Hoffman v. Applicators Sales and Serv.

• Decision Date: 22 February 2006
• Docket Number: No. 05-1543.,05-1543.
• Citation: 439 F.3d 9
• Parties: Arnold HOFFMAN, Plaintiff, Appellant, v. APPLICATORS SALES AND SERVICE, INC., d/b/a Paradigm Window Solutions, Andrew Sevier, and Richard Robinov. Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

439 F.3d 9

Arnold HOFFMAN, Plaintiff, Appellant, v. APPLICATORS SALES AND SERVICE, INC., d/b/a Paradigm Window Solutions, Andrew Sevier, and Richard Robinov. Defendants, Appellees.

No. 05-1543.

United States Court of Appeals, First Circuit.

Heard October 5, 2005.

Decided February 22, 2006.

COPYRIGHT MATERIAL OMITTED

David M. Hoffman for appellant.

Louis B. Butterfield with whom Bernstein, Shur, Sawyer, & Nelson was on brief for appellees.

Before LYNCH, Circuit Judge, CAMPBELL and CYR, Senior Circuit Judges.

CAMPBELL, Senior Circuit Judge.

Appellant plaintiff Arnold Hoffman appeals from the district court's granting of summary judgment for appellee defendants Applicators Sales and Service, Inc., Paradigm Window Solutions, Andrew Sevier, and Richard Robinov (collectively, "defendants" or "the Company"), and from the court's striking of the plaintiff's designation of an expert witness. We affirm.

I. Background and Facts

Hoffman filed in the Maine Superior Court a three-count complaint alleging age discrimination, defamation, and breach of employment agreement. On July 21, 2004, the defendants removed the action from the state to the federal court.

The district court thereupon issued a scheduling order setting dates for the parties to designate expert witnesses, to complete discovery, and to file dispositive motions. Discovery took place in the form of requests for documents, depositions, and interrogatories, following which the defendants moved for summary judgment. The court granted judgment as a matter of law in favor of the company on Count 1 for age discrimination and remanded the remaining claims to the state court.¹

We view the record on summary judgment in the light most favorable to the nonmovant. See Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 50 (1st Cir.2000).

Applicators Sales and Service, Inc. ("Applicators") is a wholesale distributor that sells building products to professional contractors. Part of Applicators' business included manufacturing windows under a franchise agreement with a national company. At some point, Applicators decided to end its relationship with the franchisor in order to start a new venture with its own products. This new venture resulted in the creation of defendant Paradigm Window Solutions ("Paradigm"). Defendant Sevier is Paradigm's General Manager. A semi-autonomous division, Paradigm makes and distributes windows under its own name and for a private label.

Before joining the defendants' company, Arnold Hoffman was employed for seven years by MBF Windows in Portland, Maine. He served as the head of MBF's Portland operation, performing a wide range of duties, and supervised one or two employees at any given time. Responding to an advertisement for an outside sales position at Applicators, Hoffman submitted his resume to the company in March or April of 2000. He interviewed first with defendants Robinov and Sevier and two other employees. They did not explain much about the position because Applicators had not yet announced plans to sever ties with its franchisor. About three weeks after the first interview, Hoffman was called in for a follow-up interview and offered the job, which would be with the new entity, Paradigm. He accepted and began work in May 2000. He was 54 or 55 years old when he began with the company.

Sevier was Hoffman's supervisor throughout his employment at Paradigm. Hoffman viewed Sevier as an irrationally demanding supervisor, and the relationship between the two deteriorated over time. Hoffman testified in his deposition that Sevier "was a very poor manager [who] . . . motivated by intimidation and negative . . . comments, not by positives and encouragement." He also wrote in a letter to Jerry Robinov, one of the founders of Applicators, that "Most of the salesmen hate dealing with [Mr. Sevier] and will do everything they can to avoid him. . . . I am not the first employee to have experienced [Mr. Sevier's] wrath or his poor personnel management skills. I'm sure I won't be the last." He testified that "it was a general consensus behind [Sevier's] back that people did not like him. They didn't like the way he treated them."

Hoffman was very successful in sales, achieving a 56 percent sales increase in his last fiscal year of employment, an increase which the Company's Sales Manager, Steve Zerbinopolous, acknowledged as unmatched. His May, 2002 performance evaluation rated him as "exceeds requirements" (a score of 4 on a scale of 1-5) for problem solving, communication, initiative, and innovation and rated him as "meets job requirements" (a 3 on a scale of 1-5) for quantity of work, job knowledge, planning/organizing, adaptability, and cost consciousness. He was given a rating of "needs improvement" (a 2 on a scale of 1-5) in the categories of managing people, judgment, safety awareness, and leadership. He received a merit pay increase after that evaluation.

On May 22-23, 2003, Hoffman underwent another annual performance review. In the written review, Sevier was critical of Hoffman's performance and declined to grant him a merit pay increase. Hoffman and Sevier agreed to meet on August 29, 2003 for a follow-up, at which time Hoffman's performance would be re-evaluated and a determination would be made about whether to increase Hoffman's salary. In the performance review, Hoffman received a rating of "meets job requirements" in problem solving, adaptability, dependability, communication, innovation, appearance, cost consciousness, and safety. He was given a rating of "needs improvement" in the categories job knowledge, judgment, leadership, and training. The overall rating stated:

There are concerns with the manner in which you manage your territory and time. It appears as [though] you have not systematically scheduled to visit your accounts and you do not follow up with the requests made by your customers. You need to improve your presentation skills. You need to make dramatic improvement in these areas.

Hoffman sent Sevier a written rebuttal to his criticisms immediately following the May review. Sevier responded in writing to the rebuttal and reiterated his plan for the August review. Hoffman sent Sevier a second rebuttal on June 22, 2003.

On or about June 25, 2003, Hoffman and Sevier had a dispute about the status of a work-related project. Hoffman missed a deadline for the production of sell sheets for window products, and Sevier became impatient with Hoffman's attempts to explain the reason he missed the deadline. Hoffman argued that the sell sheets were substantially complete but for information that was to be supplied by Sevier and the inclusion of a few photos which, Hoffman claimed, Hoffman or a photographer "could have taken in an afternoon." Sevier lost his temper with Hoffman, and, on June 27, 2003, the Company terminated Hoffman's employment. Scott Frazier, a long-time Company employee, assumed Hoffman's position about three months after Hoffman's termination. Frazier was less than forty years old at the time he was promoted.

The district court, reviewing the defendants' motion for summary judgment, assumed arguendo that the plaintiff had made out a prima facie case of employment discrimination. The court also found that the defendants had put forward a legitimate reason for his termination (the flawed 2003 performance review and the June 25, 2003 missing of a project deadline). Addressing next whether Hoffman had carried his burden to establish that the defendants' stated reason for termination was a pretext for age discrimination, the district court found that Hoffman had not introduced sufficient evidence to establish that it was such a pretext.

Hoffman relied on what he called "Exhibit E," attached to his Offer of Proof, a chart which purported to summarize the number of employees at Applicators and Paradigm and of those over the age of 50 at each division. The district court struck Exhibit E from the summary judgment record on the grounds that it was inadmissible because it was not properly authenticated and was based on data that had not been authenticated or presented in the summary judgment record. Further, the district court noted, the accuracy of the information in Exhibit E had not been sworn to under oath.

The district court concluded that without Exhibit E, Hoffman had not placed in the record any evidence of age discrimination or age-based animus and held that no rational fact-finder could infer from the record as it existed an employment action based upon age discrimination. The court entered summary judgment for the defendants on the age discrimination claim and remanded the remaining two state claims to the Maine state court. This appeal followed.

II. Discussion — Summary Judgment

On appeal, Hoffman argues that the district court erred in striking Exhibit E and in ruling that Hoffman had introduced insufficient evidence of pretext and age-based motivation. We disagree.

A. Standard of Review

We review de novo the district court's decision to grant summary judgment. Roldan-Plumey, 115 F.3d at 61. However, we review the district court's decision to exclude an exhibit from evidence only for abuse of discretion. "[P]rior to turning to its de novo summary judgment examination," the Court should review the district court's evidentiary rulings made as part of its decision on summary judgment for abuse of discretion. Alternative Sys. Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 31 (1st Cir.2004) (citing Schubert v. Nissan Motor Corp., 148 F.3d 25, 29 (1st Cir.1998)). "[A] trial court should have as much leeway in dealing with those [evidentiary] matters at the summary judgment stage as at trial." Id. at 31-32.

The phrase "abuse of discretion"

sounds worse than it really is. All it need mean is that, when judicial action is taken in a discretionary matter, such action cannot be set aside by a reviewing court unless it has a definite and firm conviction that the court below...