871 F.2d 179 (1st Cir. 1989), 88-1988, Mack v. Great Atlantic and Pacific Tea Co., Inc.

Docket Nº:88-1988.
Citation:871 F.2d 179
Party Name:, 13 Fed.R.Serv.3d 330 Thomasina MACK, Plaintiff, Appellant, v. The GREAT ATLANTIC AND PACIFIC TEA COMPANY, INC., Defendant, Appellee.
Case Date:March 28, 1989
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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871 F.2d 179 (1st Cir. 1989)

, 13 Fed.R.Serv.3d 330

Thomasina MACK, Plaintiff, Appellant,



No. 88-1988.

United States Court of Appeals, First Circuit

March 28, 1989

Heard Feb. 8, 1989.

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John G. Bagley with whom Egan, Flanagan and Egan, P.C., Springfield, Mass., was on brief, for plaintiff, appellant.

Richard P. Ward with whom David J. Kerman, Robert B. Gordon and Ropes & Gray, Boston, Mass., were on brief, for defendant, appellee.

Before BREYER, ALDRICH and SELYA, Circuit Judges.

SELYA, Circuit Judge.

On October 28, 1983, plaintiff-appellant Thomasina Mack, a black woman, sued her employer, Great Atlantic and Pacific Tea Company (A & P), charging race and sex discrimination. The district court eventually entered summary judgment in defendant's favor. We affirm.


Although the parties heatedly dispute the fairness--or lack of same--with which Mack was treated during her employment, the facts central to our inquiry are largely uncontroverted. Plaintiff began working for A & P in 1971. Except for a brief stint in 1974 as a head cashier--a position which she resigned--she toiled for the most part as a grocery/produce clerk (GPC) in Springfield, Massachusetts. GPC positions were full-time and within the ambit of A & P's collective bargaining agreements.

In 1981, A & P shrank the number of GPC positions within its divisional work force. Pursuant to the then-current union pact, Mack was "bumped" from her job by a more senior employee. When A & P proposed to transfer her (as a GPC) to a store some distance away, she complained to the Massachusetts Commission Against Discrimination (MCAD). The gist of her remonstrance was that A & P had failed to promote her, instead elevating a less senior white male within her job classification to a higher-level job roughly one month before the reduction in force took place. Mack attributed the maneuver to the fact that she was black and/or female. In December 1981, the parties settled the dispute: the case was dismissed, A & P retransferred Mack to a GPC slot in Springfield, and the company agreed that she would be fairly considered for future promotions.

All went well until November 1982, when more layoffs occurred. Mack was again supplanted by a more senior employee. This time, she remained in Springfield, but in a part-time status, with concomitant diminution of pay, benefits and job security. Unhappy with her lot, she filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) in January

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1983. As amplified by her opposition to the defendant's summary judgment motion, Mack's complaint apparently centered around the allegation that, in the year or so prior to the latest layoffs, three white males, all junior to Mack in length of service, had been promoted from GPC positions to jobs unaffected by the reduction in force. The EEOC referred the claim to MCAD, as the appropriate state agency. See 42 U.S.C. Sec. 2000e-5(d) (1982).

The administrative proceedings were inconclusive and plaintiff sued in federal court. She claimed that she had unfairly been left at the checkout counter while white males with less seniority were routinely promoted. To truncate a tedious tale, defendant moved for summary judgment several years later on the ground that the suit was untimely under Title VII, 42 U.S.C. Sec. 2000e et seq. It contended that the three promotions criticized by plaintiff had all occurred outside of the applicable limitations period, and that, in any event, its personnel policies and practices were gender-blind and racially neutral. The district court agreed, ruling that Mack had failed to bring suit in a seasonable fashion. Plaintiff appeals.


Summary judgment is warranted only if:

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.

Fed.R.Civ.P. 56(c). Though the movant's burden is heavy, 1 an opponent may not rest upon her laurels (or her pleadings), but "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial. See Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). As the Court has said:

[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986) (citations omitted).

In assessing the parties' proffers under the rule, the district judge "must eye all reasonable inferences in the light most congenial to the nonmovant." Greenberg v. Puerto Rico Maritime Shipping Auth., 835 F.2d 932, 934 (1st Cir.1987). If he grants the motion, our review is plenary: we must reverse if we find that issues of fact which were adequately raised below need to be resolved before the related legal issues can be decided. Id.; see also Lipsett v. University of Puerto Rico, 864 F.2d 881, 895 (1st Cir.1988); Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 986 (1st Cir.1983). Preclusory time bars are appropriately examined under Rule 56 if the relevant facts are sufficiently clear. See, e.g., Admiralty Fund v. Jones, 677 F.2d 1289, 1293 (9th Cir.1982); Kussmaul v. Peters Constr. Co., 563 F.Supp. 91, 92 (D.R.I.1983).

To sculpt the summary judgment model to the dimensions of this case, we look to Title VII. In a "deferral state" such as Massachusetts, the statute requires a claimant to file administrative charges within 240 days of the challenged conduct. See 42 U.S.C. Sec. 2000e-5(c), (e); see also Mohasco Corp. v. Silver, 447 U.S. 807, 814 n. 16, 100 S.Ct. 2486, 2491 n. 16, 65 L.Ed.2d 532 (1980); Isaac v. Harvard University, 769 F.2d 817, 818-19 (1st Cir.1985). Thus, to escape the swing of the summary judgment axe, Mack had the burden of showing

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either (1) that a discriminatory act occurred within 240 days next preceding her administrative filing (effectuated on January 21, 1983), or (2) that there were facts extant which, if believed, would suffice to toll the prescriptive period and excuse the delay.


  1. The 1982 Reduction in Force.

    Through counsel, appellant conceded at oral argument that she could identify no discriminatory promotion occurring within the 240-day period (that is, on or after May 26, 1982). She pinned her hopes instead on the notion that her demotion to a part-time role in November 1982 was itself a discriminatory act, thereby rendering her claim timeous. Mack's thesis runs along the following lines: Gary Bassett, a GPC who had less seniority than she did, retained his full-time status during and after the 1982 layoffs; because Bassett was junior to her, he should have been "bumped" in her stead; retaining him in November 1982 constituted a discriminatory act within the limitations period. Withal, there is a large fly in the ointment: having canvassed the record with care, we can find no "significantly probative" evidence, Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2510-11, to create a genuine issue of material fact on this point.

    A & P tendered substantial proof that, in November 1982, Bassett was not a GPC at all. By then, he was employed in a different job category, first clerk (FC). The record is clear that the positions were separate and distinct; if Mack was in one category and Bassett in the other, defendant's failure to treat them on a par was mandated by the collective bargaining agreement and could not constitute actionable discrimination. Accordingly, plaintiff's ability to defeat summary judgment on this claim was dependent upon the existence of adequate evidence that, in late 1982, Bassett, like Mack, was a GPC. In response to such persuasive data as Bassett's sworn denial and the testimony of the personnel director that Bassett had been promoted to a vacant FC position effective April 7, 1982, Mack could point only to an "employment card" which mysteriously failed to record Bassett's promotion. We have examined the card. It is mostly handwritten, barely decipherable, and seems at best an informal record. It does not contradict the fact of the promotion, but is silent on the subject. We do not think that the incompleteness of the card, standing alone and in the face of powerful evidence to the contrary, suffices to raise a genuine issue of fact as to Bassett's employment status.

    Because there is no sufficiently probative evidence that other comparably credentialed GPCs were treated more favorably than plaintiff when A & P reduced its staff in November 1982, 2 Brevis disposition of this claim was proper.

  2. Continuing Violation Theory.

    Mack next attempts to establish timeliness by arguing that A & P has committed a "continuing violation." In any such analysis, it is imperative that we distinguish between the occurrence of a discriminatory act and the later effects of that act. See, e.g., Delaware State College v. Ricks, 449 U.S. 250, 257, 101 S.Ct. 498, 503-04, 66 L.Ed.2d 431 (1980); United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977). That is to say, the life of plaintiff's cause of action is not prolonged merely because she would not have been "riffed" in 1982 had she been promoted earlier. As the Court has taught, "the proper focus is on the time of the...

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