
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2294                                  RACHEL L. FENNELL,                                Plaintiff, Appellant,                                          v.                     FIRST STEP DESIGNS, LTD, D/B/A HAND-IN-HAND,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. D. Brock Hornby, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                           Campbell, Senior Circuit Judge,                                     ____________________                              and Stahl, Circuit Judge.                                         _____________                                 ____________________            Roy T.  Pierce with  whom Alfred C.  Frawley and Brann  & Isaacson            ______________            __________________     _________________        were on brief for appellant.            Peter  Bennett  with whom  Frederick B.  Finberg  and Bennett  and            ______________             _____________________      ____________        Associates, P.A. were on brief for appellee.        ________________                                 ____________________                                     May 15, 1996                                 ____________________                      STAHL, Circuit  Judge.  Rachel L.  Fennell sued her                      STAHL, Circuit  Judge.                             ______________            former employer,  First  Step Designs,  Ltd. ("First  Step"),            under Title VII and related state laws, claiming that she was            terminated  in retaliation  for making allegations  of sexual            harassment.     First  Step   moved  for  summary   judgment,            presenting evidence that the decision to lay off  Fennell had            been made prior to her complaint.  The district court granted            summary  judgment  for First  Step,  after  denying Fennell's            motion  for further  discovery under  Fed. R. Civ.  P. 56(f).            Fennell had hoped that  further discovery would uncover proof            in  First Step's  computer files  that  a memo  about planned            layoffs, dated  prior to her  report of harassment,  had been            fabricated.  Fennell appeals both rulings.  We affirm.                                          I.                                          I.                                          __                                      Background                                      Background                                      __________            A.  Factual Background: Fennell's Retaliation Claim            ___________________________________________________                      First   Step,   a   designer,   manufacturer,   and            distributor  of  play  equipment  for  children,  operates  a            warehouse  and customer  service  center  in  Oxford,  Maine.            Fennell worked as a Warehouse Lead, a supervisory position in            which she directed the  warehouse staff in fulfilling orders.            Although  Fennell was  a supervisor  and shared  office space            with the Warehouse Manager, she spent most of her time on the            warehouse  floor   working  alongside  the   other  warehouse            workers.    Her immediate  supervisor  was  Wayne Smith,  the                                         -2-                                          2            Warehouse Manager.   Kathleen Tucker, General  Manager of the            warehouse, was Smith's supervisor.                      1.     Fennell's  Report  of   Harassment  and  Her                      ___________________________________________________            Subsequent Layoff            _________________                      Two First  Step employees had complained to Fennell            about  on-the-job sexual  remarks by  Smith, and  Fennell had            heard from other employees  about a sexually offensive remark            Smith  had made while performing  as a country  musician at a            company-sponsored  benefit  dance.    On  November 19,  1993,            Fennell  met  with Tucker  and recounted  what she  had heard            about Smith's inappropriate  remarks.  According  to Fennell,            Tucker was  hostile.  Smith's immediate  predecessor had been            fired  in May of 1993  for sexual harassment,  and Tucker was            incredulous  to  hear  that  First Step  might  have  another            harasser as Warehouse Manager.                      On December  20, 1993,  Fennell was laid  off,1 and            she believes her layoff was in retaliation for her complaints            to  Tucker.  Fennell also  alleges that, after  her report to            Tucker, she  was given inferior work  (regular packing duties            rather than  supervisory duties).  First  Step maintains that            Fennell's layoff was planned  before she complained to Tucker            about Smith, and  that her complaint was not a  factor in its            decision to lay her off.                                            ____________________            1.  Fennell asserts that she was terminated, while First Step            maintains  she was only laid off.  We address this dispute in            Part II.B.3, our discussion of the grant of summary judgment.                                         -3-                                          3                      2.  The October 25 Memo                      _______________________                      A memorandum dated October 25, 1993, from Tucker to            Eric  Schultz,  First  Step's  Boston-based  Chief  Operating            Officer, indicated  that Fennell  was scheduled for  a layoff            the  week  before Christmas.2    The  memo, titled  "SUBJECT:            ANTICIPATED  LAYOFFS/STAFFING,"  listed twenty-eight  persons            and  their continuing  positions  in the  warehouse; it  also            listed Fennell and four  others under the subtitle "SCHEDULED            LAYOFFS WEEK OF CHRISTMAS."   According to the affidavits  of            Tucker and Schultz, the memorandum was a response to pressure            from  Schultz to  reduce  operating costs  at the  warehouse.            Tucker and  Schultz both state  in their affidavits  that the            memorandum  was faxed  to  Schultz  on  October 25,  and  the            document bears a hand stamp indicating that it was faxed that            day.   Brigitte Marston,  a customer service  supervisor also            reporting to Tucker, states  in her affidavit that she  saw a            "layoff  list" with  Fennell's  name on  it before  Fennell's            November 19 meeting with  Tucker. (Marston also attended that            meeting, at Fennell's request.)  On November 5, 1993, Marston            sent  an  internal  electronic  mail  message  ("E-mail")  to            another employee, in  which she referred to  the layoff list.            Marston implied in the E-mail that  she had seen the list and            knew who was on it.                                            ____________________            2.  Copies  of the  memorandum  have been  made  part of  the            summary  judgment record  as  exhibits to  the affidavits  of            Tucker and Schultz.                                         -4-                                          4                      Fennell contends that the memorandum was fabricated            after the November  19 meeting.  To support  this contention,            _____            she  points to five facts that, she argues, are suggestive of            fabrication: (1) one of the employees that Tucker listed  for            an ongoing position in the  October 25 memorandum had already            left the  company  late  that  summer, before  the  memo  was            created; (2) Tucker  stated that she had sent other memoranda            regarding  earlier layoffs  to Schultz,  but neither  she nor            Schultz kept copies  of them  (only the October  25 memo  was            retained); (3) Tucker commented to Fennell earlier in October            1995 that  she was doing a  good job, that her  services were            needed,  and that she would not be required to cross-train as            a telemarketer;  (4) First Step employees  had inconsistently            described  the  job  action  taken with  respect  to  Fennell            (sometimes  as a layoff, other times as an elimination of her            position)  as well as the precise reasons for the action; and            (5)  certain other  employees  listed in  the memorandum  for            layoff  were ultimately not laid off.  For ease of reference,            we shall refer to these as "the five suspicious facts."            B.  Prior Proceedings            _____________________                      On January  23, 1995,  Fennell filed  a three-count            complaint in federal district  court alleging that First Step            fired her in retaliation for her report of sexual harassment,            in violation of Title VII of the Civil Rights Act of 1964, 42            U.S.C.    2000e-3(a), the  Maine Human  Rights Act, Me.  Rev.                                         -5-                                          5            Stat.   Ann.   tit.   5,      4572(1)(E),   and   the   Maine            Whistleblower's Protection Act, Me.  Rev. Stat. Ann. tit. 26,               833(1)(A).    On  August  4,  1995,  after  the  close  of            discovery, First Step moved for summary judgment on all three            counts, arguing primarily that  Fennell's layoff was  planned            before she  lodged her sexual harassment  complaint, and thus            was not retaliatory.   First Step asserted that there  was no            genuine  issue  as  to  the  fact  that the  layoff  decision            predated Fennell's complaint, because the October 25 memo and            the corroborating testimony of  three First Step managers was            essentially  uncontroverted.   On  August  25, 1995,  Fennell            opposed the motion, arguing that there was a genuine issue of            material  fact as to whether the October 25 memo was actually            written before  she complained to  Tucker or whether  it was,            instead,  fabricated  to  exonerate   First  Step.    In  her            opposition  to summary judgment, Fennell requested additional            time  for discovery under Fed. R. Civ. P. 56(f) to determine,            based on the computer word processing file, when the memo was            written.     On  August 28,  1995,  First Step  responded  by            providing a diskette containing a copy of the word processing            file of  the October 25  memo.  On  September 9, 1995,  First            Step submitted a  reply brief and  an objection to  Fennell's            request for  more discovery  time, supported by  an affidavit            averring that there was no way to determine from its computer            system when the document was first created.                                         -6-                                          6                      The district court determined that, in light of the            October 25 memo, Fennell had not shown evidence sufficient to            allow  a reasonable  jury  to find  that  her layoff  was  in            retaliation for her  complaints about sexual  harassment, and            it granted  "conditional" summary judgment in  favor of First            Step.   The condition was that Fennell would have, under Rule            56(f),  "seven  (7) days  in  which  to  file  any  affidavit            revealing competent testimony,  based on the magnetic  medium            [i.e. the diskette containing the word processing file], that            the memorandum was created  or modified (as opposed  to being            simply called up) on or after November 19, 1993."3                      Pursuant  to the  district  court's order  allowing            limited further discovery, Fennell submitted the affidavit of            her computer expert stating that the computer word processing            file containing  the October 25  memo on a  magnetic diskette            revealed  that the  document  was "autodated"4  on August  7,                                            ____________________            3.  There is  no  dispute that  the October  25, 1993,  memo,            listing  Fennell among those to  be laid off,  existed in May            1994,  when it was  submitted by  First Step  as part  of the            Maine Human Rights Commission fact finding process.  Thus, if            the  document  was  fabricated  as   Fennell  maintains,  the            fabrication occurred  sometime after  November 19, 1993,  and            before May 1994.              4.  Fennell's  expert  actually  stated  that  the  memo  was            "modified"  on August 7, 1995.   However, the  expert did not            suggest  that there were any  textual changes to  the memo on                                          _______            that date.   Rather,  the expert  referred  to the  automatic            modification of the date assigned to the document file by the            word processing  program  after certain  commands  have  been            entered.    For example,  the expert  stated,  "if a  file is            'called-up' to an application  such as Wordperfect, and saved            to a different location (whether changed or not), the date of                                         -7-                                          7            1995.  Fennell's  expert proposed that  the original date  of            creation  or  date  of  any  earlier  modification  could  be            determined by  a review of  the file  as it resided  on First            Step's  hard drive,  rather than the  diskette that  had been            provided by First Step.       The   district  court   held  a            hearing on  Fennell's request  for discovery of  First Step's            hard  drive  and  then  directed  the  parties  to  submit  a            "protocol"  under which  Fennell would  have access  to First            Step's  hard drive.   If  no joint  protocol could  be agreed            upon,  differences   were  to  be   resolved  by  conference.            Subsequently, the parties  submitted substantially  different            protocols.                      After  reviewing the protocols, and without holding            another  conference,  the  district court  decided  that  its            earlier decision to consider  further discovery had been ill-            advised.   Accordingly,  the  court denied  any further  Rule            56(f)  discovery, and  granted  First Step  summary judgment.            This appeal ensued.                                         II.                                         II.                                         ___                                      Discussion                                      Discussion                                      __________                                            ____________________            saving is shown as the modification date."  In an attempt  to            achieve some  clarity, we shall refer to such a change to the            date  of  a computer  file not  as  a "modification,"  but as            "autodating."   We consider "modification," as  that term was            used  by the district court, to mean  a change in the text of            the document that  would appear  on a paper  printout of  the            document, as opposed to  changes to the date assigned  to the            computer file containing the document text.                                          -8-                                          8                      Fennell  appeals  the  district  court's  grant  of            summary  judgment  in favor  of First  Step,  as well  as its            denial  of  her request  for  additional  discovery of  First            Step's  computer  files  in  the  hope  that  she  might find            evidence that  the October 25  memo was fabricated  after the            fact.  Because summary judgment would have been inappropriate            if  Fennell  had presented  evidence  that  the  memo  was  a            perjurious fabrication, we  will address the discovery  issue            first.            A.  Denial of Rule 56(f) Discovery            __________________________________                      We review a district  court's ruling on a discovery            request  under Fed. R. Civ. P. 56(f) for abuse of discretion.            Price  v. General Motors Corp.,  931 F.2d 162,  164 (1st Cir.            _____     ____________________            1991).  Federal Rule of Civil Procedure 56(f) provides:                      Should it appear from the affidavits of a                      party  opposing  the  [summary  judgment]                      motion  that the party cannot for reasons                      stated   present   by   affidavit   facts                      essential   to    justify   the   party's                      opposition,  the  court  may  refuse  the                      application for  judgment or may  order a                      continuance  to  permit affidavits  to be                      obtained  or depositions  to be  taken or                      discovery to  be  had or  may  make  such                      other order as is just.            To  receive the benefit of  Rule 56(f), the  "movant must (1)            articulate a plausible basis for the belief that discoverable            materials exist  which would  raise a trialworthy  issue, and            (2) 'demonstrate good cause for failure to have conducted the            discovery  earlier.'"    Price,  931  F.2d  at  164  (quoting                                     _____                                         -9-                                          9            Paterson-Leitch  Co.  v. Massachusetts  Mun.  Wholesale Elec.            ____________________     ____________________________________            Co.,  840 F.2d  985,  988 (1st  Cir.  1988)).   Although  the            ___            district court did not use these precise words, it denied any            further  Rule 56(f) discovery essentially because Fennell did            not  articulate  a  plausible   basis  for  the  belief  that            discoverable  materials existed  which  would  have raised  a            trialworthy issue.   For  purposes of  our analysis, we  will            assume, but  need  not decide,  that  Fennell met  the  "good            cause" element.                      Fennell argues that the district court should  have            allowed  Rule  56(f) discovery  of  First  Step's hard  drive            because her expert  established that the October  25 memo was            "autodated"  on   August  7,  1995.     Fennell  argues  that            regardless  of  whether  the autodating  was  intentional  or            inadvertent,  it obscured  the  date of  the document's  last            prior modification  or, if  there was no  prior modification,            the  date  of  its   creation,  thus  rendering  those  dates            uncertain.  Fennell maintains that First Step must "live with            that uncertainty," by which she means that there is a genuine            dispute  as  to  the date  on  which  the  memo was  written.            Fennell emphasizes that First  Step's summary judgment motion            is  based in  large  part  on the  memo,  as  proof that  the            business decision to  lay off Fennell predated  her report of            sexual  harassment.    Fennell   also  points  to  the  "five            suspicious facts" noted earlier as support for her contention                                         -10-                                          10            that there is a  plausible basis for her belief  that further            discovery will  yield evidence that the  memo was fabricated.            We begin our analysis with  a review of the discovery-related            proceedings below.                      We  note at the outset that First Step did not file            its  motion for  summary  judgment until  after the  close of            discovery pursuant  to the  district court's  pretrial order.            Fennell's  original  discovery  request  did not  make  clear            whether it called for a diskette  copy of the memo or a paper            "original."   In  any event,  there is  no indication  and no            allegation that First Step withheld the diskette from Fennell            in bad faith.                      Despite  the  district  court's determination  that            Fennell's opposition to summary judgment had not demonstrated            any genuine  dispute as to  First Step's contention  that its            decision to lay off Fennell preceded her complaint, the court            granted  a seven-day extension  to allow  Fennell to  file an            affidavit  providing some  computer-based  evidence that  the            memo  was fabricated and antedated.  By this time, a diskette            containing the memo's computer  file was already in Fennell's            hands,  thus  the  proposed  extension did  not  involve  any            intrusion or impose costs upon First Step.                      In compliance with the discovery extension, Fennell            submitted the affidavit of  her computer expert, which stated            that analysis of the  diskette containing the word processing                                         -11-                                          11            file  of the October 25  memo revealed that  the document was            "autodated" on August 7, 1995.  The district court determined            that the computer expert's affidavit  did not reveal that the            memorandum  was "created  or  modified (as  opposed to  being            simply called up) on or after  November 19, 1993."  In  other            words, the affidavit was not probative of any fabrication.                      Fennell's expert proposed that the original date of            creation  or  date  of  last textual  modification  could  be            determined  by  review of  the file  as  it resided  on First            Step's  hard drive.  On the other hand, a First Step employee            had  stated, in  an affidavit  previously  filed in  reply to            Fennell's opposition to summary  judgment, that First  Step's            computer  consultant determined  that  its  system could  not            reveal  the date on which  the document was  first created or            last textually modified.                      The district court held a conference  after Fennell            filed  her computer  expert's  affidavit.   After considering            Fennell's  proposal that  access to  First Step's  hard drive            might  reveal  the date  of creation  or modification  of the            October 25 memo,  the district court directed the  parties to            submit  a "protocol"  establishing  the  procedures by  which            Fennell  would have  access  to relevant  materials on  First            Step's  hard  drive.    The  district  court  cautioned  that            discovery would be allowed only if the protocol  ensured that            hard  drive access would have  a "minimal degree of intrusion                                         -12-                                          12            time-wise   and   interference-wise"   with    First   Step's            operations,  and  if  it  provided  "adequate  assurances  of            confidentiality."                      Fennell  provided a protocol requiring a specialist            to  "mirror" First  Step's entire  hard drive,  and take  the            mirror  copy to its facility in  Canada for complete analysis            and  ultimate erasure.5    First Step  objected to  Fennell's            protocol and provided its own protocol.6                      After  reviewing the  two protocols  and apparently            recognizing  that   the  parties  were   unlikely  to   reach            consensus,  the  district court  concluded  that its  earlier                                            ____________________            5.  Fennell's  protocol  proposed, in  sum: (1)  a conference            call between the parties  and their computer  representatives            to discuss the computer  system configuration; (2) an on-site            visit at  First Step's warehouse where  counsel would observe            Fennell's computer  representative create a  "mirror" of  the            target hard drive;  (3) an  off-site analysis  of the  mirror            hard drive by a specialty laboratory, whereby the technicians            would attempt to determine  the creation date or modification            date of the relevant files; (4) the erasure or destruction of            the  mirror hard  drive, certified  by affidavit;  and (5)  a            protective order stipulating, in sum, that all information on            the  mirror   hard  drive  not  relating   to  the  creation,            modification,   or  erasure,   of  the   relevant  files   is            confidential.            6.  First Step  objected to Fennell's protocol because, inter                                                                    _____            alia,  it: (1)  failed  to describe the  methodology by which            ____            the technicians  would attempt  to determine the  creation or            modification dates (First Step noted that its computer system            contains  many  hard  drives,  and  expressed  concerns  over            business   risks   resulting  from   accidental   data  loss,            incompatible  hardware,  and system  downtime);  (2)  did not            adequately address attorney-client privilege and work product            concerns as to  other documents  on the hard  drive; and  (3)            allowed  unsupervised possession  of the  mirror drive.   The            district  court described  the  detailed protocol  that First            Step proposed as "extremely cumbersome and expensive."                                         -13-                                          13            decision  to  permit  additional  discovery  had  been  "ill-            advised" because  it  would involve  "a 'fishing  expedition'            without   any   particularized   likelihood  of   discovering            appropriate information,"  while, "[a]t  the  same time,  the            process involves substantial risks and costs."  To inform our            judgment whether the denial of further discovery was an abuse            of  the district  court's  discretion, we  first address  the            district court's  conclusion that the "risks  and costs" were            substantial,  and  then  its  conclusion  that  the  proposed            discovery was a "fishing expedition."                      1.  Risks and Costs                      ___________________                      A  party seeking  discovery under  Rule  56(f) must            "articulate   a  plausible   basis   for   the  belief   that            discoverable materials exist which  would raise a trialworthy            ____________            issue."    Price,  931 F.2d  at  164  (emphasis  added).   In                       _____            determining  whether  material is  "discoverable,"  the court            should  consider  not  only  whether  the  material  actually            exists, but  the burdens  and expenses entailed  in obtaining            the  material.   See Fed.  R. Civ.  P. 26(b)(2).7   Discovery                             ___                                            ____________________            7.  Fed. R. Civ. P. 26(b)(2) provides:                                   The  frequency or  extent  of use  of the                      discovery  methods   otherwise  permitted                      under these rules .  . . shall be limited                      by the court if it determines that: . . .                      (iii)  the  burden  or  expense   of  the                      proposed  discovery outweighs  its likely                      benefit, taking into account the needs of                      the case, the amount in  controversy, the                      parties' resources, the importance of the                                         -14-                                          14            matters  are  for the  informed  discretion  of the  district            court,  and the breadth  of that discretion  in managing pre-            trial  mechanics  and discovery  is  very  great.   Fusco  v.                                                                _____            General Motors  Corp., 11 F.3d 259, 267  (1st Cir. 1993).  In            _____________________            exercising this broad discretion,  the district court in this            case  balanced  the  costs,  burdens,  and  delays  that  the            proposed  discovery entailed,  as well  as the  likelihood of            discovering  evidence  of  fabrication,  against  the obvious            importance of the evidence  sought.  See Resolution Trust  v.                                                 ___ ________________            North  Bridge  Assoc., 22  F.3d  1198, 1203  (1st  Cir. 1994)            _____________________            (party  seeking  Rule 56(f)  discovery  "should  set forth  a            plausible   basis  for   believing   that  specified   facts,            susceptible  of collection  within a  reasonable time  frame,            ____________________________________________________________            probably exist")(emphasis added).                      The district court recognized First Step's concerns            over   Fennell's insufficiently  detailed description  of the            proposed  analysis  of  the  hard  drive,8  as  well  as  the            confidentiality  of information  on the  hard drive  that was            proprietary or  subject to attorney-client privilege or work-                                            ____________________                      issues  at stake  in the  litigation, and                      the importance of the  proposed discovery                      in resolving the issues.            8.  First Step argued that  Fennell's failure to disclose the            specific technical steps to  be taken in the analysis  of the            mirrored  drive rendered  her  protocol nothing  more than  a            proposal for a  fishing expedition.   First Step also  argued            that the unknown mirroring process and analysis of its system            might temporarily or permanently affect their computer system            and business operations.                                         -15-                                          15            product privilege.   The district court  also recognized that            resolving  the discovery dispute,  and the  discovery process            itself, would increase legal and  expert fees.  The protocols            alerted  the district  court to genuine  problems surrounding            the  proposed  discovery of  First  Step's  hard drive.    In            exercising  its  discretion,  the district  court  reasonably            concluded   that  the   discovery   process   would   involve            substantial risks and costs.  See id.                                          ___ ___                      2.  A Fishing Expedition?                      _________________________                      The  district court  determined  not only  that the            risks and  costs of  further discovery were  substantial, but            also  that  Fennell  had not  demonstrated  "a particularized            likelihood  of  discovering  appropriate  information."    We            agree.   In our view, Fennell did not sufficiently "set forth            a  plausible  basis  for  believing   that  specified  facts,            susceptible of  collection  within a  reasonable time  frame,            probably exist."  Id. (party seeking discovery must show that                              ___            it will not be an "exercise in futility").                       As  to "susceptibility of collection," all Fennell            was  able to  say was  that "there  may be  a way."   Fennell            submitted  the affidavit  of her  expert, proposing  that the            original date of creation or date of any earlier modification            of the October 25 memo could be determined by a review of the            memo  file as it resided  on First Step's  hard drive, rather            than  on  the diskette  originally  provided  by First  Step.                                         -16-                                          16            First Step  submitted a reply to  Fennell's expert affidavit,            which   argued  that   Fennell's  expert's   statements  were            conclusory,   without   foundation,   and    that   Fennell's            speculation  and  conjecture   did  not  warrant   additional            discovery.  The  district court  then held a  hearing on  the            discovery issue, at which the following was stated:                           [The Court:]  It's  my understanding                      that based  upon telephone communications                      as  recently as today,  that [Fennell] is                      informed  by  the  [computer experts  who                      were to analyze  the mirrored hard drive]                      that they cannot reach a  conclusion from                      the  disk that  has  been  provided,  but                      instead, that the only way they can reach                      any  kind of  conclusion is by  access to                      the   hard   drive   on  [First   Step's]                      premises.  That at this time, they cannot                      guarantee that  there  they can  reach  a                      conclusive  result,  but that  it's their                      position  there may  be a  way.   Is that                      essentially correct?                             [Counsel   for  Fennell:]     That's                      correct, Your Honor.            The lack of detail in Fennell's protocol cast even more doubt            on  the soundness  of the technical  basis for  the discovery            venture.  The district court had good reason to be skeptical,            based  on  Fennell's  inadequate  showing  that the  proposed            analysis could determine the memo's creation date.                      As  to  whether "specified  facts  .  . .  probably            exist," Fennell presented precious little that suggested that            fabrication had occurred.   The "autodating" that occurred on            August  7, 1995, could  not have indicated  that the document            was fabricated on  that day,  as it had  been submitted  more                                         -17-                                          17            than  a  year  earlier   in  the  state  proceedings.     The            "autodating"  could  indicate  an  intentional  conspiracy to            cover  up  the  document's  fabrication  by  obliterating the            actual creation date, but that is mere speculation.                        The  "five  suspicious facts,"  enumerated earlier,            are equally speculative.  We fail to see how the inclusion of            an employee who  had already left the company  on the list of            employees  to  be  retained  makes fabrication  more  likely.            Fennell argues that the  mistake indicates that the memo  was            prepared  at a later point  in time, when  Tucker's memory of            who was employed  would have  faded.  That  inference is,  at            best, extremely attenuated.                      The  fact that  the  October 25  memo was  retained            while  other  similar memos  are  no  longer extant  is  also            virtually non-probative.  It would be natural for an employer            to take care to retain a memo pertaining to an employee, soon            to be laid off, who had lodged a sexual harassment complaint.            Moreover, Fennell  filed a  state human rights  charge within            ninety days of her complaint, thus the desirability of saving            any documents relating to her termination became obvious soon            after the memo was  written.  Nothing in the  record suggests            any similar reasons for saving the earlier memos.                      The fact  that  Tucker had  made positive  comments            about Fennell's performance and job security and First Step's            future  shortly before she was  placed on the  layoff list is                                         -18-                                          18            not necessarily probative of fabrication, either.  First Step            does not assert that Fennell was let go for poor performance,            but rather that her termination  was part of a reorganization            dictated  by financial concerns unrelated to her performance.            The need for her services until the end of the Christmas rush            could have been one reason Tucker spoke as she did.                      Fennell   claims   that    First   Step    managers            inconsistently described  the nature  of and the  reasons for            the job action, but our review of all the statements shows no            sinister inconsistency.   It  appears that the  term "layoff"            was used  loosely, and  was not necessarily  indicative of  a            temporary, rather than a permanent,  action.  And the various            statements  about  why  she  was  let  go,  while  worded  in            different ways, all relate to First Step's business objective            of  improving  the  economic  efficiency   of  its  warehouse            operation.  We see nothing out-of-the-ordinary  or suspicious            about the statements.                        Finally,  the fact  that some employees  slated for            layoff in the  memo were  ultimately not laid  off might  say            something  about the finality of the layoff list as a general            matter, but we fail  to see how it suggests  fabrication.  It            is  true that  only two  of the  five individuals  slated for            Christmas week  layoffs were actually laid  off as scheduled,            but  the  record  indicates  non-suspicious  reasons  for the            changes in First Step's plans.  Two of the three who survived                                         -19-                                          19            the  axe  stayed  on   in  telemarketing  because  two  other            telemarketers requested layoffs.   The other employee was out            with  an  injury   collecting  worker's  compensation  during            Christmas week; at  the urging of  First Step's insurer,  she            was called  back to  light duty after  the New Year  and then            laid  off  shortly  thereafter.     And,  even  ignoring  the            apparently legitimate reasons why  some of the slated layoffs            did  not occur, the changes in First Step's staffing plans do            not suggest  fabrication.  Why would a fabricated layoff list            be more likely to  name employees eventually retained  than a            real  layoff list?  Wouldn't a fabricated list, written after            the  fact, have  the benefit  of hindsight  and thus  be more                                                                     ____            accurate?  We see little  probative value in this, or  any of            the other "five suspicious facts."                      3.  Conclusion:  No Abuse of Discretion                      _______________________________________                      Even  if  we were  inclined  to  disagree with  the            district court's assessment of Fennell's arguments, which  we            are not,  we reverse a district court's discovery ruling only            for  abuse of  discretion.   While there  may be  cases where            discovery of word  processing files on a computer  hard drive            might  well be warranted, Fennell  has not met  her burden of            demonstrating that the  district court abused its  discretion            in denying that  opportunity here.   Thus, we  hold that  the            district  court acted  within  its discretion  in disallowing            further   Rule  56(f)   discovery,  given   its  conclusions,                                         -20-                                          20            supported by the record, that (1)  the discovery would entail            substantial  risks  and  costs,  and  (2)  there  was  little            particularized  basis   to  believe  that   any  evidence  of            fabrication could be discovered by Fennell's experts.                                         -21-                                          21            B.  Grant of Summary Judgment for the Defendant First Step            __________________________________________________________                      1. Standard of Review                      _____________________                      We review a grant of  summary judgment de novo, and                                                             __ ____            like the district court, we are obliged to view the  facts in            the light most favorable to the non-moving party, drawing all            reasonable  inferences in  that  party's favor.   Mesnick  v.                                                              _______            General Elec. Co., 950  F.2d 816, 822 (1st Cir.  1991), cert.            _________________                                       _____            denied, 504 U.S. 985 (1992).  Summary judgment is appropriate            ______            when "the pleadings, depositions, answers to interrogatories,            and admissions on file, together with the affidavits, if any,            show that there  is no genuine issue as to  any material fact            and that the moving party is entitled to judgment as a matter            of law."   Fed. R. Civ.  P. 56(c).  "[T]he  mere existence of            some  alleged factual  dispute between  the parties  will not            ____            defeat  an  otherwise properly  supported motion  for summary            judgment;  the requirement is that  there be no genuine issue                                                            _______            of material fact."  Anderson v. Liberty Lobby, Inc., 477 U.S.               ________         ________    ___________________            242,  247-48  (1986).   "Moreover,  summary  judgment may  be            appropriate `[e]ven  in cases where elusive  concepts such as            motive or  intent are at issue, . . . if the non-moving party            rests   merely   upon   conclusory  allegations,   improbable            inferences, and unsupported speculation.'"  Woods v. Friction                                                        _____    ________            Materials, Inc.,  30 F.3d 255,  259 (1st Cir.  1994) (quoting            _______________            Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st            ____________    _________________________            Cir.  1990)).  Finally, Fed.  R. Civ. P.  56(c) "mandates the                                         -22-                                          22            entry of summary judgment, . . . upon motion, against a party            who fails  to  make a  showing  sufficient to  establish  the            existence of an  element essential to that  party's case, and            on which that party will bear the burden of proof  at trial."            Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).            _____________    _______            2.  Retaliatory Discharge: The Legal Framework            ______________________________________________                      Although   Fennell   has  framed   her  retaliatory            discharge claims  in  one federal  count  and two  state  law            counts,   the  parties   agree   that  the   well-established            analytical  framework used  in  Title VII  retaliation claims            applies to the state law counts  as well.  Thus, for purposes            of this appeal, we treat all three counts as  subsumed in the            Title VII count.                      Where,  as in  this case  and in  retaliation cases            generally,  there is  no direct  evidence of  the defendant's            retaliatory  animus,  the  McDonnell Douglas  burden-shifting                                       _________________            framework  is  used  to  allocate and  order  the  burdens of            producing evidence.  See Mesnick, 950 F.2d at 827 (explaining                                 ___ _______            the interplay between the burden-shifting framework set forth            in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and               _______________________   ______            the standards  for summary judgment).   To establish  a prima            facie case of  retaliation, Fennell must  show that: (1)  she            engaged  in  protected  conduct  under Title  VII  (or  here,            Maine's Human Rights Act or Whistleblower's Protection  Act);            (2)  she suffered  an adverse  employment action;  and  (3) a                                         -23-                                          23            causal connection existed  between the protected conduct  and            the adverse action.  See, e.g., Hoeppner v. Crotched Mountain                                 ___  ____  ________    _________________            Rehabilitation Ctr., 31 F.3d 9, 14 (1st Cir. 1994).            ___________________                      Once  a  prima facie  showing  has  been made,  the            burden shifts  to the  defendant to articulate  a legitimate,            non-retaliatory  reason for  its employment  decision.   See,                                                                     ___            e.g., Mesnick, 950  F.2d at 827.9  If  the defendant does so,            ____  _______            the ultimate burden falls  on the plaintiff to show  that the            proffered legitimate reason is in fact a pretext and that the            job  action was  the  result of  the defendant's  retaliatory            animus. See St.  Mary's Honor  Ctr. v. Hicks,  509 U.S.  502,                    ___ _______________________    _____            510-11  (1993); Mesnick,  950  F.2d at  827-28.   On  summary                            _______            judgment, the  need to  order  the presentation  of proof  is            largely obviated, and a court  may often dispense with strict            attention to the  burden-shifting framework, focusing instead            on whether the  evidence as a whole is sufficient to make out            a jury question as to pretext and discriminatory animus.  Id.                                                                      ___            at 827.            3.  Application to Fennell's Case            _________________________________                                            ____________________            9.  Mesnick  dealt with  a claim  of retaliation  for conduct                _______            protected  by  the  Age   Discrimination  in  Employment  Act            ("ADEA"). 29 U.S.C.    621-634.  The analytical framework for            ADEA discrimination and retaliation cases was patterned after            the framework  for Title  VII cases,  and our  precedents are            largely interchangeable.  See, e.g., Hazel v. U.S. Postmaster                                      ___  ____  _____    _______________            General, 7  F.3d 1, 3-4  (1st Cir. 1993)  (applying McDonnell            _______                                             _________            Douglas  framework  and  a  unified  retaliation  analysis to            _______            claims under both the ADEA and Title VII).                                         -24-                                          24                      Although First Step  refutes that Fennell has  even            made  out a  prima facie  case  of retaliation,  the district            court apparently assumed that she did.  The plaintiff's prima            facie burden is  not onerous, and  we find that she  met that            burden  by   demonstrating,  among  other  things,  that  her            termination occurred shortly after her protected conduct, the            report of harassment.   See Oliver  v. Digital Equip.  Corp.,                                    ___ ______     _____________________            846 F.2d  103,  110 (1st  Cir.  1988) (discharge  soon  after            protected conduct is strongly suggestive of retaliation).                      Fennell  cannot seriously  dispute that  First Step            met  its burden of articulating a legitimate, non-retaliatory                               ____________            reason for her discharge:  that economic and business reasons            led  First Step  to  decide  to lay  her  off, and  that  the            decision was made prior to her complaint.  Thus, we arrive at            the dispositive question: whether Fennell has, on the summary            judgment record, established genuine  issues of fact that (1)            First Step's  business  reasons were  a pretext  and (2)  her            discharge  was  in  retaliation  for her  reports  of  sexual            harassment.                      The district court granted summary judgment because            it held that Fennell had not  shown a genuine issue as to the            fact that First Step decided to discharge her before she made            the  report  of  sexual  harassment.   The  linchpin  of  the            district  court's holding  was the  October 25  memo, listing            Fennell among those to be laid off.  Fennell asserts that the                                         -25-                                          25            memo was fabricated some time after her report of harassment.            We discussed Fennell's assertions of fabrication in analyzing            the discovery  issue, and we  found them to  be unpersuasive.            For the reasons stated in that analysis, we hold that Fennell            has not presented evidence that would allow a reasonable jury            to  find that  the  memorandum was  fabricated.   At  bottom,            Fennell's  fabrication   claims  amount   to  no   more  than            "conclusory    allegations,   improbable    inferences,   and            unsupported speculation."  Medina-Munoz, 896 F.2d at 8.                                       ____________                       In addition to the  memo, First Step also provided            the  uncontroverted affidavits  of three employees  who swear            that Fennell was  on a list of employees to  be laid off, and            they  saw  the  list  before  she  lodged  her  complaint  of            harassment.   Given  the memo  and the  three affidavits,  we            conclude  that Fennell  has failed  to demonstrate  a genuine            issue as to whether First Step's layoff decision predated her            complaint.   Thus, no  reasonable jury could  find that First            Step's   business-related,   non-retaliatory     reason   for            Fennell's layoff decision  was a  pretext --  it cannot  have            retaliated for conduct that had yet to occur.                      Fennell  also  argues that  even  if  the memo  was            legitimate   and   predated  her   report,  the   job  action            contemplated  in the memo was  vague and not  final, and that            retaliatory animus  motivated her ultimate  termination.   We            are  not  persuaded.   The  October  25  memo  used the  term                                         -26-                                          26            "layoff,"  and Smith used the  same term in  his December 20,            1993,  letter informing Fennell  of her discharge.   The next            day, Tucker wrote Fennell a  letter stating that her position            had been eliminated.  Fennell argues that the October 25 memo            contemplated a "layoff," from which  she would be called back            when  work was available, but that in fact she was terminated            and her position  eliminated.  First  Step counters that  she            was laid off because her position was eliminated, and that it            would  have  brought  Fennell  back from  layoff  if  another            supervisory  position opened  for  which she  was  qualified.            First Step states that it did  not transfer Fennell to a non-            supervisory  position because  it does  not  generally demote            supervisors to line positions, believing that morale problems            result.   Our  view of  the summary  judgment record,  viewed            favorably  to  Fennell, leads  to the  inescapable conclusion            that the pre-complaint  decision to "lay  off" Fennell was  a            decision to  eliminate her position, rather  than a temporary            measure with the expectation  that she would be called  back.            After reviewing the entire  record, we hold that  Fennell has            not  presented evidence that would allow a reasonable jury to            find that  First Step had  originally decided merely  to "lay            off"  Fennell but then later decided to take a more permanent            action in retaliation for her complaint.                      We  also reject  Fennell's  argument that  the pre-            complaint decision to lay  her off was not a  final decision,                                         -27-                                          27            and that it could  have been reconsidered later, but  was not            because of her complaint.   We agree with the  district court            that  "could have" is not  enough.  Fennell  has presented no            evidence  that there  was later  reconsideration or  that the            decision  was not  final.   We recognize  that certain  other            employees on  the layoff list  were ultimately  not laid  off            because of changed circumstances  relevant to their jobs, but            that  fact standing alone  says little  or nothing  about any            changes   in   circumstance   that   might   have    led   to            reconsideration of Fennell's job future.                      Fennell makes one other argument worthy of mention.            She claims that after her  complaint of sexual harassment she            was  "immediately demoted  to a lesser  position."   She does            not,  however, develop this argument in her brief, and we are            not clear  whether she raises  it as a  separately actionable            act  of retaliation or as  evidence of the retaliatory animus            behind  her termination.  In  either case, we  agree with the            district court's rejection of  her demotion argument.  It  is            difficult to see how her assignment  to packing duties during            the Christmas season  rush amounts to a demotion,  given that            in her  affidavit she described  her earlier duties  thus: "I            spent  most of  my time  as Warehouse  Lead on  the warehouse            floor  working alongside  other warehouse  employees."    The            demotion  argument has not raised any  genuine issues of fact            as  to retaliation, and in  any event the  argument is waived                                         -28-                                          28            for failure  to develop it  fully in her  brief.   See, e.g.,                                                               ___  ____            Ryan  v. Royal  Ins. Co., 916  F.2d 731, 734  (1st Cir. 1990)            ____     _______________            (explaining  that   issues  adverted   to  on  appeal   in  a            perfunctory   manner,   unaccompanied   by   some   developed            argumentation, are deemed to have been abandoned).                      Fennell points to a variety of other facts as proof            that  First Step could not  have wanted to  discharge her for            legitimate business  reasons.  These other  facts include her            value  as an employee, her  awards for Employee  of the Month            and the Year, her utility in  performing the annual inventory            to be performed shortly  after her layoff, the fact  that the            First Step catalogue  was featured on the  Oprah Winfrey show            shortly before her layoff, and First Step's plans for a large            mailing  of catalogues  in  January 1994.    In essence,  she            attempts to second-guess First Step's  business judgment that            a leaner warehouse management team -- that is, a team without            Fennell  -- was desirable.   None  of these  other assertions            creates  a genuine issue of  fact as to  whether First Step's            reasons  for  termination were  a  pretext, in  light  of the            October  25 memo and  the three affidavits  averring that the            layoff list was made before Fennell's complaint.  "Courts may            not sit as super  personnel departments, assessing the merits            -- or even the rationality -- of employers' nondiscriminatory            business decisions."  Mesnick, 950 F.2d at 825.                                  _______                                         -29-                                          29                      In  the  absence  of  a  genuine issue  as  to  the            authenticity  of the October 25 memo scheduling Fennell for a            layoff,  Fennell is  left with  only conjecture  and innuendo            that her termination was an act of retaliation.  The district            court appropriately granted summary judgment for First Step.                                         -30-                                          30                                         III.                                         III.                                         ____                                     Conclusion                                      Conclusion                                      __________                      For  the foregoing  reasons,  the judgment  of  the            district court is affirmed.                              ________                                         -31-                                          31
