
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 95-2266                                      KOFI DODI,                                Plaintiff - Appellant,                                          v.                                THE PUTNAM COMPANIES,                                Defendant - Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                           Cyr and Boudin, Circuit Judges.                                           ______________                                _____________________               Kevin  G. Powers, with whom Robert S. Mantell and Law Office               ________________            _________________     __________          of Kevin G. Powers were on brief for appellant.          __________________               Ilene Robinson,  with whom Louis A.  Rodriques, Katherine J.               ______________             ___________________  ____________          Ross and Sullivan & Worcester LLP were on brief for appellee.          ____     ________________________                                 ____________________                                   August 28, 1996                                 ____________________                    Per  Curiam.   Appellant-defendant  Kofi  Dodi ("Dodi")                    Per  Curiam.          appeals   the  district  court's   decision  granting  defendant-          appellant The Putnam Companies ("Putnam") summary judgment.  Dodi          had  filed suit under Title VII of  the Civil Rights Act of 1964,          42 U.S.C.    2000e-3(a),  and Mass.  Gen.  L. ch.  151B  alleging          discrimination on  account of his race and national origin and/or          retaliation for filing a charge with the Massachusetts Commission          Against  Discrimination ("MCAD").   The two issues  before us are          whether the court below abused  its discretion in striking Dodi's          two  affidavits  and  portions   of  his  Opposition  to  Summary          Judgment; and whether it erred  in granting the summary judgment.          For the reasons stated herein, we affirm.                                      BACKGROUND                                      BACKGROUND                    We recite the following  facts, drawn from the district          court  Memorandum and Order, in  the light most  favorable to the          nonmovant.  Equal Employment Opportunity Comm'n v. Green, 76 F.3d                      ___________________________________    _____          19, 21 (1st Cir. 1996).  Dodi is  a United States citizen who was          born in Ghana and is black.  He began working for Putnam in 1984,          and by 1987 was part of the Tax and Compliance unit.  In December          1989  or January 1990, the  department was reorganized.   A white          female, Michelle Whalen ("Whalen"),  was appointed Manager of the          Tax and Compliance unit, a position Dodi desired, and which title          he  maintains was his  prior to  the reorganization  and Whalen's          appointment.  Dodi  complained to several individuals,  including          Robert Lucey, President  of Putnam Investor  Services.  After  he          complained, Dodi was made the IRS Technical Manager:  he contends                                         -2-          that  his appointment  was  an effective  demotion, while  Putnam          labels it a lateral move.                      In May  1990, Dodi filed  a charge  with MCAD  alleging          that he was demoted  and denied promotion on account  of his race          and national  origin.  After he  filed the charge, his  rating in          his  performance  reviews  declined  --  his  rating  dropped  to          "unsatisfactory" -- and the reviews suggested increased hostility          between  Dodi and  his supervisors.   Dodi  contends that  he was          excluded from  meetings and isolated from  the department because          of the complaint.  Putnam fired  Dodi in March 1991, roughly  ten          months after the filing of the MCAD complaint.  He filed a second          complaint  in June 1991, alleging that  he was terminated because          of his race and national origin, or in retaliation for filing the          1990 complaint, or both.                      MCAD dismissed the two complaints in December 1992, for          lack  of probable  cause, a  decision it  affirmed in  January of          1993.  Dodi filed a civil action in Massachusetts Superior Court,          which  Putnam removed to the Federal District Court.  The parties          made  discovery requests  and took depositions.   Putnam  filed a          motion  for summary judgment, which Dodi opposed.  In  June 1995,          Putnam  moved to strike portions of  Dodi's Opposition to Summary          Judgment (the "Opposition").   Dodi's opposition to the motion to          strike  contained  an  affidavit  (the  "first  affidavit")  with          attachments.    At a  hearing in  July  1995, the  district court          granted Putnam's motion to  strike portions of Dodi's Opposition,          and struck the first affidavit on its own initiative.  It granted                                         -3-          Dodi's request for permission  to submit supplemental information          in support of the stricken statements in the Opposition.  In late          July  Dodi  filed  a  supplemental submission  in  opposition  to          Putnam's  motion  to  strike,  including  another affidavit  (the          "second affidavit").    In August,  Putnam  moved to  strike  the          second affidavit, and in October 1995, the district court granted          Putnam's motion for summary judgment and its motion to strike the          second affidavit.  This appeal ensued.                                 STRICKEN SUBMISSIONS                                 STRICKEN SUBMISSIONS                    We begin  with Dodi's argument that  the district court          erred in  striking the  affidavits and  his Opposition  since, if          they were admissible, they would form part of the record on which          the summary judgment  would be  evaluated.  See  Fed. R. Civ.  P.                                                      ___          56(c).  We  review the  district court's decision  to strike  for          abuse of  discretion.  See  Green, 76 F.3d  at 23 ("The  district                                 ___  _____          court has broad authority  to prescribe the evidentiary materials          it  will consider in  deciding a motion  for summary judgment.");          see also Ramsdell v. Brooks, 64  F.3d 5, 8 (1st Cir. 1995), cert.          ________ ________    ______                                 _____          denied sub nom. Ramsdell v. Machias Savings Bank, __ U.S. __, 116          _______________ ________    ____________________          S.  Ct. 913  (1996); New  England Anti-Vivisection  Soc. v.  U.S.                               ___________________________________     ____          Surgical Corp., 889 F.2d 1198, 1204 (1st Cir. 1989).            ______________                    Under the Federal Rules  of Civil Procedure, affidavits          "shall be made  on personal  knowledge, set forth  such facts  as          would  be admissible  in evidence,  and shall  show affirmatively          that  the affiant is competent  to testify to  the matters stated          therein."  Fed. R. Civ. P. 56(e).  Accordingly, if the affidavits                                         -4-          and Opposition Dodi  submitted did not  meet these criteria,  the          district court can hardly have  abused its discretion in striking          them.  Cf.  Posadas de Puerto Rico, Inc. v.  Radin, 856 F.2d 399,                 ___  ____________________________     _____          401 (1st Cir. 1988) (affirming that affidavit which does not meet          the Rule 56 specificity  requirement is insufficient to establish          a genuine  issue for trial);  FDIC v. Rold n  Fonseca,   795 F.2d                                        ____    _______________          1102, 1110 (1st Cir. 1986) (holding that where receipts submitted          to   support   opposition   to   summary   judgment   constituted          inadmissible hearsay, party failed to comply with Rule 56(e)).                      Having briefly  set out our standard of  review and the          relevant legal  framework, we turn  to the particulars  of Dodi's          argument.   As the parties have  addressed the stricken documents          according to subject, we follow suit.1                    Imitation of Dodi's Accent:   The district court struck                    __________________________          Dodi's statement  in his Opposition that  William McGue, Putnam's          Managing Director, and Robert Frazer, a  white manager, "made fun          of  Dodi's accent, and imitated him at meetings and during casual          conversations."    Dodi seeks  to rely  on  a paragraph  from his          second affidavit  in support of  his assertion.   We do  not find          that the district court abused  its discretion in striking either                                        ____________________          1  In the course of his argument, Dodi several times invites this          court  to review his affidavits  as a whole  to determine whether          they  should have  been struck  and whether  there is  admissible          evidence included in them.  He does not, however, attempt to cull          out  the admissible  portions or  cite any  authority.   We find,          therefore,  that  except   for  the   portions  he   specifically          discusses,  he has waived his  argument that the  affidavits as a          whole are  admissible, as arguments made  perfunctorily on appeal          with no developed  argument or  support are deemed  waived.   See                                                                        ___          United  States v.  Zannino,  895 F.2d  1,  17 (1st  Cir.),  cert.          ______________     _______                                  _____          denied, 494 U.S. 1082 (1990).            ______                                         -5-          the  statement from the Opposition or the paragraph in the second          affidavit.   The statements in  the paragraph are  conclusory and          lack specificity.  Moreover, even if it were error to exclude the          evidence, it  would  be  harmless, for  the  imitation  does  not          support Dodi's claim of retaliation, and as discussed below, that          is the only cause of action remaining on appeal.                    Merit  Raises:     The  district  court  struck  Dodi's                    _____________          statement in  the Opposition  that he "received  raises based  on          merit,"  on the basis that there  was nothing in the record as to          what "merit"  meant, or  how and on  what basis such  raises were          given.   Dodi  claims that  statements from  the stricken  second          affidavit provide such verified information.  He also points to a          computer   printout  entitled  "Salary,  Increase  &  Performance          History  Screen" which the district  court struck as  part of the          first affidavit, as well  as a memorandum sent to  him from James          Swinney, a Senior Vice President, dated January 2, 1990.  We find          that  the district court did not abuse its discretion in striking          these documents.                    Dodi claims that all three meet the requirements to  be          a  business   record  exception  to   the  hearsay  rule.     The          requirements for the exception are clear:  a "memorandum, report,          record or data compilation, in any form" is admissible so long as          it is                      made  at or  near  the time  by, or  from                      information transmitted by, a person with                      knowledge, if  kept  in the  course of  a                      regularly  conducted  business  activity,                      and  if it  was  the regular  practice of                      that  business  activity   to  make   the                                         -6-                      memorandum,   report,  record,   or  data                      compilation,   all   as   shown  by   the                      testimony  of  the  custodian   or  other                      qualified witness . . . .          Fed.  R. Evid.  803(6); see,  e.g.,  E.E.O.C. v.  Alton Packaging                                  ___   ____   ________     _______________          Corp., 901 F.2d 920, 926 (11th Cir. 1990).  Dodi has not provided          _____          the required  foundation for these three documents.   First, Dodi          misunderstands  the application  of  the rule,  which applies  to          memoranda,  reports, and  record  or data  compilation, not  oral          statements, in claiming  that it covers  oral statements made  to          him  and mentioned in the  second affidavit.   Second, as for the          computer printout, Dodi's statement that in his experience, "such          documents are  routinely generated  by Defendant in  the ordinary          course  of  its  business" falls  far  short  of  laying out  the          foundation Rule 803(6) requires.  That it was provided to Dodi in          discovery  does not save it.  Third,  Dodi has also failed to lay          out  the foundation for the memorandum from Swinney:  although he          says he received it  in the normal course of business  on January          2, 1990, and that it was generated and maintained in the ordinary          course of business, we agree with Putnam that there is no support          for these claims.                    Dodi faces similar  foundational issues with his  claim          that  the documents are also admissible as party admissions under          Fed. R. Evid. 801(d)(2)(D).  He has, to put it briefly, failed to          show that the statements he cites to were made by Putnam's "agent          or servant concerning a matter within  the scope of the agency or          employment, made during the existence of the relationship."  Fed.          R. Evid. 801(d)(2)(D).   Mere  assertion that they  were so  made                                         -7-          does not suffice.                    Even if  some of these statements  had been admissible,          however, the  court still would  not have  abused its  discretion          since, as Dodi notes  in his brief, the court  based its decision          in part on the fact that there  was no basis in the record as  to          what  "merit"  meant.    In  the  cited  portion  of  his  second          affidavit, Dodi  notes that instructors from  the human resources          training  department told him that "the Putnam policy was to give          merit  raises  as  a   reward  for  satisfactory  performance  by          employees."   This statement is clearly not  admissible under the          business record exception,  as he  claims, since it  was an  oral          statement.  Fed. R. Evid. 803(6) (applicable to  "[a] memorandum,          report,  record,  or  data compilation").    Nor  is  it a  party          admission,   since  he   has  not   addressed   the  foundational          requirements laid out in the rule itself.                     EEO-1 Report:  Next Dodi argues that the district court                    ____________          erred  in striking  a  1993  EEO-1  report  of  Putnam,  and  the          corresponding  portion of  the first  affidavit, which  he claims          evidences that  he reasonably believed  that race  discrimination          existed.  In his support he notes that the report was provided in          discovery, that Putnam is required by law to produce such reports          (Dodi  does not  specify what  law), and  that it  is a  true and          accurate copy of  the document Putnam provided Dodi.   We fail to          see  how  the fact  that a  document  was presented  in discovery          suffices  to authenticate  the document  or lay  the foundational          requirements of Rule 803(6)  or Rule 801(d)(2)(D).  At  any rate,                                         -8-          even if the  district court  erred, it would  have been  harmless          error,  since, as Dodi notes, this evidence goes to his prejudice          claim, not his  retaliation cause  of action, which  is his  sole          remaining cause of action.                    Swinney  Memorandum:   Dodi  submitted a  memorandum he                    ___________________          wrote to  Swinney, dated December  26, 1989, to show  that he had          complained  about  his treatment,  in  connection  with his  race          discrimination claim.   The district court  struck the memorandum          on hearsay  grounds; we agree  that the necessary  foundation was          missing.  Dodi's  citation of the fact that Putnam is required to          generate  and maintain a personnel file on its employees does not          substitute  for   the  witness   testimony  required  to   lay  a          foundation.  Fed. R. Evid. 803(6).  However, Dodi also notes that          the memorandum  is being used, in part, not to prove the truth of          the matters  asserted, but to demonstrate that Dodi complained of          the subjectivity  of his performance evaluations,  in the context          of  opposition to perceived race  discrimination.  But  this is a          distinction without a difference, since  there is no dispute that          Dodi protested against perceived  racism at Putnam.  Nonetheless,          because  Swinney  was involved  in  Dodi's  termination and  thus          Dodi's retaliation  claim, we  shall consider the  memorandum for          this  limited purpose in our review of the district court's grant          of summary judgment.                    $10,000 Pay Disparity:  Dodi next contests the district                    _____________________          court's decision to strike  a series of statements  which alleged          that for  several years Dodi was paid a salary well below that of                                         -9-          white  individuals, until  he complained.   The court  struck the          statements as  conclusory.  Having reviewed  the cited deposition          pages  and statements from the second affidavit, we find no abuse          of discretion in the  ruling.  Indeed, we agree  with Putnam that          Dodi's deposition does not support the premise  that he perceived          it  as  a  race-based  discrepancy  in  wages,  but  rather  that          allegation  seems  to arise  only  after the  motion  for summary          judgment has appeared on the horizon.   See Colantuoni  v. Alfred                                                  ___ __________     ______          Calcagni &  Sons, Inc., 44 F.3d  1, 45 (1st Cir.  1994) ("When an          ______________________          interested  witness  has  given  clear   answers  to  unambiguous          questions,  he  cannot  create  a  conflict  and  resist  summary          judgment  with an  affidavit that  is clearly  contradictory, but          does not give a satisfactory explanation of why the testimony has          changed.").    Further,  any  error  would  be harmless,  as  the          evidence  of a pay disparity  does not tend  to prove retaliatory          action, but rather  goes to  the discrimination  claim waived  on          appeal.                      Qualifications  of Michelle Whalen:   Dodi contests the                    __________________________________          district  court's  decision  to  strike  portions  of  statements          alleging that  although Whalen was  given a higher  position than          Dodi, she  was less  qualified for the  position than Dodi.   The          cited deposition pages offer no evidence other than it was Dodi's          belief that  Whalen was less qualified,  and inadmissible hearsay          that  she was management's choice.   Dodi now  points to excerpts          from Whalen's personnel file and the  job description, which have          not been stricken, to support his position; Putnam in turn points                                         -10-          out  that the  promotion was based  on managerial  abilities, not          just  narrow technical expertise, and that Dodi fell far short of          Whalen  in the former  category, even if he  surpassed her in the          latter.                      We  need  not  address  this debate,  for  even  if the          district court  erred in striking  the statements, the  error was          harmless.  First, the evidence of whether Whalen was more or less          qualified  than Dodi goes to the waived discrimination claim, and          not  to the retaliation claim discussed below.  Second, we remind          Dodi of our  repeated holding that "[c]ourts may not sit as super          personnel  departments,  assessing  the  merits --  or  even  the          rationality   --   of   employers'   nondiscriminatory   business          decisions."  Mesnick v. General Elec. Co., 950 F.2d 816, 835 (1st                       _______    _________________          Cir.  1991), cert. denied, 504 U.S. 985 (1992); see also Hoeppner                       ____________                       ________ ________          v. Crotched Mountain Rehabilitation Ctr., 31 F.3d 9, 17 (1st Cir.             _____________________________________          1994).                    Bresnahan Memorandum:  Dodi seeks to admit a memorandum                    ____________________          sent  from Leslee Bresnahan to Ray Lambert.  However, once again,          the fact that Putnam  provided the document to Dodi  in discovery          does  not establish its authenticity, and the fact that Putnam is          required  to generate  and maintain  a personnel  file, providing          employees   a  copy  of  it  on  demand,  does  not  fulfill  the          foundational  requirements of  either Rule  801(d)(2)(D) or  Rule          803(6), as simply set out in those rules.  The district court did          not abuse its discretion in striking the memorandum.                    Pattern of  Isolation:  In his  Opposition, Dodi claims                    _____________________                                         -11-          that after he complained about the reorganization, Jeff Levering,          to  whom  Dodi was  supposed  to  report, "altered  his  behavior          towards Dodi, . . .  no longer said positive things about  Dodi's          job  performance, and . . . avoided  talking with Dodi."  He also          alleges  that he was ostracized,  kept out of  meetings, and that          his co-workers "ceased interacting" with him.  The district court          struck the opinions as opinion and characterizations.  Our review          of the  cited  pages  from  Dodi's  depositions  and  the  second          affidavit yields no grounds to find the district court abused its          discretion  in striking  the  statements.    Dodi does  not  give          specific  incidents, place them in  time, or give  a yardstick by          which  to measure either the  timeliness of his  reviews or their          content  -- indeed,  while he  repeatedly discusses  the supposed          content of  Levering's weekly  status reports, he  never actually          refers to one.                    Failure to Provide Staff:  Dodi challenges the district                    ________________________          court's decision to strike from the Opposition the statement that          Putnam "failed  to give Dodi  the permanent staff  he requested."          We find no abuse of discretion here, as Dodi cited no support for          the statement in his Opposition.  See Garside v. Osco Drug, Inc.,                                            ___ _______    _______________          895 F.2d  46, 49 (1st Cir.  1990).  Indeed, we  agree with Putnam          that, even if  admitted as within Dodi's personal knowledge, Fed.          R. Civ.  P. 56(e), at best this statement can show only that Dodi          did not  get all the resources  he requested:  Dodi  points to no          evidence  regarding Putnam's treatment  of analogous request made          by  non-minority employees, or  employees who had  not filed MCAD                                         -12-          complaints,  besides his  own assertion  that "other  departments          under McGue" were fully staffed.                    Other stricken statements:  The district court properly                    _________________________          struck  the  statement that  McGue  "failed to  provide  Dodi the          supplies and  materials necessary" to become  more visible within          the  organization, as  instructed.   The  cited deposition  pages          offer no admissible support for the  proposition, and the passage          he  cites  from the  second  affidavit  constitutes argument  and          hearsay.   Again,  however, we  note that  even if  admitted, the          statement would at most have shown that Dodi did not  get all the          supplies he requested, since he does not point to evidence of the          treatment  of other,  non-minority or  non-complaining employees.          Merely pointing  out that other departments  received printers or          the like tells us very little.                      Finally,  Dodi   objects  to   the  striking   of  four          statements to the  effect that  after he made  his complaint  his          work was reviewed in  a less timely manner, he  stopped receiving          positive  feedback or necessary  information, and other employees          received  instructions to  keep  tabs  on  his actions  and  note          everything he  did.  After review of  the cited passages from his          deposition and  the second affidavit,  we find that  the district          court did not abuse its discretion in striking the passages.                                   SUMMARY JUDGMENT                                   SUMMARY JUDGMENT                    Dodi references his cause of action for termination due          to race or national origin in his statement  of issues, but makes          no more than the most  cursory reference to it in his  brief, and                                         -13-          makes  no attempt at a developed argument that the district court          erred in granting summary judgment on the claim.  Accordingly, we          deem  it waived, Zannino,  895 F.2d at 17,  and only consider his                           _______          argument  that  the  district  court erred  in  granting  summary          judgment on his claim  that he was retaliated against  because of          his opposition to discrimination.                    "We  review a grant of summary judgment de novo and are          guided by  the same criteria  as the  district court; a  grant of          summary  judgment  cannot  stand  on appeal  'unless  the  record          discloses no trialworthy  issue of material  fact and the  moving          party is  entitled to judgment as  a matter of law.'"   Green, 76                                                                  _____          F.3d at  23, quoting Alexis  v. McDonald's Restaurants  of Mass.,                       _______ ______     _________________________________          Inc., 67 F.3d 341, 346 (1st Cir. 1995).  We note that "our review          ____          will be most searching in cases, such as this, that turn upon the          issue of motivation or intent."  Rossy v. Roche Prods., Inc., 880                                           _____    __________________          F.2d 621, 624 (1st Cir. 1989).                    We  apply  the McDonnell  Douglas  framework  to Dodi's                                   __________________          retaliation claim.   See  McDonnell Douglas  Corp. v.  Green, 411                               ___  ________________________     _____          U.S. 792 (1973); Oliver v. Digital Equip. Corp., 846 F.2d 103, 10                           ______    ____________________          (1st Cir.  1988).  First, Dodi must  establish a prima facie case                                                           ___________          by showing that:                      (1)  [he] engaged in a protected activity                      as an employee, (2) [he] was subsequently                      discharged from employment, and (3) there                      was  a  causal  connection   between  the                      protected activity and the discharge.          Hoeppner,  31 F.3d at 14.  Under Massachusetts law, the framework          ________          is slightly different.  To succeed,                                          -14-                      the   plaintiff   must  prove   that  she                      reasonably  and  in  good faith  believed                      that  [Putnam]  was  engaged in  wrongful                      discrimination,    that    [he]     acted                      reasonably in response  to [his]  belief,                      and that [Putnam's]  desire to  retaliate                      against [him] was a  determinative factor                      in  its  decision   to  terminate   [his]                      employment.          Tate v. Department of Mental Health, 645 N.E.2d 1159, 1165 (Mass.          ____    ___________________________          1995).                      Next,  the  burden shifts  to  Putnam  to articulate  a          legitimate, nondiscriminatory  reason for  the discharge.   If it          does so, "in order  to escape summary judgment under  federal and          [Massachusetts]  law, [Dodi] must  at least  introduce sufficient                                             ________          evidence to permit the factfinder to infer that [Putnam's] stated          reason for the termination was pretextual."2  Grant v. News Group                                                        _____    __________          Boston, Inc., 55 F.3d 1,  7 (1995); see, e.g., Hoeppner, 31  F.3d          ____________                        ___  ____  ________          at 14;  LeBlanc v. Great  American Ins. Co.,  6 F.3d 836,  842-43                  _______    ________________________          (1st  Cir. 1993),  cert.  denied, __  U.S. __,  114  S. Ct.  1398                             _____________          (1994);  Blare v. Husky Injection Molding Sys., Boston, Inc., 646                   _____    __________________________________________          N.E.2d 111, 117 (Mass. 1995).                    The district  court found  that Dodi had  not satisfied          the  third element of the prima facie case.  Assuming nonetheless          that  Dodi  could establish  a prima  facie  case, it  found that                                        ____________________          2   Dodi argues that  proof of  pretext is  not always  required.          However,  his reliance on  Patterson v. McLean  Credit Union, 491                                     _________    ____________________          U.S. 164, 187  (1989), for that  proposition is misplaced,  since          the cited passage notes  that a petitioner can present  a variety          of types of  evidence to establish pretext, not that  it need not          be established.  Our case law offers no doubt that in retaliation          claims,  the McDonnell  Douglas  analysis requires  a showing  of                       __________________          pretext.  See, e.g., Grant, 55 F.3d at 7; Greenberg v. Union Camp                    ___ _____  _____                _________    __________          Corp., 48 F.3d 22, 29 (1st Cir. 1995).          _____                                         -15-          Putnam easily cleared the hurdle of articulating a reason for the          dismissal -- that Dodi's work was viewed as sub-standard and that          he received poor performance reviews, suggesting missed deadlines          and  poor communication between Dodi  and his supervisors and his          staff.  Thus the court  moved to the third step of  the analysis,          where  it found that Dodi  could not show  that Putnam's asserted          reason was pretextual.                    We  also doubt that Dodi  can make a  prima facie case.          However,  even assuming  that  Dodi could  meet  the prima  facie          requirement,  and  acknowledging that  Putnam  has  articulated a          reason for the dismissal, we find that Dodi cannot meet the third          requirement of the McDonnell Douglas analysis.  Put  simply, even                             _________________          given  the benefit  of  all inferences,  he  has not  shown  that          Putnam's asserted  reason  was false,  much  less that  its  real          motivation was retaliation.   Like the district court before  us,          we have found no evidence on this record which supports a finding          that  his evaluations were inaccurate, or which reveals that Dodi          was treated differently than his non-minority  or non-complaining          counterparts.  See  Wynne v.  Tufts Univ. Sch.  of Medicine,  976                         ___  _____     _____________________________          F.2d  791, 796 (1st  Cir. 1992) ("When  pretext is at  issue in a          discrimination case, it is a plaintiff's duty to produce specific          facts which,  reasonably viewed,  tend logically to  undercut the          defendant's position."), cert. denied, 507 U.S. 1030 (1993).                                   ____________                    Dodi  makes much  of  the fact  that  McGue learned  of          Dodi's MCAD complaint on the day he decided to terminate Dodi, at          a  meeting in  which McGue  and Swinney --  who testified  at his                                         -16-          deposition  that he was very  angry about the  claim -- discussed          Dodi's termination.   We do not doubt that the timing of when the          relevant decision  maker learned that  a complaint was  filed and          when the dismissal occurred  can be demonstrative of retaliation.          See  Oliver,  846  F.2d  at  110.   Indeed,  the  timing  of  the          ___  ______          discussion here weighs in favor of Dodi having made a prima facie          case.   See Wyatt  v. City of  Boston, 35  F.3d 13, 16  (1st Cir.                  ___ _____     _______________          1994) (finding  that timing of employer's  knowledge of protected          activity  and  dismissal helps  establish  a  prima facie  case);          Rowlett v.  Anheuser-Busch, Inc.,  832  F.2d 194,  202 (1st  Cir.          _______     ____________________          1987) (same).                    However, "[t]he filing of an MCAD complaint is not some          magic   shield  that  insulates  the  employee  from  termination          regardless of the circumstances."   District Court Memorandum and          Order, at 15.  Dodi himself  notes that the reference to his MCAD          claim was  made "in  passing."   We  fail to  see  how a  passing          reference can suffice  to show that Putnam's asserted  reason for          firing  Dodi was a pretext,3 especially as Dodi points to nothing          else  of real  substance  in  his  support:    the  "history"  of          retaliation   he  argues   existed,  as   well  as   the  alleged          inconsistencies in who claimed authority to fire him, and why, do                                        ____________________          3   Dodi's reliance on College-Town, Division of Interco, Inc. v.                                 _______________________________________          Massachusetts  Comm'n  Against  Discrimination,  508  N.E.2d  587          ______________________________________________          (Mass.  1987),  is  misplaced.    There,  the  reference  to  the          complaint was dramatically greater  than here:  the employee  was          told "'Loretta,  it has come to  my attention that you  are suing          College-Town.  It's  been done  before.  Here  is your  vacation,          your severance pay  or whatever, and good luck.   May I have your          badge?'"  Id. at  590.  The circumstances here in  no way rise to                    ___          the level of these facts.                                         -17-          little, if anything, to further his cause.  "In this circuit,  we          have always  required not only 'minimally  sufficient evidence of          pretext,' but evidence that overall reasonably supports a finding          of  [retaliation]," and Dodi has  not met that  mark.  LeBlanc, 6                                                                 _______          F.3d  at 842-43 (quoting Goldman  v. First Nat'l  Bank of Boston,                           _______ _______     ___________________________          985 F.2d 1113, 1117 (1st Cir. 1993)).                                      CONCLUSION                                      CONCLUSION                    For the foregoing reasons, the decision of the district          court granting Putnam summary judgment is affirmed.                                                    affirmed                                                    ________                                         -18-
