94 F.3d 640 (1st Cir. 1996), 95-2266, Dodi v. Putnam Companies

Docket Nº:95-2266.
Citation:94 F.3d 640
Party Name:Kofi DODI, Plaintiff--Appellant, v. THE PUTNAM COMPANIES, Defendant--Appellee.
Case Date:August 28, 1996
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 640

94 F.3d 640 (1st Cir. 1996)

Kofi DODI, Plaintiff--Appellant,

v.

THE PUTNAM COMPANIES, Defendant--Appellee.

No. 95-2266.

United States Court of Appeals, First Circuit

August 28, 1996

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA1 Rule 36 regarding use of unpublished opinions)

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Robert E. Keeton, U.S. District Judge]

Kevin G. Powers, with whom Robert S. Mantell and Law Office of Kevin G. Powers were on brief for appellant.

Ilene Robinson, with whom Louis A. Rodriques, Katherine J. Ross and Sullivan & Worcester LLP were on brief for appellee.

D.Mass.

AFFIRMED.

Before TORRUELLA, Chief Judge, and CYR and BOUDIN, Circuit Judges.

PER CURIAM.

Appellant-defendant Kofi Dodi ("Dodi") appeals the district court's decision granting defendant-appellant The Putnam Companies ("Putnam") summary judgment. Dodi had filed suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), and Mass. Gen. L. ch. 151B alleging discrimination on account of his race and national origin and/or retaliation for filing a charge with the Massachusetts Commission Against Discrimination ("MCAD"). The two issues before us are whether the court below abused its discretion in striking Dodi's two affidavits and portions of his Opposition to Summary Judgment; and whether it erred in granting the summary judgment. For the reasons stated herein, we affirm.

BACKGROUND

We recite the following facts, drawn from the district court Memorandum and Order, in the light most favorable to the nonmovant. Equal Employment Opportunity Comm'n v. Green, 76 F.3d 19, 21 (1st Cir.1996). Dodi is a United States citizen who was born in Ghana and is black. He began working for Putnam in 1984, and by 1987 was part of the Tax and Compliance unit. In December 1989 or January 1990, the department was reorganized. A white female, Michelle Whalen ("Whalen"), was appointed Manager of the Tax and Compliance unit, a position Dodi desired, and which title he maintains was his prior to the reorganization and Whalen's appointment. Dodi complained to several individuals, including Robert Lucey, President of Putnam Investor Services. After he complained, Dodi was made the IRS Technical Manager: he contends that his appointment was an effective demotion, while Putnam labels it a lateral move.

In May 1990, Dodi filed a charge with MCAD alleging that he was demoted and denied promotion on account of his race and national origin. After he filed the charge, his rating in his performance reviews declined--his rating dropped to "unsatisfactory"--and the reviews suggested increased hostility between Dodi and his supervisors. Dodi contends that he was excluded from meetings and isolated from the department because of the complaint. Putnam fired Dodi in March 1991, roughly ten months after the filing of the MCAD complaint. He filed a second complaint in June 1991, alleging that he was terminated because of his race and national origin, or in retaliation for filing the 1990 complaint, or both.

MCAD dismissed the two complaints in December 1992, for lack of probable cause, a decision it affirmed in January of 1993. Dodi filed a civil action in Massachusetts Superior Court, which Putnam removed to the Federal District Court. The parties made discovery requests and took depositions. Putnam filed a motion for summary judgment, which Dodi opposed. In June 1995, Putnam moved to strike portions of Dodi's Opposition to Summary Judgment (the "Opposition"). Dodi's opposition to the motion to strike contained an affidavit (the "first affidavit") with attachments. At a hearing in July 1995, the district court granted Putnam's motion to strike portions of Dodi's Opposition, and struck the first affidavit on its own initiative. It granted Dodi's request for permission to submit supplemental information in support of the stricken statements in the Opposition. In late July Dodi filed a supplemental submission in opposition to Putnam's motion to strike, including another affidavit (the "second affidavit"). In August, Putnam moved to strike the second affidavit, and in October 1995, the district court granted Putnam's motion for summary judgment and its motion to strike the second affidavit. This appeal ensued.

STRICKEN SUBMISSIONS

We begin with Dodi's argument that the district court erred in striking the affidavits and his Opposition since, if they were admissible, they would form part of the record on which the summary judgment would be evaluated. See Fed.R.Civ.P. 56(c). We review the district court's decision to strike for abuse of discretion. See Green, 76 F.3d at 23 ("The district court has broad authority to prescribe the evidentiary materials it will consider in deciding a motion for summary judgment."); see also Ramsdell v. Brooks, 64 F.3d 5, 8 (1st Cir.1995), cert. denied sub nom. Ramsdell v. Machias Savings Bank, 516 U.S. 1113, 116 S.Ct. 913 (1996); New England Anti-Vivisection Soc. v. U.S. Surgical Corp., 889 F.2d 1198, 1204 (1st Cir.1989).

Under the Federal Rules of Civil Procedure, affidavits "shall be made on personal knowledge, set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Fed.R.Civ.P. 56(e). Accordingly, if the affidavits and Opposition Dodi submitted did not meet these criteria, the district court can hardly have abused its discretion in striking them. Cf. Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir.1988) (affirming that affidavit which does not meet the Rule 56 specificity requirement is insufficient to establish a genuine issue for trial); FDIC v. Roldán Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) (holding that where receipts submitted to support opposition to summary judgment constituted inadmissible hearsay, party failed to comply with Rule 56(e)).

Having briefly set out our standard of review and the relevant legal framework, we turn to the particulars of Dodi's argument. As the parties have addressed the stricken documents according to...

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