Mesnick v. General Elec. Co., No. 91-1451

Decision Date06 November 1991
Docket NumberNo. 91-1451
Citation950 F.2d 816
Parties57 Fair Empl.Prac.Cas. (BNA) 822, 57 Empl. Prac. Dec. P 41,143, 22 Fed.R.Serv.3d 172 Samuel MESNICK, Plaintiff, Appellant, v. GENERAL ELECTRIC COMPANY, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Scott A. Lathrop with whom Scott A. Lathrop, P.C., Boston, Mass., was on brief, for plaintiff, appellant.

David H. Erichsen with whom Susan M. Curtin and Hale and Dorr, Boston, Mass., were on brief, for defendant, appellee.

Before SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR, Circuit Judge.

SELYA, Circuit Judge.

This appeal calls upon us, in the course of determining whether an employer transgressed the law in its dealings with a former employee, to map the much traveled but little understood intersection between Rule 56 of the Civil Rules and the burden-shifting framework for discrimination cases first crafted by the Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). For the reasons that follow, we affirm the entry of summary judgment in the employer's favor.


Recognizing the dictates of Fed.R.Civ.P. 56(c), we scan the record in the light most congenial to the summary judgment loser and draw all reasonable inferences to his benefit.

In 1974, Radio Corporation of America (RCA) hired plaintiff-appellant Samuel Mesnick, a lawyer by training, to work as a senior contracts administrator at its plant in Burlington, Massachusetts. Mesnick was then fifty-one years of age. He was promoted several times, eventually becoming manager of contracts administration. In 1986, defendant-appellee General Electric Company (GE) purchased RCA's business and installed new management at the Burlington facility. Achilles Georgiou became director of finance, and thus, Mesnick's immediate superior. Georgiou discussed Mesnick's job performance with Mesnick's former supervisors, receiving mixed reviews. Georgiou was told good things about Mesnick's technical competence. He was also told, however, that Mesnick had at times shown himself to be a vulgar, bigoted, sexist lout who insulted subordinates, offended clients, drank to excess during lunch, and so forth. On March 7, 1987, Georgiou wrote his initial evaluation of Mesnick's performance. It was largely negative. 1 In closing, Georgiou suggested that Mesnick ought to "pursue a private career of a federal procurement consultant." Instead of the $4,000 raise that he had anticipated, Mesnick received a $2,000 raise.

Later on, a meeting was held in which Mesnick complained to Georgiou about unfair treatment in these matters. At the same time, the men discussed an expected reorganization of the contracts department (the Department). As part of this reorganization, GE planned to instate a supervisory position, the holder of which would be in charge of departmental operations at both Burlington and GE's facility in Huntsville, Alabama. 2 The new position entailed many of the plaintiff's previous responsibilities. Mesnick expressed an interest in finding out more about the job, although he voiced some reservations about the involvement of "the hanging judge"--an apparent reference to Georgiou--in the selection process.

Following this unfruitful meeting, Mesnick attempted to go over Georgiou's head. On April 23, 1987, he sent a memorandum to Salvatore Capodici, the Burlington plant's top executive. In the memorandum, Mesnick remonstrated, generally, about Georgiou's leadership of the Department; complained, specifically, about Sherman's advance knowledge of the new position, see supra note 2; and raised the boggart of possible age discrimination. Mesnick's criticism of Georgiou continued in a series of memoranda to, and conversations with, Capodici, and in sundry communications with subordinates. Among other things, he produced and presented for Capodici's edification a slide show belittling Georgiou's performance and capabilities. He also circulated notes to fellow employees exploring the idea of jumping ship and joining a rival company.

Mesnick never applied for the position as manager of the Department. On December 14, 1987, after a national search, GE named Steve Tubbs, age forty-two, to the vacancy. Mesnick was assigned to a different office and given the title of "manager, special projects." His salary and benefits were unscathed, but his new post was under Tubbs and lacked supervisory power over other employees. Left as an emperor without an empire, Mesnick fired off a letter to Capodici explicitly criticizing Georgiou's integrity, professional honesty, and competence.

From that point forward, the situation plunged downhill. On one occasion, upset with Capodici, Mesnick boldly directed profanity at him. On another occasion, Mesnick received a warning from Georgiou in respect to attendance problems. On January 21, 1988, Mesnick filed charges with the Equal Employment Opportunity Commission (EEOC) alleging that GE violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634 (1988), and its Massachusetts analogue, Mass.Gen.L. ch. 151B (1990), by failing to promote him and, instead, hiring Tubbs. GE learned of the charges on January 26, 1988.

That February, Mesnick and his superiors tangled regarding a self-evaluation form that GE asked Mesnick to complete. He adamantly refused, claiming that he was under no obligation to fill out the form. Over the next four months, a bad situation grew steadily worse. 3 Mesnick sent a flurry of memoranda to his superiors roasting Tubbs and Georgiou. These communiques culminated in a missive to Capodici, dated June 22, which requested a formal performance evaluation, excoriated Georgiou's "professional ignorance," and denigrated Tubbs' professional stature. On July 18, 1988, Capodici informed Mesnick that he considered the missive tantamount to "gross insubordination," warned him that his "insubordinate behavior" was "totally unacceptable," and stated that any recurrence would constitute "cause for immediate dismissal."

On the same day, despite his enduring failure to complete the self-evaluation form, Mesnick received a performance evaluation from Tubbs. Tubbs rated Mesnick's overall performance "marginally acceptable." While acknowledging Mesnick's "extensive contractual technical experience," Tubbs stated that these talents were "negated by his lack of interpersonal skills/confrontational attitude, contentiousness, disregard for management direction and policy, and inability/unwillingness to fulfill managerial grade expectations." Mesnick received no merit increase for 1988. Moreover, he was relocated to a smaller office, away from the Department.

Undaunted, Mesnick responded by filing a 20.10 concern in which he branded Tubbs' handling of Mesnick's unauthorized absences as derelict and suggested that Tubbs be fired. After an investigation, Tubbs was exonerated. On September 7, 1988, Mesnick circulated yet another billet-doux. In it he renewed his attack on Tubbs, attempted to rebut the recent (unfavorable) performance evaluation, and alleged that his superiors were retaliating against him because he had preferred discrimination charges. Nine days later, the ax fell: GE terminated Mesnick's troubled tenure on grounds of insubordination and failure to work harmoniously with others. The plaintiff promptly filed another complaint with the EEOC. After the EEOC determined that both complaints were meritless, this suit was instituted.


In civil procedure, summary judgment's role is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir.1990) (citation omitted); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Since appellate review of a grant of summary judgment is plenary, the court of appeals, like the district court, "must view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). An appellate panel is not restricted to the district court's reasoning but can affirm a summary judgment on any independently sufficient ground. Garside, 895 F.2d at 48-49. In the end, the entry of summary judgment can be upheld only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

The Rule 56 pavane has a distinctive set of steps. When requesting summary judgment, the moving party "must put the ball in play, averring 'an absence of evidence to support the nonmoving party's case.' " Garside, 895 F.2d at 48 (quoting Celotex, 477 U.S. at 325, 106 S.Ct. at 2554). The nonmovant must then document some factual disagreement sufficient to deflect brevis disposition. Not every discrepancy in the proof is enough to forestall a properly supported motion for summary judgment; the disagreement must relate to some genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). Genuine issues of material fact are not the stuff of an opposing party's dreams. On issues where the nonmovant bears the ultimate burden of proof, he must present definite, competent evidence to rebut the motion. See Anderson, 477 U.S. at 256-57, 106 S.Ct. at 2514-15; Garside, 895 F.2d at 48. This evidence "cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve at an ensuing trial." Mack v. Great Atl. & Pac. Tea Co....

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