
USCA1 Opinion

	




          January 24, 1995                                [Not for Publication]                                [Not for Publication]                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 94-1677                                 ROBERTA J. RANDALL,                                Plaintiff, Appellant,                                          v.                     SCOTT PAPER COMPANY AND S.D. WARREN COMPANY,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Robert S.  Hark with  whom Isaacson &  Raymond, P.A. was  on brief            _______________            _________________________        for appellant.            B. Simeon  Goldstein with  whom Pierce,  Atwood, Scribner,  Allen,            ____________________            __________________________________        Smith & Lancaster was on brief for appellees.        _________________                                 ____________________                                 ____________________                      Per Curiam.  Plaintiff Roberta Randall asserts that                      Per Curiam.                      ___ ______            the   district  court   erroneously  ruled   that  statements            contained in two affidavits were inadmissible hearsay and, as            a  consequence  of that  ruling,  improperly granted  summary            judgment for  defendants Scott  Paper Co. and  its subsidiary            S.D. Warren  Co.1 on Randall's retaliation  claim under Title            VII of  the  Civil Rights  Act  of 1964,  42  U.S.C.    2000-            e(3)(a).   Because we conclude that even if the statements in            question  were admissible  there  would still  be no  genuine            issue of material fact, we affirm.                      From   1980   to  1991,   Randall   worked  as   an            environmental technician at Scott's mill in Westbrook, Maine.            After she was laid off, either due to a mill-wide downsizing,            as Scott claimed, or due to gender discrimination, as Randall            claimed,  Randall  filed a  complaint  with  the Maine  Human            Rights  Commission  (MHRC)  and  with  the  Equal  Employment            Opportunity Commission (EEOC) in September 1991.   Meanwhile,            Randall obtained  other employment,  working  first for  Betz            Industrial from  February 1991 until December  1991, when she            was  fired for  performance reasons,  and then  for Northeast                                            ____________________            1.  Because it  is  not always  clear from  the record  which            facilities or  actions relevant to this  litigation are owned            by  or  attributable  to  which defendant,  and  because  the            parties treat  any such distinctions as  unimportant, we will            henceforth  refer  to either  or  both  defendants simply  as            "Scott," even if actual ownership of a particular facility or            responsibility for a particular  action in reality rests with            S.D. Warren or with both defendants.                                         -2-                                          2            Test  Consultants  (NTC)  beginning  in August  1992.    Both            companies provide environmental testing services to  Scott as            well as to other companies.  Randall's work for Betz included            considerable time  spent at Scott's mill  in Hinckley, Maine.            Although 15% of  NTC's business derived from  Scott, NTC sent            Randall  to perform work at  Scott facilities on  only one or            two occasions.  After both the MHRC and the EEOC declined  to            take action against Scott, Randall filed a sex discrimination            lawsuit  against  Scott and  S.D. Warren  in  June 1993.   In            January 1994, one  day after  she was  deposed in  connection            with  her lawsuit, NTC laid  Randall off and  has not rehired            her.                      Randall's  allegation  relevant to  this  appeal is            that  Scott  retaliated  against  her for  pursuing  her  sex            discrimination  claim,  thus  violating  42  U.S.C.     2000-            e(3)(a),2  by  ordering NTC  to  keep  her  away  from  Scott                                            ____________________            2.  Section 2000-e(3)(a) provides in pertinent part:                                It  shall  be an  unlawful                           employment   practice  for   an                           employer     to    discriminate                           against any of his employees or                           applicants for employment . . .                           because  he   has  opposed  any                           practice   made   an   unlawful                           employment  practice   by  this                           subchapter,  or because  he has                           made   a   charge,   testified,                           assisted,  or  participated  in                           any manner in an investigation,                           proceeding,  or  hearing  under                           this subchapter.                                         -3-                                          3            facilities and, ultimately, to  dismiss her.3  The defendants            moved for summary judgment, asserting, inter alia, that there                                                   _____ ____            is  no genuine  issue of  material fact  because there  is no            evidence linking Scott to  NTC's decision to dismiss Randall.            In  response to  the defendants'  motion, Randall  points to:            (1)  the   temporal  proximity  of  her   dismissal  and  her            deposition  testimony;  (2)  the  importance of  Scott  as  a            customer to  NTC, accounting  for approximately 15%  of NTC's            business;  (3) the fact that she was sent to Scott facilities            only  once or twice during  her sixteen months  at NTC; (4) a            contract between  NTC and Scott (the  "Service Agreement") in            which Scott  retains the  right to  reject any  NTC employees            sent to  perform work at Scott facilities;  (5) her favorable            performance evaluation  at NTC  relative to  another laid-off            employee  who  was subsequently  rehired; and  (6) statements            allegedly   made  by  Randall's   supervisor  at  NTC,  James            Guzelian, which Randall claims strongly support the inference            that Scott was behind her dismissal.                      We  review a  grant  of summary  judgment de  novo,                                                                __  ____            drawing all reasonable inferences  in favor of the nonmovant.                                            ____________________            3.  Thus, Randall essentially claims that Scott "blacklisted"            her  with NTC's  cooperation.   Scott does  not argue  that a            blacklisting  claim  against   a  former   employer  is   not            actionable  under  42  U.S.C.      2000e-3(a).    See,  e.g.,                                                              ___   ____            Rutherford v. American Bank of Commerce, 565 F.2d 1162, 1163-            __________    _________________________            65 (10th Cir. 1977)  (holding that former employer's negative            reference because of Title VII lawsuit constituted actionable            retaliation under   2000e-3(a)).                                         -4-                                          4            LeBlanc v.  Great Am. Ins.  Co., 6  F.3d 836,  841 (1st  Cir.            _______     ___________________            1993), cert.  denied,  114  S.  Ct.  1398  (1994).    Summary                   _____  ______            judgment   is  appropriate   only   when  the   moving  party            demonstrates  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).  When            the  nonmovant  bears  the  burden of  persuasion  at  trial,            however, she can avoid summary  judgment against her only  if            she makes  a showing sufficient to establish the existence of            each  essential  element  to  her  case.   Celotex  Corp.  v.                                                       ______________            Catrett, 477 U.S. 317, 322-23 (1986).  Thus, to get to trial,            _______            the  burden-bearing nonmovant  must  adduce enough  competent            evidence to  enable a reasonable jury to find for her on each            element essential to her claim.  See LeBlanc, 6 F.3d at 842.                                             ___ _______                      The  alleged Guzelian  statements are  contained in            two  affidavits:  Randall's and that of Ann Peoples, a former            Scott  employee.  Randall states in her affidavit:  (1) About            a  month after she started working for NTC, Guzelian told her            that he had  heard about  her complaint  against Scott,  that            "someone" in  Scott's purchasing department had  mentioned it            to him but had told him that it should not be a problem.  (2)            When Randall asked Guzelian when she  was going to be sent to            do  work at S.D. Warren  facilities, "[h]e told  me that Rick            LaCouture  (another NTC  employee)  had heard  that I  wasn't            welcome at  S.D. Warren, so he was  going to . .  . see if he                                         -5-                                          5            could find  out anything about  what Rick had said."   (3) On            another  occasion, Guzelian  told Randall  that "he  had been            told"  by  a  safety  supervisor at  a  Scott  facility  that            "someone  had  noticed"  Randall's  name  and  that  "someone            thought that it  was o.k." for her  to work at  certain Scott            facilities  but  not  at  others  located  too  near  to  the            Westbrook facility  where Randall had once  worked.  Guzelian            also asked Randall during  this conversation if she "wouldn't            . . . be better off just dropping" her lawsuit against Scott.                      In her affidavit, Peoples claims that in the course            of a conversation with  Guzelian concerning her own prospects            for  employment at NTC, Guzelian told her that Randall "had a            problem" with  Scott "because `we really can't  send her over            there' or words to that effect."                      The  district  court  ruled  all   of  the  alleged            Guzelian  statements4  inadmissible  hearsay.    Randall  now            appeals, arguing that NTC was an agent of Scott, at least for            the   limited  purpose   of   retaliating  against   Randall.            Guzelian's  statements  are  therefore   admissible,  Randall            argues, under Fed. R. Evid. 801(d)(2)(D), which provides that            "a statement  by the  party's agent  or servant  concerning a                                            ____________________            4.  In his  deposition, Guzelian denies that  anyone at Scott            or S.D.  Warren ever exerted pressure to prevent Randall from            working  at its  facilities or  to force  NTC to  dismiss her            entirely.    NTC  president  Steven  Broadhead  made  similar            denials  in his deposition.  In fact, Broadhead stated in his            deposition that Scott  had never invoked its right  under the                                       _____            Service Agreement to reject any NTC employees.                                         -6-                                          6            matter within the scope  of the agency or employment"  is not            hearsay.  Proof of this principal-agent relationship, Randall            asserts, is contained in a clause in the contract between NTC            and  Scott that  grants Scott veto  power over  employees NTC            wishes  to  send to  Scott  facilities,  and in  the  alleged            Guzelian statements themselves.                      We  need  not  resolve   the  question  of  whether            Randall's agency  argument  propels the  Guzelian  statements            over the  apparent hearsay and double-hearsay  hurdles.  Even            if  the  Guzelian   statements  were  admissible,   Randall's            proffered  assemblage of evidence would not get her to trial.            A  rational factfinder  simply  could not  conclude from  the            summary  judgment  record  that  Randall  had  satisfied  her            ultimate burden of proving  that Scott retaliated against her            because  of  her  lawsuit.5    Randall's  proffered  evidence            implicates Scott only by virtue of an inferential giant step.            While Randall  perhaps has mustered  some evidence suggesting                                            ____________________            5.  We assume arguendo that Randall satisfied her prima facie                          ________            burden.  See Petitti v. New England Tel. & Tel. Co., 909 F.2d                     ___ _______    ___________________________            28,  33  (1st Cir.  1990).   Scott  has "adopted"  NTC's non-            discriminatory   justifications   for  the   alleged  adverse            employment  actions -- that is,  the need to  send Randall to            non-Scott facilities  for training and the  unavailability of            work resulting  in her ultimate  layoff.  Once  the defendant            has  met  his  burden   of  production,  the  presumption  of            retaliation  raised  by  the  plaintiff's  prima  facie  case            dissolves, and  we simply look to the entire summary judgment            record to assess  whether the plaintiff has  met her ultimate            burden of proving that the defendant's  proffered reason is a            pretext  for retaliation.  See Mesnick  v. General Elec. Co.,                                       ___ _______     _________________            950 F.2d 816, 823  (1st Cir. 1991), cert. denied,  112 S. Ct.                                                _____ ______            2965 (1992).                                         -7-                                          7            that NTC took action against her because she persisted in her            lawsuit against Scott, an important NTC customer, she has not            offered sufficient  evidence to enable  a rational factfinder            to conclude that Scott  instructed NTC to keep her  away from            its facilities or to lay her off because of her lawsuit.                      Rather than  implicating Scott, the  first Guzelian            statement  contained  in Randall's  deposition  actually cuts            against  her argument, since  it suggests  that Scott  had no            _______            problem with her work for NTC.  The second and third Guzelian            statements  in  Randall's   affidavit  might  indicate   that            "someone"  at Scott thought  that Randall should  not work at            certain Scott facilities for  unspecified reasons, but  there            is  no   indication,  or  even  an   allegation,  that  these                                                 __________            statements came from anyone with the authority to bind Scott.            See Smith v. Stratus Computer, Inc., 40 F.3d 11, 18 (1st Cir.            ___ _____    ______________________            1994)  (holding that plaintiff's  failure to  adduce evidence            that maker of statement made or influenced personnel decision            rendered  comment  irrelevant   to  issue  of  discriminatory            animus).     The  inferential   leap  from  these   anonymous            statements to  the conclusion that someone  with authority at            Scott must have  ordered NTC  to keep her  away from  certain            Scott  facilities  and ultimately  fire  her --  or  that the            motivation   behind   these   "orders"   was   Randall's  sex            discrimination lawsuit -- is far too great for any reasonable            factfinder to undertake.  The Guzelian statement contained in                                         -8-                                          8            Peoples'  affidavit  provides  Randall's  complaint  with  no            additional  sustenance; it, too, fails to link Scott to NTC's            decision to  lay her off,  suggesting only that  Guzelian was                                                             ________            uncomfortable sending Randall to Scott facilities.                      Nor do any of the other factors that Randall points            to  --  e.g., Scott's  importance to  NTC  as a  customer and            Scott's veto power under the Service Agreement -- bolster her            case sufficiently to get her to trial.  None of these factors            could possibly  support  a reasonable  inference  that  Scott            retaliated against Randall and caused the adverse  employment            actions she suffered  at NTC.   Thus, Randall  has failed  to            adduce sufficient evidence  to meet her burden  at trial, and            the defendants are therefore entitled to judgment as a matter            of law.                      Affirmed.  Costs to Appellees.                      Affirmed.  Costs to Appellees.                      ________   __________________                                         -9-                                          9
