Dodi v. Putnam Companies
| Decision Date | 28 August 1996 |
| Docket Number | No. 95-2266,95-2266 |
| Parties | NOTICE: First Circuit Local Rule 36.2(b)6 states unpublished opinions may be cited only in related cases. Kofi DODI, Plaintiff--Appellant, v. THE PUTNAM COMPANIES, Defendant--Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
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.
Before TORRUELLA, Chief Judge, and CYR and BOUDIN, Circuit Judges.
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.
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.
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 (); see also Ramsdell v. Brooks, 64 F.3d 5, 8 (1st Cir.1995), cert. denied sub nom. Ramsdell v. Machias Savings Bank, --- U.S. ----, 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) (); FDIC v. Roldan Fonseca, 795 F.2d 1102, 1110 (1st Cir.1986) ().
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 subject, we follow suit. 1
Imitation of Dodi's Accent: The district court struck Dodi's statement in his Opposition that William McGue, Putnam's Managing Director, and Robert Frazer, a white manager, "made fun of Dodi's accent, and imitated him at meetings and during casual conversations." Dodi seeks to rely on a paragraph from his second affidavit in support of his assertion. We do not find that the district court abused its discretion in striking either the statement from the Opposition or the paragraph in the second affidavit. The statements in the paragraph are conclusory and lack specificity. Moreover, even if it were error to exclude the evidence, it would be harmless, for the imitation does not support Dodi's claim of retaliation, and as discussed below, that is the only cause of action remaining on appeal.
Merit Raises: The district court struck Dodi's statement in the Opposition that he "received raises based on merit," on the basis that there was nothing in the record as to what "merit" meant, or how and on what basis such raises were given. Dodi claims that statements from the stricken second affidavit provide such verified information. He also points to a computer printout entitled "Salary, Increase & Performance History Screen" which the district court struck as part of the first affidavit, as well as a memorandum sent to him from James Swinney, a Senior Vice President, dated January 2, 1990. We find that the district court did not abuse its discretion in striking these documents.
Dodi claims that all three meet the requirements to be a business record exception to the hearsay rule. The requirements for the exception are clear: a "memorandum, report, record or data compilation, in any form" is admissible so long as it is
made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness....
Fed.R.Evid. 803(6); see, e.g., E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 926 (11th Cir.1990). Dodi has not provided the required foundation for these three documents. First, Dodi misunderstands the application of the rule, which applies to memoranda, reports, and record or data compilation, not oral statements, in claiming that it covers oral statements made to him and mentioned in the second affidavit. Second, as for the computer printout, Dodi's statement that in his experience, "such documents are routinely generated by Defendant in the ordinary course of its business" falls far short of laying out the foundation Rule 803(6) requires. That it was provided to Dodi in discovery does not save it. Third, Dodi has also failed to lay out the foundation for the memorandum from Swinney: although he says he received it in the normal course of business on January 2, 1990, and that it was generated and maintained in the ordinary course of business, we agree with Putnam that there is no support for these claims.
Dodi faces similar foundational issues with his claim that the documents are also admissible as party admissions under Fed.R.Evid. 801(d)(2)(D). He has, to put it briefly, failed to show that the statements he cites to were made by Putnam's "agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Fed.R.Evid. 801(d)(2)(D). Mere assertion that they were so made does not suffice.
Even if some of these statements had been admissible, however, the court still would not have abused its discretion since, as Dodi notes in his brief, the court based its decision in part on the fact that there was no basis in the record as to what "merit" meant. In the...
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