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 & Isaac

__________________
______________

were on brief for appellant.

Peter Bennett
______________

with whom

Frederick B. Finberg
_____________________

Associates, P.A. were on brief for appellee.

________________

and Bennett
_________

____________________

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

harassment.

First

Step

for making allegations

moved

for

summary

presenting evidence that the decision to lay off

been made prior to her complaint.

summary

judgment

for First

motion

for further

in

First Step's

layoffs, dated

fabricated.

judgment,

Fennell had

The district court granted

Step,

after

discovery under

Fennell had hoped that

of sexual

denying Fennell's

Fed. R. Civ.

P. 56(f).

further discovery would uncover proof

computer files

prior to her

that

a memo

about planned

report of harassment,

Fennell appeals both rulings.

I.

had been

We affirm.

I.
__

Background
Background
__________

A. Factual Background: Fennell's Retaliation Claim

___________________________________________________

First

distributor

warehouse

of

Step,

play

designer,

equipment

and customer

service

for

manufacturer,

children,

center

in

and

operates

Oxford,

Maine.

Fennell worked as a Warehouse Lead, a supervisory position in

which she directed the

Although

Fennell was

warehouse staff in fulfilling orders.

a supervisor

and shared

office space

with the Warehouse Manager, she spent most of her time on the

warehouse

workers.

floor

working

Her immediate

alongside

the

supervisor

was

other

warehouse

Wayne Smith,

the

-22

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

heard from other employees

Smith

Fennell

met

benefit

with Tucker

about Smith's inappropriate

Tucker was

fired

hostile.

in May of 1993

incredulous

to

hear

as a country

dance.

On

and recounted

remarks.

musician at a

November 19,

what she

According

Smith's immediate

First Step

1993,

had heard

to Fennell,

predecessor had been

for sexual harassment,

that

Fennell had

about a sexually offensive remark

had made while performing

company-sponsored

Smith, and

might

and Tucker was

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.

Tucker, she

Fennell also

alleges that, after

was given inferior work

her report to

(regular packing duties

rather than

supervisory duties).

Fennell's layoff was planned

about Smith, and

First

Step maintains that

before she complained to Tucker

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.

-33

2. The October 25 Memo

_______________________

A memorandum dated October 25, 1993, from Tucker to

Eric

Schultz,

First

Officer, indicated

the

week

ANTICIPATED

and

Step's

Boston-based

that Fennell

before Christmas.2

their continuing

positions

listed Fennell and four

Operating

was scheduled for

The

LAYOFFS/STAFFING,"

Chief

a layoff

memo, titled

"SUBJECT:

listed twenty-eight

in the

persons

warehouse; it

also

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

memorandum

was faxed

to

in their affidavits

Schultz

on

October 25,

that the

and

the

document bears a hand stamp indicating that it was faxed that

day.

Brigitte Marston,

a customer service

reporting to Tucker, states

"layoff

list" with

in her affidavit that she

Fennell's

November 19 meeting with

an

internal

another employee, in

name on

it before

saw a

Fennell's

Tucker. (Marston also attended that

meeting, at Fennell's request.)

sent

supervisor also

electronic

On November 5, 1993, Marston

mail

message

which she referred to

Marston implied in the E-mail that

("E-mail")

to

the layoff list.

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.

-44

Fennell contends that the memorandum was fabricated

after the November

_____

she

19 meeting.

To support

this contention,

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

left the

company

late

created; (2) Tucker

regarding

that

summer, before

the

memo

was

stated that she had sent other memoranda

earlier layoffs

Schultz kept copies

October 25 memorandum had already

to Schultz,

of them

but neither

(only the October

she nor

25 memo

was

retained); (3) Tucker commented to Fennell earlier in October

1995 that

needed,

she was doing a

good job, that her

services were

and that she would not be required to cross-train as

a telemarketer;

described

the

(4) First Step employees

job

action

taken with

had inconsistently

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

layoff

employees

listed in

were ultimately not laid off.

the memorandum

for

For ease of reference,

we shall refer to these as "the five suspicious facts."

B. Prior Proceedings
_____________________

On January

23, 1995,

complaint in federal district

Fennell filed

a three-count

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

-55

Rights Act, Me.

Rev.

Stat.

Ann.

tit.

5,

4572(1)(E),

Whistleblower's Protection Act, Me.

833(1)(A).

On

August

4,

and

the

Maine

Rev. Stat. Ann. tit. 26,

1995,

after

the

close

of

discovery, First Step moved for summary judgment on all three

counts, arguing primarily that

before she

lodged her sexual harassment

was not retaliatory.

genuine

Fennell's layoff was

issue

as

complaint, and thus

First Step asserted that there

to

the

fact

planned

that the

layoff

was no

decision

predated Fennell's complaint, because the October 25 memo and

the corroborating testimony of

essentially

uncontroverted.

three First Step managers was

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

instead,

fabricated

opposition

time

she complained to

to

exonerate

Tucker or whether

First

it was,

Step.

In

her

to summary judgment, Fennell requested additional

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

Step submitted a

request for

memo.

On

reply brief and

more discovery

September 9, 1995,

an objection to

time, supported by

First

Fennell's

an affidavit

averring that there was no way to determine from its computer

system when the document was first created.

-66

The district court determined that, in light of the

October 25 memo, Fennell had not shown evidence sufficient to

allow

a reasonable

retaliation for her

jury

to find

that

her layoff

complaints about sexual

was

in

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

revealing competent testimony,

to

file

any

affidavit

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

revealed

the October 25

that the

____________________

document

memo on a

magnetic diskette

was "autodated"4

on August

7,

3.

There is

listing
1994,

no

dispute that

the October

Fennell among those to

when it was

25, 1993,

be laid off,

submitted by

First Step

existed in May
as part

Maine Human Rights Commission fact finding process.

the

document

was

fabricated

fabrication occurred

as

Fennell

sometime after

memo,

of the
Thus, if

maintains,

the

November 19, 1993,

and

before May 1994.

4.

Fennell's

"modified"
suggest

expert

actually

on August 7, 1995.

that there were any

that date.

stated

Rather,

that

However, the

the

referred

was

expert did not

textual changes to
_______

the expert

memo

the memo on

to the

automatic

modification of the date assigned to the document file by the

word processing
entered.

program

For example,

after certain
the expert

'called-up' to an application

commands

stated,

have

"if a

been

file is

such as Wordperfect, and saved

to a different location (whether changed or not), the date of

-77

1995.

Fennell's

creation

or

date

determined by

Step's

expert proposed that

of

any

modification

the file

as it resided

on First

rather than the

diskette that

had been

provided by First Step.

hearing on

hard

drive

"protocol"

Step's

upon,

The

Fennell's request

and

then

hard drive.

differences

If

were

the

Fennell would

no joint

to

court

for discovery of

directed

under which

district

be

could

of

earlier

a review of

hard drive,

the original date

parties

to

protocol could

by

First Step's

submit

have access

resolved

held

be

to First

be agreed

conference.

Subsequently, the parties

submitted substantially

different

protocols.

After

another

reviewing the protocols, and without holding

conference,

the

district court

decided

that

its

earlier decision to consider

further discovery had been ill-

advised.

court denied

56(f)

Accordingly,

discovery, and

the

granted

First Step

any further

Rule

summary judgment.

This appeal ensued.

II.
II.
___

Discussion
Discussion
__________

____________________

saving is shown as the modification date."

In an attempt

to

achieve some
date

of

a computer

"autodating."
used

clarity, we shall refer to such a change to the

file not

as

a "modification,"

We consider "modification," as

by the district court, to mean

the document that

would appear

document, as opposed to

but as

that term was

a change in the text of

on a paper

printout of

changes to the date assigned

the

to the

computer file containing the document text.

-88

summary

Fennell

appeals

judgment

in favor

the

district

of First

court's

Step,

grant

as well

of

as its

denial

of

her request

Step's

computer

evidence that

fact.

if

files

for

additional

in

the

the October 25

hope

discovery of

that

she

First

might find

memo was fabricated

after the

Because summary judgment would have been inappropriate

Fennell

had presented

perjurious fabrication, we

evidence

that

the

memo

will address the discovery

was

issue

first.

A. Denial of Rule 56(f) Discovery

__________________________________

We review a district

request

Price
_____

1991).

court's ruling on a discovery

under Fed. R. Civ. P. 56(f) for abuse of discretion.

v. General Motors Corp.,

____________________

931 F.2d 162,

164 (1st Cir.

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

essential

by

to

opposition,

affidavit

justify

the

court

facts

the
may

party's

refuse

application for

judgment or may

continuance

permit affidavits

obtained

to

or depositions

discovery to

be

had or

to be
may

the

order a
to be

taken or
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,
_____

-99

931

F.2d

at

164

(quoting

Paterson-Leitch Co.
____________________

v. Massachusetts Mun. Wholesale Elec.

____________________________________

Co.,
___

988 (1st

840 F.2d

985,

Cir.

1988)).

Although

the

district court did not use these precise words, it denied any

further

not

Rule 56(f) discovery essentially because Fennell did

articulate

discoverable

materials existed

trialworthy issue.

assume, but

plausible

need

For

basis

which

purposes of

not decide,

that

for

the

would

belief

that

have raised

our analysis, we

Fennell met

the

will

"good

cause" element.

Fennell argues that the district court should

allowed

Rule

56(f) discovery

because her expert

"autodated"

on

regardless

of

inadvertent,

the

date

whether

uncertain.

7,

its

1995.

Step's hard

Fennell

the autodating

it obscured

of

First

established that the October

August

prior modification

of

or, if

the

date of

there was no

creation,

thus

was

have

drive

25 memo was

argues

that

intentional

the document's

or

last

prior modification,

rendering

those

dates

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

Fennell emphasizes that First

which

the

memo was

written.

Step's summary judgment motion

is

based in

large

business decision to

sexual

harassment.

part

on the

memo,

as

proof that

lay off Fennell predated

Fennell

also

points

the

her report of

to

the

"five

suspicious facts" noted earlier as support for her contention

-1010

that there is a

plausible basis for her belief

that further

discovery will

yield evidence that the

We begin our analysis with

memo was fabricated.

a review of the discovery-related

proceedings below.

We

its

note at the outset that First Step did not file

motion for

summary

discovery pursuant

Fennell's

judgment until

to the

original

district court's

discovery

request

whether it called for a diskette

"original."

In

any event,

after the

close of

pretrial order.

did not

make

clear

copy of the memo or a paper

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

affidavit

memo

providing some

computer-based

was fabricated and antedated.

containing the memo's computer

hands,

to allow

thus

the

proposed

Fennell to

file an

evidence that

the

By this time, a diskette

file was already in Fennell's

extension did

not

involve

any

intrusion or impose costs upon First Step.

In compliance with the discovery extension, Fennell

submitted the affidavit of

that analysis of the

her computer expert, which stated

diskette containing the word processing

-1111

file

of the October 25

memo revealed that

"autodated" on August 7, 1995.

The district court determined

that the computer expert's affidavit

memorandum

was "created

or

simply called up) on or after

the document was

did not reveal that the

modified (as

opposed to

November 19, 1993."

In

being

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

Step's

had

by

review of

hard drive.

stated, in

the file

as

it resided

on First

On the other hand, a First Step employee

an affidavit

previously

filed in

reply to

Fennell's opposition to summary

judgment, that First

computer

that

reveal

consultant determined

the date on which

its

the document was

Step's

system could

not

first created or

last textually modified.

The district court held a conference

filed

her computer

Fennell's

might

proposal that

reveal

the date

October 25 memo,

submit

expert's

affidavit.

access to

of creation

after Fennell

After considering

First Step's

or modification

the district court directed the

a "protocol"

establishing

hard drive

the

of the

parties to

procedures by

which

Fennell

Step's

would have

hard

drive.

access

The

to relevant

district

materials on

court

cautioned

discovery would be allowed only if the protocol

hard

drive access would have

First

that

ensured that

a "minimal degree of intrusion

-1212

time-wise

and

interference-wise"

with

First

Step's

operations,

and

if

it

provided

"adequate

assurances

of

confidentiality."

Fennell

to

"mirror" First

mirror

and

provided a protocol requiring a specialist

Step's entire

copy to its facility in

ultimate erasure.5

hard drive,

and take

the

Canada for complete analysis

First Step

objected to

Fennell's

protocol and provided its own protocol.6

After

recognizing

consensus,

reviewing the

that

the

the

parties

district court

two protocols

were

and apparently

unlikely

concluded

to

that its

reach

earlier

____________________

5.

Fennell's

protocol

call between the parties

to discuss the computer
visit at

proposed, in

sum: (1)

and their computer

a conference

representatives

system configuration; (2) an on-site

First Step's warehouse where

counsel would observe

Fennell's computer

representative create a

target hard drive;

(3) an

"mirror" of

off-site analysis

of the

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)

protective order stipulating, in sum, that all information on

the

mirror

hard

modification,

drive

or

not

relating

erasure,

of

the

to

the

relevant

creation,
files

is

confidential.

6.

First Step

alia,
____

objected to Fennell's protocol because, inter

_____

it: (1)

failed

the technicians

to describe the

would attempt

methodology by which

to determine the

creation or

modification dates (First Step noted that its computer system

contains
business

many

hard

risks

incompatible

drives,

and

resulting

hardware,

expressed

from

concerns

accidental

and system

downtime);

data
(2)

over
loss,

did not

adequately address attorney-client privilege and work product

concerns as to
allowed
district

other documents

on the hard

unsupervised possession
court described

the

of the

drive; and

mirror drive.

detailed protocol

The

that First

Step proposed as "extremely cumbersome and expensive."

-1313

(3)

decision

to

permit

advised" because

without

any

it

additional

discovery

would involve

particularized

appropriate information,"

had

"a 'fishing

likelihood

while, "[a]t

of

the

process involves substantial risks and costs."

been

"ill-

expedition'

discovering

same time,

the

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

substantial,

and

conclusion that the "risks

then

its

conclusion

and costs" were

that

the

proposed

discovery was a "fishing expedition."

1. Risks and Costs

___________________

party seeking

"articulate

discovery under

plausible

basis

for

discoverable materials exist which

____________

issue."

Price,
_____

determining

should

the

whether

consider

exists, but

931 F.2d

not

only

See Fed.
___

the

belief

(emphasis

added).

"discoverable,"

whether

the

material

and expenses entailed

R. Civ.

56(f) must

that

would raise a trialworthy

164

material is

the burdens

material.

at

Rule

P. 26(b)(2).7

In

the court

actually

in obtaining

Discovery

____________________

7.

Fed. R. Civ. P. 26(b)(2) provides:

The

frequency or

discovery

methods

under these rules .

extent

of use

otherwise

of the

permitted

. . shall be limited

by the court if it determines that: . . .

(iii)

the

proposed

burden

or

expense

discovery outweighs

of

the

its likely

benefit, taking into account the needs of

the case, the amount in

controversy, the

parties' resources, the importance of the

-1414

matters

are

court,

trial

for the

informed

and the breadth

mechanics

discretion

of that discretion

and discovery

is

very

General Motors Corp., 11 F.3d 259, 267

_____________________

exercising this broad discretion,

case

balanced

proposed

the

costs,

discovering

evidence

of

importance of the evidence

North Bridge Assoc., 22

_____________________

(party

seeking

Rule 56(f)

in managing pre-

great.

Fusco
_____

v.

(1st Cir. 1993).

In

and

as well

fabrication,

sought.

F.3d

district

the district court in this

burdens,

discovery entailed,

of the

delays

as the

that

likelihood of

against

the obvious

See Resolution Trust

___ ________________

1198, 1203

discovery

(1st

"should

the

v.

Cir. 1994)

set forth

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

proposed

analysis

confidentiality

proprietary or

of

the

detailed description

hard

of information

drive,8

on the

as

well

hard drive

of the

as

the

that was

subject to attorney-client privilege or work-

____________________

issues

at stake

in the

the importance of the

litigation, and

proposed discovery

in resolving the issues.

8.

First Step argued that

Fennell's failure to disclose the

specific technical steps to

mirrored

drive rendered

proposal for a

her

be taken in the analysis

protocol nothing

fishing expedition.

of the

more than

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.

-1515

product privilege.

resolving

The district court

the discovery dispute,

itself, would increase legal and

alerted

the district

also recognized that

and the

discovery process

expert fees.

court to genuine

The protocols

problems surrounding

the

proposed

discovery of

exercising

its

concluded

that

First

discretion,

the

Step's

hard drive.

the district

discovery

substantial risks and costs.

court

process

In

reasonably

would

involve

not only

that the

See id.
___ ___

2. A Fishing Expedition?
_________________________

The

risks and

also

costs of

that

likelihood

agree.

district court

Fennell

of

determined

further discovery were

had not

discovering

demonstrated

appropriate

substantial, but

"a particularized

information."

We

In our view, Fennell did not sufficiently "set forth

plausible

basis

susceptible of

probably exist."

for

collection

believing

within a

that

specified

facts,

reasonable time

frame,

Id. (party seeking discovery must show that

___

it will not be an "exercise in futility").

As

was

able to

submitted

to "susceptibility of collection," all Fennell

say was

that "there

the affidavit

of her

may be

a way."

Fennell

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

than

on

the diskette

on First Step's

originally

-1616

hard drive, rather

provided

by First

Step.

First Step

which

submitted a reply to

argued

conclusory,

Fennell's

without

speculation

discovery.

that

and

The

Fennell's expert affidavit,

expert's

foundation,

conjecture

did

district court

and

not

statements

that

warrant

then held a

that based
as

It's

hearing on

informed

my understanding

upon telephone communications

recently as today,
by

the

were to analyze

that [Fennell] is

[computer experts

the

disk that

who

the mirrored hard drive]

that they cannot reach a

has

been

conclusion from
provided,

Fennell's

additional

discovery issue, at which the following was stated:

[The Court:]

were

but

instead, that the only way they can reach

the

any

kind of

the

hard

premises.

conclusion is by
drive

on

access to

[First

Step's]

That at this time, they cannot

guarantee that
conclusive
position

there

result,
there may

they can
but that
be a

reach

it's their

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

venture.

based

on

of the technical

basis for

the discovery

The district court had good reason to be skeptical,

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

was fabricated on

not have indicated

that day,

as it had

that the document

been submitted

more

-1717

than

year

"autodating"

cover

up

the

earlier

could

in

the

indicate

document's

an

state

proceedings.

intentional

fabrication

by

The

conspiracy to

obliterating the

actual creation date, but that is mere speculation.

The

"five

suspicious facts,"

are equally speculative.

an employee who

employees

to

We fail to see how the inclusion of

had already left the company

be

retained

Fennell argues that the

prepared

enumerated earlier,

more

likely.

mistake indicates that the memo

at a later point

who was employed

makes fabrication

on the list of

in time, when

would have

faded.

That

was

Tucker's memory of

inference is,

at

best, extremely attenuated.

The

while

other

fact that

the

similar memos

virtually non-probative.

October 25

are

no

memo was

longer extant

retained

is

also

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

-1818

layoff list is

not necessarily probative of fabrication, either.

First Step

does not assert that Fennell was let go for poor performance,

but rather that her termination

dictated

was part of a reorganization

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

inconsistently described

that

the nature

First

Step

of and the

managers

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

temporary, rather than a permanent,

statements

about

why

she

was

let

indicative of

action.

go,

And the various

while

worded

in

different ways, all relate to First Step's business objective

of

improving

operation.

the

economic

efficiency

of

its

We see nothing out-of-the-ordinary

warehouse

or suspicious

about the statements.

Finally,

layoff in the

something

the fact

memo were

true that

the

to see how it suggests

only two

Christmas week

but

ultimately not laid

slated for

off might

say

about the finality of the layoff list as a general

matter, but we fail

is

that some employees

record

of the

five individuals

layoffs were actually laid

indicates

fabrication.

non-suspicious

It

slated for

off as scheduled,

reasons

for the

changes in First Step's plans.

Two of the three who survived

-1919

the

axe

stayed

on

in

telemarketing

telemarketers requested layoffs.

with

an

injury

collecting

because

two

other

The other employee was out

worker's

compensation

during

Christmas week; at

was called

laid

back to

off

shortly

the urging of

light duty after

thereafter.

apparently legitimate reasons why

did

fabrication.

be more likely to

the

the New Year

And,

even

she

and then

ignoring

the

some of the slated layoffs

not occur, the changes in First Step's staffing plans do

not suggest

real

First Step's insurer,

name employees eventually retained

layoff list?

fact, have

accurate?

Why would a fabricated layoff list

than a

Wouldn't a fabricated list, written after

the benefit

We see little

of hindsight

and thus

probative value in this, or

be more
____

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

are not,

for

we reverse a district court's discovery ruling only

abuse of

discretion.

discovery of word

might

we

While there

cases where

processing files on a computer

well be warranted, Fennell

demonstrating that the

in denying that

may be

court acted

further

Rule

56(f)

her burden of

district court abused its

opportunity here.

district

has not met

within

Thus, we

its discretion

discovery,

-2020

given

its

hard drive

discretion

hold that

the

in disallowing

conclusions,

supported by the record, that (1)

substantial

risks

particularized

and

basis

costs,

to

the discovery would entail

and

believe

(2)

there

that

any

was

little

evidence

fabrication could be discovered by Fennell's experts.

of

-2121

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

General Elec. Co., 950

_________________

that

party's favor.

F.2d 816, 822 (1st Cir.

denied, 504 U.S. 985 (1992).

______

Mesnick
_______

v.

1991), cert.
_____

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."

some
____

defeat

Fed. R. Civ.

alleged factual

an

P. 56(c).

"[T]he

dispute between

otherwise properly

mere existence of

the parties

supported motion

will not

for summary

judgment;

the requirement is that

of material fact."
________

242,

247-48

Anderson v. Liberty Lobby, Inc., 477 U.S.

________
___________________

(1986).

appropriate `[e]ven

motive or

rests

there be no genuine issue

_______

"Moreover,

summary

judgment may

in cases where elusive

be

concepts such as

intent are at issue, . . . if the non-moving party

merely

upon

conclusory

allegations,

inferences, and unsupported speculation.'"

Materials, Inc.,
_______________

30 F.3d 255,

improbable

Woods v. Friction
_____
________

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.

-2222

56(c) "mandates the

entry of summary judgment, . . . upon motion, against a party

who fails

to

existence of an

make a

showing

sufficient to

element essential to that

establish

the

party's case, and

on which that party will bear the burden of proof

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

_____________
_______

2. Retaliatory Discharge: The Legal Framework

______________________________________________

at trial."

Although

discharge claims

counts,

the

analytical

Fennell

has

in

one federal

parties

agree

framework used

in

applies to the state law counts

framed

count

that

her

and two

the

retaliatory

state

law

well-established

Title VII

retaliation claims

as well.

Thus, for purposes

of this appeal, we treat all three counts as

subsumed in the

Title VII count.

Where,

as in

generally,

there is

retaliatory

animus,

framework

is

used

producing evidence.

this case

no direct

the

to

and in

retaliation cases

evidence of

the defendant's

McDonnell Douglas
_________________

burden-shifting

allocate and

order

the

burdens of

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).

facie case of

retaliation, Fennell must

engaged

in

protected

a prima

show that: (1)

here,

Maine's Human Rights Act or Whistleblower's Protection

Act);

(2)

(3) a

an adverse

under Title

VII

she

(or

she suffered

conduct

To establish

employment action;

-2323

and

causal connection existed

the adverse action.

between the protected conduct

and

See, e.g., Hoeppner v. Crotched Mountain

___ ____ ________
_________________

Rehabilitation Ctr., 31 F.3d 9, 14 (1st Cir. 1994).

___________________

Once

burden shifts

non-retaliatory

prima facie

to the

has

been made,

defendant to articulate

reason for

e.g., Mesnick, 950

____ _______

showing

its employment

F.2d at 827.9

the ultimate burden falls

If

the

a legitimate,

decision.

See,
___

the defendant does so,

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

animus. See St. Mary's Honor Ctr. v. Hicks,

___ _______________________
_____

retaliatory

509 U.S.

502,

510-11

(1993); Mesnick,
_______

judgment, the

need to

950

order

largely obviated, and a court

attention to the

on whether the

F.2d at

827-28.

the presentation

On

summary

of proof

is

may often dispense with strict

burden-shifting framework, focusing instead

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
_______

protected

dealt with
by

the

("ADEA"). 29 U.S.C.

Age

a claim

of retaliation

Discrimination
621-634.

in

for conduct

Employment

Act

The analytical framework for

ADEA discrimination and retaliation cases was patterned after

the framework

for Title

VII cases,

largely interchangeable.
General, 7
_______
Douglas
_______

F.3d 1, 3-4

framework

and

and our

precedents are

See, e.g., Hazel v. U.S. Postmaster

___ ____ _____
_______________
(1st Cir. 1993)
a

unified

(applying McDonnell
_________

retaliation

analysis to

claims under both the ADEA and Title VII).

-2424

Although First Step

made

out a

prima facie

case

refutes that Fennell has

of retaliation,

even

the district

court apparently assumed that she did.

facie burden is

burden

by

not onerous, and

demonstrating,

among

The plaintiff's prima

we find that she

other

things,

met that

that

her

termination occurred shortly after her protected conduct, the

report of harassment.

846 F.2d

103,

See Oliver
___ ______

110 (1st

Cir.

v. Digital Equip. Corp.,

_____________________

1988) (discharge

soon

after

protected conduct is strongly suggestive of retaliation).

Fennell

met

cannot seriously

First Step

its burden of articulating a legitimate, non-retaliatory

____________

reason for her discharge:

led

dispute that

First Step

to

decide

that economic and business reasons

to lay

her

decision was made prior to her complaint.

off, and

that

the

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

a pretext

discharge

business

was

in

reasons were

retaliation

for her

and (2)

reports

of

her

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

district

of

sexual

court's holding

harassment.

The

was the

October 25

Fennell among those to be laid off.

-2525

linchpin

of

the

memo, listing

Fennell asserts that the

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

Fennell's

"conclusory

the

memorandum was

fabrication

claims

allegations,

fabricated.

amount

improbable

to

no

At

bottom,

more

than

inferences,

and

unsupported speculation."

Medina-Munoz, 896 F.2d at 8.

____________

In addition to the

the

memo, First Step also provided

uncontroverted affidavits

that Fennell was

they

saw

the

harassment.

conclude

of three employees

on a list of employees to

list

Given

before

the memo

that Fennell

she

lodged

and the

has failed

who swear

be laid off, and

her

complaint

of

three affidavits,

we

to demonstrate

a genuine

issue as to whether First Step's layoff decision predated her

complaint.

Step's

Thus, no

reasonable jury could

business-related,

Fennell's layoff decision

find that First

non-retaliatory

was a

pretext --

reason

for

it cannot

have

retaliated for conduct that had yet to occur.

Fennell

legitimate

and

also

argues that

predated

her

even

report,

if

the memo

the

job

was

action

contemplated

in the memo was

retaliatory animus

are

not

persuaded.

vague and not

motivated her ultimate

The

October

25

final, and that

termination.

memo

used the

We

term

-2626

"layoff,"

and Smith used the

same term in

his December 20,

1993,

letter informing Fennell

day, Tucker wrote Fennell a

had been eliminated.

of her discharge.

letter stating that her position

Fennell argues that the October 25 memo

contemplated a "layoff," from which

when

The next

she would be called back

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

supervisory

Fennell

position opened

back from

for

layoff

which she

was

if

another

qualified.

First Step states that it did

not transfer Fennell to a non-

supervisory

it does

position because

not

generally demote

supervisors to line positions, believing that morale problems

result.

favorably

Our

to

view of

the summary

Fennell, leads

to the

judgment record,

viewed

inescapable conclusion

that the pre-complaint

decision to

decision to "lay

eliminate her position, rather

measure with the expectation

After reviewing the entire

not

than a temporary

that she would be called

record, we hold that

back.

Fennell has

presented evidence that would allow a reasonable jury to

find that

off"

off" Fennell was

First Step had

originally decided merely

to "lay

Fennell but then later decided to take a more permanent

action in retaliation for her complaint.

We

also reject

complaint decision to lay

Fennell's

argument that

her off was not a

-2727

the pre-

final decision,

and that it could

have been reconsidered later, but

because of her complaint.

that

"could have" is not

evidence

that there

decision

was not

employees on

We agree with the

enough.

was later

final.

We recognize

the layoff list

fact standing alone

district court

has presented no

reconsideration or

that the

that certain

were ultimately

because of changed circumstances

that

Fennell

was not

not laid

other

off

relevant to their jobs, but

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

to a lesser

"immediately demoted

not,

whether she raises

of retaliation or as

behind

her termination.

it as a

In

either case, we

in her

my time

her earlier duties

as Warehouse

It

is

to packing duties during

rush amounts to a demotion,

affidavit she described

most of

agree with the

her demotion argument.

difficult to see how her assignment

the Christmas season

separately actionable

evidence of the retaliatory animus

district court's rejection of

spent

She does

however, develop this argument in her brief, and we are

not clear

act

position."

Lead on

given that

thus: "I

the warehouse

floor

working alongside

demotion

as

other warehouse

argument has not raised any

to retaliation, and in

employees."

The

genuine issues of fact

any event the

argument is waived

-2828

for failure

to develop it

fully in her

brief.

See, e.g.,
___ ____

Ryan
____

v. Royal Ins. Co., 916

_______________

(explaining

perfunctory

that

issues

manner,

F.2d 731, 734

adverted

unaccompanied

to

by

(1st Cir. 1990)

on

appeal

some

in

developed

argumentation, are deemed to have been abandoned).

Fennell points to a variety of other facts as proof

that

First Step could not

legitimate business

value

have wanted to

reasons.

as an employee, her

and the Year, her utility in

to be performed shortly

First Step catalogue

These other

discharge her for

facts include her

awards for Employee

of the Month

performing the annual inventory

after her layoff, the fact

was featured on the

that 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

creates

a genuine issue of

fact as to

reasons

for

October

25 memo and

termination were

of these

other assertions

whether First Step's

pretext, in

the three affidavits

of the

averring that the

layoff list was made before Fennell's complaint.

not sit as super

light

"Courts may

personnel departments, assessing the merits

-- or even the rationality -- of employers' nondiscriminatory

business decisions."

Mesnick, 950 F.2d at 825.

_______

-2929

In

authenticity

layoff,

the

absence

of

genuine issue

as

to

the

of the October 25 memo scheduling Fennell for a

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.

-3030

III.

III.
____

Conclusion
Conclusion
__________

For

the foregoing

district court is affirmed.

________

reasons,

the judgment

of

the

-3131