Grant v. News Group Boston, Inc.

• Decision Date: 28 April 1995
• Docket Number: No. 94-2191.,94-2191.
• Citation: 55 F.3d 1
• Parties: Otis GRANT, Plaintiff, Appellant, v. NEWS GROUP BOSTON, INC., d/b/a Boston Herald, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

55 F.3d 1

Otis GRANT, Plaintiff, Appellant, v. NEWS GROUP BOSTON, INC., d/b/a Boston Herald, Defendant, Appellee.

No. 94-2191.

United States Court of Appeals, First Circuit.

Heard April 5, 1995.

Decided April 28, 1995.

Anthony W. Neal, with whom Law Offices of Anthony W. Neal was on brief, for appellant.

M. Robert Dushman, with whom Brown, Rudnick, Freed & Gesmer was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and BOUDIN, Circuit Judge.

BOWNES, Senior Circuit Judge.

In this appeal, plaintiff-appellant Otis Grant, an African-American male and a former substitute paperhandler in defendant-appellee Boston Herald's pressroom, assigns error to the district court's entry of summary judgment in favor of the Herald on his claims of discriminatory treatment, discriminatory discharge, and retaliatory discharge brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and Mass. Gen.L. ch. 151B. Grant also challenges the district court's denial of his late-filed motion to amend the complaint. While the record contains troubling evidence regarding the Herald's pressroom hiring practices, it does not support Grant's claim that the complained-of acts were prompted by racial discrimination or a retaliatory animus. Nor does it persuade us that the district court abused its discretion in refusing to allow Grant to amend his complaint. We therefore affirm.

I.

A. The Initial Complaint

The initial complaint made the following claims: (1) the Herald reduced Grant's hours in December 1991 and January 1992 because of his race; (2) the Herald terminated Grant as a substitute paperhandler in February 1992 in retaliation for his complaining about this reduction in hours and other alleged acts of discrimination; and (3) the Herald terminated Grant as a substitute paperhandler in February 1992 because of his race. In so characterizing the complaint, we obviously reject Grant's argument that it stated a claim that the Herald refused to promote Grant from the position of substitute paperhandler to full-time paperhandler because of his race. Nothing in the complaint even remotely intimates that this is a failure-to-promote case. See Mack v. Great Atlantic and Pacific Tea Co., Inc., 871 F.2d 179, 183-84 (1st Cir.1989) (warning the bar that we will hold litigants to their duty "to spell out their theories clearly and distinctly before the nisi prius court, on pain of preclusion").

The following facts are directly relevant to the claims made in the initial complaint. Grant began working as a substitute paperhandler in November 1989, after he learned of the position from his brother Jeffrey, who is a full-time employee of the Herald. A substitute paperhandler is a part-time employee who does the same work as a full-time paperhandler — moving large rolls of newsprint, removing wrapper heads from the rolls, bringing plates from the pressroom to the presses, and cleaning the pressroom — but works only on an as-needed basis. A substitute paperhandler does not need a high school diploma, technical vocational training, or other education. He is an at-will employee and, unlike full-time paperhandlers (who are unionized), does not have employee benefits such as paid vacation leave, sick pay, or health insurance. Of paramount concern to the Herald is a substitute paperhandler's willingness and availability to "cover the job" — i.e., to work when scheduled or called at the last minute. As Grant himself admits, there is an expectation that substitutes will "never say no" and that they will show up at work "dead or alive."

The Herald has several methods of notifying substitute paperhandlers to come to work. If the pressroom superintendent, Robert Reilly, knows in advance that he will need substitutes, he posts a list — the "work list" — of the substitutes who are scheduled to work each day of a particular week. Sometimes, he includes next to the work list a "next list," which contains the names of those substitutes who will be called at the last minute if a previously scheduled fulltime or substitute paperhandler is absent. Also, substitutes are told that if they want work, they should call the Herald before the beginning of a shift to see if there are any openings.

Grant had two tenures as a substitute paperhandler at the Herald. The first, which lasted from November 1989 through April 1990, ended when Reilly terminated Grant's employment after a fight with a full-time, white co-worker, Joseph Gauthier. During the course of this altercation, Gauthier subjected Grant to racial slurs and spat in his face. Although Reilly fired Grant, he only suspended Gauthier. The Herald explains this differential treatment in two ways. First, Gauthier, as a union member, could not be terminated without cause, and was entitled to certain pre-termination procedures set forth in the collective bargaining agreement. Second, Reilly allegedly had warned Grant a few times about failing to cover the job, and viewed Grant's involvement in the altercation as "the last straw."

Subsequent to his April 1990 termination, Grant went to the Massachusetts Commission Against Discrimination ("MCAD") and charged the Herald with racial discrimination. On January 11, 1991, Grant and the Herald settled this charge. As part of the settlement agreement, the Herald restored Grant to the substitute paperhandler list and paid him a sum of money. In return, Grant agreed to release the Herald from all claims arising out of his employment to that point in time. Grant returned to his former position on January 14, 1991.

Although Grant always performed his duties well, his ability and willingness to cover the job were consistently at issue. From January 1991 through December 1991, there were nine occasions on which Grant was scheduled in advance to cover a shift but failed to come to work. Without notice, Reilly discontinued using Grant as a substitute in December 1991. When Grant inquired as to why he was no longer getting any hours, Daniel Messing, a pressroom supervisor, informed him that no substitutes were getting any hours. Grant then checked the work lists and discovered that, in fact, two white substitute paperhandlers were working. Grant thereafter requested a meeting with Reilly and, on January 21, 1992, Grant and Reilly convened to discuss Grant's work status. At that meeting, it was decided that Grant would be put back on the substitute list. Grant worked nine times in the next few weeks, but then failed to appear on February 12, 1992 and called in sick on February 20, 1992. By letter dated February 21, 1992, Reilly informed Grant that he would be removed from the list of substitute workers. Although Grant labors mightily to circumvent or obscure some basic facts, the record reveals: (1) no other substitute paperhandler failed to cover an assigned shift more frequently than Grant during the period from January 1991 through February 1992; (2) Grant often failed to work when his name was on the next list during this same period; (3) the two white substitute paperhandlers with job-coverage records most similar to Grant's (and to whom Grant compares himself in making his disparate treatment argument) were terminated in the fifteen months following Grant's termination for failing to cover the job; and (4) many other substitute paperhandlers were terminated over the years for failing to cover the job.

B. The Proposed Amended Complaint

Grant sought to add to this case, via the amended complaint, the following claims: (1) the Herald refused to promote Grant to the position of full-time paperhandler because of his race; (2) the Herald engaged in unlawful retaliatory behavior beyond terminating him; (3) the Herald engaged in unlawful employment practices which have had a disparate impact on qualified African Americans and qualified Hispanic Americans as classes; (4) the Herald engaged in an unlawful, race-motivated pattern and practice of hiring, promoting, disciplining, and terminating its substitute and full-time paperhandlers; and (5) the Herald denied Grant the right to make and enforce contracts and to enjoy all the benefits of a contractual relationship enjoyed by white citizens.

The following facts are directly relevant to the new claims. Grant asserts that they also constitute indirect evidence of the claims set forth in the initial complaint. In 1989, at the time of Grant's initial hiring, Grant was one of only two African-American employees working in the Herald's pressroom. The other was his brother Jeffrey, from whom he learned about the position. During that same year, there were a total of 147 employees in the Herald's pressroom. The Herald has not hired a full-time, African-American pressroom employee since February 1987. From 1989 through the present, a period during which the number of pressroom employees has ranged from 129 to 165, there has been only one full-time African-American employee. During this same period, there have been no African-American pressroom supervisors.

African Americans constitute 18.69% of those in the local labor market having the requisite skills for the job of paperhandler. Despite this fact, from December 1989 through April 1994, the Herald hired at least twenty-three white substitute paperhandlers and no African Americans. During the same time period, the Herald promoted eight or more white substitute paperhandlers, and no African-American substitute paperhandlers, to full-time status. There are no women working in the Herald's pressroom.

Robert Reilly — the pressroom superintendent — has been solely responsible for the promotion, discipline, and discharge of all substitute paperhandlers since 1989. He also has been solely responsible for hiring full-time paperhandlers. By his own admission, Reilly maintains no written criteria governing the discipline and termination of substitute paperhandlers. Reilly maintains that "covering the job" takes precedence over seniority...