United States Court of Appeals

For the First Circuit

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, 2003
1Except where otherwise noted, we draw the factual background

from the defendants' Statement of Undisputed Material Facts in

Support of their Motion for Summary Judgment. As discussed in more

detail infra, these facts were properly deemed admitted in the

absence of opposition by Stonkus pursuant to the District of

Massachusetts Local Rule 56.1.

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STAHL, Senior Circuit Judge. In this wrongful

termination case, plaintiff-appellant Frances Stonkus appeals from

the district court's grant of summary judgment to her former

employers, defendant-appellees City of Brockton School Department,

Brockton High School Science Department Head Antonio 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 fifty-two years old at the date of hire. She

received satisfactory performance evaluations for her first two

years 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 reproductive organ. The student complained to

Zoino, who conducted an investigation into the matter. The

investigation included interviewing several students from the class
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and holding 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 an applicable 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

contained an 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.

Stonkus alleges in her complaint that following her

initial termination in May, 1997, Cabral hired two new female

teachers, aged 21 and 30. Upon Stonkus’s return to teaching in

September, 1997, the 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
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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 complaint in the

Massachusetts Superior 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 relationships by Zoino. The defendants removed

this action to the United States District Court.

On July 18, 2001, the district court conducted a

scheduling conference and ordered the completion of all discovery

by November 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

Deadline, which the court allowed. This provided for the
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completion of discovery by April 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 filed a Motion for

Summary Judgment on all of the claims set forth in Stonkus's

complaint. Stonkus failed to file an opposition. 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

defendants’ papers, the defendants are entitled to judgment as a

matter of law on all claims. Judgment shall enter for the

defendants accordingly.” On August 19, 2002, judgment entered in

favor of the defendants on all counts. 

Stonkus filed a Motion for Relief from Judgment pursuant

to Fed. R. Civ. P. 60(b) and for Late Filing 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 district court 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 timely file was due to her counsel's confusion

over the filing deadlines and "frenetic activity to complete
2In the Motion for Relief from Judgment, Stonkus did not

specifically identify excusable neglect as a basis for her failure

to file an opposition; rather, she stated that "Plaintiff's counsel

believed that consent of the court would be necessary to allow for

consideration of [defendants' motion for summary judgment] filed

beyond the agreed-upon filing deadlines." (This excuse is

unavailing, as the record indicates that in fact the summary

judgment motion was filed on the last day permitted by the amended

scheduling order.) Accordingly, the defendants contend that

Stonkus should be precluded from asserting on appeal that she

failed to file an opposition for any other reasons. Because we

hold that in this case, Stonkus's excuses presented on appeal do

not compel reversing the district court, we do not address the

defendants' waiver argument.

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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 and upon such terms as are just, the

court may relieve a party or a party'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 after 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)). 
3Fed. R. Bankr. P. 9006(b)(1) permits the enlargement of time

for certain actions "where the failure to act was the result of

excusable neglect." 

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We interpret these authorities in light 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 held that "the determination is at bottom an

equitable one, taking account of all relevant circumstances

surrounding 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 reason for 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 written

documents, both from the defendants' counsel and from the district

court, concerning the extended scheduling deadlines; that counsel
4At 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.

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engaged in telephone and in-person discussions concerning the

extended deadlines; and that prior to filing the motion for summary

judgment, defendants' counsel again advised Stonkus's counsel of

their intent 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 meaning of Fed. R. Civ. P. 60(b)(1). Torre, 15 F.3d at 15

(fact that appellant's attorney was "preoccupied" with other

matters did not constitute excusable neglect), and cases cited.

"Most attorneys are busy most 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 behind these excuses:

there is little indication, for example, of the "frenetic activity

to complete discovery" Stonkus's counsel cites.4 And Stonkus never

proffered a proposed opposition to summary judgment in her filings
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to the district court. As to prejudice, although there are no

unusual circumstances in this case, the delay incurred by Stonkus's

failure to respond serves to hamper the defendants' interest in

certainty and resolution and to further diminish witnesses'

memories concerning the events surrounding Stonkus's claims, now

more than six years old. In sum, Stonkus's counsel's conduct

simply does not warrant relief from judgment under 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

properly granted. Fed. R. Civ. P. 56(e) of the Federal Rules of

Civil Procedure provides:

[W]hen a motion for summary judgment is made

and supported as provided in this rule, an

adverse party may not rest upon the 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. If

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

record set forth in the statement required to be served by the
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moving party will be deemed for purposes of the motion to be

admitted by the opposing parties unless controverted by the

statement required to be served by opposing parties."

Because Stonkus did not controvert the statement of

undisputed material facts that the defendants filed with their

summary judgment 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 judgment is appropriate only "if the pleadings,

depositions, answers to interrogatories, and admissions 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." 

Defendants contend that they are entitled to summary

judgment because 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 a
5The 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 Education Association) and her

defamation claim (which concerns Cabral's representations to

potential employers 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.

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complaint to any court or administrative

agency.

In Rivera-Flores v. Bristol-Myers Squibb Caribbean, 112

F.3d 9, 11 (1st Cir. 1997), we noted that in the employment law

context, courts have routinely upheld releases given in exchange

for additional benefits. "Such releases provide a means of

voluntary resolution of potential and actual legal disputes, and

mete out a type of industrial justice." Id. Nearly all of the

claims set forth in Stonkus's complaint explicitly focus on the

defendants' failure to reappoint her to an additional term of

employment.5 Accordingly, we conclude that Stonkus's claims are

barred under the Agreement.

Stonkus offers only one argument in opposition: that the

Agreement was not a "knowing 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 . . . 
6The heading of the age discrimination claim in her complaint

reads "Age Discrimination, MGL 151B." Stonkus does mention the

ADEA elsewhere 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 event, taking the defendants' statement of

material facts as true, we must conclude that Stonkus's termination

was based on her job performance rather than discriminatory animus.

Accordingly, her age discrimination claim fails on its merits as

well. 

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(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) the agreement 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 that the 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

case.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

any of the other claims she sets forth in her complaint.

Accordingly, we hold that the defendants were entitled to judgment
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as a matter 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.