Fennell v. First Step Designs, Ltd., 95-2294

Decision Date04 March 1996
Docket NumberNo. 95-2294,95-2294
Citation83 F.3d 526
Parties70 Fair Empl.Prac.Cas. (BNA) 1305, 34 Fed.R.Serv.3d 1566 Rachel L. FENNELL, Plaintiff, Appellant, v. FIRST STEP DESIGNS, LTD, d/b/a Hand-In-Hand, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Roy T. Pierce with whom Alfred C. Frawley and Brann & Isaacson, Lewiston, ME, were on brief for appellant.

Peter Bennett with whom Frederick B. Finberg and Bennett and Associates, P.A., Portland, ME, were on brief, for appellee.

Before SELYA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and STAHL, Circuit Judge.

STAHL, Circuit Judge.

Rachel L. Fennell sued her former employer, First Step Designs, Ltd. ("First Step"), under Title VII and related state laws, claiming that she was terminated in retaliation for making allegations of sexual harassment. First Step moved for summary judgment, presenting evidence that the decision to lay off Fennell had been made prior to her complaint. The district court granted summary judgment for First Step, after denying Fennell's motion for further discovery under Fed.R.Civ.P. 56(f). Fennell had hoped that further discovery would uncover proof in First Step's computer files that a memo about planned layoffs, dated prior to her report of harassment, had been fabricated. Fennell appeals both rulings. We affirm.

I. Background
A. Factual Background: Fennell's Retaliation Claim

First Step, a designer, manufacturer, and distributor of play equipment for children, operates a warehouse and customer service center in Oxford, Maine. Fennell worked as a Warehouse Lead, a supervisory position in which she directed the warehouse staff in fulfilling orders. Although Fennell was a supervisor and shared office space with the Warehouse Manager, she spent most of her time on the warehouse floor working alongside the other warehouse workers. Her immediate supervisor was Wayne Smith, the Warehouse Manager. Kathleen Tucker, General Manager of the warehouse, was Smith's supervisor.

1. Fennell's Report of Harassment and Her Subsequent Layoff

Two First Step employees had complained to Fennell about on-the-job sexual remarks by Smith, and Fennell had heard from other employees about a sexually offensive remark Smith had made while performing as a country musician at a company-sponsored benefit dance. On November 19, 1993, Fennell met with Tucker and recounted what she had heard about Smith's inappropriate remarks. According to Fennell, Tucker was hostile. Smith's immediate predecessor had been fired in May of 1993 for sexual harassment, and Tucker was incredulous to hear that First Step might have another harasser as Warehouse Manager.

On December 20, 1993, Fennell was laid off, 1 and she believes her layoff was in retaliation for her complaints to Tucker. Fennell also alleges that, after her report to Tucker, she was given inferior work (regular packing duties rather than supervisory duties). First Step maintains that Fennell's layoff was planned before she complained to Tucker about Smith, and that her complaint was not a factor in its decision to lay her off.

2. The October 25 Memo

A memorandum dated October 25, 1993, from Tucker to Eric Schultz, First Step's Boston-based Chief Operating Officer, indicated that Fennell was scheduled for a layoff the week before Christmas. 2 The memo, titled "SUBJECT: ANTICIPATED LAYOFFS/STAFFING," listed twenty-eight persons and their continuing positions in the warehouse; it also listed Fennell and four others under the subtitle "SCHEDULED LAYOFFS WEEK OF CHRISTMAS." According to the affidavits of Tucker and Schultz, the memorandum was a response to pressure from Schultz to reduce operating costs at the warehouse. Tucker and Schultz both state in their affidavits that the memorandum was faxed to Schultz on October 25, and the document bears a hand stamp indicating that it was faxed that day. Brigitte Marston, a customer service supervisor also reporting to Tucker, states in her affidavit that she saw a "layoff list" with Fennell's name on it before Fennell's November 19 meeting with Tucker. (Marston also attended that meeting, at Fennell's request.) On November 5, 1993, Marston sent an internal electronic mail message ("E-mail") to another employee, in which she referred to the layoff list. Marston implied in the E-mail that she had seen the list and knew who was on it.

Fennell contends that the memorandum was fabricated after the November 19 meeting. To support this contention, she points to five facts that, she argues, are suggestive of fabrication: (1) one of the employees that Tucker listed for an ongoing position in the October 25 memorandum had already left the company late that summer, before the memo was created; (2) Tucker stated that she had sent other memoranda regarding earlier layoffs to Schultz, but neither she nor Schultz kept copies of them (only the October 25 memo was retained); (3) Tucker commented to Fennell earlier in October 1995 that she was doing a good job, that her services were needed, and that she would not be required to cross-train as a telemarketer; (4) First Step employees had inconsistently described the job action taken with respect to Fennell (sometimes as a layoff, other times as an elimination of her position) as well as the precise reasons for the action; and (5) certain other employees listed in the memorandum for layoff were ultimately not laid off. For ease of reference, we shall refer to these as "the five suspicious facts."

B. Prior Proceedings

On January 23, 1995, Fennell filed a three-count complaint in federal district court alleging that First Step fired her in retaliation for her report of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a), the Maine Human Rights Act, Me.Rev.Stat. Ann. tit. 5, § 4572(1)(E), and the Maine Whistleblower's Protection Act, Me.Rev.Stat. Ann. tit. 26, § 833(1)(A). On August 4, 1995, after the close of discovery, First Step moved for summary judgment on all three counts, arguing primarily that Fennell's layoff was planned before she lodged her sexual harassment complaint, and thus was not retaliatory. First Step asserted that there was no genuine issue as to the fact that the layoff decision predated Fennell's complaint, because the October 25 memo and the corroborating testimony of three First Step managers was essentially uncontroverted. On August 25, 1995, Fennell opposed the motion, arguing that there was a genuine issue of material fact as to whether the October 25 memo was actually written before she complained to Tucker or whether it was, instead, fabricated to exonerate First Step. In her opposition to summary judgment, Fennell requested additional time for discovery under Fed.R.Civ.P. 56(f) to determine, based on the computer word processing file, when the memo was written. On August 28, 1995, First Step responded by providing a diskette containing a copy of the word processing file of the October 25 memo. On September 9, 1995, First Step submitted a reply brief and an objection to Fennell's request for more discovery time, supported by an affidavit averring that there was no way to determine from its computer system when the document was first created.

The district court determined that, in light of the October 25 memo, Fennell had not shown evidence sufficient to allow a reasonable jury to find that her layoff was in retaliation for her complaints about sexual harassment, and it granted "conditional" summary judgment in favor of First Step. The condition was that Fennell would have, under Rule 56(f), "seven (7) days in which to file any affidavit revealing competent testimony, based on the magnetic medium [i.e. the diskette containing the word processing file], that the memorandum was created or modified (as opposed to being simply called up) on or after November 19, 1993." 3

Pursuant to the district court's order allowing limited further discovery, Fennell submitted the affidavit of her computer expert stating that the computer word processing file containing the October 25 memo on a magnetic diskette revealed that the document was "autodated" 4 on August 7, 1995. Fennell's expert proposed that the original date of creation or date of any earlier modification could be determined by a review of the file as it resided on First Step's hard drive, rather than the diskette that had been provided by First Step.

The district court held a hearing on Fennell's request for discovery of First Step's hard drive and then directed the parties to submit a "protocol" under which Fennell would have access to First Step's hard drive. If no joint protocol could be agreed upon, differences were to be resolved by conference. Subsequently, the parties submitted substantially different protocols.

After reviewing the protocols, and without holding another conference, the district court decided that its earlier decision to consider further discovery had been ill-advised. Accordingly, the court denied any further Rule 56(f) discovery, and granted First Step summary judgment. This appeal ensued.

II. Discussion

Fennell appeals the district court's grant of summary judgment in favor of First Step, as well as its denial of her request for additional discovery of First Step's computer files in the hope that she might find evidence that the October 25 memo was fabricated after the fact. Because summary judgment would have been inappropriate if Fennell had presented evidence that the memo was a perjurious fabrication, we will address the discovery issue first.

A. Denial of Rule 56(f) Discovery

We review a district court's ruling on a discovery request under Fed.R.Civ.P. 56(f) for abuse of discretion. Price v. General Motors Corp., 931 F.2d 162, 164 (1st Cir.1991). Federal Rule of Civil Procedure 56(f) provides:

Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by...

To continue reading

Request your trial
242 cases
  • Richardson v. Mabus
    • United States
    • U.S. District Court — District of Maine
    • August 24, 2016
    ...is sufficient to make out a question for the a factfinder as to pretext and discriminatory animus") (quoting Fennell v. First Step Designs , 83 F.3d 526, 535 (1st Cir.1996) ). Perhaps the Navy fails to offer a neutral, nondiscriminatory reason because it found it hard to come up with one wh......
  • Lopez v. Padilla
    • United States
    • U.S. District Court — District of Puerto Rico
    • September 30, 1999
    ...action; and 3) there is a causal connection between the protected conduct and the adverse employment action. Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir.1996). Adverse employment actions include discharge from employment, demotions, disadvantageous transfers, refusals to ......
  • Velez v. Marriott Pr Management, Inc., Civil No. 05-2108 (RLA).
    • United States
    • U.S. District Court — District of Puerto Rico
    • December 22, 2008
    ...and discriminatory animus.'" Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 26 (1st Cir.2004) (citing Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535-36 (1st Cir.1996)). However, in the context of a summary judgment "`the need to order the presentation of proof is largely obviate......
  • Mills v. State of Me.
    • United States
    • U.S. Court of Appeals — First Circuit
    • February 5, 1997
    ...We review a district court's decision to deny discovery on a dispositive motion for abuse of discretion. See Fennell v. First Step Designs, Ltd., 83 F.3d 526, 530 (1st Cir.1996) (interpreting Fed.R.Civ.P. The probation officers argue that a state is subject to suit in federal court where it......
  • Request a trial to view additional results
19 books & journal articles
  • Planning discovery
    • United States
    • James Publishing Practical Law Books Archive Handling Federal Discovery - 2021 Contents
    • July 31, 2021
    ...operations, or implicate conidentiality concerns of the entity from which the discovery is requested. See Fennell v. First Step Designs , 83 F. 3d 526, 532-33 (1st Cir. 1996). E. Rule 26(b) provides that a party need not produce ESI that the party identiies as not reasonably accessible due ......
  • Summary judgment
    • United States
    • James Publishing Practical Law Books Age Discrimination Litigation
    • April 28, 2022
    ...as a whole is su൶cient to make out a jury question as to pretext and discriminatory animus.” Fennell v. First Step Designs, Ltd. , 83 F.3d 526, 535 (1st Cir. 1996). The Sixth Circuit has noted that district courts should more appropriately focus on the evidence of pretext at the summary jud......
  • Sexual harassment & discrimination digest
    • United States
    • James Publishing Practical Law Books Litigating Sexual Harassment & Sex Discrimination Cases Trial and post-trial proceedings
    • May 6, 2022
    ...to reopen discovery after Defendant iled for summary judgment; underlying claims were properly dismissed. Fennell v. First Step Designs , 83 F.3d 526 (1st Cir. 1996). See digital access for the full case summary. Fourth Circuit a൶rms JNOV on Plainti൵’s hostile environment claim where Plain......
  • Table of Cases
    • United States
    • ABA Archive Editions Library Antitrust Discovery Handbook. Second Edition
    • June 28, 2003
    ...In re Felberg, 862 F.2d 622 (7th Cir. 1988)..........................................112 Fennell v. First Step Designs, 83 F.3d 526 (1st Cir. 1996) .....................83 In re Fertilizer Antitrust Litigation, 1979-2 Trade Cas. (CCH) 62,894 (E.D. Wash. 1979) .....................................
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT