USCA1 Opinion

UNITED STATES COURT OF APPEALS

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-2191
OTIS GRANT,
Plaintiff, Appellant,
v.
NEWS GROUP BOSTON, INC.,
D/B/A BOSTON HERALD,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Selya, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Boudin, Circuit Judge.
_____________

____________________

Anthony W. Neal, with whom Law Offices of Anthony W. Neal was

_______________
_______________________________
brief for appellant.
M. Robert Dushman, with whom Brown, Rudnick, Freed & Gesmer
__________________
________________________________
on brief for appellee.
____________________
April 28, 1995
____________________

BOWNES,
BOWNES,

Senior Circuit Judge.

Senior Circuit Judge.
_____________________

In

this appeal,

plaintiff-appellant Otis Grant, an African-American

male and

a former substitute paperhandler in defendant-appellee Boston

Herald's pressroom,
entry

of

assigns error

summary judgment

to

in favor

the district
of

the Herald

court's
on his

claims of discriminatory treatment, discriminatory discharge,

and

retaliatory discharge

Civil Rights Act

of 1964,

brought
42 U.S.C.

under Title

VII of

the

2000e et seq.,
__ ____

and

Mass. Gen. L. ch.

court's

denial

complaint.

151B.
of

his

While the

regarding the

Grant also challenges

late-filed
record

Herald's pressroom
Grant's claim

prompted by

racial discrimination

does it persuade us

to

contains troubling

not support

Nor

motion

the district
amend

evidence

hiring practices, it

that the complained-of

or a

the

does

acts were

retaliatory animus.

that the district

court abused its

discretion in refusing to allow Grant to amend his complaint.

We therefore affirm.
I.
I.
__
A. The Initial Complaint
A. The Initial Complaint
_________________________
The initial complaint made the following claims:
(1) the

Herald reduced

Grant's hours

January 1992

because of his race; (2)

Grant

substitute

as

in December

1991 and

the Herald terminated

paperhandler in

February

1992

in

retaliation for his complaining about this reduction in hours

and other alleged

acts of discrimination; and (3) the Herald

-22

terminated
1992

Grant

because

complaint,
stated
the

of

we

substitute paperhandler

his

race.

obviously

In

reject

so

in February

characterizing

Grant's

argument

the

that it

a claim that the Herald refused to promote Grant from

position

paperhandler
even

as a

of

substitute

because of his race.

remotely intimates

case.

paperhandler

See Mack
___ ____

to

full-time

Nothing in the complaint

that this

is a

failure-to-promote

v. Great Atlantic and Pacific Tea Co., Inc.,

________________________________________

871 F.2d 179, 183-84 (1st Cir. 1989) (warning the bar that we
will

hold

litigants to

their

duty "to

theories clearly and distinctly

spell

out [their]

before the nisi prius court,

on pain of preclusion").
The following

facts are

directly relevant

claims made in the initial complaint.

a substitute paperhandler in
of

employee

paperhandler
wrapper

who

November 1989, after he learned

A substitute paperhandler is a part-

does

-- moving

heads

pressroom to the

from

the

same

large rolls

the

not need

work
of

presses, and cleaning the

a high

plates

full-time

from

the

pressroom -- but

A substitute

school diploma,

training, or other education.

as

newsprint, removing

rolls, bringing

works only on an as-needed basis.

does

Grant began working as

the position from his brother Jeffrey, who is a full-time

employee of the Herald.

time

to the

paperhandler

technical vocational

He is an at-will employee and,

unlike

full-time paperhandlers (who are unionized), does not

-33

have employee benefits such as paid vacation leave, sick pay,

or health

insurance.

a substitute

paperhandler's willingness and

"cover the job"

the

Of paramount concern to the Herald is

-- i.e., to work when scheduled or called at

last minute.

expectation

availability to

As Grant

that substitutes

himself

admits, there

will "never

say no"

is

an

and that

they will show up at work "dead or alive."

The

Herald

has

several

substitute paperhandlers to come

methods

to work.

superintendent, Robert Reilly, knows

need substitutes,
the

substitutes

particular
list

substitutes

who are

week.

"next

he posts a list

who will

scheduled to

called at

If the

pressroom

-- the "work list"

which contains
be

notifying

in advance that he will

work

Sometimes, he includes

list,"

of

the
the

each day

next to
names

-- of
of a

the work
of

last minute

those
if

previously
absent.

scheduled full-time or substitute paperhandler is

Also, substitutes

they should call the

are told that if they

want work,

Herald before the beginning of

a shift

to see if there are any openings.

Grant had two tenures
at

the Herald.

through

April

The

Joseph

when

a fight with a

Gauthier.

Gauthier

first, which lasted

1990, ended

employment after

as a substitute paperhandler

During

subjected Grant

Reilly

from November 1989

terminated Grant's

full-time, white co-worker,

the course
to racial

of this
slurs and

altercation,
spat

in his

-44

face.

Although

Gauthier.
two ways.

Reilly

fired

Grant,

he

only

suspended

The Herald explains this differential treatment in

First, Gauthier, as a union member,

terminated without

cause, and

was entitled to

could not be
certain pre-

termination procedures set forth in the collective bargaining

agreement.
times

Second, Reilly allegedly had

about failing

to cover

the job,

warned Grant a few

and

viewed Grant's

involvement in the altercation as "the last straw."

Subsequent
went to the

to his

January 11,

charge.

restored Grant

Herald

the Herald with

1991,

As part

him a sum

1990 termination,

Massachusetts Commission Against

("MCAD") and charged

On

April

Grant

of

Discrimination

racial discrimination.

and the

Herald

the settlement

settled

agreement, the

to the substitute paperhandler

of money.

Grant

In return, Grant

this
Herald

list and paid

agreed to release the

from all claims arising out of his employment to that

point

in time.

Grant

returned to

his former

position on

January 14, 1991.

Although
his

ability

Grant always

and

consistently at

willingness

issue.

performed his
to

cover

From January 1991

duties well,

the

job

through December

1991, there were nine occasions on which Grant was

in

advance to

Without

notice,

cover

a shift

Reilly

but failed

discontinued

substitute in December 1991.

scheduled

to come

using

to work.

Grant

When Grant inquired as

-55

were

as

to why

he

was

no

pressroom

longer

getting

any hours,

supervisor, informed him

getting any hours.

discovered

Grant

Daniel

Messing,

that no substitutes were

then checked the

work lists

and

that, in fact, two white substitute paperhandlers

were working.

Grant thereafter requested a meeting with

Reilly and, on January 21, 1992, Grant and Reilly convened to

discuss Grant's work status.
that

Grant would be put back on

worked nine times in the

appear

Grant

workers.

and called in

Although

removed from the

Grant labors

obscure some basic facts,

substitute

paperhandler

frequently than

1991 through

to

sick on February

list of substitute

mightily to

the record reveals:

failed to

Grant during

February 1992;

when his name

cover an
the period

circumvent or
(1)

no other

assigned shift
from January

(2) Grant often failed

was on the next list

to work

during this same period;

two white substitute paperhandlers with job-coverage

records most similar

himself

Grant

By letter dated February 21, 1992, Reilly informed

that he would be

(3) the

the substitute list.

next few weeks, but then failed

on February 12, 1992

20, 1992.

more

At that meeting, it was decided

in making
the

to Grant's (and to whom

his

disparate
fifteen

Grant compares

treatment argument)

terminated

in

termination

for failing to cover the job; and (4) many other

substitute paperhandlers
failing to cover the job.

months

following

were

were terminated over

Grant's

the years for

-66

B. The Proposed Amended Complaint

B. The Proposed Amended Complaint
__________________________________
Grant sought to
complaint, the following
promote Grant
because

to

of his

the
race;

add to this case, via

claims:

(1) the

position

of

(2) the

Herald refused to

full-time

Herald

paperhandler

engaged in

retaliatory behavior

beyond terminating him; (3)

engaged

employment practices

in unlawful

the amended

unlawful
the Herald

which have

had a

disparate impact on qualified African Americans and qualified

Hispanic Americans as classes;
unlawful,

(4) the Herald engaged in

race-motivated pattern

promoting,

to make

benefits

practice

disciplining, and terminating

full-time paperhandlers; and (5)

right

and

of

and enforce
a

of

an

hiring,

its substitute and

the Herald denied Grant the

contracts and

contractual relationship

to enjoy
enjoyed

all the
by

white

citizens.
The

following facts are

directly relevant

to the

new claims.

Grant asserts that they also constitute indirect

evidence of

the claims set

forth in the

initial complaint.

In 1989, at the time of Grant's initial hiring, Grant was one

of

only

two

African-American

Herald's pressroom.

The other

employees

the position.

there

of

pressroom.

total

147

The Herald has

American pressroom

in

the

was his brother Jeffrey, from

whom he learned about

were

working

During that

employees

not hired a

in

same year,

the

Herald's

full-time, African-

employee since February 1987.

From 1989

-77

through

the

present, a

pressroom employees
been only
this

period during

has ranged

which the

from 129 to

one full-time African-American

same

period,

there

have

been

165, there

employee.
no

number of
has

During

African-American

pressroom supervisors.
African Americans constitute 18.69% of those in the
local labor market having the requisite skills for the job of

paperhandler.
April

Despite this

1994, the

Herald

fact, from December 1989 through

hired at

substitute paperhandlers

least twenty-three

and no African

Americans.

white
During

the same time period, the Herald promoted eight or more white
substitute paperhandlers, and no
paperhandlers,

to

African-American substitute

full-time status.

There

are no

women

working in the Herald's pressroom.

Robert
has

Reilly --

the pressroom

been solely responsible

for the

superintendent --

promotion, discipline,

and discharge of all substitute paperhandlers since 1989.

also

has

been

paperhandlers.

solely
By

responsible

his own

the

job"

regarding
twice --

paperhandlers.
takes
whom to

full-time

maintains no

discipline and termination of

Reilly maintains

precedence

over

promote to

in April 1990

hiring

admission, Reilly

written criteria governing the

substitute

for

He

seniority

that "covering
in

full-time status.

(shortly after Grant

decisions
At

least

was terminated

for fighting with Joseph Gauthier) and October 1991 -- Reilly

-88

promoted white substitute

than Grant.

Earlier

paperhandlers with less

seniority

in 1991, Grant had protested

to Reilly

that the latter of these two paperhandlers was racist because

he and a co-worker left Grant a disproportionate share of the
workload.
After

Reilly had not seen any merit in Grant's protest.

the October

1991

Grant complained to

elevation of

the white

a union representative about his not yet

having been promoted to full-time status.

this complaint not

co-worker,

only failed

also resulted in the

Grant asserts that

to bear fruit,

but that

it

December 1991-January 1992 reduction in

hours he experienced.
The

only written

criterion

Reilly considered

in

determining whom to promote was the substitute paperhandler's

initial

employment application.

This application requests,

inter alia, that the applicant list all friends and relatives
_____ ____
employed by
promoted

in

the Herald.
October

The white

1991

friends on his employment

Reilly admits that
heavily

inform

paperhandler
posted).

had listed

four

relatives

who

learns
(which

about

available

are neither

maintains that the

nepotism
substitute

advertised

nor

same factors inform

the

promotion of substitute paperhandlers to full-time status.

C. Procedural History
C. Procedural History
______________________

and

application; Grant had listed one.

word-of-mouth communication and

positions

Grant

substitute paperhandler

-99

On July
against

the

Pressmen's

13, 1992, Grant filed

Herald

Union

charge alleged

and

No. 3

the
(the

Boston

further

that the Herald retaliated

alleged

membership and
his
MCAD,

race.

that

the

On April 29,

union

Court.

in late May 1993.

this

union).

The

against Grant and

excluded

against him

1993, with

initiated

Printing

he is an African American;

otherwise retaliated

plaintiff

Superior

Newspaper

paperhandlers'

terminated his employment because

it

an MCAD/EEOC charge

him

because of

the permission

action

in

from

of the

Massachusetts

The union removed the case to federal court

In August 1993, Grant dismissed all claims

against the union.

The district court initially ordered that discovery
be completed

by February 28,

1994, and scheduled

pretrial conference for March 21, 1994.

twice

extended these

deadlines,

the final

The court thereafter

eventually

ordering

that

discovery

close on May

30, 1994,

and scheduling

the final

pretrial conference for August 3, 1994.

On July 13, 1994, Grant served and filed his motion
to amend the

complaint.

eighty-seven

the

section.
supra.
_____
moved

number

The amended complaint

of

allegations

in

increased by
the

It also added the five new legal theories set forth

The Herald

opposed this motion,

and simultaneously

for summary judgment on the initial complaint.

pretrial

"Facts"

conference

on August

3,

1994,

the court

At the
orally

-1010

denied
district

the

motion

court

to amend.

granted

the

On

November

Herald's

motion

7, 1994,
for

the

summary

judgment and denied Grant's motion for reconsideration of the

order denying the motion to amend.

This appeal followed.

II.
II.
___
As stated above, Grant makes two basic arguments on

appeal.

First, he asserts that the district court abused its

discretion in not allowing

to

press the

him to amend his complaint

claims outlined

argues that the court

in Section

I-B.

erred in allowing the

for summary judgment

so as

Second, he

Herald's motion

on the claims outlined in

Section I-A.

We discuss each argument in turn.

A. The Motion to Amend
A. The Motion to Amend
_______________________
The district
for two reasons.

to amend

First, the court stated that the motion was

unduly late because

this

court denied Grant's motion

the court

was "ready now

case after discovery is complete. . . .

to deal

with

If I allow the

Amended Complaint, it brings theories into this case that are

going

to delay it.

Second,

the court

claims were
the

It is

like an entirely different case."

indicated

that most

futile because Grant

first instance

to

the

MCAD.

of the

newly-added

had not presented

Because

there

them in
is

no

reversible error in the court's lateness determination, we do

not reach the question of futility.

-1111

We
Civ.

P. 15

district

review a denial of leave to amend under Fed. R.

for an

court if

abuse of
any

apparent on the record.

discretion,

adequate reason

Rule

15(a)'s admonition

when

justice so requires."
adequate reason for

for

to the

the denial

Resolution Trust Corp. v.

______________________

F.3d 251, 253 (1st Cir. 1994).

an

and defer

Gold, 30
____

We are mindful, however,

that "leave

shall be

is

of

freely given

Thus, unless there appears to be

the denial

(e.g., undue

delay, bad

faith, dilatory motive on the part of the movant, futility of

the

amendment), we will not affirm the denial.

See Foman v.
___ _____

Davis, 371 U.S. 178, 182 (1962).

_____
We also
lack

access

are aware that Title

to

statistical

composition of the
filed their

VII plaintiffs often

evidence such

job applicant pool until

complaints and engaged

as

the

racial

after they have

in discovery.

For this

reason, we think that a denial of leave to amend to add Title

VII claims
some

supported by statistics should

caution.

encourage

the

Too

casual a review

abandonment

of

potentially meritorious claims.

(or

be evaluated with

of such a
failure

denial might
to

pursue)

It might also precipitate an

increase in unsubstantiated pleading.

See generally Phyllis

___ _________

Tropper Baumann,

Judith Olans Brown, and

Stephen N. Subrin,

Substance in the Shadow of Procedure:

The Integration of
_____________________________________________________________
Substantive and Procedural Law in Title VII Cases, 33
__________________________________________________

B. C.

L. Rev. 211, 289-90 (1992).

-1212

Having
determination

carefully

that it

lateness

At the time Grant filed his motion,

already complete,

would have

and Grant all

to have been

Herald to defend itself

in the amended

the court's

in light of the record, we discern no abuse of

discretion in this case.

discovery was

evaluated

but concedes

reopened in order

for the

properly against the claims asserted

complaint.

Moreover,

the Herald had

nearly

completed its motion for summary judgment and undoubtedly was

well

into

its

considered in
case

trial preparation.
conjunction with

When

these

facts are

the radical remaking

of the

contemplated by the amended complaint, Grant's argument

that the Herald

would not have been

prejudiced by allowance

of

the

amendment

rings

Eastman, Dillon & Co.,

_______________________
(finding

prejudice

hollow.

Cf.
___

719 F.2d

to party

amend even where additional

1,

Tiernan
_______

4-5 (1st

v. Blyth,
______
Cir.

opposing late-filed

1983)

motion to

discovery was not necessary; the

additional claims "may well have affected defendants' planned

trial strategy

and tactics" and would

likely have "required

additional time to prepare for trial").

Perhaps

more importantly, while

than fourteen-month

the slightly more

delay between the initial

complaint and

the motion to amend is not unprecedented, it is considerable,

especially in view of the fact that the motion came after the
close of
And

discovery (which had already

we have

stated:

"Where .

. .

been twice extended).

considerable time

has

-1313

elapsed between the filing of the complaint and the motion to

amend, the

movant
______

has the

burden

of showing

some

`valid

reason

for

his

neglect

and

delay.'"

Stepanischen
____________

v.

Merchants Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir.
________________________________
1983) (quoting Hayes v. New England Millwork Distribs., Inc.,
_____
____________________________________
602 F.2d
month

15, 19-20 (1st

Cir. 1979))

delay between the initiation

(deeming a

seventeen-

of the action and filing

of a motion to amend -- served ten days prior to the close of

_____ __
discovery --

to be undue)

(emphasis supplied).

Under this

circuit authority, it is incumbent upon Grant to give a valid

_____
reason for having waited so long to file his motion.

This he

has failed to do.

Grant
asserting
effort

to

explains

that he
obtain

documents

of

reasons.
did

his

by the

-- i.e.,

the

not receive the

motion

Herald in
Herald's

This

that

introduction of

the
the

Herald

is responsible

statistical evidence

EEO-1 reports is therefore unjustified.

He

within a
for two

stonewall Grant; Grant

not request the documents until April 28, 1994.

suggestion

his

EEO-1 reports until

explanation fails

Herald did not

by

EEO-1

new claims.

he filed the amended complaint

receiving them.
First, the

of

underlying the five

out that he did

June 1994, and that

month

lateness

was "stonewalled"

reports -- purportedly
points

the

for

Grant's
the

derived from

late
the

-1414

Second,
necessary

to

Grant

make the

clearly

possessed

the

claims he

sought

to assert

amended complaint even without the EEO-1 reports.

the EEO-1

reports was

claim, for

example.

that the

essential
Grant

to his

the original complaint.

in the

Nothing in

failure-to-promote

acknowledges as much

failure-to-promote claim

knowledge

by arguing

actually was

included in

And Grant cannot claim that

he was

unaware, prior to receiving the EEO-1 reports, of the general

racial composition of the pressroom staff, the discretion the
Herald invested in
promotion, the lack
promotion decisions,
pressroom's

hiring

Robert Reilly

of hiring

of written criteria to guide

the nepotism
practices,

persons actually promoted to

periods of

on matters

employment.

or

hiring and

that pervaded the

the

and

identity

of

Herald
those

full-time status during Grant's

This simply is

not a case where the

plaintiff could not, without risking sanctions,

have pleaded

the late-added claims until after, or at least well into, the

discovery process.

Grant

was aware,

or

should have

been

aware,

of

information tending

claims well before July 1994.

289-96 (discussing the

to support
Cf. Baumann
___

danger Fed.

each of

the new

et al., supra, at
__ ___ _____

R. Civ. P.

11 poses

to

Title VII plaintiffs who do not plead carefully).

For all
abuse

these reasons, the district

its discretion in denying Grant's

court did not

motion to amend the

complaint on lateness grounds.

-1515

B. The Motion for Summary Judgment

B. The Motion for Summary Judgment
___________________________________
The

court granted the

Grant's claims.
had

Herald summary

judgment on

In so doing, the court ruled that the Herald

articulated

retaliatory reason

a legitimate,
for Grant's

had failed to demonstrate

non-discriminatory

and non-

termination, and that

a triable issue as to

Herald's justification was pretextual.

analysis overlooked one of Grant's

Grant

whether the

Although the court's

claims -- i.e., that

the

reduction

in hours Grant

1992

motivated by

was

suffered in

December 1991-January

racial discrimination

-- we

see no

error in the award of summary judgment.

There is no
prima

facie case

Herald,

of

by pointing

dispute over whether Grant

racial discrimination
to

unavailability for work,

discriminatory
termination.
Inc., 30
____

See
___

or whether

the

excessive absenteeism

and

has articulated a legitimate,

non-retaliatory
generally
_________

F.3d 255, 259-60

first two
in

and

Grant's

has made a

reason

Woods v.
_____

for

non-

Grant's

Friction Materials,
____________________

(1st Cir. 1994)

(summarizing the

stages of the burden-shifting paradigm established

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

_______________________
_____

applicable in Title VII cases); Mesnick v. General Elec. Co.,

_______
_________________
950 F.2d
of the

816, 827 (1st Cir. 1991)

McDonnell Douglas paradigm
__________________

cert. denied, 112

_____ ______
dispute

that,

(noting the applicability

in

S. Ct. 2965 (1992).

in order

to

escape

-1616

retaliation
Nor

cases),

can there be any

summary judgment

under

federal

and

state

sufficient evidence
the

Herald's

pretextual.

federal

and

of

Grant

to permit

stated
See
___

immateriality

law,

at
__

30

for

the

F.3d

at

plaintiff has not offered

introduce
infer that

termination
263

now-established

Massachusetts

least
_____

the factfinder to

reason

Woods,
_____
the

must

(noting

difference

discrimination

law

was
the

between

where

the

enough evidence for the factfinder

to infer pretext); Greenberg v. Union Camp Corp., 48 F.3d 22,

_________
________________
29 (1st

Cir. 1995) (plaintiff making

show that employer's stated reason for

pretextual)

(citing Mesnick,
_______

restrict our inquiry to

concluded

that the

950 F.2d

retaliation claim must

the adverse action is
at

827).

Thus, we

whether the district court correctly

evidence,

favorable to Grant, would not

construed in

the light

allow a factfinder to conclude

that Grant's race or a retaliatory animus on the part

Herald was a

most

motivating factor in

of the

Grant's termination.

We

believe that the district court's conclusion was correct.

We

point out

articulate

reason

introduced

significant

reason's veracity.

Not

that the
for

Herald has done

Grant's

evidence

termination;

tending

only does the

to

more than
it

has

establish the

documentary evidence

confirm that, during the relevant time period, Grant had

the

poorest overall record

the

Herald's
Reilly

for covering

the job of

substitute paperhandlers,

it

any of

also indicates

that

subsequently terminated the two white co-workers with

-1717

the most

similar job-coverage

records -- the

co-workers to

whom Grant compares himself in making his disparate treatment

argument -- for failing to cover
reveals

that

many

other

the job.

substitute

terminated over the years for failing

light of

the

substitute
Grant's

evidence

of

paperhandlers

very

poor

paperhandlers

fail

job-coverage

formidable hurdle in arguing

were

to cover the job.

the Herald's
who

The evidence also

refusal

to cover
record,

to

the

Grant

In
abide

job
faces

and
a

that the Herald's stated reason

for his termination was pretextual.

Grant
three specific
evidence

seeks

to support

ways.

summarized

First, he
in

Section

his

pretext argument

points to

in

the statistical

1-B, arguing

that

it

is

indirect proof

of Reilly's discriminatory animus.

recites

allegedly

three

discriminatory

Reilly, again arguing that they constitute

of Reilly's discriminatory animus.
was

treated

"similar

differently

or worse

through February

21, 1992."

read

in

the

conclusively establishes
more

often during

two

the

white

light

taken

by

indirect evidence

co-workers

from January

We already

arguments.

actions

Third, he asserts that he

attendance records

last of these three

record,

than

Next, he

favorable

that Grant failed to

relevant time

6, 1991

have rejected

It bears repeating
most

with

period

the

that the
to

Grant,

cover the job

than the

two

-1818

(subsequently

terminated) co-workers

to

whom

he

compares

himself.
We therefore focus on Grant's first two

arguments,

disregarding other arguments made only in Grant's reply brief

and/or

which fall

outside

Grant's complaint.
904 F.2d 83, 86
not
F.2d

parameters

See, e.g., Sandstrom

___ ____ _________

183-84

(emphasizing

that

that,

had

they

been

by

v. Chemlawn Corp.,
______________

in appellant's opening

an argument

brief); Mack, 871

____

unpleaded

theories will be subject to preclusion).

however,

established

(1st Cir. 1990) (deeming waived

made below or
at

the

claims

and

We note in passing,

properly

preserved,

these

arguments would not have affected our conclusion that summary

judgment was correctly entered for the Herald.
As we
does

paint a

have

disturbing picture

hiring practices and

that

stated, Grant's

qualified

statistical

of the

Herald's pressroom

their possible effects.

African

Americans

evidence

It is apparent

are

underrepresented in the Herald's pressroom.

significantly
Moreover, Robert

Reilly concedes that word-of-mouth communication and nepotism

play a large role in determining who learns about and obtains
available paperhandler positions.
inquiry posed

at his

Finally, in response to an

deposition, Reilly, who

enjoys nearly

unfettered discretion over pressroom hiring, expressed little

or no

concern about the exclusionary

neutral practices might be

effect these facially-

having on potential applicants of

-1919

color.

We

think it

that the facial

necessarily

important for the

Herald to

recognize

neutrality of such hiring policies

take them outside the

reach of Title

does not
VII.

See
___

EEOC
____

v. Steamship Clerks Union, Local 1066, 48 F.3d 594, ___

__________________________________

(1st

Cir. 1995)

white,

nepotism

exclude

("`[W]hen the
and

work force

similar

outsiders may

practices

discriminate

effectively as any intentionally

(quoting Thomas
______

is predominantly
which

against

operate

to

minorities

as

discriminatory policy[.]'")

v. Washington County Sch. Bd., 915 F.2d 922,

__________________________

925 (4th Cir. 1990)) (evaluating disparate impact claim).

The

fact of the matter is, though, that we are not

evaluating a disparate impact,

a

failure-to-promote claim;

or a failure-to-hire, or even
we

are

considering whether

rational jury could find, by a preponderance of the evidence,

that

the Herald

Grant

because of

because

of

protected
evidence -the

is lying

his

his
race

activities).

when it

failure to
or

his
In

our

says that
cover

the job

engagement

in

we

will

discuss

(and

not
___

statutorily-

view, Grant's

whether considered alone or

other evidence

it terminated

statistical

in conjunction with
infra

--

is

not

_____
sufficient foundation upon which a
finding.

While the

Herald's

evidence does

tend

to show

hiring policies, as

implemented by

exclude African

Americans from the

operate to
and

jury could premise such a

while it may allow

for a reasonable

that the

Robert Reilly,
hiring pool,

inference that the

-2020

Herald and Reilly are insensitive to the need to provide fair

and

equal access to

its pressroom employment opportunities,

it is inadequate to prove that Reilly takes race into account

(or,

for that

matter,

protected activities
decisions.

takes participation

into account)

Along these lines, we

obtained full-time
Herald.

that Reilly

when he makes

in

discharge

note that Grant's brother

status and apparently still

works at the

More to the point, this evidence in no way undercuts

the Herald's evidence that a willingness and ability to cover

the

job

is

paperhandlers,

the

foremost

and that

quality

Grant

sought

and others

in

substitute

who lacked

this

quality were terminated precisely because they lacked it.

Grant's

second

discriminatory actions

not

reasonably be
could

be

all

that

also fails.

three, of

the

We do

sufficient to call into

we do

not

allegedly

illicit motive
not think

that

actions

could

delineated

considered discriminatory.

so considered,

And even

believe that

if they
they are

question the non-discriminatory

non-retaliatory explanation the Herald

termination:

three

taken by Reilly prove

in Grant's termination,
two, if

argument,

and

has given for Grant's

that Grant was not covering the job.

The first

of the three actions Grant

points to --

that Reilly fired Grant while only suspending Joseph Gauthier

after their April 1990 fight (and shortly thereafter promoted
a white substitute

with less seniority

than Grant to

full-

-2121

time status) -- is
that

Gauthier,

at least plausibly explained by

as

union

employee,

enjoyed

the fact
greater

procedural protections than did

that

Grant was

already on

attendance record prior

shaky ground

to the

Reilly found unworthy of

co-workers

Grant, and by the allegation

fight.

because of
The

a poor

second --

that

credence Grant's complaint that two

were racists who gave him too much work (and that

Reilly subsequently promoted one of these co-workers to fulltime status) -- is

no

so sparsely explained and supported

rational factfinder

based

on the record

coincides

with the

reduced

evidence.

in its

Grant's

racism on

Similarly,

claim that

explicitly consider
Reilly

could find

Reilly's part

the third (which

the district

court did

summary judgment order)

work

hours in

that

December

not

-- that
1991

and

January 1992 because of Grant's race -- is unsupported by any

evidence
period,

to this
a

effect.

pressroom

The fact

supervisor

substitutes were getting any

substitutes

were getting

discrimination
Reilly,

was

the pressroom

incorrect information,

informed

the same

Grant

that

hours when, in fact, two

hours is

on Reilly's

that, during

part.

not probative

who

white

of racial

Daniel Messing,

supervisor

and not

gave Grant

and there is no reason

no

the

to infer that

Messing misinformed Grant at Reilly's direction.

Because Grant
Herald's

has failed to

stated justification

for

-2222

the

demonstrate that
adverse

the

employment

actions
court
Grant's

of which

he complains

is pretextual,

the district

did not err in granting the Herald summary judgment on

federal

and

state discrimination

and

retaliation

claims.
III.
III.
____
For

the

district court's
favor.

reasons
entry of

stated

we

summary judgment in

Costs awarded to the Herald.

Affirmed.
Affirmed
________

above,

affirm

the

the Herald's

-2323