# United Stat es Court of Appeals For the First C ircuit

No. 02-2223 FRANCES STONKUS, Plaintiff, Appellant,

v. CITY OF BROCKTON SCHOOL DEPARTMENT; RICHARD E. ZOINO; ANTONIO M. CABRAL, Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Reginald C. Lindsay, U.S. District Judge ]

Before Lynch, Circuit Judge , Stahl, Senior Circuit Judge , and Howard, Circuit Judge .

Michael M. Kramer on brief for appellant. Rebecca J. Wilson , Sandra P. Criss and Peabody & Arnold LLP , on brief, for appellees.

March 14, 20031 Except where otherwise noted, we draw the factual background

fromthe defendants' Statement of Undisputed Mat eria l Facts in Support of their Motion for SummaryJudgment. As discussed in more detail infra , these facts were properly deemed admitted in the absence of oppositi on by Stonkus pursuant to the District of Massachusetts Local Rule 56.1. -2-

STAHL, Senior Circuit Judge . In this wron g ful termination case, plaintiff-appellant Frances Stonkus appeals from the district court's grant of summary judg men t to her former employers, defendant-appellees City of Brockton School Department, Brockton High School Science Department HeadAntonio M. Cabral and Brockton High School Housemaster Richard Zoino (collectively, "defendants"). We affirm. I. BACKGROUND A. Factual background

The following facts are undisputed. 1 Stonkus was hired as a biology teacher at Brockton High School beginning September, 1994. She was f i fty-two years old at the date of hire. She receivedsatisfactory performance evaluations f o r her first twoyears of teaching, and was twice reappointed for successive yearlong terms.

On or about October 2, 1996, while teaching a biology class, Stonkus and a male student engaged in a verbal exchange about the male repr oducti ve organ. The student complained to Zoino, who conducted an investigation into the matter. The investigation included interviewing several students fromthe class-3-

andholding a conference with the student’s parents. Cabral and Zoino also observed Stonkus's classroom performance and concluded that certain areas "needed improvement."

On or about February 5, 1997, Stonkus filed a grievance with the assistance of the Brockton Education Association alleging that Zoino's handling of the student's complaint violated the terms of a n appl icable collective bargaining agreement. In May, 1997, while the grievance process was still ongoing, Stonkus received notification that she would not be rehired for the following school year. In August, 1997, Stonkus entered into a "Memorandum of Agreement" with Brockton, in which it agreed to rehire Stonkus without tenure for the 1997-98 school year. The Agreement containedan explicit waiver of any and all claims Stonkus could bring to challenge a decision the defendants might later make not to reappoint Stonkus for the 1998-99 school year.

St on kus alleges in her complaint that following her initial termi nation in May, 1997, Cabral hired two new female teac hers, aged21 and 30. Upon Stonkus’s return to teaching in September, 1 997, t he classroom regularly assigned to her for the past three years was given to one of the new hires. Stonkus alleges that she was given as her space the corner of a small project room. According to her, as a result she had to use three carts to move her materials from room to room each day.

Stonkus's superiors found her teaching performance during-4-

the 1997-98 school year to be unsatisfactory, and she was not rehired for the following school year. In her complaint, Stonkus alleges that she has not been able to secure other employment. In her subsequent job search, she claims, two school systems advised Stonkus that she was their first choice for a position as a science teacher before calling Brockton for a reference. After the conversations with Brockton, Stonkus was not hired for either position. Later, the positions were re-advertised. B. Procedural history

On February 2, 2001, Stonkus filed a compla int in the Massachusetts Supe ri or Court alleging violations of the state constitution, the Massachusetts Civil Rights Act, and 42 U.S.C. § 1983; breach of contract, both express and implied; age and gender discrimination in violation of Mass. Gen. Laws ch. 151B; wrongful termination; defamation by Cabral; and intentional interference with contractual relatio nshi ps by Zoino. The defendants removed this action to the United States District Court.

On July 18, 2001, the district court con ducted a scheduling conference and ordered the completion of all discovery byNovember 16, 2001, the filing of dispositive motions by April 19, 2002, and the filing of responsive pleadings by May 20, 2002. In November, 2001, near the end of the discovery period, the parties filed a Joint Motion to Extend the Scheduling Order Dea dli ne, which the court allowed. This provided for the-5-

completion of discovery byApril 19, 2002, the filing of motions by June 18, 2002, and the filing of responsive pleadings thirty days thereafter.

On June 18, 2002, the defendants fi led a Motion for SummaryJudgment on all of the claims set forth in Stonkus's complaint. Stonkus failed to file an oppositi on. On August 15, 2001, the District Court allowed the Summary Judgment Motion with the following order: “The Plaintiff has filed no opposition to this motion. Based on the undisputed facts as presented in the defend ants’ papers, the defendants are entitled to judgment as a

m atter of law on all claims. Judgment shall enter for t h e defendants accordingly.” On August 19, 2002, judgment entered in favor of the defendants on all counts.

Stonkus filed a Motion for Relief fromJudgment pursuant to Fed. R. Civ. P. 60(b) and for Late Fili ng of Responsive Pleading, which the defendants opposed. The District Court denied the motion, and Stonkus appealed. II. DISCUSSION A. Rule 60(b)(1) ruling

Stonkus contends that the distric t c ourt erred in refusing to allow her to belatedly file her opposition to the defendants' motion for summary judgment. She maintains, on appeal, that her failure to timelyfile was due to her counsel's confusion

over the filing deadlines and "frenetic activity t o co mplete2 In the Motion for Relief from Judgment, Stonku s d id not

specificallyidentify excusable neglect as a basis for her failure to file an opposition; rather, she stated that "Plaintiff's counsel believedthat consent of the court would be necessary to allowfor consideration of [defendant s' m otion for summary judgment] filed beyo ndthe agreed-upon filing deadlines." (This excuse is unavailing, as the record indicates t hat in fact the summary judgment motion was filed on the last day permitted bythe amended scheduling order. ) Accordingly, the defendants contend that Stonkus should be pre cludedfrom asserting on appeal that she failedt o file an opposition for any other reasons. Because w e holdthat in this case, Stonkus's excuses presented on appeal do not compel reversing the district court, we do not address the defendants' waiver argument. -6- discovery," and that these circumstances constituted "excusable neglect" warranting relief under Fed. R. Civ. P. 60(b)(1). 2

Rule 60(b)(1) provides, in relevant part: On motion andupon such terms as are just, the court may relieve a party or a pa rty' s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect . . .. The motion shall be made within a reasonable time, and for reasons (1), (2) , and(3) not more than one year afte r the judgment, order, or proceeding was entered or taken. Motions brought under Rule 60(b) are committed to the district court's sound discretion. Torre v. Continental Ins. Co. , 15 F.3d 12, 14 (1st Cir. 1994). Accordingly, we review orders denying such motions only for abuse of discretion. Id. Because Rule 60(b) is

a vehicle for "extraordinary relief," motions invoking the rule should be granted "only under exceptional circumstances." Id. at 14-15 (quoting Lepore v. Vidockler , 792 F.2d 272, 274 (1st Cir. 1986)).3 Fed. R. Bankr. P. 9006(b)(1) permits the enlargement of time

for certain actions "w here the f ailure to act was the result of excusable neglect." -7-

We interpret these authorities in li ght of Pioneer Investment Services Co. v. Brunswick Associates Ltd. Partnership , 507 U.S. 380 (1993), in which the Supreme Court explored the meaning of excusable neglect in the context of a parallel provision in the federal bankruptcy rules. 3 Davila-Alvarez v. Escuela de Medicina Universidad Central Del Caribe , 257 F.3d 58, 63 (1st Cir. 2001). The Court heldtha t "the determination is at bottom an equit abl e one, taking account of all relevant circumstances

sur roundi ng the party's omission." Pioneer , 507 U.S. at 395. These circumstances include "the danger of prejudice to the [nonmoving party], the length of the delay and its potential impact

on judicial proceedings, the reaso n fo r the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." Id.

Even under the flexible standard prescribed by Pioneer , we see no abuse of discretion in the district court's decision refusing to allow Stonkus to belatedly oppose the defendants' motion for summary judgment. The stated reasons for the neglect -- confusion over filing dates and busyness -- hold little water. It is uncontested that Stonkus's counsel received several writt en documents, both from the defendants' counsel and from the district court, concerning the extended scheduling deadlines; that counsel4 At no time in this litigation did Stonkus's counsel propound

interrogatories, requests for documents or requests for admissions. Nor did he take any depositions of the defendant School Department employees or representatives other than the individual defendants Zoino and Cabral. -8- e ngagedin telephone and in-person discussions concerning th e extendeddeadlines; and that prior to filing the motion for summary judgment, defendants' counsel again advised Ston kus's counsel of th eir i ntent to file a summary judgment motion on June 18, 2002, and reminded Stonkus's counsel that he had thirty days to respond under the extended scheduling order.

We have repeatedly held this type of counsel error to be inadequate to support a determination of excusable neglect within the mea ning of Fed. R. Civ. P. 60(b)(1). Torre , 15 F.3d at 1 5 (fact t hat ap pellant's attorney was "preoccupied" with other matters did not constitute excusable neglect), and cases cited. "Most attorneys are busy mo st of the time and they must organize their work so as to be able to meet the time requirements of matters they are handling or suffer the consequences." Id. (quoting Pinero Schroeder v. FNMA , 574 F.2d 1117, 1118 (1st Cir. 1978) (internal quotation marks omitted)).

We question, too, the good faith be hindthese excuses: there is little indication, for example, of the "frenetic activity to complete discovery" Stonkus's counsel cites. 4 And Stonkus never proffereda proposedopposition to summary judgment in her filings-9-

to the district court. As to prejudice, alt hough there are no unusual circumstances in this case, the delay incurred by Stonkus's failure to respond serves to hamper the defendants' interest in certaintyand resolution and to fu rth er diminish witnesses' memories concerning the even ts surrounding Stonkus's claims, now

more than six years old. In sum, Stonkus's counsel's conduct simplydoes not warrant relief from judgment un der an excusable neglect theory. B. Summary judgment

Although we affirm the district court's decision to bar Stonkus's opposition to defendants' motion for summary judgment, it does not automatically follow that the defendants' motion was properlygranted. Fed. R. Civ. P. 56(e) of the Federal Rules of Civil Procedure provides:

[W]hen a motio n fo r summary judgment is made andsupported as provided in this rule, a n adverse party may not rest u pon th e mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. I f the adverse party does not so respond, summary judgment, if appropriate , shall be entered against the adverse party. (emphasis added). We also take into account District of Massachusetts Local Rule 56.1, which provides, "[m]aterial facts of recordset forth in the statem ent required to be served by the-10-

moving party will be de emed for purposes of the motion to be admittedby the opposing parties unless controverted by the statement required to be served by opposing parties."

Because Stonkus did not c on trovert the statement of undispu ted material facts that the defendants filed with their summaryjudgment motion, we deem those facts admitted and consider whether summary judgment was appropriate. We review the district court's grant of summary judgment de novo, construing the record in the light most favorable to the nonmovant and resolving all reasonable inferences in that party's favor. Carroll v. Xerox Corp. , 294 F. 3d 231, 237 (1st Cir. 2002). Under Fed. R. Civ. P. 56(c), summary ju dgme nt is appropriate only "if the pleadings, depositions, answers to interrogatories, and admi ssio ns on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

Def endan ts contend that they are entitled to summary judgment becaus e in August, 1997, Stonkus signed a Memorandum of Agreement under which she waived all claims with respect to nonreappointment. The Agreement states, in relevant part,

[I]f the decision is ultimately made not to reappoint her for the 1998-99 school year, Ms. Stonkus hereby waives any ability to challenge such decision in any forum whatsoever, including, but not limited to, G.L. Chapter 71, Section 42, via the grievance procedure in the collective bargaining agreement, or via a5 The only claims that do not directly center on reappointment

are Stonkus's express breach of contract claim (which concerns the collective bargaining agreement between the Brockton School Committee and the Brockton Educ atio n Association) and her defamation claim (which concerns Cabral's representations to potential e mplo yers following her termination). We need not grapple with whether these claims are implicitly barred by the Agreement, or, as defendants contend, fail on their merits, because Stonkus does not raise the issue on appeal. Rather, as set forth infra , Stonkus's only argument regarding the Agreement on appeal is that it did not conform with ADEA requirements. -11- complaint to any court or administrative agency. In Rivera-Flores v. Bristol-Myers Squibb Caribbean , 112 F.3d9, 11 (1st Cir. 1997), we noted that in the employment law context, courts have routinely upheld relea ses given in exchange for additional benefits. "Such releases provide a means of voluntaryresolution of pot ential and actual legal disputes, and mete out a type of ind ust rial justice." Id. Nearly all of the claims set forth in Stonkus's complaint explici tly focus on the defendants' failure to reappoint her to an a dditio nal term of employment. 5 Accordingly, we conclude that Sto nkus 's claims are barred under the Agreement.

Stonkus offers only one argument in opposition: that the Agreement was not a "knowin g and voluntary" waiver within the meaning of the Older Workers Benefit Protection Act amendments to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626(f)(1). The amendments provide, in relevant part:

1) an individual may not waive any right or claim under this Act unless . . .6 The heading of the age discrimination claim in her complaint

reads "Age Discrimination, MG L 1 51B." Stonkus does mention the ADEAelsewhere in her complaint, but appears to refer to the waiver requirements set forth at 29 U.S.C. § 626(f)(1). Furthermore, she does not argue on appeal that she asserted an ADEA claim in her complaint. In any ev ent, t aking the defendants' statement of material facts as true, we must conclude that Stonkus's termination was based on her job performance rather than discriminatoryanimus. Accordingly, her age discrimination claim fails on its me rits as well. -12-

(B) the waiver specifically refers to rights or claims arising under this chapter;

* * * * (F)(i) the individual is given a period of at least 21 days within which to consider the agreement; * * * * (G) t he a greement provides that for a period of at least 7 days following the execution of such agreement, the individual may revoke the agreement . . . . Id. Stonkus contends t hat th e Agreement lacked the foregoing elements. This argument gets Stonkus nowhere, however, in light of the fact that she apparently did not bring an ADEA claim in this

c ase. 6 Rather, her age discrimination claim is pursuant to Mass. Gen. Laws. ch. 151B, which requires none of the pertinent elements of section 626(f)(1). Nor is Stonkus's ADEA argument relevant to anyof the other claims she sets forth in her complaint. Accordingly, we hold that the defendants were entitled to judgment-13-

as a m atter of law on the ground that the Agreement barred Stonkus's claims.

For the reasons set forth supra , we AFFIRM the district court's award of summary judgment to the defendants.