Pagano v. Frank ( 1993 )


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  • January 13, 1993
    
                      UNITED STATES COURT OF APPEALS
                          FOR THE FIRST CIRCUIT
    
                                                 
    
    No. 92-1952
    
                             MICHAEL PAGANO,
    
                          Plaintiff, Appellant,
    
                                    v.
    
               ANTHONY M. FRANK, POSTMASTER GENERAL, ETC.,
    
                           Defendant, Appellee.
    
                                                 
    
               APPEAL FROM THE UNITED STATES DISTRICT COURT
    
                    FOR THE DISTRICT OF MASSACHUSETTS
    
               [Hon. Robert E. Keeton, U.S. District Judge]
                                                          
    
                                                 
    
                                  Before
    
                          Selya, Circuit Judge,
                                              
    
                      Coffin, Senior Circuit Judge,
                                                  
    
                         and Cyr, Circuit Judge.
                                               
    
                                                 
    
         Norman Jackman, with  whom Martha M.  Wishart and Jackman  &
                                                                     
    Roth were on brief, for appellant.
        
         David  G. Karro, Attorney, Office of Labor Law, U. S. Postal
                        
    Service, with  whom A.  John Pappalardo, United  States Attorney,
                                           
    and  Annette Forde,  Assistant  United States  Attorney, were  on
                      
    brief, for appellee.
    
                                                 
    
                                                 
    
              SELYA, Circuit Judge.  The United States Postal Service
              SELYA, Circuit Judge.
                                  
    
    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.  
    
    I.  BACKGROUND
    
              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
    
                        
    
         1An  inscription on the exterior  of the main  New York City
    post  office,  often thought  to be  the Postal  Service's motto,
    reads:  "Neither snow,  nor rain,  nor heat,  nor gloom  of night
    stays these couriers from  their appointed rounds." (adapted from
    VIII Herodotus, Histories 98).
                             
    
                                    2
    
    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
    
                        
    
         2Appellant  originally claimed that  a second discriminatory
    animus, arising  out of his role in the investigation of a sexual
    harassment complaint,  contributed to his difficulties.   He has,
    however, abandoned this  theory on appeal.   Accordingly, we pass
    over it.  See United States v. Slade,     F.2d     ,     n.3 (1st
                                        
    Cir.  1992) [No.  92-1176, slip  op. at  6 n.3]  (reiterating the
    general  rule that "theories neither briefed nor argued on appeal
    are deemed to have been waived").
    
                                    3
    
    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.
    
    II.  THE NEED TO OBJECT TO A MAGISTRATE'S ORDER
    
              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
    
                        
    
         3We analyze this point under Fed. R. Civ. P. 72(a) partially
    because  appellant,   in   post-argument  briefing   before   us,
    explicitly invited  that characterization.   However, even  if we
    viewed  the  magistrate's  denial  of  the  motion  to  amend  as
    implicating  28 U.S.C.   636(b)(1)(B)  and Fed. R.  Civ. P. 72(b)
    rather than 28 U.S.C.    636(b)(1)(A) and Rule 72(a),  the result
    that we reach  would not be affected.  See  Park Motor Mart, Inc.
                                                                     
    v. Ford  Motor Co., 
    616 F.2d 603
    , 605  (1st Cir. 1980)  (holding
                      
    that, in respect to  a magistrate's recommended disposition under
    
                                    4
    
              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
    
                        
    
    section 636(b)(1)(B),  "a party 'may' file  objections within ten
    days or he may  not, as he  chooses, but he 'shall'  do so if  he
    wishes  further consideration"); accord  Davet v.  Maccarone, 
    973 F.2d 22
    , 30-31 (1st  Cir. 1992); Templeman v. Chris  Craft Corp.,
                                                                    
    
    770 F.2d 245
    , 247 (1st Cir.), cert. denied, 
    474 U.S. 1021
     (1985);
                                              
    Scott v. Schweiker, 
    702 F.2d 13
    , 14 (1st Cir. 1983).
                      
    
                                    5
    
    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,     F.2d     ,    
                                                 
    
    (1st  Cir. 1992)  (per  curiam) [No.92-1710,  slip  op. at  7-8];
    
    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
     (1980).  
                
    
              Because appellant  took no  steps to have  the district
    
                        
    
         4Of course, when magistrates sit as de facto district judges
                                                     
    by consent of  the litigants under  28 U.S.C.   636(c),  they can
    enter  final, appealable judgments.   See 28  U.S.C.   636(c)(3).
                                             
    However, section 636(c) has no applicability in the instant case.
    
                                    6
    
    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").
    
    III.  THE PROPRIETY OF SUMMARY JUDGMENT
    
              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  (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
    
                                    7
    
    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.  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, 
    112 S. Ct. 2965
                                                  
    
    (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  all reasonable  inferences  in that  party's
    
    favor.  See, e.g., Griggs-Ryan v.  Smith, 
    904 F.2d 112
    , 115  (1st
                                            
    
    Cir. 1990).
    
                         B.  The Title VII Claim.
                                                
    
              Title  VII  renders  it  unlawful for  an  employer  to
    
    "discharge  any  individual .  . .  because of  such individual's
    
    race,  color, religion,  sex, or  national origin  . .  . ."   42
    
                                    8
    
    U.S.C.    2000e-2(a)(1).   To  prevail  on a  Title VII  claim, a
    
    plaintiff must prove that the defendant discriminated against him
    
    for  a proscribed reason.  See Cumpiano v. Banco Santander Puerto
                                                                     
    
    Rico,  
    902 F.2d 148
    ,  153 (1st  Cir.  1990).   Because appellant
        
    
    produced  no direct  evidence of  discriminatory intent,  we must
    
    initially analyze his  claim under the  burden-shifting framework
    
    of  McDonnell  Douglas  Corp.  v.  Green, 
    411 U.S. 792
    ,  802-05
                                            
    
    (1973).5  
    
              McDonnell  Douglas requires,  first, that  the claimant
                                
    
    state a prima facie case.   This showing transfers the burden  of
    
    production,  requiring  the  employer  to  articulate   (but  not
    
    necessarily  prove)  some  legitimate,  nondiscriminatory  reason
    
    justifying the adverse  employment action.  Cumpiano, 902 F.2d at
                                                        
    
    153.  Satisfying this  burden of production effectively dissolves
    
    the  inference of  discrimination  arising  from the  plaintiff's
    
    prima facie  case.6  See White  v. Vathally, 
    732 F.2d 1037
    , 1040
                                               
    
    (1st 
    
                        
    
         5In  general, the  McDonnell Douglas  model operates  in the
                                             
    same way  for  Title VII  cases as  for cases  brought under  the
    federal Age Discrimination in Employment Act (ADEA), 29 U.S.C.   
    621-634 (1988).   See Villanueva v.  Wellesley College, 
    930 F.2d 124
    , 127 n.2 (1st Cir.) cert. denied, 
    112 S. Ct. 181
     (1991); Loeb
                                                                     
    v. Textron, Inc., 
    600 F.2d 1003
    , 1015 (1st Cir. 1979).  Hence, we
                    
    cite  interchangeably  to Title  VII  and ADEA  decisions  in the
    succedent analysis.
    
         6Even though the  McDonnell Douglas inference  vanishes, the
                                            
    evidence  submitted in  support of  the prima facie  case remains
    under  consideration.     See  Mesnick,  950  F.2d   at  825  n.6
                                          
    (explaining  that, although the burden-shifting framework becomes
    inconsequential  at this point, the district  court, faced with a
    Rule 56 motion, "must still examine the evidence that the parties
    adduced in proceeding under the framework").
    
                                    9
    
    Cir.), cert. denied, 
    469 U.S. 933
     (1984).  Once the parties reach
                       
    
    this  stage, therefore,  the  plaintiff, if  he  is to  defeat  a
    
    properly documented motion for summary judgment, "must offer some
    
    minimally  sufficient  evidence,  direct  or  indirect,  both  of
    
    pretext and  of the employer's discriminatory  animus."  Mesnick,
                                                                    
    
    950 F.2d at 825; accord Villanueva v. Wellesley College, 
    930 F.2d 124
    ,  127-28 (1st  Cir.), cert.  denied, 
    112 S. Ct. 181
     (1991);
                                           
    
    Lipsett v. University of Puerto Rico, 
    864 F.2d 881
    , 895 (1st Cir.
                                        
    
    1988).   
    
              In  this  case, the  district court  apparently assumed
    
    that appellant stated a  prima facie case7 and that  the employer
    
    articulated a  facially valid, nondiscriminatory  reason (chronic
    
    absenteeism and tardiness) for the dismissal.  From that starting
    
    point,  the court ruled against  appellant on two  bases.  First,
    
    the court  determined that appellant failed to submit evidence of
    
    pretext.  Second,  the court found that "there is  no evidence in
    
    the  record  .  . .  that  would  justify  even a  circumstantial
    
    inference  that plaintiff  was dismissed  because of  his Italian
    
    heritage."    Either  conclusion  would  have  warranted   brevis
    
    disposition.   Having  scrutinized the  record, we  are persuaded
    
    that both are supportable.
    
                        
    
         7In employment termination cases, a  prima facie case may be
    established by demonstrating that "(1) the plaintiff was within a
    protected  class;  (2)  she  was qualified  for,  and  adequately
    performed, her job; (3)  she was nevertheless dismissed; and  (4)
    after  her  departure, the  employer  sought  someone of  roughly
    equivalent  qualifications  to  perform  substantially  the  same
    work."   Cumpiano,  902  F.2d at  153.   Following  the  district
                     
    court's lead,  we also  assume arguendo that  appellant stated  a
                                           
    prima facie case.   
    
                                    10
    
              1.   Pretext.  Appellant's effort  to establish pretext
              1.   Pretext.
                          
    
    takes an  unexpected twist.   The Postal Service's  stated reason
    
    for cashiering Pagano focused on his rotten attendance record and
    
    unremitting lack of  punctuality.  Usually, a Title VII plaintiff
    
    seeks to show pretext  by attacking the factual premise  on which
    
    the employer's professed reason  rests.  Here, however, appellant
    
    concedes the truth of  the Service's factual predicate    he was,
    
    by his own admission, often absent and frequently late   but says
    
    that the proffered reason  was nonetheless pretextual because the
    
    employer's  attendance policy was not applied to other, similarly
    
    situated, non-Italian employees in the same way.  
    
              This uncommon  claim hinges on  appellant's attempt  to
    
    compare  his work record and  treatment with the  work record and
    
    treatment  of  one  Patrick  Rafferty,  a  co-employee  of  Irish
    
    descent.  In appellant's view, Rafferty committed equivalent sins
    
    but received much milder punishment.   The court below jettisoned
    
    this claim, finding that Rafferty's case was not a fair congener.
    
    We agree.  
    
              In  contending that  he  and Rafferty  were  "similarly
    
    situated," appellant limits  his analysis to the  number of times
    
    the two men were late during a finite period.  Yet, appellant had
    
    a  substantially longer  and  more varied  history of  attendance
    
    problems than did Rafferty and appellant, unlike Rafferty, failed
    
    to mend his ways following receipt of formal warnings.  Appellant
    
    also  racked  up many  more  violations of  the  Postal Service's
    
    attendance policy than did Rafferty when items such as sick time,
    
                                    11
    
    absences without leave, and the like are taken into account.8 
    
              In short, the record shows beyond hope of contradiction
    
    that the  two men were  not similarly situated  vis-a-vis overall
    
    attendance and  that Rafferty,  like Pagano, was  disciplined for
    
    provable infractions at a level corresponding to the infractions'
    
    severity.   In the absence of  any other evidence that the Postal
    
    Service applied the attendance rules unevenly, the district court
    
    did  not err  in  holding  that there  was  no  genuine issue  of
    
    material  fact  on  the question  of  pretext.9    See Oliver  v.
                                                                 
    
    Digital Equip. Corp., 
    846 F.2d 103
    , 109 (1st Cir. 1988).
                        
    
              2.   Discriminatory Animus.   Appellant likewise failed
              2.   Discriminatory Animus.
                                        
    
    to  adduce any  evidence  tending to  prove defendant's  supposed
    
    discriminatory intent.    Appellant  produced  no  evidence  that
    
    Hentschel, the official responsible for monitoring the attendance
    
    policy  and initiating  disciplinary  proceedings,   harbored  an
    
    anti-Italian animus.  Rather, he attempted to establish animus by
    
    showing  that Walsh,  the Lynnfield  postmaster, nursed  a grudge
    
                        
    
         8For example,  in the seventeen months  prior to appellant's
    dismissal, he  was involved  in fifty-three  separate occurrences
    that called  the attendance  rules into  question.   Rafferty was
    involved in only fourteen such instances during the same period.
    
         9Relatedly, appellant  asserts that there is  a fact dispute
    about  whether the  Postal  Service  consistently recorded  every
    instance  of  employee  lateness or  absence.    Even  if such  a
    question  exists,  however,  it  is not  material  to  this case.
    Appellant adduced  no proof  that  the Service  either failed  to
    record transgressions based  upon employees'  national origin  or
    placed  ersatz  infractions on  his  work  record.   Indeed,  his
    evidence  suggests  that  the  Service  may  have  been  somewhat
    charitable  in not  recording  all violations  of the  attendance
    rules.  If this is so, appellant, as a habitual latecomer, likely
    benefitted from the employer's laxity.  
    
                                    12
    
    against persons of Italian descent.  The sum total of appellant's
    
    evidence consists of three statements  attributed to Walsh.  When
    
    reacting  to  news  that  he  had  become  appellant's  immediate
    
    superior, Walsh allegedly  remarked, "Good, now we can fire you."
    
    On  another occasion, Walsh  allegedly told  a co-worker  that he
    
    hoped appellant would quit.  Finally, upon hearing an employee of
    
    Italian lineagecough, Walsh reputedly said, "I hope he chokes."  
    
              This evidence  is manifestly  insufficient to  create a
    
    trialworthy  issue  regarding  the  existence  of  a  statutorily
    
    proscribed  animus.   To  be  sure,  the attributed  remarks  are
    
    concededly  coarse     but  there  is  nothing  about them  which
    
    suggests  to  an   objectively  reasonable  observer   that  they
    
    constituted  expressions  of  discrimination  based  on  national
    
    origin.   Sporadic instances of  rude behavior, without  more, do
    
    not comprise competent proof of nationality-based discrimination.
    
    See, e.g., Mesnick, 950 F.2d at 826; Medina-Munoz, 896 F.2d at 9-
                                                     
    
    10;  Robinson v.  Montgomery Ward &  Co., 
    823 F.2d 793
    , 797 (4th
                                            
    
    Cir.  1987),  cert.  denied,  
    484 U.S. 1042
      (1988);  Clark  v.
                                                                 
    
    Atchison, Topeka & Santa Fe Ry. Co., 
    731 F.2d 698
    , 702 (10th Cir.
                                       
    
    1984).   We  hold,  therefore, that  this  smattering of  offhand
    
    comments,  spread over a fourteen-year  period, fails as a matter
    
    of law to show anti-Italian animus.10
    
                        
    
         10In view of this ruling, we need not reach, and, thus, take
    no  view anent,  the  district court's  alternative holding  that
    Walsh's  comments, even  if probative  of ethnic  hostility, were
    inconsequential absent evidence  that he had some input  into, or
    impact upon, Hentschel's decision  to end appellant's employment.
    
                                    13
    
    IV.  CONCLUSION  
    IV.  CONCLUSION
    
              We  need go no further.  We are without jurisdiction to
    
    consider appellant's belated challenge to the magistrate's denial
    
    of his motion to file an amended complaint.  And,  given the lack
    
    of a triable issue of fact regarding either pretext or animus, we
    
    conclude,  without  serious   question,  that  the   lower  court
    
    appropriately entered judgment in defendant's favor.  See Oliver,
                                                                    
    
    846 F.2d  at 109 (holding  that summary  judgment is proper  in a
    
    Title  VII case  where plaintiff's  opposition, at  bottom, rests
    
    solely upon "unsupported allegations and speculation").  
    
    Affirmed.
             
    
                        
    
    See, e.g.,  Medina-Munoz, 896 F.2d at 10  ("The biases of one who
                            
    neither makes  nor influences the  challenged personnel  decision
    are not probative in an employment discrimination case.").
    
                                    14
    

Document Info

DocketNumber: 92-1952

Filed Date: 1/13/1993

Precedential Status: Precedential

Modified Date: 12/21/2014

Authorities (25)

McDonnell Douglas Corp. v. Green , 411 U.S. 792 ( 1973 )

Anderson v. Liberty Lobby , 477 U.S. 242 ( 1986 )

20 Fair empl.prac.cas. 29, 20 Empl. Prac. Dec. P 30,028 ... , 600 F.2d 1003 ( 1979 )

Park Motor Mart, Inc. v. Ford Motor Company , 616 F.2d 603 ( 1980 )

United States v. Will Renfro , 620 F.2d 497 ( 1980 )

Chuck Siers v. Mr. J. Morrash (Hosp. Administrator), Staff ... , 700 F.2d 113 ( 1983 )

Samuel E. Scott v. Richard S. Schweiker , 702 F.2d 13 ( 1983 )

34 Fair empl.prac.cas. 1148, 34 Empl. Prac. Dec. P 34,293 ... , 731 F.2d 698 ( 1984 )

34 Fair empl.prac.cas. 1130, 34 Empl. Prac. Dec. P 34,336 ... , 732 F.2d 1037 ( 1984 )

William Templeman and Alyce Templeman v. Chris Craft ... , 770 F.2d 245 ( 1985 )

44 Fair empl.prac.cas. 491, 43 Empl. Prac. Dec. P 37,272 ... , 823 F.2d 793 ( 1987 )

Harvey Ellis Singletary, II v. B.R.X., Inc. , 828 F.2d 1135 ( 1987 )

Zola W. Rittenhouse v. Edward H. Mabry, Jr. , 832 F.2d 1380 ( 1987 )

46 Fair empl.prac.cas. 1535, 46 Empl. Prac. Dec. P 37,989 ... , 846 F.2d 103 ( 1988 )

Annabelle Lipsett v. University of Puerto Rico , 864 F.2d 881 ( 1988 )

52 Fair empl.prac.cas. 253, 52 Empl. Prac. Dec. P 39,659 ... , 896 F.2d 5 ( 1990 )

Wilma Cumpiano A/K/A Wilma Cumpiano Sanchez v. Banco ... , 902 F.2d 148 ( 1990 )

Gerald Griggs-Ryan v. Beulah Smith, Gerald Griggs-Ryan v. ... , 904 F.2d 112 ( 1990 )

United States v. John Leonard Ecker, A/K/A Leonard Hoffecker , 923 F.2d 7 ( 1991 )

Tino Villanueva v. Wellesley College , 930 F.2d 124 ( 1991 )

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