507 F.3d 23 (1st Cir. 2007), 07-1219, Bennett v. Saint-Gobain Corp.

Docket Nº:07-1219.
Citation:507 F.3d 23
Party Name:David BENNETT, Plaintiff, Appellant, v. SAINT-GOBAIN CORPORATION et al., Defendants, Appellees.
Case Date:November 02, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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507 F.3d 23 (1st Cir. 2007)

David BENNETT, Plaintiff, Appellant,


SAINT-GOBAIN CORPORATION et al., Defendants, Appellees.

No. 07-1219.

United States Court of Appeals, First Circuit.

November 2, 2007

         Heard Sept. 5, 2007.


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[Copyrighted Material Omitted]

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         Michael J. Michaeles for appellant.

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         Hope A. Comisky, with whom Amy G. McAndrew, Pepper Hamilton LLP, James B. Conroy, Jill Brenner Meixel, and Donnelly, Conroy & Gelhaar, LLP were on brief, for appellees.

         Before BOUDIN, Chief Judge, SELYA, Senior Circuit Judge, and SCHWARZER, [*] Senior District Judge.

         SELYA, Senior Circuit Judge.

         This is an employment discrimination action brought by plaintiff-appellant David Bennett against his quondam employer, Saint-Gobain Corporation, and two of its executives, John R. Mesher and Timothy L. Feagans. The district court entered summary judgment in favor of all the defendants.

         In this appeal, the plaintiff assigns three broad categories of error. First, he asserts that the district court improperly excluded certain evidence that he proffered at the summary judgment stage. Second, he asserts that the court erred in determining that he failed to raise genuine issues of material fact sufficient to ward off brevis disposition on one or more of his causes of action. Third, he asserts that the court should not have disregarded a further evidentiary proffer made in connection with his motion for reconsideration of the summary judgment order. Discerning neither an error of law nor an abuse of discretion, we affirm the judgment below.

         I. BACKGROUND

         The district court aptly summarized the facts of the case and the history of the relationships among the protagonists. See Bennett v. Saint-Gobain Corp., 453 F.Supp.2d 314, 318-23 (D. Mass. 2006). We assume the reader's familiarity with that exegetic account and, accordingly, rehearse here only the essence of what transpired. We supplement that recital in our later discussion of the issues on appeal.

         The plaintiff was hired by Saint-Gobain's predecessor-in-interest as a patent attorney in 1989. When Saint-Gobain acquired the predecessor, he remained aboard. In 1999, he began reporting to Feagans, the company's deputy general counsel. Like the plaintiff, Feagans was based at the company's plant in Worcester, Massachusetts. Feagans reported to Mesher, the general counsel, who worked at the company's United States headquarters in Valley Forge, Pennsylvania.

         The plaintiff proved to be a competent attorney. He nevertheless had trouble interacting with management. On several occasions, supervisors spoke to him about his attitude and demeanor. In addition, Mesher, Feagans, and other company personnel exchanged emails at various times regarding the plaintiff's conduct.

         In June of 2001, the plaintiff - -then sixty-two years old - -joined with other members of the law department's intellectual property (IP) group to file internal age discrimination grievances against Feagans. The grievances included references to statements allegedly made by Feagans to the effect that he wanted to get rid of older members of the group. Such a statement allegedly was made to one of the grievants, Mary Porter.

         The company took the grievances seriously; the vice-president for human resources undertook an investigation. He met with the complainants, interviewed employees, and reviewed written documentation related to the grievances. After concluding this limited probe, he found that a formal investigation was unwarranted and recommended that the company

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dismiss the grievances as unfounded. That was the end of the matter.

         According to Saint-Gobain, the plaintiff thereafter engaged in various acts of insubordination. Yet, in 2002, he earned a higher performance rating than in the previous year and was rewarded with a salary increase.

         In September of 2002, Mesher - -without consulting Feagans - -announced plans to close the law department's Worcester satellite operation and move those jobs to Valley Forge. He gave the staff in Worcester the option either of migrating or of accepting a generous severance package. Within a month, however, Mesher reversed his field; he abandoned the consolidation plan and rescinded the special severance offer.

         On or about October 25, the plaintiff for the first time expressed an interest in accepting the special severance package. Since the offer had been withdrawn three weeks earlier, his interest went unrequited.

         For reasons that shortly will become apparent, we turn for a moment to the plight of another Saint-Gobain employee, Diana Henchey. Between the fall of 2001 and the fall of 2002, Henchey on four occasions reported receiving anonymous, sexually tinged poems while at work. The poems were both unwanted and discomforting. The company reasonably concluded that this harassment was in all probability the work of a fellow employee.

         The poems themselves offered a clue to the author's identity: certain words were spelled in a distinctively "British" fashion. Based on that fact and on her short encounters with the plaintiff (who is British), Henchey suspected that he might be the anonymous poet. She voiced this suspicion to the company.

         At that point, the human resources office contacted Robert Wilk, an employee in the company's security department. Wilk conducted an investigation and retained an outside handwriting expert to assist in determining authorship. Wilk kept Mesher apprised of the status of the probe.

         In due course, the handwriting expert concluded that it was "highly probable" that the plaintiff had written the poems. When notified of the expert's opinion, Mesher contacted Feagans. He told Feagans that he wanted to make sure that the plaintiff would be available for a meeting in Worcester on a day certain. He did not say why. Without knowing the purpose of the meeting, Feagans ensured the plaintiff's availability.

         The meeting took place on October 31, 2002. Wilk, the plaintiff, and an outside consultant were in attendance. The plaintiff was asked whether he had written the poems. He not only denied their authorship but also denied that he had ever composed any poems. However, a search of the plaintiff's office revealed copies of other poems that he had written.

         At one point during the session, the plaintiff was asked to spell "meager" - -a word that appeared, spelled m-e-a-g-r-e, in one of the poems sent to Henchey. The plaintiff complied. He used the same distinctively "British" spelling that the poet had used.

         Wilk advised Mesher of the results of the interview and search. Mesher concluded that the plaintiff had sent the poems and decided to discharge him. There is no evidence that Mesher consulted Feagans with respect to this decision.

         Following his discharge, the plaintiff sued. He alleged, among other things, age discrimination, retaliation, aiding and abetting, and tortious interference with contractual relations. In due season, the defendants

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moved for summary judgment. The district court granted the motion, see Bennett, 453 F.Supp.2d at 333, and thereafter denied the plaintiff's motion for reconsideration. This timely appeal ensued.


         We begin our trek through the record with the preliminary question of whether the lower court acted appropriately in rejecting certain evidence that the plaintiff sought to have considered on summary judgment. We then address the court's summary judgment ruling, subdividing that discussion into four segments to correspond with the four causes of action pressed by the plaintiff at the hearing on summary judgment. Finally, we deal with the denial of the motion for reconsideration.

         A. The Evidentiary Proffer.

         At the summary judgment hearing, the district court ruled inadmissible statements contained in the internal age discrimination grievances filed by members of the IP group. These unsworn grievances referenced age-discriminatory remarks allegedly made by Feagans to Porter and another co-worker (who recounted them to Porter). The district court ruled that the unsworn grievances constituted inadmissible hearsay. Bennett, 453 F.Supp.2d at 324-25 (citing Cloutier v. Costco Wholesale Corp., 390 F.3d 126, 137 (1st Cir. 2004)). The plaintiff argues that the court improperly excluded this evidence both because the defendants admitted that the grievances had been filed and because the crucial statements fall within any of several possible exceptions to or exclusions from the hearsay rule. In that regard, he mentions the exclusion for prior inconsistent statements, Fed.R.Evid. 801(d)(1); the exclusion for admissions by a party-opponent, id. 801(d)(2)(A); the exclusion for admissions by an employer's agent acting within the scope of employment, id. 801(d)(2)(D); and the exception for statements concerning state of mind, id. 803(3). He also mentions the exceptions for business records, id. 803(6), and for operative facts, id. 807. He also makes a curious argument that Feagans's alleged comment is not offered for the truth of the matter asserted (in which event it would fall outside the hearsay definition altogether, see id. 801(c)).

         We review claims relating to the admission or exclusion of evidence for abuse of discretion. See United States v. Brown, 500 F.3d 48, 58 (1st Cir. 2007); Torres-Arroyo v. Rullán, 436 F.3d 1, 7 (1st Cir. 2006). That same abuse-of-discretion...

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