district judges                                                   __ _____          by consent of  the litigants under  28 U.S.C.   636(c),  they can          enter  final, appealable judgments.   See 28  U.S.C.   636(c)(3).                                                ___          However, section 636(c) has no applicability in the instant case.                                          6          judge review the magistrate's  denial of the motion to  amend, he          is  precluded from  contesting the  merits of  that order  in the          present proceeding.   See Rittenhouse  v. Mabry,  832 F.2d  1380,                                ___ ___________     _____          1387  (5th  Cir.  1987)  (refusing  to  entertain  a  plaintiff's          challenge to a  magistrate's denial  of his motion  to amend  his          complaint because  "no appeal therefrom to the district court was          ever taken or attempted and the district court did not in any way          review or confirm th[e] order").          III.  THE PROPRIETY OF SUMMARY JUDGMENT          III.  THE PROPRIETY OF SUMMARY JUDGMENT                    We  divide  our  examination  of the  summary  judgment          entered below into two segments.  We  begin by outlining the Rule          56 standard and then proceed to the underlying Title VII claim.                          A.  The Summary Judgment Standard.                          A.  The Summary Judgment Standard.                              _____________________________                    Summary  judgment is  appropriate when  "the pleadings,          depositions, answers to interrogatories,  and admissions on file,          together  with  the affidavits,  if any,  show  that there  is no          genuine  issue as to any material  fact and that the moving party          is entitled to a judgment as  a matter of law."  Fed. R.  Civ. P.          56(c).  Where, as in this case, the defendant has invoked Rule 56          and asserted  a lack of  supporting evidence, the  plaintiff must          establish  the existence of a triable issue which is both genuine          and material to his claim.  See  Anderson v. Liberty Lobby, Inc.,                                      ___  ________    ___________________          477 U.S. 242, 247-48  (1986).  "In this context,  'genuine' means          that  the evidence about the fact is  such that a reasonable jury          could resolve the  point in  favor of the  nonmoving party  [and]          'material'  means  that the  fact is  one  that might  affect the                                          7          outcome of the  suit under the governing law."   United States v.                                                           _____________          One  Parcel  of  Real  Property, Etc.  (Great  Harbor  Neck,  New          _________________________________________________________________          Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992) (citations and          _______________          internal quotation marks omitted).                    On issues where the nonmovant bears the ultimate burden          of  proof at  trial,  he may  not  defeat  a motion  for  summary          judgment by relying upon  evidence that is "merely  colorable" or          "not significantly probative."  Anderson, 477 U.S. at 249-50.  To                                          ________          the  contrary, the  nonmovant must  "present definite,  competent          evidence to rebut the motion."  Mesnick v. General Elec. Co., 950                                          _______    _________________          F.2d 816, 822  (1st Cir.  1991), cert.  denied, 112  S. Ct.  2965                                           _____  ______          (1992).  Even when elusive concepts like motive or intent are  in          play,  "summary judgment  may  be appropriate  if the  non-moving          party  rests  merely  upon  conclusory   allegations,  improbable          inferences, and  unsupported speculation."  Medina-Munoz  v. R.J.                                                      ____________     ____          Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).          ____________________                    We afford plenary review to a district court's grant of          summary judgment.  In the course thereof, we must read the record          in  the light  most  amicable  to  the party  contesting  summary          judgment, indulging  all reasonable  inferences  in that  party's          favor.  See, e.g., Griggs-Ryan v.  Smith, 904 F.2d 112, 115  (1st                  ___  ____  ___________     _____          Cir. 1990).                               B.  The Title VII Claim.                               B.  The Title VII Claim.                                   ___________________                    Title  VII  renders  it  unlawful for  an  employer  to          "discharge  any  individual .  . .  because of  such individual's          race,  color, religion,  sex, or  national origin  . .  . ."   42                                          8          U.S.C.    2000e-2(a)(1).   To  prevail  on a  Title VII  claim, a          plaintiff must prove that the defendant discriminated against him          for  a proscribed reason.  See Cumpiano v. Banco Santander Puerto                                     ___ ________    ______________________          Rico,  902  F.2d 148,  153 (1st  Cir.  1990).   Because appellant          ____          produced  no direct  evidence of  discriminatory intent,  we must          initially analyze his  claim under the  burden-shifting framework          of  McDonnell  Douglas  Corp.  v.  Green, 411  U.S.  792,  802-05              _________________________      _____          (1973).5                      McDonnell  Douglas requires,  first, that  the claimant                    __________________          state a prima facie case.   This showing transfers the burden  of          production,  requiring  the  employer  to  articulate   (but  not          necessarily  prove)  some  legitimate,  nondiscriminatory  reason          justifying the adverse  employment action.  Cumpiano, 902 F.2d at                                                      ________          153.  Satisfying this  burden of production effectively dissolves          the  inference of  discrimination  arising  from the  plaintiff's          prima facie  case.6  See White  v. Vathally, 732 F.2d  1037, 1040                               ___ _____     ________          (1st                                         ____________________               5In  general, the  McDonnell Douglas  model operates  in the                                  _________________          same way  for  Title VII  cases as  for cases  brought under  the          federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.             621-634 (1988).   See Villanueva v.  Wellesley College, 930  F.2d                            ___ __________     _________________          124, 127 n.2 (1st Cir.) cert. denied, 112 S. Ct. 181 (1991); Loeb                                  _____ ______                         ____          v. Textron, Inc., 600 F.2d 1003, 1015 (1st Cir. 1979).  Hence, we             _____________          cite  interchangeably  to Title  VII  and ADEA  decisions  in the          succedent analysis.               6Even though the  McDonnell Douglas inference  vanishes, the                                 _________________          evidence  submitted in  support of  the prima facie  case remains          under  consideration.     See  Mesnick,  950  F.2d   at  825  n.6                                    ___  _______          (explaining  that, although the burden-shifting framework becomes          inconsequential  at this point, the district  court, faced with a          Rule 56 motion, "must still examine the evidence that the parties          adduced in proceeding under the framework").                                          9          Cir.), cert. denied, 469 U.S. 933 (1984).  Once the parties reach                 _____ ______          this  stage, therefore,  the  plaintiff, if  he  is to  defeat  a          properly documented motion for summary judgment, "must offer some          minimally  sufficient  evidence,  direct  or  indirect,  both  of          pretext and  of the employer's discriminatory  animus."  Mesnick,                                                                   _______          950 F.2d at 825; accord Villanueva v. Wellesley College, 930 F.2d                           ______ __________    _________________          124,  127-28 (1st  Cir.), cert.  denied, 112  S. Ct.  181 (1991);                                    _____  ______          Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.          _______    _________________________          1988).                       In  this  case, the  district court  apparently assumed          that appellant stated a  prima facie case7 and that  the employer          articulated a  facially valid, nondiscriminatory  reason (chronic          absenteeism and tardiness) for the dismissal.  From that starting          point,  the court ruled against  appellant on two  bases.  First,          the court  determined that appellant failed to submit evidence of          pretext.  Second,  the court found that "there is  no evidence in          the  record  .  . .  that  would  justify  even a  circumstantial          inference  that plaintiff  was dismissed  because of  his Italian          heritage."    Either  conclusion  would  have  warranted   brevis          disposition.   Having  scrutinized the  record, we  are persuaded          that both are supportable.                                        ____________________               7In employment termination cases, a  prima facie case may be          established by demonstrating that "(1) the plaintiff was within a          protected  class;  (2)  she  was qualified  for,  and  adequately          performed, her job; (3)  she was nevertheless dismissed; and  (4)          after  her  departure, the  employer  sought  someone of  roughly          equivalent  qualifications  to  perform  substantially  the  same          work."   Cumpiano,  902  F.2d at  153.   Following  the  district                   ________          court's lead,  we also  assume arguendo that  appellant stated  a                                         ________          prima facie case.                                             10                    1.   Pretext.  Appellant's effort  to establish pretext                    1.   Pretext.                         _______          takes an  unexpected twist.   The Postal Service's  stated reason          for cashiering Pagano focused on his rotten attendance record and          unremitting lack of  punctuality.  Usually, a Title VII plaintiff          seeks to show pretext  by attacking the factual premise  on which          the employer's professed reason  rests.  Here, however, appellant          concedes the truth of  the Service's factual predicate    he was,          by his own admission, often absent and frequently late   but says          that the proffered reason  was nonetheless pretextual because the          employer's  attendance policy was not applied to other, similarly          situated, non-Italian employees in the same way.                      This uncommon  claim hinges on  appellant's attempt  to          compare  his work record and  treatment with the  work record and          treatment  of  one  Patrick  Rafferty,  a  co-employee  of  Irish          descent.  In appellant's view, Rafferty committed equivalent sins          but received much milder punishment.   The court below jettisoned          this claim, finding that Rafferty's case was not a fair congener.          We agree.                      In  contending that  he  and Rafferty  were  "similarly          situated," appellant limits  his analysis to the  number of times          the two men were late during a finite period.  Yet, appellant had          a  substantially longer  and  more varied  history of  attendance          problems than did Rafferty and appellant, unlike Rafferty, failed          to mend his ways following receipt of formal warnings.  Appellant          also  racked  up many  more  violations of  the  Postal Service's          attendance policy than did Rafferty when items such as sick time,                                          11          absences without leave, and the like are taken into account.8                     In short, the record shows beyond hope of contradiction          that the  two men were  not similarly situated  vis-a-vis overall          attendance and  that Rafferty,  like Pagano, was  disciplined for          provable infractions at a level corresponding to the infractions'          severity.   In the absence of  any other evidence that the Postal          Service applied the attendance rules unevenly, the district court          did  not err  in  holding  that there  was  no  genuine issue  of          material  fact  on  the question  of  pretext.9    See Oliver  v.                                                             ___ ______          Digital Equip. Corp., 846 F.2d 103, 109 (1st Cir. 1988).          ____________________                    2.   Discriminatory Animus.   Appellant likewise failed                    2.   Discriminatory Animus.                         _____________________          to  adduce any  evidence  tending to  prove defendant's  supposed          discriminatory intent.    Appellant  produced  no  evidence  that          Hentschel, the official responsible for monitoring the attendance          policy  and initiating  disciplinary  proceedings,   harbored  an          anti-Italian animus.  Rather, he attempted to establish animus by          showing  that Walsh,  the Lynnfield  postmaster, nursed  a grudge                                        ____________________               8For example,  in the seventeen months  prior to appellant's          dismissal, he  was involved  in fifty-three  separate occurrences          that called  the attendance  rules into  question.   Rafferty was          involved in only fourteen such instances during the same period.               9Relatedly, appellant  asserts that there is  a fact dispute          about  whether the  Postal  Service  consistently recorded  every          instance  of  employee  lateness or  absence.    Even  if such  a          question  exists,  however,  it  is not  material  to  this case.          Appellant adduced  no proof  that  the Service  either failed  to          record transgressions based  upon employees'  national origin  or          placed  ersatz  infractions on  his  work  record.   Indeed,  his          evidence  suggests  that  the  Service  may  have  been  somewhat          charitable  in not  recording  all violations  of the  attendance          rules.  If this is so, appellant, as a habitual latecomer, likely          benefitted from the employer's laxity.                                            12          against persons of Italian descent.  The sum total of appellant's          evidence consists of three statements  attributed to Walsh.  When          reacting  to  news  that  he  had  become  appellant's  immediate          superior, Walsh allegedly  remarked, "Good, now we can fire you."          On  another occasion, Walsh  allegedly told  a co-worker  that he          hoped appellant would quit.  Finally, upon hearing an employee of          Italian lineagecough, Walsh reputedly said, "I hope he chokes."                      This evidence  is manifestly  insufficient to  create a          trialworthy  issue  regarding  the  existence  of  a  statutorily          proscribed  animus.   To  be  sure,  the attributed  remarks  are          concededly  coarse     but  there  is  nothing  about them  which          suggests  to  an   objectively  reasonable  observer   that  they          constituted  expressions  of  discrimination  based  on  national          origin.   Sporadic instances of  rude behavior, without  more, do          not comprise competent proof of nationality-based discrimination.          See, e.g., Mesnick, 950 F.2d at 826; Medina-Munoz, 896 F.2d at 9-          ___  ____  _______                   ____________          10;  Robinson v.  Montgomery Ward &  Co., 823 F.2d  793, 797 (4th               ________     ______________________          Cir.  1987),  cert.  denied,  484  U.S.  1042  (1988);  Clark  v.                        _____  ______                             _____          Atchison, Topeka & Santa Fe Ry. Co., 731 F.2d 698, 702 (10th Cir.          ___________________________________          1984).   We  hold,  therefore, that  this  smattering of  offhand          comments,  spread over a fourteen-year  period, fails as a matter          of law to show anti-Italian animus.10                                        ____________________               10In view of this ruling, we need not reach, and, thus, take          no  view anent,  the  district court's  alternative holding  that          Walsh's  comments, even  if probative  of ethnic  hostility, were          inconsequential absent evidence  that he had some input  into, or          impact upon, Hentschel's decision  to end appellant's employment.                                          13          IV.  CONCLUSION            IV.  CONCLUSION                    We  need go no further.  We are without jurisdiction to          consider appellant's belated challenge to the magistrate's denial          of his motion to file an amended complaint.  And,  given the lack          of a triable issue of fact regarding either pretext or animus, we          conclude,  without  serious   question,  that  the   lower  court          appropriately entered judgment in defendant's favor.  See Oliver,                                                                ___ ______          846 F.2d  at 109 (holding  that summary  judgment is proper  in a          Title  VII case  where plaintiff's  opposition, at  bottom, rests          solely upon "unsupported allegations and speculation").            Affirmed.          Affirmed.          _________                                        ____________________          See, e.g.,  Medina-Munoz, 896 F.2d at 10  ("The biases of one who          ___  ____   ____________          neither makes  nor influences the  challenged personnel  decision          are not probative in an employment discrimination case.").                                          14
