846 F.2d 103 (1st Cir. 1988), 87-1909, Oliver v. Digital Equipment Corp.

Docket Nº:87-1909.
Citation:846 F.2d 103
Party Name:Norman W. OLIVER, Plaintiff, Appellant, v. DIGITAL EQUIPMENT CORPORATION, Defendant, Appellee.
Case Date:May 13, 1988
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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846 F.2d 103 (1st Cir. 1988)

Norman W. OLIVER, Plaintiff, Appellant,



No. 87-1909.

United States Court of Appeals, First Circuit

May 13, 1988

Heard March 7, 1988.

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Harold F. Brunault, Holyoke, Mass., for plaintiff, appellant.

Philip M. Berkowitz with whom Susan A. Romero and Epstein Becker & Green, P.C., New York City, were on brief, for defendant, appellee.

Before CAMPBELL, Chief Judge, WISDOM, [*] Senior Circuit Judge, and BOWNES, Circuit Judge.

BOWNES, Circuit Judge.

Plaintiff-appellant Norman Oliver (Oliver) appeals a summary judgment in favor of defendant-appellee Digital Equipment Corporation (Digital). Oliver filed suit in the district court on January 14, 1983. He claimed that, because he was black, Digital discriminated against him in the terms and conditions of his employment inevitably leading to his discharge. His complaint, as amended, alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e-2(a), -3(a), 42 U.S.C. Sec. 1981, and Mass. Gen. Laws ch. 151B, Sec. 4(1) et seq.

Nine claims for relief were alleged in the original complaint: (1) harassment on the job; (2) failure to provide Oliver with proper and adequate training; (3) unsatisfactory work evaluations which were distorted or fabricated; (4) contradictory and arbitrary reponses to Oliver's attempts to obtain job transfers within the company which were designed to undermine Oliver's efforts while appearing to support them and to place Oliver in a position whereby he could not succeed; (5) arbitrary and discriminatory discipline; (6) retaliation for filing charges with the Massachusetts Commission Against Discrimination and the Equal Opportunity Commission; 1 (7) changing the classification of the job for which Oliver interviewed after he was hired resulting in impairment of his growth and development within the company as well as of salary increases; (8) engaging in discriminatory practices against non-Caucasians; and (9) violating Mass.Gen.Laws ch. 151B, Sec. 4(1) et seq. by all of the aforementioned actions. The amended complaint alleges that the reasons given for Oliver's discharge were pretextual.

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Discovery consisted mainly of the deposition of Oliver, taken at different times, and his answers to interrogatories. Oliver initially responded to Digital's motion for summary judgment with a request pursuant to Federal Rule of Civil Procedure 56(f) for an extension of time in which to complete discovery. The district court found the request deficient because Oliver did not allege specific facts that would be developed through further discovery to "breathe life into his claims," citing Hebert v. Wicklund, 744 F.2d 218, 222 (1st Cir.1984); Taylor v. Gallagher, 737 F.2d 134, 137 (1st Cir.1984). Because he was then proceeding pro se, the district court allowed Oliver further time to frame an appropriate affidavit to support his Federal Rule of Civil Procedure 56(f) motion. Oliver's subsequent filing was no more effective, and the district court granted Digital's motion for summary judgment.

The crux of the district court's opinion is the following holding. "Assuming that Mr. Oliver had made out a prima facie case, defendant has provided legitimate nondiscriminatory bases for its conduct which plaintiff has failed to demonstrate are pretextual." The district court's decision does not specifically refer to Oliver's state law claims, granting Digital's motion for summary judgment without reservation. Since Digital's motion clearly includes the state law claims, we have no doubt the district court intended to dismiss these claims as well as the federal claims.


The root issue in any summary judgment review is whether the provisions of Federal Rule of Civil Procedure 56(c) have been met: Do "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 a judgment as a matter of law"? The Court has stated:

By its very terms, this standard provides that the 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, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. To demonstrate that no genuine issue of material fact exists, the moving party must point out "an absence of evidence supporting the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). In reviewing the trial court's grant of summary judgment, we must view the record in the light most favorable to the party opposing the motion, and must indulge all inferences favorable to that party. See Metropolitan Life Insurance Co. v. Ditmore, 729 F.2d 1, 4 (1st Cir.1984); King v. Williams Industries, Inc., 724 F.2d 240, 241 (1st Cir.1984), cert. denied, 466 U.S. 980, 104 S.Ct. 2363, 80 L.Ed.2d 835 (1986). The party opposing the motion, however, may not rest upon mere allegations; it must set forth specific facts demonstrating that there is a genuine issue for trial. See Daury v. Smith, 842 F.2d 9, 11 (1st Cir.1988) (citing Perez De La Cruz v. Crowley Towing & Transportation Co., 807 F.2d 1084, 1086 (1st Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 2182, 95 L.Ed.2d 838 (1987)).


We state the facts in the light most favorable to Oliver. He began working for Digital in June of 1980 as a Mechanical Engineering Technician III. During his hiring interview, a higher level position was discussed--Technician IV. The salary offered, however, was the same for both classifications. Oliver contends that he was given the lower classified position because of his race. In his deposition, however, he testified that he had no idea why he was not hired as a Technician IV and that any reason he might give would be speculative.

At the time he was hired, Oliver requested that he be assigned to the second shift so that he could attend college during the day. Oliver understood that Digital had

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agreed to this, but he was placed on the first shift when he started work. He took the matter up with a superior and he was assigned to the second shift, but was warned that he might be returned to the first shift if there was a decrease in second shift work. He was returned to the first shift some months later. Subsequently, Oliver and a number of other employees were placed on "excess" status, workers who have no regularly assigned jobs but fill in as needed. Digital gave a decline in the market as the reason for this action. Oliver stated in his deposition that, to his best knowledge, all the other persons placed in "excess" status were white. After Oliver and a white co-worker, a Technician II, were declared excess, another white employee went on the second shift with responsibilities similar to those of Oliver and his co-worker. Subsequently, Oliver was classified as a Technician II in a position different from the one for which he was originally hired.

Oliver claims that Digital gave him inadequate training. As an example he cited a company instruction course he attended in August of 1980. Oliver had understood that he would be given this course earlier so that his attendance at it would not interfere with his college attendance. Digital, however, had informed Oliver that it was usual company policy to require three months' work experience before an employee could attend a course of instruction. Oliver testified in his deposition that the course instructor was fair and that he received the same instructions as the other course attendees. He maintained, nevertheless, that the goals were unfairly high. He attributed his poor performance on the test given at the end of the course to his lack of "hands on" experience with the machines he was to repair.

Although Oliver acknowledged that he did receive extra training during his employment at Digital, he maintained that he was not given sufficient training to reach the goals set for him. He was unable to say whether the training white employees received was comparable to what he was given or better. He alleged that another black technician had been told by a machine operator not to help Oliver in any way.

Oliver contended that the poor work evaluations he received from his supervisors were the result of racial discrimination. As support for this, he stated that he was the only black in the group and the only person to receive such poor work evaluations. Oliver also cited inadequate training and work assistance and unrealistic goals as reasons for his poor performance evaluation. These factors, he asserted, were the direct result of discrimination.

Oliver received a number of formal (written) warnings regarding tardiness, absence from work, and absence from his work station. As a consequence, he was ordered to conform to certain time restrictions not imposed upon all other employees, including punching a time clock. Oliver conceded that a white co-worker was also subject to the same constraints.

Oliver's last supervisor warned him that if he did not progress in his ability to repair equipment he would have to be discharged. A work and training schedule was devised by this supervisor with goals that Oliver was expected to meet. After both a verbal and written warning for failing to meet the schedule goals, Oliver was discharged on December 8, 1983, for poor performance.

There is no dispute as to Oliver's work record, the training given him, the evaluations he received, and the warnings issued to him. The only dispute is as to why Oliver was...

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