Dennis v. Osram Sylvania, Inc.

• Decision Date: 10 December 2008
• Docket Number: No. 07-2670.,07-2670.
• Citation: 549 F.3d 851
• Parties: Richard DENNIS, Plaintiff, Appellant, v. OSRAM SYLVANIA, INC., Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

549 F.3d 851

Richard DENNIS, Plaintiff, Appellant, v. OSRAM SYLVANIA, INC., Defendant, Appellee.

No. 07-2670.

United States Court of Appeals, First Circuit.

Heard June 5, 2008.

Decided December 10, 2008.

Kenneth J. Barnes, with whom Upton & Hatfield, LLP, Nancy Richards-Stower,

and Law Offices of Nancy Richards-Stower, was on brief for appellant.

Bruce W. Felmly, with whom Jennifer L. Parent and McLane, Graf, Raulerson & Middleton Professional Association, was on brief for appellee.

Before LYNCH, Chief Judge, TORRUELLA, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff-Appellant Richard Dennis appeals the district court's decision to grant Defendant-Appellee Osram Sylvania, Inc.'s ("Sylvania") motion for summary judgment on a claim involving New Hampshire's anti-discrimination statute, N.H.Rev.Stat. Ann. § 354-A. Dennis also appeals the district court's decision to deny "as moot" two discovery motions: (1) a motion to compel discovery of privileged documents and (2) a motion for an extension of time pursuant to Fed.R.Civ.P. 56(f). For the reasons stated below, we affirm.

I. Background

Dennis was employed with Sylvania from August 1995 to March 24, 2004, at which date he was terminated. At the time of his firing, Dennis was the Associate Development Program Manager in Sylvania's human resources department. His responsibilities included representing the company at recruitment fairs on campuses and overseeing Sylvania's internship program.

Dennis claims that Sylvania retaliated against him because he gave deposition testimony critical of the company in an internal matter brought by Nancy Green, a former employee of Sylvania. Green had alleged that Sylvania retaliated against her because she had filed a sexual harassment complaint against a co-worker. As the lead investigator of Green's complaint, Dennis was deposed on February 5, 2004. Dennis cites to several instances in his deposition where he was critical of Sylvania's response to Green's claims, such as the company's "soft punishment" of the alleged harassers and the slow pace with which it conducted the investigation of her claims.¹

In addition, Dennis points to certain actions and statements by Sylvania's lawyers demonstrating their dissatisfaction with his testimony. For example, Dennis claims that Paul Beckwith, Sylvania's legal counsel, was "hostile" to him during the deposition. Dennis also alleges that Beckwith raised his voice in response to Dennis' inquiries about the strength of the Green case, exclaiming that he "doesn't have time for this shit." Dennis further claims that during a break, when he sought guidance from Beckwith regarding whether he had to reveal his knowledge of a company manager's romantic involvement with a subordinate, Beckwith, "in a forceful manner, ordered him to answer `yes,' `no,' or `I don't recall.'"² Dennis states that Beckwith told him that the second part of his testimony was not as helpful as the first part. In addition, Dennis alleges that Sylvania's in-house counsel, Nicole Vient (formerly Nicole "Buba"), "rolled her eyes" during his deposition, indicating her unhappiness with Dennis' testimony.

Sylvania disagrees that Dennis gave testimony critical of the company, arguing instead that the testimony "strongly supported" Sylvania's defense of Green's claims.³ Furthermore, Vient does not recall if she rolled her eyes during Dennis' deposition and insists that she "did not in any way criticize his performance at the deposition." Beckwith, for his part, denies instructing Dennis during a break to answer questions in any particular way.

On February 6, 2004, the day after Dennis' deposition testimony, Vient began investigating Dennis in reference to a complaint, received by the company on January 28, 2004, from Miguel Molina. Molina, an unsuccessful applicant for re-employment, claimed that Dennis had subjected him to "inappropriate and unprofessional" conduct. The investigation revealed that Dennis, when meeting with Molina, had made reference to Molina's problems with his taxes and his rent. Also, it revealed that Dennis had shared these details as well as details regarding Molina's marital life with Molina's potential supervisor at the company.

Pamela Tracey, Sylvania's in-house counsel who oversaw Vient's investigation, subsequently met with Dennis' supervisors, Geoffrey Hunt and William Franz, to discuss these incidents.⁴ They decided that a warning should be placed in Dennis' file. Franz documented Dennis' conduct towards Molina in a February 23, 2004 internal communication to Dennis. He concluded that Dennis' actions were "entirely inappropriate" and requested Dennis to sign a statement to that effect. Dennis refused to sign the statement and told Franz that he viewed the Molina investigation and warning letter as retaliation for his deposition testimony in the Green matter. Dennis also accuses Franz of "look[ing] away" and responding that "he knew nothing about [the deposition]." Franz confirmed that he told Dennis that he did not know anything about the deposition, but does not recall "looking away."

On March 24, 2004, Sylvania terminated Dennis. In his deposition testimony, Franz stated that Dennis' position was "severely weakened" by the Molina matter as well as by a 2001 complaint by another former employee, Kim Serrechia.⁵ Franz also states that he recommended terminating Dennis because his performance was affected by "extreme duress" due to family issues and because of a reduction in force in Sylvania's equipment development department, the latter forcing Franz to choose between Dennis and Leah Weinberg, whom Franz referred to as a "high achieving human resources manager." Franz subsequently informed Hunt, his supervisor, of his decision and Hunt approved.

After initially filing his complaint with the New Hampshire Commission for Human Rights ("Commission"), Dennis filed an action in Rockingham County Superior Court in New Hampshire alleging retaliation under N.H.Rev.Stat. Ann. § 354-A.⁶ The case was then removed to the United States District Court for the District of New Hampshire. In the proceeding below, the district court granted Sylvania's motion for summary judgment stating that Dennis had failed to establish a prima facie case of retaliation because Franz and Hunt, the individuals responsible for terminating Dennis, "knew nothing about plaintiff's Green deposition." Dennis v. Osram Sylvania, Inc., No. 06-CV-029-SM, 2007 WL 2783369, at *8 (D.N.H. Sept. 24, 2007). The district court alternatively concluded that even if Dennis had established a prima facie case, Sylvania had fired Dennis for legitimate non-discriminatory reasons such as his poor work performance and the fact that Franz wanted to retain another employee instead of Dennis because of the company's reduction in force. Id. at *7. Furthermore, the district court explained that summary judgment was appropriate because the factual disputes arising during Dennis' deposition testimony in the Green matter with Beckwith and Vient were not material to the resolution of Dennis' case. Id. at *8-9.

II. Sylvania's Motion for Summary Judgment

A. Standard of Review

"Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law based on the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits." Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir.2008)(citing Fed. R.Civ.P. 56(c)). "A `genuine' issue is one that could be resolved in favor of either party, and a `material fact' is one that has the potential of affecting the outcome of the case." Calero-Cerezo v. U.S. Dep't. of Justice, 355 F.3d 6, 19 (1st Cir.2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). "We review summary judgment rulings de novo, construing the record evidence in the light most favorable to the nonmoving party." Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir.2003).

"Even in retaliation cases, `where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.'" Vives v. Fajardo, 472 F.3d 19, 21 (1st Cir.2007) (quoting Benoit, 331 F.3d at 173); see also Thompson, 522 F.3d at 175 ("When considering arguments for summary judgment, `we must disregard improbable or overly attenuated inferences, unsupported conclusions, and rank speculation.'" (quoting Abbott v. Bragdon, 107 F.3d 934, 938 (1st Cir.1997))).

We will reverse "only if, after reviewing the facts and making all inferences in favor of the non-moving party ... the evidence on record is sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side." Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir.2008) (internal quotations omitted).

As a preliminary matter, we note Dennis' citation to the the Supreme Court's ruling in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 151, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), for the proposition that this court at summary judgment must "disregard all evidence favorable to the moving party that the jury is not required to believe." According to Dennis, our consideration of Sylvania officials' declarations are impermissible under Reeves because the officials are interested parties. See id. ("[T]he court should give credence to the evidence favoring the nonmovant as well as that evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.")(internal quotations omitted).

Dennis misreads the scope of Reeves. At summary judgment we need not exclude all interested testimony, specifically testimony that is uncontradicted by the nonmovant. See Lauren W. ex rel. Jean W. v. DeFlaminis, 480...