United States Court of Appeals

For the First Circuit

No. 05-2246

JOSE QUINONES,

Plaintiff, Appellant,

v.

HOUSER BUICK,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Michael A. Ponsor, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Campbell, Senior Circuit Judge,

and Howard, Circuit Judge.

Steven R. Weiner on brief for appellant.

John C. Sikorski and Robinson Donovan, P.C. on brief for

appellee.

February 2, 2006
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CAMPBELL, Senior Circuit Judge. Appellant plaintiff Jose

Quinones appeals from the granting of summary judgment for appellee

defendant Houser Buick ("Houser") in the United States District

Court for the District of Massachusetts. We affirm.

I. Background and Facts

Quinones, a former automotive technician at Houser, sued

Houser for national origin-based employment discrimination under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et

seq. ("Title VII"), and its state counterpart, Mass. Gen. Laws ch.

151B, §§ 1-10 ("Chapter 151B"). Quinones voluntarily left his job

in March 2003, but he alleges that the defendant's illegal

discrimination against him as a person of Hispanic origin resulted

in the "wrongful payment of wages." 

Quinones filed his complaint in state court on May 17,

2004 and listed two causes of action: the Title VII claim and the

Chapter 151B claim. On June 10, 2004, Houser removed the action to

federal court. With the parties' consent, the case was assigned to

a magistrate judge for all purposes, pursuant to 28 U.S.C. §

636(c). The defendant moved for summary judgment, and the

magistrate judge entered summary judgment in favor of the defendant

on July 14, 2005 on the grounds that Quinones had not introduced

evidence demonstrating pretext on the part of Houser. This appeal

followed.
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Contrary to the district court's local rule, Quinones

failed to submit a concise statement of the material facts of

record as to which he contended that there existed a genuine issue

to be tried. U.S. Dist. Ct. Rules D. Mass., LR 56.1. Given his

omission, the court deemed admitted a number of the facts set forth

in the defendant's statement of facts. In its motion and

accompanying statement of facts, Houser relied upon excerpts of

Quinones' deposition; his answers to interrogatories; an affidavit

from Quinones' supervisor, Kevin O'Connor; the deposition of

another Houser employee, Jeremy Laduke; and the deposition of Angel

Delrio, the owner of Quinones' current place of employment, St.

James Custom Auto Body. Quinones filed an opposition to the

defendant's motion for summary judgment that was one page in length

and that cited no case law. Together with the opposition, Quinones

also submitted a number of deposition pages and a personal

affidavit. Compiled as described, the record reflects the

following facts, which we view in the light most favorable to

Quinones, the non-moving party. Roldan-Plumey v. Cerezo-Suarez,

115 F.3d 58, 61 (1st Cir. 1997).

Quinones worked for Houser as an automotive technician on

three separate occasions between February 27, 1990 and the day he

quit, March 28, 2003. At all relevant times, he worked under

O'Connor, Houser's collision repair manager, who is the only person
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Quinones contends to have discriminated against him on the basis of

his Puerto Rican origin.

When, on March 25, 1999, Quinones began his third tenure

at Houser, he asked to be placed on a flat rate pay scale.

Thereafter he was not paid on an hourly basis as before but rather

at the specific rate computed for each particular repair job. The

precise details of how Houser computed the flat rate are not

entirely clear from the record. Defendant's employees asserted,

however, without contradiction, that Houser's computation of the

flat rate involved examining both the estimate and the work order,

and that a fast-working and knowledgeable employee could maximize

his earnings by completing a job in fewer than the total number of

hours Houser assigned to it and by then proceeding on to the next

job. In his affidavit, Quinones asserted that under the flat rate

system he earned approximately $28,000 per year in 2000 and 2001

and approximately $30,000 in 2002. Quinones went on to allege that

Wayne Barnes, a white co-worker, received pay of $1,000 per week

under the flat rate system, or about $52,000 a year. Because of

this disparity, because he feels he was continuously underpaid, and

because he says O'Connor made many slurs regarding his Puerto Rican

background, Quinones contends that Houser discriminated against him

on the basis of his Hispanic origin. 

Houser denied that Quinones had produced any evidence

that he was not correctly paid under the flat rate system. Houser
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relied on its employees' depositions and affidavits to the effect

that flat rate compensation is a challenging system that places a

burden on the employee to understand and utilize it adroitly if he

wishes to maximize his compensation. Properly utilized, the flat

rate system was said to have the potential to reward employees in

excess of an hourly rate system. To maximize earnings on a flat

rate scale, however, an employee must complete jobs rapidly, be

well-organized, and have a good understanding of how the different

repair jobs are estimated and billed. Laduke testified that Barnes

was known as an especially capable and productive flat rate

employee, while Quinones "had a really hard time gripping" the

system. Although he did quality work, Quinones worked more slowly

and, from defendant's perspective, did not understand the way the

jobs were billed. In his own affidavit, Quinones denied that he

did not understand the flat rate system.

O'Connor sat down weekly with the body shop employees,

including Quinones, to go over the work diaries he required them to

keep. The diaries included their time cards and pay. Quinones did

not produce in the instant case any kind of itemization of work in

support of his claim that he was incorrectly paid under the flat

rate system, nor does the record contain evidence, as distinct from

Quinones' general charges, that Barnes was ever unfairly or

excessively paid. Houser asserts that the absence of itemization
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by Quinones reflected his general inability to grasp Houser's

system. 

The record does contain statements by Quinones that

O'Connor often made comments in his presence demeaning his Puerto

Rican heritage. O'Connor denies this but concedes that he may have

once told Quinones, "you are a white man in a Puerto Rican body."

He says he made the comment "in jest." O'Connor also stated in his

affidavit that Quinones told him, "all you Irish are alcoholics."

In his brief on appeal, Quinones characterizes his relationship

with O'Connor as including "either good natured joking or

discriminatory comments."

In his answers to interrogatories, Quinones alleged that

his Puerto Rican guests were treated differently from the guests of

white employees but at his deposition was unable to state specific

dates when such incidents occurred and did not name any of the

visitors of white employees who were treated differently. Quinones

also alleged, in answers to interrogatories, that he was paid

improperly based on the hours that he worked, attaching work orders

to his answers. It would be impossible, however, for a fact-finder

to determine from what Quinones presented whether or not he was

underpaid or whether Houser improperly calculated what was due to

him. The information on these subjects is simply incoherent and

incomplete. Houser says that Quinones confuses estimates with work

orders and points out that he never complained formally of
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underpayment during the almost four years that he worked under the

flat rate system.

Quinones alleges, but without documentation or necessary

specifics, that he and other Hispanic employees were forced to work

from estimates that cheated them out of time actually spent

repairing a vehicle. But Quinones could remember only one other

employee, George, who was allegedly underpaid, and was unable to

recall George's last name. According to Quinones at his

deposition, George was an hourly employee, not a flat rate

employee. Quinones further claimed that he heard O'Connor make

racist comments to "several other Hispanic employees" but could not

recall the names of those employees. Quinones did not file a claim

for unpaid wages with the Wage and Hour Division of the

Massachusetts Attorney General's Office, pursuant to Mass. Gen.

Laws ch. 149, §§ 148, 150.

Quinones now works at St. James Custom Auto Body, where

Delrio, his boss, pays him an hourly rate because, Delrio testified

in his deposition, he believes that flat rate compensation causes

misunderstandings between employees and employers.

In his one-page opposition to the motion for summary

judgment, Quinones cited excerpts of three depositions: his own,

that of Laduke, and that of Terry Mille, another Houser employee.

The excerpts from Quinones' deposition reflect his testimony that

at management request, he had assisted another employee with his
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work and that he was the only Hispanic employee in a high-paying

job at the company. The Laduke deposition excerpt reflected

Laduke's testimony that he was able to negotiate with Houser to

keep his seniority when Houser purchased his former employer. The

Mille deposition excerpt reflected Mille's testimony providing the

names of the employees working in the office and on the floor.

Quinones characterizes the testimony as Mille's stating that

Quinones was the only Hispanic employee. Mille did not articulate

that point but rather testified when asked about three specific

employees that they are white. Mille did not testify that any

other employee besides Quinones was Hispanic.

Quinones' personal affidavit acknowledges that Wayne

Barnes was a fast auto body man but states that Quinones was a

better body man because his work was not returned for corrections

as frequently and because Quinones frequently repaired imperfect

work done by Barnes. Quinones testified that he is able to

"produce work in a competent manner and work at a reasonable rate

of speed." Quinones asserted further that he had an "excellent

understanding of the flat rate system" and that Wayne Barnes had

received beneficial treatment that Quinones did not receive. In

particular, Quinones charged, but without pointing to specific

facts and details supporting these charges, that O'Connor

manipulated Barnes' pay in order to provide Barnes with regular

income, gave him work credit hours for future work, and gave him
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easy jobs that he was able to finish quickly. Quinones also stated

that he (Quinones) did not receive the same treatment and that his

own weekly pay checks varied wildly in their totals. Quinones

testified that O'Connor asked him to help another body shop

employee with his work, though Quinones never received similar

assistance. Finally, Quinones compared the total money he made

over three years ($86,160.67) with that made by Barnes

($210,000.00) and claimed that he should have made the same amount.

Attached to the affidavit was an excerpt from Quinones' deposition

in which he testified that Wayne Barnes was a fast body man; an

excerpt from Laduke about his transferring his seniority to Houser;

and a chart listing Quinones' compensation in the year 2002.

II. Discussion

This Court reviews the district court's grant of summary

judgment de novo, viewing the facts, and drawing all reasonable

inferences, in the light most favorable to Quinones, and affirming

summary judgment only if there is no genuine issue as to any

material fact. Roldan-Plumey, 115 F.3d at 61. Summary judgment is

appropriate when "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 judgment as

a matter of law." Fed. R. Civ. P. 56(c). The party opposing the

motion "must set forth specific facts showing that there is a
This analysis applies generally to both Title VII and Chapter 1

151B claims. See Fite v. Digital Equip. Corp., 232 F.3d 3, 7 (1st

Cir. 2000).

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genuine issue for trial." Fed. R. Civ. P. 56(e). "Even in cases

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

summary judgment may be appropriate if the nonmoving party rests

merely upon conclusory allegations, improbable inferences, and

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

Co., 896 F.2d 5, 8 (1st Cir. 1990).

As the district court noted, employment discrimination

cases alleging disparate treatment ordinarily proceed under the

three-step, burden-shifting framework outlined in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and further explained in Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981), St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993), and Reeves v.

Sanderson Plumbing Prods., Inc., 530 U.S. 133 (2000). First, the 1

plaintiff must make out a prima facie case of discrimination. The

burden then shifts to the defendant to present a legitimate, nondiscriminatory reason, sufficient to raise a genuine issue of

material fact as to whether it discriminated against the employee,

for the employment decision. Finally, the burden is placed on the

plaintiff to demonstrate that the non-discriminatory reason is mere

pretext and that the real reason was discrimination. McDonnell

Douglas, 411 U.S. at 802; see also St. Mary's Honor Ctr., 509 U.S.

at 510-11, 515-16.
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The district court assumed arguendo that Quinones had

made out a prima facie case and found that Houser had presented a

legitimate reason for the employment decision, i.e., for the

relatively low amount paid to Quinones, by its asserting, in

effect, that employees like Barnes could legitimately make more

than Quinones under the flat rate system by, for example,

completing the same job more rapidly, keeping better track of the

work he did and seeking the most profitable jobs. In the first

sentence of his brief opposition filing, Quinones came close to

admitting the defendant's second-stage point: that employees such

as Barnes who better understood the flat rate system could earn

more in aggregate. Quinones wrote, "employees who knew how to

negotiate and/or were aware of their potential benefit

to . . . Defendant were able to get more advantageous working

arrangements then [sic] other employees." The court then focused

on the pretext issue. We do the same.

At the third stage of the McDonnell Douglas framework, it

becomes the plaintiff's burden to establish "that the legitimate

reasons offered by the defendant were not its true reasons, but

were a pretext for discrimination." Reeves, 530 U.S. at 143

(citation and internal quotation marks omitted). At the summary

judgment stage, the plaintiff "must produce evidence to create a

genuine issue of fact with respect to two points: whether the

employer's articulated reason for its adverse action was a pretext
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and whether the real reason was [national origin] discrimination."

Thomas v. Eastman Kodak Co., 183 F.3d 38, 62 (1st Cir. 1999). The

plaintiff "must produce evidence to permit a reasonable jury to

conclude both that disparate treatment occurred and that the

difference in treatment was because of [national origin]." Id.

The district court rightly concluded that Quinones had

not met his burden at the third stage, stating particularly that

"his opposition memorandum is woefully deficient" and that "it is

not the court's responsibility--let alone within its power--to cull

the entire discovery record looking for facts which might convert

such a bald assertion [of discrimination] into a triable issue."

See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("It

is not enough merely to mention a possible argument in the most

skeletal way, leaving the court to do counsel's work."); see also

Gonzalez-Pina v. Rodriguez, 407 F.3d 425, 431 (1st Cir. 2005)

("[S]ummary judgment may be appropriate if the nonmoving party

rests merely upon conclusory allegations, improbable inferences,

and unsupported speculation." (citation and internal quotation

marks omitted)).

On appeal, Quinones argues that the district court erred

in finding that he did not carry his burden of establishing

pretext. However, the selected pages of deposition testimony

submitted by Quinones with his opposition memorandum are

insufficient to establish that, because he earned less than Barnes,
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he was necessarily the victim of discriminatory conduct on the part

of his employer. Even accepting at face value Quinones' deposition

statement that he felt he was more experienced and produced better

work than Barnes, these factors alone would not show that Barnes

could not still have managed the flat rate system in such a way as

to earn more under it. It is undisputed, even by Quinones, that

Barnes was a rapid and knowledgeable worker. It is perfectly

possible, without unfair connivance by O'Connor, that Barnes

understood and worked the flat rate system more successfully than

did Quinones. Quinones' mere conclusory suspicion is no substitute

for specific evidence that discrimination was involved. See

Johnson v. Nordstrom, Inc., 260 F.3d 727, 733 (7th Cir. 2001)

(observing that plaintiff's subjective belief that she is being

discriminated against "does not, without more, demonstrate

pretext").

Quinones argues that his personal affidavit submitted

with his opposition to the summary judgment motion creates disputed

issues of material fact, but the affidavit, like his deposition

testimony, reflects only Quinones' subjective speculation and

suspicion that Barnes' greater earnings must have resulted from

discrimination rather than from other possible causes that might

just as easily have explained the discrepancy, supra. Quinones

appears to rely on Santiago-Ramos v. Centennial P.R. Wireless

Corp., 217 F.3d 46, 53 (1st Cir. 2000), in which we held that a
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self-serving affidavit could defeat summary judgment if the

affidavit "contains more than the allegations made in [his]

complaint [and] provides specific factual information based upon

[his] personal knowledge." Id.

Unlike the affidavit in Santiago-Ramos, however,

Quinones' affidavit does not contain adequate specific factual

information based on personal knowledge to back his allegation of

national origin discrimination and so create a triable issue. In

large part, it contains only Quinones' own speculation about the

way the body shop was run. Thus Quinones cites no supporting

evidence to which he could testify in court tending to prove his

conclusory allegation that Barnes' higher pay was based on

O'Connor's acts of favoritism as opposed to Barnes' own more

efficient work or ability to play the system, or for his allegation

that Barnes improperly received credit hours that Quinones did not

receive. Neither did Quinones indicate how he had come to have

personal knowledge of these alleged facts. See Cadle Co. v. Hays,

116 F.3d 957, 961 & n.5 (1st Cir. 1997) (self-serving affidavit

could be sufficient to defeat summary judgment but not if it

"neither contain[s] enough specifics nor speak[s] meaningfully to

matters within [the plaintiff's] personal knowledge"). Further,

Federal Rule of Civil Procedure 56(e) requires that all affidavits

submitted in conjunction with an opposition to a motion for summary

judgment "set forth such facts as would be admissible in evidence."
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Without first-hand knowledge of facts supporting his allegations,

Quinones could not simply testify to a belief that Barnes was given

advantages that Quinones was not.

As the district court observed, though cases at the third

stage of the McDonnell Douglas inquiry are often a close call for

the granting of summary judgment, Santiago-Ramos, 217 F.3d at 54,

this is not a close call. Quinones did not produce evidence that

Houser's justification for the amounts it paid him was pretextual.

His mere unsupported characterizations of why he believed Barnes'

total pay was higher was not evidence creating a triable issue. A

reasonable jury would be unable to find on the evidence in this

record that Houser had discriminatorily underpaid Quinones.

III. Conclusion

The district court's judgment is affirmed.