Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 05-1697

RUSMIR BEGOVIC,

Plaintiff, Appellant,

v.

WATER PIK TECHNOLOGIES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

 Boudin, Chief Judge,

Stahl, Senior Circuit Judge,

and Lynch, Circuit Judge.

Rusmir Begovic on brief pro se.

Lee Stephen MacPhee and Morrison Mahoney LLP on brief for

appellee.

April 17, 2006
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Per Curiam. Plaintiff Rusmir Begovic has worked as a

machinist at defendant Water Pik Technologies, Inc. since 1993. A

native of Bosnia, he brings this action alleging that he was

subjected to discrimination and retaliation in violation of Title

VII. See 42 U.S.C. §§ 2000e-2, 2000e-3. In particular, he

contends that four work-related events-–the rejection of his two

applications for job promotions; the discontinuance of his tuition

reimbursement benefit; and his failure to obtain a higher hourly

wage-–amounted to disparate treatment based on his national origin.

He also claims that several of these events constituted acts of

retaliation for his earlier complaints about discrimination. From

an award of summary judgment for defendant, plaintiff now appeals.

We affirm substantially for the reasons set forth in the district

court’s opinion, adding only the following comments.

First. Based on the record before it at the time of its

decision, the district court’s ruling was clearly correct.

Defendant had submitted evidence providing reasonable explanations

as to why plaintiff received neither job promotion, why his tuition

reimbursement was discontinued, and how his pay rate had increased

over time. Even on the arguendo assumption that plaintiff had

established a prima facie case in each instance, such evidence put

the burden back on him to show that defendant’s cited reasons were

a pretext for discrimination or retaliation. See, e.g., Rathbun v.

Autozone, Inc., 361 F.3d 62, 71-72 (1 Cir. 2004) (discussing st
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burden shifting in failure-to-promote context); Calero-Cerezo v.

U.S. Dep’t of Justice, 355 F.3d 6, 25-26 (1 Cir. 2004) (same in st

retaliation context). Because plaintiff proffered virtually no

evidence in this regard, the award of summary judgment was

appropriate. “Even in employment discrimination cases where

elusive concepts such as motive or intent are at issue, summary

judgment is appropriate if the non-moving party rests merely upon

conclusory allegations, improbable inferences, and unsupported

speculation.” Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173

(1 Cir. 2003) (internal quotation marks omitted). Plaintiff’s st

assertion that he submitted direct evidence of discrimination and

retaliation, and thereby rendered the burden-shifting framework

inapplicable, is belied by the record. Also insufficient to stave

off summary judgment is his contention that the credibility of

defendant’s affiants is a matter for the jury. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 256-57 (1986). 

Second. At several points in his appellate papers,

plaintiff complains that he was denied an adequate opportunity to

conduct discovery. This argument is never developed and can be

rejected for that reason alone. See, e.g., United States v.

Zannino, 895 F.2d 1, 17 (1 Cir. 1990) (“issues adverted to in a st

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived”). But it fails for other reasons

as well. To be sure, “trial courts should refrain from
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entertaining summary judgment motions until after the parties have

had a sufficient opportunity to conduct necessary discovery.”

Velez v. Awning Windows, Inc., 375 F.3d 35, 39 (1 Cir. 2004). Yet st

this rule “is not self-executing”; a party needing additional

discovery must “make the court aware of its plight.” Id. This is

typically accomplished by the filing of a Rule 56(f) motion or its

functional equivalent. See id. at 40. 

[S]uch a motion must (1) be presented in a timely manner,

(2) show good cause for the failure to discover the

necessary facts sooner; (3) set forth a plausible basis

for believing that the necessary facts probably exist and

can be learned in a reasonable time; and (4) establish

that the sought facts, if found, will “influence the

outcome of the pending motion for summary judgment.”

Adorno v. Crowley Towing & Transp. Co., ___ F.3d ___, ___, 2006 WL

852363, at *4 (1 Cir. 2006) (quoting Resolution Trust Corp. v. st

North Bridge Assocs., Inc., 22 F.3d 1198, 1203 (1 Cir. 1994)). st

Plaintiff never invoked this safeguard below. He did

voice some general complaints that defendant was attempting to

avoid discovery, but “[t]hose cryptic allusions failed to set any

basis for believing that some discoverable material facts did

exist.” Paterson-Leitch Co. v. Mass. Munic. Wholesale Elec. Co.,

840 F.2d 985, 989 (1 Cir. 1988). He did also remark at one point st

that further information was needed about a specific matter (the

requirements for the second job opening and the winning candidate’s

qualifications therefor). Yet plaintiff did not explain what

additional discovery was contemplated. More important, he never
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cited Rule 56(f), never filed a motion or its functional equivalent

satisfying the above-mentioned requirements, and never directly

requested that a summary judgment ruling be deferred pending

further discovery. Instead, he filed an opposition to defendant’s

summary judgment motion and, a few days later, filed his own motion

for partial summary judgment. This hardly sufficed to inform the

court of his alleged plight. Cf. Ayala-Gerena v. Bristol MyersSquibb Co., 95 F.3d 86, 92 (1 Cir. 1996) (upholding denial of Rule st

56(f) motion because, inter alia, “[a]ppellants filed their

original opposition to summary judgment without previously

informing the court of their inability to properly oppose summary

judgment due to incomplete discovery”); Hebert v. Wicklund, 744

F.2d 218, 222 n.4 (1 Cir. 1984) (noting that Rule 56(f) st

continuances are frequently granted “where the moving party has

sole possession of the relevant facts,” but that “this maxim

represents a factor that the court should consider only after the

non-moving party has complied with the requirements of the rule”).

Third. Even assuming arguendo that plaintiff adequately

invoked Rule 56(f) and that the court erred in not allowing further

discovery, the result would not change. As mentioned, the only new

facts cited by plaintiff in this regard concerned the requirements

for the second job opening and the qualifications of the successful

candidate. Yet plaintiff did eventually obtain documents

describing these matters, which he attached to a motion to amend
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the judgment. Even if these materials were considered, his legal

claims would fare no better. For example, their respective job

applications provide no evidence that plaintiff was more qualified

than the winning candidate. Indeed, the new documents, together

with another attached to the motion to amend, actually undermine

plaintiff’s case in one respect. Defendant has averred that he was

rejected for the second job opening mainly because of an inability

to communicate well with others, noting that he had been

disciplined earlier for “inappropriate behavior” toward a coemployee. The job listing confirms that an “[a]bility to

communicate clearly” and “provide direction” was a requirement.

And plaintiff’s 2002 performance review, prepared two months prior

to his rejection here, gives him a low mark for

“teamwork/communication,” stating that he “needs to work on his

communications with others” and on “working more cooperatively”

with co-employees. Plaintiff has thus provided no reason to think

that further discovery would have bolstered his attempt to

establish that defendant’s cited reasons were a pretext for

discrimination or retaliation.

Fourth. We have no occasion here to address whether pro

se litigants are entitled to notice regarding their evidentiary

burden at the summary judgment stage. See generally Ruiz Rivera v.

Riley, 209 F.3d 24, 26-27 & n.2 (1 Cir. 2000); Posadas de Puerto st

Rico, Inc., v. Radin, 856 F.2d 399, 401 (1 Cir. 1988). Plaintiff st
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has voiced no complaint in this regard on appeal. And his

submissions below, which contained a citation to the very page in

a Supreme Court opinion where the Rule 56(e) methodology is

discussed, see Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986),

suggest that he was not unfamiliar therewith.

Fifth. To the extent plaintiff is alleging that

defendant retaliated against him by giving him a less favorable

2003 performance review than he deserved, we note that his 2002

review was no better. Regarding the alleged denial of a merit pay

increase in 2004, plaintiff has provided no evidence that he was

paid less than similarly situated employees outside the protected

class, as the district court observed. And plaintiff has not

denied that he received a substantial pay hike in May 2004.

Affirmed.