Pagano v. Frank, 92-1952

CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)
Writing for the CourtBefore SELYA, Circuit Judge, COFFIN, Senior Circuit Judge, and CYR; SELYA
Citation983 F.2d 343
Parties60 Fair Empl.Prac.Cas. (BNA) 969, 60 Empl. Prac. Dec. P 41,960, 24 Fed.R.Serv.3d 979 Michael PAGANO, Plaintiff, Appellant, v. Anthony M. FRANK, Postmaster General, etc., Defendant, Appellee. . Heard
Docket NumberNo. 92-1952,92-1952
Decision Date08 December 1992

Norman Jackman, with whom Martha M. Wishart and Jackman & Roth, Boston, MA, were on brief, for plaintiff, appellant.

David G. Karro, Atty., Office of Labor Law, U.S. Postal Service, Washington, DC, with whom A. John Pappalardo, U.S. Atty., and Annette Forde, Asst. U.S. Atty., Boston, MA, were on brief, for defendant, appellee.

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

SELYA, Circuit Judge.

The United States Postal Service prides itself on surmounting obstacles that nature places in its path. 1 In this bitterly contested case, plaintiff-appellant Michael Pagano, a veteran postal worker, complains that, whatever success the Service may have encountered in its struggle with the elements, it has been unable to surmount a man-made obstacle: prejudice in the workplace. The district court ruled in favor of the defendant. Finding appellant's arguments to be unpersuasive, we affirm.


The Lynnfield Post Office hired appellant as a part-time mail carrier in 1973. He became a full-time employee two years later, working primarily as a clerk at a branch office. In 1983, appellant became a dispatcher at the main post office under the direct supervision of James Walsh. Walsh and Pagano did not enjoy a cordial working relationship--a situation that perhaps stemmed from the latter's propensity for unauthorized absences.

When Walsh was promoted to postmaster in mid-1984, Paul Hentschel became Pagano's supervisor. On December 2, 1984, Hentschel sent appellant an admonitory letter regarding frequent tardiness and excessive use of sick leave. A second warning letter, issued exactly one year later, cited continuing instances of unpunctuality and sick leave abuses during a two-month period ending December 2, 1985.

Notwithstanding these admonitions, appellant persisted in his moratory ways. Hentschel suspended him for seven days in January (later reduced to five) and fourteen days in March (later reduced to seven). Seeing no improvement, Hentschel issued a so-called "notice of removal" on July 15, 1986 (later withdrawn), and reissued it on October 22, 1986. During the ensuing grievance proceedings, Walsh overrode Hentschel's action and authorized a "last chance" agreement. Although the agreement contained a promise that appellant would report for work regularly and punctually, this covenant was honored mainly in the breach: appellant was absent or late nineteen times during the four-month period ending March 23, 1987. Hentschel discharged appellant in May of that year, citing his "lack of dependability in reporting and not being available for duty."

Three months after his termination, appellant filed a formal administrative complaint with the Postal Service's equal employment opportunity office, alleging that he was dismissed because of his employer's animus against persons of Italian origin. 2 For the next three years, appellant vigorously pursued his case on the administrative level. Receiving no satisfaction, he brought suit against the Postmaster General in the United States District Court for the District of Massachusetts.

Appellant docketed his complaint in the district court on August 7, 1990. On February 19, 1992, a magistrate judge denied his motion for leave to file an amended complaint. Several months thereafter, the district court granted the defendant's motion for summary judgment. This appeal ensued.


As a preliminary matter, appellant contends that the district court erred in denying his motion to add counts alleging wrongful discharge and breach of contract. The facts are as follows. Appellant's motion to amend his complaint was filed on January 10, 1992. The district judge referred the motion to a magistrate judge who denied it on grounds of futility, ruling that the additional claims were both preempted by Title VII and that, moreover, the wrongful discharge claim failed to comport with the Federal Tort Claims Act. Appellant took no further action. Because appellant failed to object to the magistrate's order within the prescribed ten-day period, see Fed.R.Civ.P. 72(a), we cannot consider this assignment of error. 3

Under ordinary circumstances a motion to amend a complaint is "a pretrial matter not dispositive of a claim or defense of a party" within the purview of Fed.R.Civ.P. 72(a). See Walker v. Union Carbide Corp., 630 F.Supp. 275, 277 (D.Me.1986); see also 28 U.S.C. § 636(b)(1)(A) (providing that a district judge "may designate a magistrate to hear and determine any pretrial matter," with certain enumerated exceptions not relevant here). A party displeased by a magistrate's order on a nondispositive motion must serve and file objections to the order within ten days. See Fed.R.Civ.P. 72(a); see generally 28 U.S.C. § 636(d) (congressional grant of rulemaking power). If the aggrieved party preserves his rights in this fashion, the district judge can set aside the magistrate's ruling if he finds it to be "clearly erroneous or contrary to law." 28 U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). If, however, the aggrieved party sits idly by and fails to object within the prescribed period, he "may not thereafter assign as error a defect in the magistrate's order...." Id.; see also Rule 2(b), Rules for U.S. Magistrates in the United States District Court for the District of Massachusetts (implementing 28 U.S.C. §§ 636(b)(1)(A), (d) and Civil Rule 72(a)).

In this instance, Pagano did not object to the magistrate's denial of the motion to amend. That ends the matter. Congress granted the courts of appeals jurisdiction to hear appeals "from all final decisions of the district courts of the United States." 28 U.S.C. § 1291. We have held that for a magistrate's decision to be "final" within the meaning of the statute it "must have been reviewed by the district court, which retains ultimate decision-making power." United States v. Ecker, 923 F.2d 7, 8 (1st Cir.1991) (quoting Siers v. Morrash, 700 F.2d 113, 115 (3d Cir.1983)). 4 In other words, when, as now, a litigant could have tested a magistrate's ruling by bringing it before the district judge, but failed to do so within the allotted ten-day period, he cannot later leapfrog the trial court and appeal the ruling directly to the court of appeals. See Unauthorized Practice of Law Comm. v. Gordon, 979 F.2d 11, 13-14 (1st Cir.1992) (per curiam); McKeever v. Block, 932 F.2d 795, 799 (9th Cir.1991); Singletary v. B.R.X., Inc., 828 F.2d 1135, 1137 (5th Cir.1987); Siers, 700 F.2d at 116; see also Ecker, 923 F.2d at 9 (holding that the court of appeals cannot undertake direct review of a magistrate's order on a nondispositive pretrial motion in a criminal case); United States v. Renfro, 620 F.2d 497, 500 (5th Cir.) (same), cert. denied, 449 U.S. 921, 101 S.Ct. 321, 66 L.Ed.2d 149 (1980).

Because appellant took no steps to have the district judge review the magistrate's denial of the motion to amend, he is precluded from contesting the merits of that order in the present proceeding. See Rittenhouse v. Mabry, 832 F.2d 1380, 1387 (5th Cir.1987) (refusing to entertain a plaintiff's challenge to a magistrate's denial of his motion to amend his complaint because "no appeal therefrom to the district court was ever taken or attempted and the district court did not in any way review or confirm th[e] order").


We divide our examination of the summary judgment entered below into two segments. We begin by outlining the Rule 56 standard and then proceed to the underlying Title VII claim.

A. The Summary Judgment Standard.

Summary judgment is appropriate when "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). Where, as in this case, the defendant has invoked Rule 56 and asserted a lack of supporting evidence, the plaintiff must establish the existence of a triable issue which is both genuine and material to his claim. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). "In this context, 'genuine' means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party [and] 'material' means that the fact is one that might affect the outcome of the suit under the governing law." United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992) (citations and internal quotation marks omitted).

On issues where the nonmovant bears the ultimate burden of proof at trial, he may not defeat a motion for summary judgment by relying upon evidence that is "merely colorable" or "not significantly probative." Anderson, 477 U.S. at 249-50, 106 S.Ct. at 2511. To the contrary, the nonmovant must "present definite, competent evidence to rebut the motion." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992). Even when elusive concepts like motive or intent are in play, "summary judgment may be appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

We afford plenary review to a district court's grant of summary judgment. In the course thereof, we must read the record in the light most amicable to the party contesting summary judgment, indulging...

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