740 F.3d 785 (1st Cir. 2014), 13-1609, Pina v. Children's Place

Docket Nº:13-1609.
Citation:740 F.3d 785
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:Jamilya PINA, Plaintiff, Appellant, v. The CHILDREN'S PLACE a/k/a The Children's Place Retail Stores, Inc. and Jean Raymond, Defendants, Appellees.
Attorney:Winston Kendall, with whom Law Office of W. Kendall, was on brief for appellant. Michael Mankes, with whom F. Arthur Jones II and Littler Mendelson, P.C., were on brief for appellees.
Judge Panel:Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.
Case Date:January 27, 2014
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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740 F.3d 785 (1st Cir. 2014)

Jamilya PINA, Plaintiff, Appellant,


The CHILDREN'S PLACE a/k/a The Children's Place Retail Stores, Inc. and Jean Raymond, Defendants, Appellees.

No. 13-1609.

United States Court of Appeals, First Circuit.

January 27, 2014

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[Copyrighted Material Omitted]

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Winston Kendall, with whom Law Office of W. Kendall, was on brief for appellant.

Michael Mankes, with whom F. Arthur Jones II and Littler Mendelson, P.C., were on brief for appellees.

Before TORRUELLA, HOWARD, and KAYATTA, Circuit Judges.

TORRUELLA, Circuit Judge.

Jamilya Pina (" Pina" ) appeals from the district court's grant of summary judgment in favor of her former employer, The Children's Place Retail Stores, Inc. (" TCP" ), and TCP District Manager Jean

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Raymond (" Raymond" ). Pursuing claims of employment discrimination and retaliation, Pina asserts that she was fired, harassed, and not rehired on the basis of race in violation of 42 U.S.C. § 1981 and Massachusetts General Laws chapter 151B, section 4. She argues that the district court abused its discretion by denying three of her discovery motions, and that it erred by granting Appellees' motion for summary judgment. Finding no error or abuse of discretion, we affirm.

I. Background

Because Pina challenges the grant of Appellees' motion for summary judgment, we review the facts in a manner as favorable to Pina as the record allows, " keenly aware that we cannot accept conclusory allegations, improbable inferences, and unsupported speculation." Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134 (1st Cir.2013) (internal quotation marks omitted).

A. Factual Background

Pina, an African-American woman, worked periodically as a per diem sales associate at TCP's South Shore Plaza store beginning in June 2006.1 In late June or early July of 2007, Pina applied for a position as an Assistant Store Manager (" ASM" ) at TCP's Cambridgeside Galleria (" Cambridgeside" ) location. Raymond— TCP's white male District Manager— interviewed Pina, and on July 2, 2007, he offered her the position. Pina accepted the ASM position and thereafter reported to the Cambridgeside Store Manager Ingrid Trench (" Trench" ), an African-American female.

During this time, Pina was in a romantic relationship with Michael Williams (" Williams" ), an African-American male who worked for TCP at the South Shore Plaza store. Pina, however, began to suspect that Williams was being unfaithful, and she accused multiple TCP employees of sleeping with Williams. Among those Pina suspected were two South Shore Plaza ASMs: Melody Mowatt (" Mowatt" ), an African-American female, and Stephanie Giordano (" Giordano" ), a white female.

On the night of July 20, 2007, Pina called the South Shore Plaza Store Manager Kristen Fernándes (" Fernándes" ) and accused Mowatt and Giordano of falsifying Williams's time cards. Pina asserts that while she was driving Williams to work, he told her that arriving late was not a problem because one of the ASMs would " take care of it." Because she continued receiving full child support payments from Williams even though she knew he was arriving late, Pina believed that Giordano and Mowatt were altering Williams's time cards so that he was paid as if he had arrived on time.

According to her deposition testimony, Pina believes that she mentioned only the time card fraud and that she did not discuss any romantic relationships or allegations of sexual impropriety during her conversation with Fernándes. Pina also now claims that after telling Fernándes about the time card fraud, she made an additional report regarding Giordano's alteration of Williams's time cards by calling TCP's loss prevention hotline. Pina believed that she would be paid for her report because TCP's loss prevention program advertised rewards of up to $100 for hotline reports leading to the termination of an employee for theft.

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The following day, on July 21, 2007, Fernándes reported Pina's call to Raymond, who responded immediately by investigating Pina's allegations. Raymond and Fernándes reviewed three weeks of time cards and questioned the ASMs at the South Shore Plaza store about the allegations, but they found no evidence of wrongdoing. Raymond then notified the Human Resources Director of his findings. Neither Raymond nor any other TCP employee interviewed Pina or informed her about the results of the investigation into the time cards.

Two days later, on July 23, 2007, Pina accused another TCP employee— this time her own manager, Trench— of having an affair with Williams. While at a Dunkin' Donuts before work, Pina recognized one of the other patrons: Joe Leslie (" Leslie" ), Trench's partner. In the presence of Trench's young daughter, Pina told Leslie that Trench was sleeping with Williams.2 Leslie was shocked by Pina's statements and immediately informed Trench of the encounter. Trench then reported Pina's disparaging statements to Raymond, who immediately questioned Pina to get her version of events. Pina admitted to accusing Trench of sleeping with Williams as reported, although she argued that it was off the clock and none of Raymond's business. Raymond claims that he was shocked by Pina's use of foul language during their conversation, that he concluded Pina's actions were serious and inappropriate, and that he suspended her with pay pending further investigation.

Later that same day, Raymond went to the Cambridgeside store to inquire further about Pina's behavior. His investigation revealed that Pina had also told a Cambridgeside sales associate that Trench was sleeping with Williams, although Pina could not recall having that conversation. In addition, Raymond received a call from Mowatt, who revealed that Pina had left harassing messages on Mowatt's cell phone, accusing her of having an affair with Williams as well. 3 Fernándes and another TCP employee told Raymond that they had listened to Pina's messages and were concerned for Mowatt's safety. Trench also told Raymond that she feared Pina. Raymond determined that Pina had engaged in harassing, disorderly, and inappropriate behavior and that she could pose a threat to the safety of TCP employees. After consulting with TCP's human resources department, Raymond fired Pina on July 27, 2007.

On January 10, 2008, Pina filed a charge of discrimination with the Massachusetts Commission against Discrimination (" MCAD" ), alleging that TCP and Raymond terminated her employment on the basis of her race because they did not want to compensate her, an African-American woman, for reporting internal theft.4 On January 9, 2011, the MCAD dismissed Pina's charge, finding that she had engaged in a pattern of unprofessional behavior

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resulting in her termination. The MCAD also found that six of the fourteen TCP employees to have received the $100 award for reporting theft from 2007 to 2008 were African-American, and that reporting internal theft was not protected activity that could give rise to a claim of retaliation under Massachusetts law.

Three months later, on April 2, 2011, Pina applied for a position as an ASM at TCP's Downtown Crossing location. Pina admits that she did not know if the store had any openings for that position at the time she applied. Believing that she missed a call from the Downtown Crossing store around May 12, 2011, Pina later returned to the store and spoke with the same TCP employee to whom she originally handed her application. Based on this conversation, Pina believed that the hiring manager would contact her. According to Appellees, however, there were no available ASM positions at the Downtown Crossing store at the time that Pina applied. Pina was never contacted or interviewed for the ASM position.

When an ASM position later opened up at the Downtown Crossing store in late April or early May 2011, Cynthia Henry (" Henry" ), the District Manager responsible for the Downtown Crossing store, selected an internal candidate to fill the position. The candidate she selected was an African-American female with a year of experience as an ASM in TCP's Saugus store. Henry promoted her without considering any external candidates or advertising the position.

B. Procedural Background

On June 14, 2011, Pina filed a second charge with the MCAD, this time claiming that TCP failed to interview and re-hire her on the basis of race and in retaliation for her first MCAD charge, all in violation of Massachusetts law and Title VII. The MCAD eventually dismissed Pina's second charge, but prior to that decision, Pina initiated the present action on July 19, 2011. After the case was removed to district court, many of Pina's state law claims were dismissed for failure to file within the limitations period and failure to state a claim. On March 9, 2012, Appellees moved for summary judgment on Pina's remaining claims: supervisor harassment and discriminatory firing in violation of 42 U.S.C. § 1981, and retaliatory failure to rehire in violation of both § 1981 and chapter 151B of the Massachusetts General Laws. On March 27, Pina filed motions to reopen Raymond's deposition, to strike Henry's affidavit, for an extension of time, and for leave to file a cross-motion for summary judgment. After a hearing, the district court denied Pina's discovery-based motions, and on March 14, 2013, it granted Appellees' motion for summary judgment. After an unsuccessful motion for reconsideration, Pina's timely appeal followed.

II. Analysis

On appeal, Pina argues that the district court erroneously denied three of her discovery-related motions: her motion to re-open Raymond's deposition, her motion to strike Henry's affidavit, and her motion for an extension of time. Additionally, Pina...

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