Lennon v. Rubin, 98-1634

• Decision Date: 08 December 1998
• Docket Number: No. 98-1634,98-1634
• Citation: 166 F.3d 6
• Parties: 75 Empl. Prac. Dec. P 45,763 John J. LENNON, Plaintiff, Appellant, v. Robert RUBIN, Secretary of the Treasury, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 6

166 F.3d 6

75 Empl. Prac. Dec. P 45,763

John J. LENNON, Plaintiff, Appellant, v. Robert RUBIN, Secretary of the Treasury, Defendant, Appellee.

No. 98-1634.

United States Court of Appeals, First Circuit.

Heard Dec. 8, 1998.

Decided Feb. 3, 1999.

Edward L. Hoban for appellant.

Rayford A. Farquhar, Assistant U.S. Attorney, with whom Donald K. Stern, U.S. Attorney, was on brief, for appellee.

Before BOUDIN, Circuit Judge, GIBSON, Senior Circuit Judge, ^* and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

John J. Lennon filed an action asserting that his employer, the Bureau of Alcohol, Tobacco, and Firearms ("ATF") in the Department of the Treasury, retaliated against him in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII for filing age discrimination claims, discriminated against him in violation of Title VII on the basis of his status as a white male, and violated the Privacy Act through prohibited recordkeeping and disclosure of information. Lennon appeals from Judge Young's dismissal of his retaliation claims and Judge Lindsay's grant of summary judgment to the defendant on Lennon's remaining claims. We affirm.

We outline the most salient facts only briefly. Lennon was a "GS-1811-12, Criminal Investigator, Special Agent" at ATF. Prior to November 1992, he made a number of age-based discrimination and retaliation complaints against Terence McArdle, the "Special Agent in Charge" of the Boston ATF office who was one of Lennon's supervisors. "On November 10, 1992, while driving in an automobile with [an African-American ATF agent], as the result of a near accident, Lennon made a spontaneous remark that would be considered racially derogatory." Amended Complaint p 6. After the agent complained, Lennon was suspended for three days.

On April 17, 1995, the ATF announced a vacancy for a GS-1811-13 Senior Operations Officer, for which Lennon applied and was placed on the "best qualified" list. McArdle ultimately selected Joycelyn Christopher, an African-American woman, to fill the position.

Lennon filed suit on October 16, 1996. After the defendant moved to dismiss all of the retaliation claims, Judge Young granted the motion, stating in a written order that the Title VII retaliation counts failed to state a claim because Lennon's underlying complaints of discrimination had been based on age, not on race, color, sex or national origin. Both parties subsequently moved for summary judgment on the remaining claims. In a ruling from the bench, Judge Lindsay denied Lennon's motion and granted summary judgment to the defendant on the discrimination and Privacy Act claims, remarking with respect to the former that "if the plaintiff could make a prima facie case, he is unable to establish a triable issue[ ] that the ... nondiscriminatory reason [ ] offered by the government [is] pretext."

We review the disposition of a motion to dismiss de novo, taking the alleged facts to be true. See LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir.1998). We likewise review the district court's grant of summary judgment de novo, considering the facts in the light most favorable to the nonmoving party. See Udo v. Tomes, 54 F.3d 9, 12 (1st Cir.1995). However, we review the district court's decision as to "the evidentiary materials it will consider in deciding a motion for summary judgment" only for "a clear abuse of discretion." EEOC v. Green, 76 F.3d 19, 24 (1st Cir.1996); see also Schubert v. Nissan Motor Corp., 148 F.3d 25, 29-30 (1st Cir.1998).

We reject Lennon's challenge to the district court's dismissal of his Title VII claims for retaliation based on age discrimination complaints. Lennon grounds his argument that Title VII covers age-related retaliation complaints on the language of 42 U.S.C. § 2000e-16(c), which protects employees of the federal government. That section states:

Within 90 days of receipt of notice of final action taken by a department, agency, or unit referred to in subsection (a) of this section, or by the Equal Employment Opportunity Commission upon an appeal from a decision or order of such department, agency, or unit on a complaint of discrimination based on race, color, religion, sex or national origin, brought pursuant to subsection (a) of this section, Executive Order 11478 or any succeeding Executive orders, or after one hundred and eighty days from the filing of the initial charge ..., an employee ..., if aggrieved by the final disposition of his complaint, or by the failure to take final action on his complaint, may file a civil action as provided in section 2000e-5 of this title....

Lennon notes that Executive Order 11478 has been amended to prohibit agencies from discrimination based on age and claims that this prohibition is incorporated into Title VII through the reference to the Executive Order.

Lennon's argument founders on the plain language of the statute. The provision on which Lennon relies specifically states that the complaint of discrimination must be "based on race, color, religion, sex or national origin." Executive Order 11478 is merely one example of the various prohibitions on executive branch discrimination that such a complaint may be "brought pursuant to." 42 U.S.C. § 2000e-16(c); see also id. § 2000e-16(a) (stating that federal employment "shall be made free from any discrimination based on race, color, religion, sex, or national origin"); cf. Fears v. Catlin, 377 F.Supp. 291, 293 (D.Colo.1974) (noting that Executive Order 11478 was enacted in 1969 and that "it appears that § 2000e-16(c) was meant to cover claims that arose prior to the enactment of [Title VII's section on federal employees]"). The fact that the Executive Order forbids age discrimination as well as race and sex discrimination does not expand the categories on which a complaint may be based or the reach of Title VII.

Further, Lennon's construction would render superfluous the ADEA's prohibition on age discrimination against federal government employees. See 29 U.S.C. § 633a; see also Lavery v. Marsh, 918 F.2d 1022, 1025 (1st Cir.1990) ("[T]he ADEA amendment prohibiting federal-sector age discrimination was patterned after 42 U.S.C. section 2000e-16(a), (b), the amendments to Title VII extending that statute's protection to federal employees."). Accordingly, since Lennon's previous complaints related to age rather than to a category protected under Title VII, his retaliation claims are not cognizable under Title VII.

Lennon also challenges the district court's dismissal of his claim of retaliation in violation of the ADEA. We are hampered in our review of this dismissal by the fact that neither Lennon nor the defendant ever identifies the basis given by the court for the ruling. Lennon, without record support states that the court's ruling was based on an interpretation of the relevant statute; the government's motion to dismiss suggests it was based on the facts alleged. A transcript of the judge's ruling from the bench has not been provided by the parties and does not appear in the record transferred from the district court (most likely because no one ordered a transcription of the proceedings). "It is appellants' responsibility to provide the court with intelligible briefs and appendices sufficient to support their points on appeal, failing which the court in its discretion ... may scrutinize the merits of the case insofar as the record permits, or may dismiss the appeal if the absence of a [record] thwarts intelligent review. Accordingly, ... wherever material uncertainties result from an incomplete or indecipherable record and impede or affect our decision, we resolve such uncertainties against appellants." Credit Francais International, S.A. v. Bio-Vita, Ltd., 78 F.3d 698, 700-01 (1st Cir.1996) (citations and internal quotation marks omitted). Lennon has not adequately provided a record and his discussion of this claim is a cursory one (including no analysis of the statute that apparently needs to be interpreted and consisting of an assertion that he has established a prima facie case and a citation to an ADEA case involving a federal employee that did not analyze 29 U.S.C. § 633a, the relevant ADEA section). See generally United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ("It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones."). We decline to disturb the district court's ruling. ¹

We also uphold the district court's grant of summary judgment on Lennon's Title VII race and sex discrimination claims. As an initial matter, we find no abuse of discretion in the district court's denial of Lennon's motion to strike the declaration of Daniel M. Hartnett. That declaration concerned which ATF employee had official responsibility to fill the Senior Operations Officer position that Lennon claims he was illegally denied. The motion to strike was based on an alleged lack of personal knowledge by the declarant and on the contention that the declaration drew a legal conclusion. ² However, the district court could reasonably have found that Hartnett, former Deputy Director and Associate Director of Law Enforcement at ATF, was competent to discuss the existence and effect of various ATF orders that were issued during his tenure.

In any event, eliminating Hartnett's declaration from consideration in connection with the summary judgment motions would not make a difference in the outcome. See New England Anti-Vivisection Soc'y, Inc. v. United States Surgical Corp., 889 F.2d 1198, 1204 (1st Cir.1990). Lennon focuses on the wrong question. He focuses on the selecting authority, argues that through the mechanical operation of various ATF orders there was no delegation of selecting authority for the position at issue for a period of approximately four years, and concludes that "[t]he penalty for not being completely faithful to...