The Hon. Sandra Day O'Connor, Associate Justice (Ret.) of the *

Supreme Court of the United States, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 07-2809

FITZROY PRESCOTT,

Plaintiff, Appellant,

v.

DAVID HIGGINS, Individually and in his capacity

as Director of Central Fleet Maintenance, City of Boston

Department of Public Works; CITY OF BOSTON,

Defendants, Appellees,

JERRY COUGHLIN, Individually and in his capacity

as Superintendent of Central Fleet Maintenance,

City of Boston, Department of Public Works,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]

Before

Lynch, Chief Judge,

O'Connor, Associate Justice (Ret.), *

and Torruella, Circuit Judge.

Winston Kendall, for appellant.

Karen A. Glasgow, Senior Assistant Corporation Counsel, City

of Boston Law Department, with whom William F. Sinnott, Corporation

Counsel, was on brief for appellees City of Boston, et al.

August 20, 2008
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TORRUELLA, Circuit Judge. Fitzroy Prescott, an AfricanAmerican male, is a mechanic for the City of Boston ("the City")

who applied for a position as General Foreman for the City's Public

Works Department. The selection committee -- made up of two white

males, one white female, and one African-American male --

unanimously chose Horace Ryder, a white male. Prescott filed suit

against the City, and two city supervisors in their personal and

professional capacities (collectively "the Defendants"), under

various federal and state laws for racial discrimination,

disability discrimination, tortious interference with contract,

harassment creating a hostile work environment, and retaliation.

Defendants filed for summary judgment, and Prescott cross-motioned

for summary judgment. The district court granted the Defendants'

motion for summary judgment and denied Prescott's cross-motion.

Prescott appealed. After careful consideration, we affirm.

I. Background

We recite the facts in the light most favorable to the

non-movant, here Prescott. See Ramos-Santiago v. United Parcel

Serv., 524 F.3d 120, 122 (1st Cir. 2008). Prescott has been a city

mechanic since 1984. In June 2002, the City posted a position for

General Maintenance Mechanic Foreman, in Central Fleet Maintenance,

Boston Public Works. Four city employees were interviewed for the

position, including Prescott and Ryder. All four candidates were

interviewed by four management-level supervisors in the Public
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Works Department: Jerry Coughlin (a white male), Maurice Smith (an

African-American male), Kathy Kelley (a white female), and

Prescott's supervisor, David Higgins (a white male). The interview

focused on three main criteria: job knowledge, education, and

experience.

During the interview, applicants were asked seven

objective questions regarding the Commercial Motor Vehicle Safety

Act Federal Out of Service Criteria, which delineates the federal

standards for when vehicles are unsafe to drive. Prescott was

unable to correctly answer any of the questions pertaining to the

federal guidelines. Ryder answered all of the questions correctly.

According to Prescott there were no questions during the interview

that focused on education or instruction in the field of mechanics.

He claims that there is no evidence that the City considered his

performance evaluations. He contends that the interview process

only rewarded those who could provide the "right" answers to the

questions that were asked, questions he claims had no predictive

ability for the likelihood of success as a General Foreman.

The selection committee determined that Prescott and two

other white candidates were not qualified for the position. The

only committee member who thought that Prescott was qualified for

the position was Smith. Smith, however, ranked Prescott third out

of the four candidates. The unanimous choice of the interview

panel was Ryder. Ryder had ten more years of experience than the
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other candidates, and he also had more supervisory and

administrative experience than them as well. Ryder had been the

Acting General Foreman for six months before he was interviewed,

and the panel determined that he had better job knowledge than the

other candidates. The panel also determined that Ryder would have

the least negative impact on work product because he was the one

most familiar with the position.

Prescott filed a complaint with the Massachusetts

Committee Against Discrimination ("MCAD") on October 10, 2002,

alleging that he did not receive the promotion because of racial

discrimination. Prescott does not claim, however, that anyone has

ever made, or that he has ever heard, racist or derogatory comments

about him or others. He did not make any claims pertaining to

disability, retaliation, or lack of accommodation at the time.

Prescott claims that he was more qualified than Ryder for the

position and points to his nineteen years of experience as a

mechanic and six years as a foreman. He also points to numerous

certifications he has obtained during his time in the field.

Prescott alleges that the City has made unsubstantiated claims that

Ryder had supervisory experience. Prescott also alleges that

Higgins was not concerned with the backgrounds of African-American

employees or their schooling and that he simply did not promote

African-American workers.
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Prescott contends that the selection criteria used by

Higgins resulted in a less than eighty percent success rate for

African-American applicants and that the selection criteria have

had a disparate impact on African-American applicants.

Prescott also alleges that he was not compensated for

serving as Acting General Foreman in 2002 when, Maurice García, the

then-General Foreman, was out on sick-leave. The difference in pay

was $200 a week. Prescott filed a grievance with the union.

Prescott also contends that he was required to work on a computer

after he had eye surgery, and he was required to lift ten-pound

items, which he was not supposed to do because of his surgery.

MCAD dismissed Prescott's complaint, finding a lack of

probable cause. On appeal, the dismissal was affirmed by the MCAD

investigation Commissioner. Prescott filed suit in Superior Court

in Suffolk County on January 24, 2006, and Defendants removed the

case to federal district court on February 10, 2006. On March 6,

2007, the defendants filed for summary judgment, and on March 20,

2007, Prescott filed a cross-motion for summary judgment. On

August 27, 2007, the district court granted the Defendants' motion

for summary judgment and denied Prescott's cross-motion. The

district court also denied Prescott's motion to take judicial

notice of facts from a pending case and his motion to alter or

amend the judgment. Prescott now appeals.
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II. Summary Judgment and Cross-Motion for Summary Judgment

A. Standard of Review

We review a motion for summary judgment de novo,

construing the record in the light most favorable to the non-movant

and resolving all reasonable inferences in that party's favor. See

Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008). We

may ignore "conclusory allegations, improbable inferences, and

unsupported speculation." Medina-Muñoz v. R.J. Reynolds Tobacco

Co., 896 F.2d 5, 8 (1st Cir. 1990) (citing Rossy v. Roche Products,

Inc., 880 F.2d 621, 624 (1st Cir. 1989)). We will reverse only if,

"after reviewing the facts and making all inferences in favor of

the non-moving party [here, Prescott], the evidence on record is

'sufficiently open-ended to permit a rational factfinder to resolve

the issue in favor of either side.'" Maymí v. P.R. Ports Auth.,

515 F.3d 20, 25 (1st Cir. 2008) (quoting Nat'l Amusements, Inc. v.

Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)).

"Summary judgment is appropriate when there is no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law based on the pleadings, depositions,

answers to interrogatories, admissions on file, and any

affidavits." Thompson, 522 F.3d at 175 (citing Fed. R. Civ P.

56(c)). "A dispute is genuine if the evidence about the fact is

such that a reasonable jury could resolve the point in the favor of

the non-moving party." Id. (quoting Sánchez v. Alvarado, 101 F.3d
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223, 227 (1st Cir. 1996)) (internal quotation marks omitted). "A

fact is material if it has the potential of determining the outcome

of the litigation." Maymí, 515 F.3d at 25. To defeat a motion for

summary judgment, evidence offered by the non-movant "must be

significantly probative of specific facts." Pérez v. Volvo Car

Corp., 247 F.3d 303, 317 (1st Cir. 2001) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

B. Discussion

Prescott appeals the district court's grant of summary

judgment on discrimination claims for disparate treatment,

disparate impact, compensation, hostile work environment, tortious

interference with a contract, retaliation, and disability. He also

challenges the district court's denial of his cross-motion for

summary judgment. The familiar McDonnell Douglas framework governs

Title VII, 42 U.S.C. § 1981, and Massachusetts General Laws,

chapter 151B claims. See Villanueva v. Wellesley Coll., 930 F.2d

124, 127 & n.2 (1st Cir. 1991). The problem Prescott faces is that

he is unable to meet the prima facie burden that he is required to

establish in the first step of McDonnell Douglas. Accordingly, all

his discrimination claims must fail. We address each of his

allegations in turn.

1. Disparate Treatment

A plaintiff makes out a claim of disparate treatment by

showing that: (1) he is a member of a protected class; (2) he was
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qualified for the position he sought; (3) he was subjected to

adverse employment action; and (4) the position remained open or

was filled by someone else with similar qualifications. Kosereis

v. Rhode Island, 331 F.3d 207, 212-13 (1st Cir. 2003) (citations

omitted). It is undisputed that Prescott is a member of a

protected class. For Prescott to survive the motion for summary

judgment, then, he needed to present evidence that showed that

Ryder's qualifications were similar to his own. See Gu v. Boston

Police Dep't, 312 F.3d 6, 11 (1st Cir. 2002). The district court

found that he was unable to make that showing. We agree.

Prescott was unable to demonstrate to the satisfaction of

the interview panel that he was qualified for the position, and he

failed to accurately answer the questions that the panel posed to

him during his interview. His answer to several of the questions

was that he was "not sure." In contrast, Ryder was able to provide

correct answers to each question, and he had ten years more

seniority than Prescott.

The district court was not required to consider

Prescott's proffer of evidence of pretext because he was unable to

get past the second requirement, that he was qualified for the

contested position. McDonnell Douglas made clear that a Title VII

plaintiff carries the initial burden of establishing a prima facie

case. See Oliver v. Digital Equip Corp., 846 F.2d 103, 107 (1st

Cir. 1988). Only after Prescott has satisfied his burden of
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showing a prima facie case, and the defendants have proffered a

non-discriminatory reason for not promoting him, would we consider

any evidence of discriminatory pretext. See Gillen v. Fallon

Ambulance Serv., Inc., 283 F.3d 11, 30 (1st Cir. 2002). The record

clearly indicates that Prescott was not qualified for the position

he sought. Prescott was not able to meet his prima facie burden

and thus his claim of disparate treatment is legally insufficient.

2. Disparate Impact

"'[D]isparate impact' [claims] involve employment

practices that are facially neutral in their treatment of different

groups but that in fact fall more harshly on one group than another

and cannot be justified by business necessity." Hazen Paper Co. v.

Biggins, 507 U.S. 604, 609 (1993) (quoting Int'l Bhd. of Teamsters

v. United States, 431 U.S. 324, 335-36 n.15 (1977)) (internal

quotation marks omitted); accord Bramble v. Am. Postal Workers

Union, 135 F.3d 21, 26 (1st Cir. 1998). Prescott alleges that

Defendants' hiring practices have a disparate impact on AfricanAmericans because Defendants use selection procedures that result

in a less than eighty percent success rate for African-American

applicants, as compared with white applicants. While in his

disparate impact claim Prescott is not required to show

discriminatory motive, see Hazen Paper Co., 507 U.S. at 609, he is

required to show proof of a disproportionate impact on that

African-Americans.
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Prescott has not introduced any evidence of disparate

impact in this case. Rather, his appeal hinges on the district

court's denial of his motion to take judicial notice of evidence

submitted in another case which purports to show disparate impact.

We review that evidentiary ruling for abuse of discretion. See

United States v. Bello, 194 F.3d 18, 23 (1st Cir. 1999). The

validity of the statistics and whether they showed disparate impact

was at issue in that case. Therefore, the proof offered was not a

"matter beyond reasonable controversy," Fed. R. Evid. 201, advisory

committee's note (Note to subdivision (b)), and there was no abuse

of discretion.

3. Compensation

a. Federal Law Claim

To make out a prima facie case of racial discrimination

in compensation under Title VII or § 1981, Prescott must show that

(1) he is a member of a protected class; (2) he met his employer's

expectations; (3) he suffered adverse employment action with

respect to compensation; and (4) similarly-situated employees

outside the protected class received more favorable treatment. See

White v. BFI Waste Servs., LLC, 375 F.3d 288, 295 (4th Cir. 2004)

(citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973)). Prescott claims that he was discriminated against in

compensation because he was not paid for the weeks when he served

as Acting General Foreman while others performing the same work
 Section 150 provides, in relevant part: 1

Any employee claiming to be aggrieved by a violation of

section [§] 148 . . . may, at the expiration of ninety

days after the filing of a complaint with the attorney

general, or sooner, if the attorney general assents in

writing, and within three years of such violation,

institute and prosecute in his own name and on his own

behalf, or for himself and for others similarly situated,

a civil action for injunctive relief and any damages

incurred, including treble damages for any loss of wages

and other benefits.

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received higher compensation. Notwithstanding this claim, the

evidence is clear that Prescott has not proven that he met his

employer's expectations as an Acting General Foreman. Prescott

also fails to meet the fourth prong of the prima facie test because

he never put forth any evidence of similarly-situated employees who

were given higher compensation. Since he has failed to establish

a prima facie case, his claim of disparate compensation also fails.

b. Massachusetts State Law Claim

In addition to making a complaint under federal law,

Prescott also claims that he was discriminated against in

compensation under Massachusetts General Laws, chapter 149, §§ 148,

150. Section 148 provides that "[e]very person having employees in

his service shall pay . . . such employee the wages earned by

him." The purpose of § 148, is to prevent the "unreasonable 1

detention of wages [by employers]." Boston Police Patrolmen's

Assoc., Inc., v. City of Boston, 761 N.E.2d 479, 481 (Mass. 2002)
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(citing Am. Mut. Liab. Ins. Co. v. Comm'r of Labor & Indus., 163

N.E.2d 19, 21 (Mass. 1959)).

Defendants acknowledge that when an employee is appointed

to a position on an acting basis, that person is normally paid the

wages for the higher position. Though Prescott claims that he

served as Acting General Foreman for four months in Maurice

García's absence, García's employee attendance calendar clearly

demonstrates that García was not away from work for more than two

weeks. Kathleen Kelley, the principal personnel officer for the

City, checked the City's records and spoke with managers in Central

Fleet Maintenance who confirmed this. Serving as Acting General

Foreman in a co-worker's absence is not the same as being appointed

to the position. Prescott's state law claim fails because he has

not demonstrated that he was deprived of wages that he earned.

4. Hostile Work Environment

To make out a prima facie case of hostile work

environment, a plaintiff must show that (1) he is a member of a

protected class; (2) he experienced uninvited harassment; (3) the

harassment was racially-based; (4) the harassment was so severe or

pervasive as to create an abusive work environment; and (5) the

harassment was objectively and subjectively offensive. Cf. Douglas

v. J.C. Penney Co., 474 F.3d 10, 15 (1st Cir. 2007). "Under

Massachusetts law, a hostile work environment is one that is

'pervaded by harassment or abuse, with the resulting intimidation,
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humiliation, and stigmatization, [such that it] poses a formidable

barrier to the full participation of an individual in the

workplace.'" Thompson, 522 F.3d at 180 (quoting Cuddyer v. Stop &

Shop Supermarket Co., 750 N.E.2d 928, 937 (Mass. 2001)). Prescott

has not shown that he was subjected to conduct that was extreme,

humiliating, or that unreasonably interfered with his ability to

work. See id. ("The environment must be sufficiently hostile or

abusive in light of all of the circumstances, including the

'frequency of the discriminatory conduct; its severity; whether it

is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance.'" (quoting Faragher v. City of Boca

Ratón, 524 U.S. 775, 787-88 (1998))). In fact, Prescott's own

statements undermine his claim of a hostile work environment. He

acknowledges that in over twenty years of work for the City, he

never heard a single racist remark or joke; he also describes his

relationship with his supervisor, Higgins, as "good." Prescott did

not put forth any evidence that he was subject to supervisory

harassment by any individual that qualifies as a supervisor, i.e.,

an individual with the authority to hire, fire, or demote. See

Noviello v. City of Boston, 398 F.3d 76, 96 (1st Cir. 2005). We

therefore must agree with the district court that his hostile work

environment claim is without basis.
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5. Tortious Interference with Contract

To establish a prima facie case for tortious interference

with a contract, Prescott must show that (1) a business

relationship existed; (2) a defendant knowingly induced another

defendant to break the contract; (3) the defendant's interference

was intentional and improper; and (4) he was harmed as a result.

See Shea v. Emmanuel Coll., 682 N.E.2d 1348, 1350-51 (Mass. 1997)

(citing Wright v. Shriners Hosp. for Crippled Children, 589 N.E.2d

1241, 1245 (Mass. 1992)). Prescott's argument to the effect that

Higgins, or anyone else, tortiously interfered with a contract

lacks legal sufficiency. Though Prescott does not have a cause of

action against the City for interfering with its own contract,

there could be one against Higgins personally were he to have

tortiously interfered with a subordinate's employment relationship.

See Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 76 (1st

Cir. 2001). Under this theory, Prescott would have had to show

proof of actual malice by Higgins, but Higgins would be "entitled

to a qualified privilege in an employment-based tortious

interference case (and, thus, will not be liable for employment

decisions that are within the scope of his supervisory duties)."

Id. Prescott would have to establish that "malice was the

controlling factor in the supervisor's interference." Id. (citing

Alba v. Sampson, 690 N.E.2d 1240, 1243 (Mass. 1998)). There is

nothing in the record to support a claim for malice. Prescott has
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thus failed to make out a prima facie case for tortious

interference with a contract, and this claim fails as well.

6. Retaliation

A prima facie case for retaliation is established if

Prescott shows that (1) he engaged in protected conduct; (2) he was

subjected to an adverse employment action; and (3) the adverse

employment action is causally linked to the protected conduct. See

Noviello, 398 F.3d at 88. "For a retaliation claim to survive a

motion for summary judgment, the plaintiff must point to evidence

in the record that would permit a rational factfinder to conclude

that the employment action was retaliatory." Thompson, 522 F.3d at

181 (citation and quotation marks omitted). Prescott's retaliation

claim suffers the same fate as his other claims. Prescott fails to

establish a prima facie case because he does not identify the

protected conduct that he supposedly engaged in. We are thus not

required to go further. Nevertheless, as previously stated,

Defendants have convincingly established that Prescott was not

selected for the position because he was not qualified. Thus, his

claim for retaliatory conduct fails.

7. Disability

Prescott argues that the defendants engaged in disability

discrimination and harassment against him because they forced him

to do work reading a computer screen right after he had eye surgery
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and required him to lift heavy objects when he had a note saying

that he should not do any heavy lifting.

a. Rehabilitation Act Claim

Although the district court dismissed Prescott's

disability claims because he did not exhaust administrative

remedies under the Rehabilitation Act, 29 U.S.C. § 791, exhaustion

is not required under the Act. See Brennan v. King, 139 F.3d 258,

268 n.12 (1st Cir. 1998). Nevertheless, Prescott's disability

claim was in any event subject to dismissal because he is not

disabled within the meaning of the Act. See 29 U.S.C. § 705(20)

(B); Tardie v. Rehab. Hosp. of R.I., 168 F.3d 538, 542 (1st Cir.

1999) ("In any claim under the Rehabilitation Act, the plaintiff

must first establish that she has a disability covered by the Act."

(citing Leary v. Dalton, 58 F.3d 748, 752 (1st Cir. 1995))).

Prescott does not qualify as having a disability because he does

not have a permanent or long-term disability that substantially

affects one or more of his major life activities, a requirement

under § 705. See Rolland v. Potter, 492 F.3d 45, 47-48 (1st Cir.

2007). We have specifically addressed the issue of lifting

limitations and held that limitations on lifting, without more, are

not a substantial limitation on a major life activity. See Gillen,

283 F.3d at 22 ("[I]f a restriction on heavy lifting were

considered a substantial limitation on a major life activity, then

the ranks of the disabled would swell to include infants, the
 Under Massachusetts law, "handicap" is defined as "a physical or 2

mental impairment which substantially limits one or more major life

activities of a person; (b) a record of having such impairment; or

(c) being regarded as having such impairment." Mass. Gen. Laws ch.

151B, § 1(17). A "handicapped person" is defined as any person who

has a "handicap" under that statutory definition. Id. § 1(19).

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elderly, the weak, and the out-of-shape."). Furthermore, as to his

vision problems, Prescott does not assert that they were long-term

or permanent, and, in fact, he stated that they were resolved after

surgery. The record shows that he was not required to work on a

computer until after his vision improved. Consequently, Prescott's

disability claim fails for lack of a legal basis.

b. Massachusetts State Law Claim

Prescott's disability claims under Massachusetts state

law were dismissed by the district court on procedural grounds

because Prescott's disability claim is not reasonably related to a

racial discrimination claim. Regardless of whether or not Prescott

exhausted his claim, he does not meet the definition of "handicap"

under chapter 151B. See Dahill v. Police Dep't of Boston, 748 2

N.E.2d 956, 963-64 (Mass. 2001).

Prescott must demonstrate that he is "handicapped" within

the meaning of chapter 151B by satisfying a three-step analysis:

we must determine (1) "whether a plaintiff's condition, actual or

perceived, constitutes a mental or physical 'impairment'"; (2)

"whether the life activity curtailed constitutes a 'major' life

activity as defined in G.L. c. 151B, § 1(20), and its accompanying
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regulations"; (3) "whether the impairment substantially limited the

major life activity." City of New Bedford v. Mass. Comm'n Against

Discrimination, 799 N.E.2d 578, 588-89 (Mass. 2003). To meet his

burden, Prescott must do more than submit evidence that he was

diagnosed with an impairment. See id. at 589. "Rather, those

seeking [G.L. c. 151B] protection must offer evidence that 'the

extent of the limitation [caused by their impairment] in terms of

their own experience . . . is substantial.'" Id. (quoting Carroll

v. Xerox Corp., 294 F.3d 231, 238 (1st Cir. 2002)). Prescott has

offered no such evidence, and he is, therefore, not handicapped

within the meaning of chapter 151B. There is no information in the

record that he has a permanent or long-term disability that

substantially affects one or more of his major life activities.

Even though "working" is a major life activity under Massachusetts

law, Prescott has not demonstrated that he was "substantially

limited" in his ability to work. His claims under Massachusetts

state law fail.

8. Cross-Motion for Summary Judgment

Prescott's cross-motion does not prosper for the same

reasons that the City's motions were granted; Prescott has failed

to establish a prima facie case for any of his contentions.

III. Motion to Alter or Amend the Judgment

After the district court granted summary judgment to the

Defendants and denied Prescott's cross-motion for summary judgment,
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Prescott moved to alter the judgment under Federal Rule of Civil

Procedure 59(e). The district court denied the motion.

We review the district court's denial of a Rule 59(e)

motion for abuse of discretion. See Kansky v. Coca-Cola Bottling

Co. of New Eng., 492 F.3d 54, 60 (1st Cir. 2007). "Rule 59(e)

motions are granted only where the movant shows a manifest error of

law or newly discovered evidence." Id. (citing Marie v. Allied

Home Mortgage Corp., 402 F.3d 1, 7 n.2 (1st Cir. 2005)).

Prescott points to no manifest error of law or newly

discovered evidence. He merely restates the same arguments that he

made in his opposition to summary judgment and in his cross-motion

for summary judgment. "The repetition of previous arguments is not

sufficient to prevail on a Rule 59(e) motion." United States v.

$23,000 in U.S. Currency, 356 F.3d 157, 165 n.9 (1st Cir. 2004)

(citing FDIC v. World Univ. Inc., 978 F.2d 10, 16 (1st Cir. 1992)).

Accordingly, the district court did not abuse its discretion when

it denied the motion.

IV. Conclusion

For the reasons stated above, we affirm the grant of

summary judgment for the Defendants, the denial of Prescott's

cross-motion for summary judgment, and the denial of the motion to

alter or amend the judgment.

Affirmed.