

                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  &amp; 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 &amp;  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

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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                              

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