USCA1 Opinion

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

____________________

No. 95-2266

KOFI DODI,

Plaintiff - Appellant,

v.

THE PUTNAM COMPANIES,

Defendant - Appellee.

____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]

___________________

____________________

Before

Torruella, Chief Judge,

___________

Cyr and Boudin, Circuit Judges.

______________

_____________________

Kevin G. Powers, with whom Robert S. Mantell and Law Office

________________
_________________
__________
of Kevin G. Powers were on brief for appellant.
__________________
Ilene Robinson,
______________

with whom Louis A. Rodriques, Katherine J.

___________________ ____________

Ross and Sullivan & Worcester LLP were on brief for appellee.
____
________________________

____________________

August 28, 1996

____________________

Per
Per

Curiam.
Curiam.

Appellant-defendant

Kofi

Dodi ("Dodi")

appeals

the

district

court's

decision

granting

defendant-

appellant The Putnam Companies ("Putnam") summary judgment.

had

filed suit under Title VII of

42 U.S.C.

2000e-3(a),

discrimination on

and Mass.

Dodi

the Civil Rights Act of 1964,

Gen.

L. ch.

151B

alleging

account of his race and national origin and/or

retaliation for filing a charge with the Massachusetts Commission

Against

Discrimination ("MCAD").

whether the court below abused

two

affidavits

and

before us are

its discretion in striking Dodi's

portions

Judgment; and whether it erred

The two issues

of

his

Opposition

to

Summary

in granting the summary judgment.

For the reasons stated herein, we affirm.

BACKGROUND
BACKGROUND

We recite the following

court

Memorandum and Order, in

facts, drawn from the district

the light most

favorable to the

nonmovant.

Equal Employment Opportunity Comm'n v. Green, 76 F.3d

___________________________________
_____

19, 21 (1st Cir. 1996).

Dodi is

born in Ghana and is black.

a United States citizen who was

He began working for Putnam in 1984,

and by 1987 was part of the Tax and Compliance unit.

1989

or January 1990, the

In December

department was reorganized.

female, Michelle Whalen ("Whalen"),

A white

was appointed Manager of the

Tax and Compliance unit, a position Dodi desired, and which title

he

maintains was his

appointment.

Dodi

prior to

the reorganization

and Whalen's

complained to several individuals,

Robert Lucey, President

of Putnam Investor

Services.

complained, Dodi was made the IRS Technical Manager:

-2-

including

After

he

he contends

that

his appointment

was

an effective

demotion, while

Putnam

labels it a lateral move.

In May

1990, Dodi filed

that he was demoted

and national

his

with MCAD

and denied promotion on account

origin.

performance

a charge

After he

reviews

filed the charge, his

declined

--

his

rating

alleging

of his race

rating in

dropped

to

"unsatisfactory" -- and the reviews suggested increased hostility

between

Dodi and

his supervisors.

Dodi

contends that

he was

excluded from

meetings and isolated from

of the complaint.

Putnam fired

the department because

Dodi in March 1991, roughly

months after the filing of the MCAD complaint.

complaint

in June 1991, alleging that

ten

He filed a second

he was terminated because

of his race and national origin, or in retaliation for filing the

1990 complaint, or both.

MCAD dismissed the two complaints in December 1992, for

lack

of probable

cause, a

decision it

affirmed in

January of

1993.

Dodi filed a civil action in Massachusetts Superior Court,

which

Putnam removed to the Federal District Court.

made

discovery requests

and took depositions.

motion

for summary judgment, which Dodi opposed.

Putnam

moved to strike portions of

The parties

Putnam

In

filed a

June 1995,

Dodi's Opposition to Summary

Judgment (the "Opposition").

strike

contained

attachments.

an

At a

Dodi's opposition to the motion to

affidavit

(the

"first

hearing in

July

1995, the

granted Putnam's motion to

affidavit")

with

district court

strike portions of Dodi's Opposition,

and struck the first affidavit on its own initiative.

It granted

-3-

Dodi's request for permission

to submit supplemental information

in support of the stricken statements in the Opposition.

July

Dodi

Putnam's

filed

motion

supplemental submission

to

strike,

"second affidavit").

including

In August,

in

In late

opposition

another affidavit

Putnam

moved to

strike

to

(the

the

second affidavit, and in October 1995, the district court granted

Putnam's motion for summary judgment and its motion to strike the

second affidavit.

This appeal ensued.

STRICKEN SUBMISSIONS
STRICKEN SUBMISSIONS

We begin

erred in

with Dodi's argument that

striking the

affidavits and

the district court

his Opposition

since, if

they were admissible, they would form part of the record on which

the summary judgment

56(c).

We

review the

would be

evaluated.

See
___

district court's decision

Fed. R. Civ.

P.

to strike

for

abuse of

discretion.

See
___

court has broad authority

it

will consider in

Green, 76 F.3d
_____

at 23 ("The

district

to prescribe the evidentiary materials

deciding a motion

see also Ramsdell v. Brooks, 64

________ ________
______

for summary judgment.");

F.3d 5, 8 (1st Cir. 1995), cert.

_____

denied sub nom. Ramsdell v. Machias Savings Bank, __ U.S. __, 116
_______________ ________
____________________

S.

Ct. 913

(1996); New England Anti-Vivisection Soc. v.

___________________________________

U.S.
____

Surgical Corp., 889 F.2d 1198, 1204 (1st Cir. 1989).

______________

Under the Federal Rules

"shall be made

would

that

on personal

be admissible

knowledge, set forth

in evidence,

the affiant is competent

therein."

of Civil Procedure, affidavits

such facts

as

and shall

show affirmatively

to testify to

the matters stated

Fed. R. Civ. P. 56(e).

Accordingly, if the affidavits

-4-

and Opposition Dodi

submitted did not

district court can hardly have

them.

Cf.
___

meet these criteria,

the

abused its discretion in striking

Posadas de Puerto Rico, Inc. v.

____________________________

Radin, 856 F.2d 399,

_____

401 (1st Cir. 1988) (affirming that affidavit which does not meet

the Rule 56 specificity

a genuine

requirement is insufficient to establish

issue for trial);

FDIC v. Rold n Fonseca,

____
_______________

795 F.2d

1102, 1110 (1st Cir. 1986) (holding that where receipts submitted

to

support

opposition

to

summary

judgment

constituted

inadmissible hearsay, party failed to comply with Rule 56(e)).

Having briefly

relevant legal

argument.

set out our standard of

framework, we turn

As the parties have

review and the

to the particulars

of Dodi's

addressed the stricken documents

according to subject, we follow suit.1

Imitation of Dodi's Accent:

__________________________

Dodi's statement

in his Opposition that

Managing Director, and Robert Frazer, a

of

The district court struck

William McGue, Putnam's

white manager, "made fun

Dodi's accent, and imitated him at meetings and during casual

conversations."

Dodi seeks

second affidavit

in support of

to rely

on

a paragraph

his assertion.

We do

from his

not find

that the district court abused

its discretion in striking either

____________________

In the course of his argument, Dodi several times invites this

court
they

to review his affidavits

should have

been struck

evidence included in them.

out

the admissible

and whether

portions or

except

to determine whether
there is

admissible

He does not, however, attempt to cull

therefore,

that

discusses,

he has waived his

whole are

as a whole

for

cite any
the

authority.

portions

he

argument that the

admissible, as arguments made

with no developed

argument or

United States v.
______________

Zannino,
_______

denied, 494 U.S. 1082 (1990).

______

-5-

1,

specifically

affidavits as a

perfunctorily on appeal

support are deemed

895 F.2d

We find,

17 (1st

waived.
Cir.),

See
___

cert.
_____

the

statement from the Opposition or the paragraph in the second

affidavit.

The statements in

lack specificity.

evidence, it

would

the paragraph are

conclusory and

Moreover, even if it were error to exclude the

be

harmless, for

the

imitation

does

not

support Dodi's claim of retaliation, and as discussed below, that

is the only cause of action remaining on appeal.

Merit Raises:
_____________

statement in

merit,"

the Opposition

Dodi

meant, or

district

struck

Dodi's

raises based

on

was nothing in the record as to

how and on

claims that

court

that he "received

on the basis that there

what "merit"

given.

The

what basis such

statements from

affidavit provide such verified information.

raises were

the stricken

second

He also points to a

computer

History

printout

entitled

"Salary,

Screen" which the district

first affidavit, as well

Increase

&

Performance

court struck as

part of the

as a memorandum sent to

him from James

Swinney, a Senior Vice President, dated January 2, 1990.

that

We find

the district court did not abuse its discretion in striking

these documents.

Dodi claims that all three meet the requirements to

business

record

exception

to

the

hearsay

requirements for the exception are clear:

rule.

be

The

a "memorandum, report,

record or data compilation, in any form" is admissible so long as

it is

made

at or

near

the time

by, or

from

information transmitted by, a person with

knowledge, if
regularly

kept

conducted

in the

course of

business

activity,

and
that

if it

was

the regular

business

activity

practice of

to

make

the

or

data

by

the

-6-

memorandum,

report,

compilation,

all

testimony

the

of

record,
as

shown

custodian

or

other

qualified witness . . . .

Fed.

R. Evid.

803(6); see,
___

e.g.,
____

E.E.O.C. v.
________

Corp., 901 F.2d 920, 926 (11th Cir. 1990).

_____

Alton Packaging
_______________

Dodi has not provided

the required

foundation for these three documents.

misunderstands

memoranda,

the application

reports, and

statements, in claiming

him

and mentioned in the

of

record

the rule,

or data

that it covers

First, Dodi

which applies

compilation, not

oral statements made

second affidavit.

to

oral

to

Second, as for the

computer printout, Dodi's statement that in his experience, "such

documents are

course

of

its

routinely generated

business" falls

foundation Rule 803(6) requires.

discovery

out

does not save it.

by Defendant in

far

short

of

laying out

the

That it was provided to Dodi in

Third,

Dodi has also failed to lay

the foundation for the memorandum from Swinney:

says he received it

the ordinary

in the normal course of business

although he

on January

2, 1990, and that it was generated and maintained in the ordinary

course of business, we agree with Putnam that there is no support

for these claims.

Dodi faces similar

that

foundational issues with his

claim

the documents are also admissible as party admissions under

Fed. R. Evid. 801(d)(2)(D).

He has, to put it briefly, failed to

show that the statements he cites to were made by Putnam's "agent

or servant concerning a matter within

the scope of the agency or

employment, made during the existence of the relationship."

Fed.

R. Evid. 801(d)(2)(D).

made

Mere

assertion that they

-7-

were so

does not suffice.

Even if

however, the

some of these statements

court still would

since, as Dodi notes

not have

"merit"

meant.

affidavit, Dodi

training

merit

In

discretion

based its decision

was no basis in the record as

the

cited

portion

notes that instructors from

of

his

to

second

the human resources

department told him that "the Putnam policy was to give

raises

employees."

as

reward

for

satisfactory

This statement is clearly not

business record exception,

statement.

abused its

in his brief, the court

in part on the fact that there

what

had been admissible,

as he

performance

by

admissible under the

claims, since it

Fed. R. Evid. 803(6) (applicable to

was an

oral

"[a] memorandum,

report,

record,

admission,

or

since

data compilation").

he

has

not

Nor

addressed

is

the

it a

party

foundational

requirements laid out in the rule itself.

EEO-1 Report:
____________

erred

in striking

corresponding

1993

portion of

evidences that

existed.

Next Dodi argues that the district court

EEO-1

report

the first

of

Putnam,

affidavit, which

he reasonably believed

that race

and

the

he claims

discrimination

In his support he notes that the report was provided in

discovery, that Putnam is required by law to produce such reports

(Dodi

does not

specify what

accurate copy of

see

how

suffices

the fact

law), and

that it

is a

the document Putnam provided Dodi.

that a

to authenticate

document

was presented

the document

or lay

true and

We fail to

in discovery

the foundational

requirements of Rule 803(6)

or Rule 801(d)(2)(D).

At

any rate,

-8-

even if the

error,

district court

erred, it would

have been

harmless

since, as Dodi notes, this evidence goes to his prejudice

claim, not his

retaliation cause

of action, which

is his

sole

remaining cause of action.

Swinney Memorandum:
___________________

Dodi

submitted a

memorandum he

wrote to

Swinney, dated December

complained

about

his treatment,

discrimination claim.

on hearsay

26, 1989, to show

in

connection

The district court

grounds; we agree

that he had

with his

race

struck the memorandum

that the necessary

foundation was

missing.

Dodi's

generate

and maintain a personnel file on its employees does not

substitute

foundation.

for

witness

testimony

required

to

lay

However, Dodi also notes that

is being used, in part, not to prove the truth of

asserted, but to demonstrate that Dodi complained of

the subjectivity

of

the

Fed. R. Evid. 803(6).

the memorandum

the matters

citation of the fact that Putnam is required to

of his performance evaluations,

opposition to perceived race

discrimination.

distinction without a difference, since

in the context

But

this is a

there is no dispute that

Dodi protested against perceived

because

Swinney

was involved

Dodi's retaliation

this

claim, we

racism at Putnam.

in

Dodi's

Nonetheless,

termination and

shall consider the

thus

memorandum for

limited purpose in our review of the district court's grant

of summary judgment.

$10,000 Pay Disparity:

_____________________

court's decision to strike

that for

Dodi next contests the district

a series of statements

which alleged

several years Dodi was paid a salary well below that of

-9-

white

individuals, until

statements as

pages

he complained.

conclusory.

The court

Having reviewed

struck the

the cited deposition

and statements from the second affidavit, we find no abuse

of discretion in the

ruling.

Indeed, we agree

with Putnam that

Dodi's deposition does not support the premise

that he perceived

it

but

as

allegation

race-based

seems

discrepancy

to arise

only

in

wages,

after the

judgment has appeared on the horizon.

rather

motion

that

for summary

See Colantuoni
___ __________

v. Alfred
______

Calcagni & Sons, Inc., 44 F.3d

______________________

1, 45 (1st Cir.

1994) ("When an

interested

witness

clear

to

questions,

he

has

cannot

given

create

answers

conflict

and

unambiguous

resist

summary

judgment

with an

affidavit that

is clearly

contradictory, but

does not give a satisfactory explanation of why the testimony has

changed.").

evidence

Further,

any

of a pay disparity

action, but rather

goes to

error

would

be harmless,

does not tend

as

the

to prove retaliatory

the discrimination

claim waived

on

appeal.

Qualifications of Michelle Whalen:

__________________________________

district

court's

alleging that

Dodi, she

decision

to

strike

although Whalen was

was less

Dodi contests the

portions

given a higher

qualified for the

of

statements

position than

position than Dodi.

The

cited deposition pages offer no evidence other than it was Dodi's

belief that

that

Whalen was less qualified,

she was management's choice.

and inadmissible hearsay

Dodi now

points to excerpts

from Whalen's personnel file and the

job description, which have

not been stricken, to support his position; Putnam in turn points

-10-

out

that the

just

promotion was based

on managerial

abilities, not

narrow technical expertise, and that Dodi fell far short of

Whalen

latter.

in the former

category, even if he

surpassed her in the

We

need

district court

not

address

this debate,

erred in striking

for

even

the statements, the

if the

error was

harmless.

First, the evidence of whether Whalen was more or less

qualified

than Dodi goes to the waived discrimination claim, and

not

to the retaliation claim discussed below.

Dodi of our

personnel

decisions."

Cir.

repeated holding that "[c]ourts may not sit as super

departments,

rationality

Second, we remind

--

of

assessing

employers'

the

merits --

or

nondiscriminatory

even

the

business

Mesnick v. General Elec. Co., 950 F.2d 816, 835 (1st

_______
_________________

1991), cert. denied, 504 U.S. 985 (1992); see also Hoeppner
____________
________ ________

v. Crotched Mountain Rehabilitation Ctr., 31 F.3d 9, 17 (1st Cir.

_____________________________________

1994).

Bresnahan Memorandum:
____________________

Dodi seeks to admit a memorandum

sent

from Leslee Bresnahan to Ray Lambert.

the fact that Putnam

does

However, once again,

provided the document to Dodi

in discovery

not establish its authenticity, and the fact that Putnam is

required

to generate

employees

foundational

copy

and maintain

of

it

requirements of

on

a personnel

demand,

either Rule

803(6), as simply set out in those rules.

does

file, providing

not

fulfill

801(d)(2)(D) or

the

Rule

The district court did

not abuse its discretion in striking the memorandum.

Pattern of Isolation:
_____________________

In his

-11-

Opposition, Dodi claims

that after he complained about the reorganization, Jeff Levering,

to

whom

Dodi was

towards Dodi, . . .

job

supposed

to

report, "altered

behavior

no longer said positive things about

performance, and . . . avoided

alleges

his

that he was ostracized,

talking with Dodi."

Dodi's

He also

kept out of

meetings, and that

his co-workers "ceased interacting" with him.

The district court

struck the opinions as opinion and characterizations.

of the

cited

pages

from

Dodi's

depositions

and

Our review

the

second

affidavit yields no grounds to find the district court abused its

discretion

in striking

the

statements.

Dodi does

not

give

specific

which

incidents, place them in

to measure either the

content

-- indeed,

content of

time, or give

timeliness of his

while he

Levering's weekly

a yardstick by

reviews or their

repeatedly discusses

status reports, he

the supposed

never actually

refers to one.

Failure to Provide Staff:

________________________

Dodi challenges the district

court's decision to strike from the Opposition the statement that

Putnam "failed

to give Dodi

the permanent staff

he requested."

We find no abuse of discretion here, as Dodi cited no support for

the statement in his Opposition.

895 F.2d

46, 49 (1st Cir.

that, even if

R. Civ.

1990).

See Garside v. Osco Drug, Inc.,

___ _______
_______________

Indeed, we

agree with Putnam

admitted as within Dodi's personal knowledge, Fed.

P. 56(e), at best this statement can show only that Dodi

did not

evidence

by

get all the resources

he requested:

regarding Putnam's treatment

non-minority employees, or

Dodi

points to no

of analogous request made

employees who had

not filed MCAD

-12-

complaints,

besides his

own assertion

that "other

departments

under McGue" were fully staffed.

Other stricken statements:

_________________________

The district court properly

struck

the

statement that

supplies and

the

McGue

"failed to

materials necessary" to become

organization, as

instructed.

The

offer no admissible support for the

he

cites

hearsay.

from the

Again,

second

Dodi the

more visible within

cited deposition

pages

proposition, and the passage

affidavit

however, we

provide

constitutes argument

note that

even if

and

admitted, the

statement would at most have shown that Dodi did not

get all the

supplies he requested, since he does not point to evidence of the

treatment

of other,

Merely pointing

non-minority or

non-complaining employees.

out that other departments

received printers or

the like tells us very little.

Finally,

statements to the

Dodi

objects

effect that

to

the

after he made

striking

of

his complaint

four

his

work was reviewed in

a less timely manner, he

stopped receiving

positive

feedback or necessary

information, and other employees

received

instructions to

tabs

everything he

deposition and

did.

keep

After review of

the second affidavit,

on

his actions

and

note

the cited passages from his

we find that

the district

court did not abuse its discretion in striking the passages.

SUMMARY JUDGMENT
SUMMARY JUDGMENT

Dodi references his cause of action for termination due

to race or national origin in his statement

no more than the most

of issues, but makes

cursory reference to it in his

-13-

brief, and

makes

no attempt at a developed argument that the district court

erred in granting summary judgment on the claim.

deem

it waived, Zannino,
_______

argument

that

the

895 F.2d at 17,

district

judgment on his claim

court erred

Accordingly, we

and only consider his

in

granting

that he was retaliated against

summary

because of

his opposition to discrimination.

"We

guided by

summary

review a grant of summary judgment de novo and are

the same criteria

judgment

cannot

as the

stand

district court; a

on appeal

'unless

the

grant of

record

discloses no trialworthy

party is

F.3d at

issue of material

entitled to judgment as

23, quoting Alexis

_______ ______

fact and the

a matter of law.'"

moving

Green, 76
_____

v. McDonald's Restaurants of Mass.,

_________________________________

Inc., 67 F.3d 341, 346 (1st Cir. 1995).

____

We note that "our review

will be most searching in cases, such as this, that turn upon the

issue of motivation or intent."

Rossy v. Roche Prods., Inc., 880

_____
__________________

F.2d 621, 624 (1st Cir. 1989).

We

apply

retaliation claim.

the McDonnell Douglas

__________________

See
___

framework

McDonnell Douglas Corp. v.

________________________

to Dodi's

Green, 411
_____

U.S. 792 (1973); Oliver v. Digital Equip. Corp., 846 F.2d 103, 10
______
____________________

(1st Cir.

1988).

by showing that:

First, Dodi must

establish a prima facie case

___________

(1)

[he] engaged in a protected activity

as an employee, (2) [he] was subsequently

discharged from employment, and (3) there
was

causal

connection

between

the

protected activity and the discharge.

Hoeppner,
________

31 F.3d at 14.

is slightly different.

Under Massachusetts law, the framework

To succeed,

-14-

the

plaintiff

reasonably
that

must

and

[Putnam]

prove

that

she

in

good faith

believed

was

engaged in

wrongful

discrimination,

that

reasonably in response

[he]

acted

to [his]

belief,

and that [Putnam's]

desire to

against [him] was a

determinative factor

in

its

decision

to

retaliate

terminate

[his]

employment.

Tate v. Department of Mental Health, 645 N.E.2d 1159, 1165 (Mass.

____
___________________________

1995).

Next,

the

burden shifts

legitimate, nondiscriminatory

does so, "in order

[Massachusetts]

to

Putnam

reason for

to articulate

the discharge.

to escape summary judgment under

law, [Dodi] must

at least
________

If it

federal and

introduce sufficient

evidence to permit the factfinder to infer that [Putnam's] stated

reason for the termination was pretextual."2

Grant v. News Group

_____
__________

Boston, Inc., 55 F.3d 1,

____________

at 14;

(1st

7 (1995); see, e.g., Hoeppner, 31

___ ____ ________

LeBlanc v. Great American Ins. Co.,

_______
________________________

Cir. 1993),

(1994);

cert. denied, __
_____________

6 F.3d 836,

U.S. __,

114

F.3d

842-43

S. Ct.

1398

Blare v. Husky Injection Molding Sys., Boston, Inc., 646

_____
__________________________________________

N.E.2d 111, 117 (Mass. 1995).

The district

the

that

court found

that Dodi had

third element of the prima facie case.

Dodi

could establish

a prima

facie

not satisfied

Assuming nonetheless

case, it

found that

not always

required.

____________________

Dodi argues that

However,

proof of

his reliance on

U.S. 164, 187

of types of

proposition is misplaced,

that a petitioner can present

evidence to establish pretext, not that

be established.
claims,

Patterson v. McLean Credit Union, 491

_________
____________________

(1989), for that

the cited passage notes

pretext is

since

a variety

it need not

Our case law offers no doubt that in retaliation

the McDonnell

Douglas

analysis requires

a showing

of

__________________
pretext.

See, e.g., Grant, 55 F.3d at 7; Greenberg v. Union Camp

___ _____ _____
_________
__________

Corp., 48 F.3d 22, 29 (1st Cir. 1995).

_____

-15-

Putnam easily cleared the hurdle of articulating a reason for the

dismissal -- that Dodi's work was viewed as sub-standard and that

he received poor performance reviews, suggesting missed deadlines

and

poor communication between Dodi

and his supervisors and his

staff.

where

Thus the court

moved to the third step of

it found that Dodi

could not show

the analysis,

that Putnam's asserted

reason was pretextual.

We

However,

also doubt that Dodi

even assuming

requirement,

and

that

can make a

Dodi could

acknowledging that

meet

Putnam

prima facie case.

the prima

has

facie

articulated a

reason for the dismissal, we find that Dodi cannot meet the third

requirement of the McDonnell Douglas analysis.

_________________

given

the benefit

Putnam's asserted

of

all inferences,

reason

motivation was retaliation.

was false,

he

much

Put

simply, even

has not

less that

shown

that

its

real

Like the district court before

us,

we have found no evidence on this record which supports a finding

that

his evaluations were inaccurate, or which reveals that Dodi

was treated differently than his non-minority

or non-complaining

counterparts.

F.2d

See
___

791, 796 (1st

Wynne v.
_____

Tufts Univ. Sch. of Medicine,

_____________________________

Cir. 1992) ("When

pretext is at

976

issue in a

discrimination case, it is a plaintiff's duty to produce specific

facts which,

reasonably viewed,

tend logically to

undercut the

defendant's position."), cert. denied, 507 U.S. 1030 (1993).

____________

Dodi

makes much

of

the fact

that

McGue learned

of

Dodi's MCAD complaint on the day he decided to terminate Dodi, at

meeting in

which McGue

and Swinney --

-16-

who testified

at his

deposition

that he was very

Dodi's termination.

relevant decision

angry about the

claim -- discussed

We do not doubt that the timing of when the

maker learned that

a complaint was

filed and

when the dismissal occurred

can be demonstrative of retaliation.

See
___

110.

Oliver,
______

846

F.2d

at

Indeed,

the

timing

of

the

discussion here weighs in favor of Dodi having made a prima facie

case.

See Wyatt
___ _____

1994) (finding

activity

Rowlett v.
_______

and

v. City of Boston, 35
_______________

that timing of employer's

dismissal helps

establish

Anheuser-Busch, Inc.,
____________________

832

F.3d 13, 16

(1st Cir.

knowledge of protected

prima facie

F.2d 194,

202 (1st

case);

Cir.

1987) (same).

However, "[t]he filing of an MCAD complaint is not some

magic

shield

that

insulates

the

regardless of the circumstances."

Order, at 15.

claim was

Dodi himself

made "in

reference can suffice

firing

else

employee

from

termination

District Court Memorandum and

notes that the reference to his MCAD

passing."

We

fail to

see

how a

to show that Putnam's asserted

passing

reason for

Dodi was a pretext,3 especially as Dodi points to nothing

of real

retaliation

substance

he

argues

in

his

existed,

support:

as

well

the

as

"history"

the

of

alleged

inconsistencies in who claimed authority to fire him, and why, do

____________________

Dodi's reliance on College-Town, Division of Interco, Inc. v.

_______________________________________

Massachusetts Comm'n Against Discrimination,

______________________________________________

508

N.E.2d

587

(Mass.

1987),

is

misplaced.

There,

complaint was dramatically greater

told "'Loretta,
College-Town.

it has come to
It's

your severance pay

badge?'"

Id. at
___

been done

the

than here:

reference

to

the

the employee

was

my attention that you

before.

Here

is your

or whatever, and good luck.

590.

The circumstances here in

are suing

vacation,

May I have your

no way rise to

the level of these facts.

-17-

little, if anything, to further his cause.

have always

required not only 'minimally

"In this circuit,

we

sufficient evidence of

pretext,' but evidence that overall reasonably supports a finding

of

F.3d

[retaliation]," and Dodi has

at 842-43 (quoting Goldman

_______ _______

not met that

mark.

LeBlanc, 6
_______

v. First Nat'l Bank of Boston,

___________________________

985 F.2d 1113, 1117 (1st Cir. 1993)).

CONCLUSION
CONCLUSION

For the foregoing reasons, the decision of the district

court granting Putnam summary judgment is affirmed.

affirmed
________

-18-