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USCA1 Opinion

UNITED STATES COURT OF APPEALS


UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
FOR THE FIRST CIRCUIT
____________________
No. 94-2220
WILLIAM P. MORRISSEY,
Plaintiff, Appellant,
v.
THE BOSTON FIVE CENTS SAVINGS BANK, ET AL.,
Defendants, Appellees.
____________________
[Hon. Patti B. Saris, U.S. District Judge]
___________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
____________________
Before
Boudin, Circuit Judge,
_____________
Bownes, Senior Circuit Judge,
____________________
and Stahl, Circuit Judge.
_____________

____________________
Robert H. Quinn, with whom
________________
were on brief for appellant.
Robert B. Gordon, with whom
________________
on brief for appellees.

John P. Morrissey and


__________________
David M. Mandel
_______________

Quinn & Mor


___________

and Ropes & Gray w


____________

____________________
May 15, 1995
____________________

BOWNES, Senior Circuit Judge.


BOWNES, Senior Circuit Judge.
____________________
William

Morrissey,

twenty-year

Plaintiff-appellant

employee

of

defendant-

appellee Boston Five Cents Savings Bank, F.S.B. ("the Bank"),


was involuntarily retired from his position as Executive Vice
President

for

Corporate

approximately one
approximately

Affairs

on

November

month after his sixty-fifth

one week

after

claims against the Bank and

he

filed age

1,

1992,

birthday, and
discrimination

its holding company, the

Boston

Five

Bancorp,

with

Discrimination

and

Commission.
Morrissey

It

the

Massachusetts

the
is

Equal

Employment

undisputed

that

to retire because of his age.

us is whether
exemption

the Bank's

to the

U.S.C.

("ADEA"),

Against

Opportunity

the

Bank

under a

in Employment

which

forced

The question before

action was lawful

Age Discrimination

621-34

Commission

permits

narrow
Act, 29

compulsory

retirement, at age sixty-five and older, of certain employees


who

occupy

positions

"bona
for

the

fide

executive"

two-year

period

or

"high policymaking"

immediately

preceding

retirement, if such employees are entitled upon retirement to


an immediate
least

nonforfeitable annual retirement benefit

$44,000.

question

in

the

See 29
___

U.S.C.

affirmative,

district court's order granting


the Bank.

-22

631(c)(1).
and

of at

We answer this

therefore

affirm

the

summary judgment in favor of

I.
I.

Background
Background
__________

On appeal from a grant of summary judgment, we view


the

facts and all inferences

them in

the light

most

that may fairly

favorable to

be drawn from

the nonmoving

party.

Coll v. PB Diagnostic Systems, Inc., No. 94-1680, slip op. at


____
___________________________
10-11 (1st Cir. March 30, 1995).
The
June

of

Senior
Chief

Bank hired

1972, and

Morrissey as

later promoted

Vice President.
Executive

In

him

1978 or

Officer ("CEO"),

a Vice

President in

to the

position of

1979, the

Bank's then

Robert

Spiller, promoted

Morrissey

to Executive Vice President for Corporate Affairs.

Morrissey

continued to

forced him

hold

this position

until the

Bank

to retire, at which time he was the fifth highest

paid employee at the Bank.


In

his

capacity as

Executive Vice

President for

Corporate Affairs, Morrissey reported directly to the CEO and


was

responsible

regulations

for

and

influence and

advising

monitoring
the

Bank

state
with

effect of these regulations

of the Bank, and


developing

(i)

respect

Morrissey

recommending

the

served as

Committee, and

to

the

recommending action where appropriate; (ii)

and

for

federal

upon the business

merger

and

candidates; and (iii) developing sources of


business

and

Bank.

In

addition

member of

the

acquisition

loan and deposit


to

these

Asset and

regularly attended the meetings

duties,
Liability

of the Board

-33

of

Directors.

He also

attended the weekly

meetings of the

Bank's six most senior officers ("Senior Officers Group").


In
Peter

1990,

Blampied

Robert

Spiller retired

succeeded him

as CEO.

contest

Morrissey's

assertion

shortly

before

statutory two-year

the

that this

prior to his involuntary retirement.


his

role

in

diminished

the

after

formulation of
Blampied

took

and

defendant

The Bank
event
period

does not
took place

immediately

By Morrissey's account,
Bank

over as

policy

was greatly

CEO.

Morrissey

contends, for example, that whereas under former CEO Spiller,


the

weekly meeting of the Senior Officers Group served as an

opportunity for the officers to discuss and to participate in


policymaking

decisions, under

CEO

Blampied,

ceased to serve the same policymaking function.

this

meeting

Instead, all

high policy decisions were made by the Board of Directors, or


by

subset

of

senior

officers

that

did

not

include

Morrissey, which

specifically excluded him

from high policy

discussions of important issues such as the Bank's distressed


real estate

holdings, its dealings with

three-year strategic
that

business plan.

Blampied

did

not

recommendations

from

him,

Blampied could

recall

regulators, and its

Morrissey

specifically
and

that,

at

specific comments

also asserts

solicit
his

policy

deposition,

by Morrissey

with

respect to only one policy matter.

-44

On July 28, 1992, Blampied


in view

of

the

fact

that

his

advised Morrissey that,

sixty-fifth

birthday

approaching, he should be thinking about retiring.


replied

that he

could not afford


young family.
1992.
that,

On

had no

intention of

was

Morrissey

retiring and

that he

to retire because he had to provide for his


Morrissey turned sixty-five

October 6,

because he was

1992, Blampied
sixty-five, he

on September 29,

again told
should be

Morrissey
thinking of

retiring.
to-year

Blampied also suggested the possibility of a yearpaid consulting

arrangement.

Morrissey

received a memorandum

to

he responded

which

Blampied that
and asked

The

later in

the

day.

Morrissey told

the proposed arrangement

whether Blampied had consulted

with any attorneys

Blampied replied that he had

base," that he

was going

to "play hardball,"

proposed consulting arrangement was rescinded.


during this

day,

outlining this arrangement,

he had not agreed to

on the matter.

following

meeting, Morrissey asked for

"checked every
and that

the

At some point

the opportunity to

review the matter with attorneys and other consultants.


On October

13,

1992, Morrissey

notification that his retirement


1, 1992.
entitled

At the
to

time of this

receive

pension benefits

$38,352

received

written

would be effective November


notification, Morrissey
annually

under his Qualified

in

was

nonforfeitable

Benefit Plan

("QBP"),

plus $17,592 annually in pension benefits under his Executive

-55

Supplemental Benefits Plan ("SERP").


forfeitable

upon

contract.
federal

On

certain

conditions

October 26, 1992,

age discrimination

Commission

specified

claims

with

the

and the

By his account,

Bank written notice of

in

Morrissey filed

Against Discrimination

Opportunity Commission.

The SERP benefits were


the

state and

Massachusetts

Equal Employment
Morrissey gave the

these claims on his October

28, 1992

application for pension benefits.


On October 29, 1992, the Executive Committee of the
Board

of

Directors held

conference,

during

which

special
the

meeting via

Committee

telephone

voted

to

waive

irrevocably the forfeitability conditions of Morrissey's SERP


as to

$6,000 of the annual

pension benefit to

which he was

entitled under that plan, as of November 1, 1992.


of the Committee's vote
Morrissey's

more

than

the

exemption.
amount of
1992.

was to increase the total

nonforfeitable annual

$38,352 to which he

$44,000

minimum

required

was informed

amount of

pension benefit

was entitled under his QBP,

Morrissey

The effect

to slightly

under

of the

from the

the

increase in

his nonforfeitable pension benefit

ADEA
the

on October 30,

On November 1, 1992, he was forced to retire.


On

August

20,

1993

(after having

permission to withdraw his administrative


filed suit

in the

Bank, the Boston

been

granted

claims), Morrissey

Massachusetts Superior Court

against the

Five Bancorp, the individual members of the

-66

Executive
pension

Committee,
benefits

and the

plan.1

administrators of
The

complaint

discrimination and retaliation in

the Bank's

alleged

age

violation of the ADEA, the

Massachusetts Unlawful Discrimination Act, Gen. L. ch. 151B


4,

and the Massachusetts Equal Rights Under Law Act, Gen. L.

ch. 93
United

102 and 103.2


States

The Bank removed

District

Massachusetts pursuant to 28
filed

Court

for

U.S.C.

the case to

the

District

of

the

1441, and subsequently

a motion for summary judgment on all claims, which the

district court granted.


II.
II.

Standard of Review
Standard of Review
__________________

On appeal, we review a grant of summary judgment de


__
novo, evaluating the
____
the

party opposing

inferences in

record in the
the motion,

that party's favor.

light most favorable

and drawing
Coll, No.
____

to

all reasonable
94-1680, slip

op. at 10-11.

Summary judgment is appropriate only

pleadings,

depositions,

admissions

on file,

show

answers

to

together with

that there is no genuine issue

if "the

interrogatories,
the affidavits,

and

if any,

as to any material fact

____________________
1. The individuals named as defendants are John R. Furman,
William F. McCall, Jr., Richard J. Testa, George R. Baldwin,
Peter J. Blampied, Allan W. Fulkerson, Ernest E. Monrad,
Webster Collins, and Karen Hammond.
2. Mass. Gen. L. ch. 151B is the exclusive remedy under
Massachusetts law for employment discrimination claims.
See
___
Woods v. Friction Materials, Inc., 30 F.3d 255, 264 (1st Cir.
_____
________________________
1994). Thus, we need not consider the ch. 93 claims.
-77

and that

the moving party

matter of law."

is entitled

to a

judgment as

Fed. R. Civ. P. 56(c).

"By its very terms, this standard provides that the


mere existence
parties

of some
____

will not

defeat

alleged factual dispute


an

otherwise

properly

between the
supported

motion for summary judgment; the requirement is that there be


no

genuine issue
_______

of material
________

fact."

Lobby, Inc., 477 U.S. 242, 247-48 (1986).


___________
those

"that might affect the


Id. at
___

248.

See
___

slip op. at 11.

A dispute as to a

v. Liberty
_______

Material facts are

outcome of the

governing law."

"if

Anderson
________

suit under the

also Coll, No.


____ ____

94-1680,

material fact is genuine

the evidence is such that a reasonable jury could return

a verdict for the nonmoving party."


merely colorable, or is
judgment

may be

Id.
___

"If the evidence is

not significantly probative, summary

granted."

Anderson,
________

477

U.S. at

249-50

(internal citations omitted).


III.
III.

Discussion
Discussion
__________

Morrissey raises three issues on appeal.


argues

that during the last two years of his employment with

the Bank, he was not, in fact, a


meaning of
erred
status.

First, he

the ADEA exemption,

high policymaker within the


and that the

district court

by failing to apply a functional test to determine his


Second, he contends that the district court erred in

interpreting the pension benefit prong of the exemption so as


to permit an employer to increase the amount of an employee's

-88

nonforfeitable

pension

benefit

after

the alleged

act

of

discrimination in order to meet the statutory minimum amount.


Finally, Morrissey argues that
summary

judgment

was

affidavits he submitted
56(f) ("Rule

improper

because

in support

Alternatively,

these affidavits, the


its discretion

he argues

district court

under Rule 56(f)

the

supplemental

of his Fed.

56(f)") motion demonstrated a

material fact.

had

the district court's grant of

R. Civ.

genuine issue of
that, in view

should have

of

exercised

to defer judgment

an opportunity to depose the affiants.

P.

until he

We address these

issues in turn.
A.
A.

The Bona Fide Executive or High Policymaker Exemption


The Bona Fide Executive or High Policymaker Exemption
_____________________________________________________
The

"discriminate

ADEA

makes it

against any

unlawful

individual

for

an employer

to

with

respect to

his

compensation, terms, conditions, or privileges of employment,


because

of such individual's age."

29 U.S.C.

623(a)(1).3

The prohibition applies only to individuals who

are at least

forty years of

age.

29 U.S.C.

631(a).

The ADEA provides

the following narrow exemption from this prohibition:

Nothing
in
this
chapter shall
be
construed
to
prohibit
compulsory
retirement of any
employee who
has
attained 65 years of age and who, for the
2-year
period
immediately
before
retirement, is employed in a bona fide
executive
or
a
high
policymaking
____________________
3. Because Massachusetts age discrimination
law tracks
federal law in all relevant respects, see Mass. Gen. L. ch.
___
151B
4(1B), we will confine our discussion to federal law.
-99

position, if such employee is entitled to


an
immediate
nonforfeitable
annual
retirement
benefit
from a
pension,
profit-sharing,
savings,
or deferred
compensation plan, or any combination of
such plans, of the employer of such
employee, which equals, in the aggregate,
at least $44,000.
29 U.S.C.

631(c)(1).
The parties

agree that

fide executive" under the

term "high

a "bona

ADEA; the dispute concerns whether

he was a "high policymaker."


the

Morrissey was not

policymaking

The ADEA itself does not define


position,"

and few

published

opinions address

the exemption.

We

find guidance, however,

in the EEOC interpretive regulations set forth in 29 C.F.R.


1625.12 (1994).
Section
"`certain

top

executives,"'"

1625.12(e)

level

defines

employees

and as

who

high policymakers
are

"`individuals who

not

"bona

have little

as
fide

or no

line authority but whose position and responsibility are such


that

they

play a

significant

role in

the

development of

corporate policy and effectively recommend the implementation


thereof.'"
No. 950,

29 C.F.R.

1625.12(e)

95th Cong., 2d Sess. 10

chief economist or chief

(quoting H.R. Conf. Rep.


(1978)).

For example, the

research scientist of a corporation

would likely be a high policymaker:


His
duties
would
be
primarily
intellectual as opposed to executive or
managerial. His responsibility would be
to
evaluate significant
economic or
scientific trends and issues, to develop
-1010

and recommend policy direction to the top

executive officers of the corporation,


and he would have a significant impact on
the ultimate decision on such policies by
virtue of his expertise and direct access
to the decisionmakers. Such an employee
would meet the definition of a `high
policymaking' employee.
Id.
___
As to the
the

regulations

narrowly,
invoke

and

scope of the exemption,

admonishes
that "the

the exemption

that

it

burden is

to show

1625.12(b) of

should
on

that every

be

the one

construed
seeking to

element has

been

clearly and unmistakably met."


Morrissey does not dispute that,
President

for Corporate Affairs, he held the title of a high

policymaker.
Spiller,

as Executive Vice

Indeed, he

concedes

he was a high policymaker.

that

under former

CEO

Instead, he argues that

the district court failed to apply the proper standard in its


analysis

and overlooked

Morrissey's argument
one factual.
his

genuine

issues

of material

rests upon two premises,

fact.

one legal and

The legal premise is that the law requires that

status as a high

basis of what

policymaker be determined,

he calls the

not on the

"appearances" or "trappings"

of

his position -- i.e., title, salary, access to decisionmakers


-- but on the basis of his effectiveness as a policymaker, as
judged

by

his

decisionmaking.
have been

actual

impact

on

Bank

policy

and

The factual premise is that, although he may

a high policymaker

under former CEO


-1111

Spiller, and

while

he continued

forced him

to hold

the same

title until

the Bank

to retire, he no longer functioned as a true high

policymaker

during

the

two-year

statutory

period,

with

Blampied as CEO.
We find

that, even assuming arguendo


________

the truth of

Morrissey's legal premise and applying the effectiveness test


he urges,
was

the undisputed

high policymaker

facts clearly demonstrate


during

the

relevant time

that he
period.

Significantly, Morrissey does not dispute the following:


He

reported directly to the CEO and had direct access to the

Bank's decisionmakers.

(ii)

He attended the weekly meetings

of the Senior Officers Group.


for monitoring

ensure

(iii) He alone was responsible

state and federal legislative

developments, and

in that

and regulatory

capacity recommended

policies to

that the Bank remained in compliance with them.

He worked closely with


was

(i)

(iv)

state legislators on legislation that

important to the savings

substantial impact on the

bank industry, and

welfare of the

Bank.

that had a
(v) He

was

responsible
litigation

for

monitoring and

involving

the

Bank,

coordinating
and

made

important tax
recommendations

regarding the choice of legal counsel to handle it.


Bank

acted

lower

upon Morrissey's

the interest

rate on

strong recommendation
its passbook

(vi) The
that it

savings accounts.

(vii) He recommended that the Bank acquire the First American

-1212

Bank.

(viii) He was responsible

for the sale of the Bank's

deposits in a branch office.


Even assuming
meaning

of the ADEA must

effectiveness, Morrissey

that a high

policymaker within

function at some
was more

minimum level of

than effective enough

make precise line-drawing unnecessary

here.

the

to

As the district

court stated:
Morrissey had direct access to the top
decisionmakers, he was responsible for
evaluating significant legislative and
regulatory trends and issues and working
with legislators on these issues, and he

recommended policy on acquisitions and


mergers, capitalization, and other areas
of
importance to
the
Bank.
If
Morrissey's position, the fifth highest
in the Bank, were not to qualify as a
high policymaking position, it would be
difficult to find a position that did.
Morrissey
_________

v.

Boston Five Cents Sav. Bank, F.S.B.,


_____________________________________

866 F.

Supp. 643, 647 (D. Mass. 1994).


Given
facts,

that

our

conclusion,

Morrissey was

high

statutory two-year period, we need


that

the

district court

based

failed

on

the

undisputed

policymaker during

the

not dwell on his argument


to

apply the

"functional

analysis" set forth in Whittlesey v. Union Carbide Corp., 567


__________
___________________
F. Supp. 1320 (S.D.N.Y.
1984) (concluding
function," and

1983), aff'd, 742 F.2d 724


_____

(2d Cir.

that the test Congress intended is "one of

rejecting the argument that

plaintiff's high

salary and title as chief labor counsel automatically brought


him within the ADEA

exemption).
-1313

We note, however,

that the

court

in Whittlesey
__________

attempt to turn

anticipated

and

rejected

Morrissey's

-1414

the

functional

test

into

test

of

policymaking

effectiveness:
_____________
I would be inclined to agree that if the
organizational
structure
of
the
enterprise makes clear that the position
in question has bona fide executive rank
or serves a high policymaking function,
courts probably should not allow the
occupant to disavow the attributes of his
position
by
seeking to
prove, for
example, that no one paid attention to
his policy recommendations or followed
his
executive
orders.
But
such
considerations are not involved in this
dispute.
Id.
___

at 1328.

Supp. 381,
diminish

See
___

386
the

also Colby v.
____ _____

(S.D.N.Y.
importance

1986)
of

his

Graniteville Co.,
________________
("Plaintiff's
duties

as

635 F.

attempt
a

bona

to
fide

executive not only flies in the face of the undisputed facts,


but also

common sense.").

below stated,
amending the

"[i]t is
ADEA, to

Moreover, as the

unlikely that Congress

district court
intended, in

allow compulsory retirement

for only

the most effective movers and shakers, while prohibiting such

retirement
despite

for high

level employees

who have

their significant responsibilities."

less impact,
Morrissey, 866
_________

F. Supp. at 648.
It follows
facts

from this

analysis that

any remaining

that truly are in dispute are not material.

Anderson,
________

477 U.S. at 247-48.


B.
B.

The Pension Benefit Prong of the High Policymaker


The Pension Benefit Prong of the High Policymaker
_________________________________________________
Exemption
Exemption
_________

-1515

The
policymaker]
annual

ADEA
is

exemption

entitled

retirement benefit

to
from

applies
an

only "if

immediate
a pension,

[the

high

nonforfeitable
profit-sharing,

savings, or deferred compensation plan, or any combination of


such plans, of

the employer of such

employee, which equals,

in

the aggregate, at least $44,000."

The Bank

contends that

29 U.S.C.

this requirement has

631(c)(1).

been satisfied

because, as of the first day of his retirement, Morrissey was


immediately
statutory

entitled
minimum

to

receive

slightly

nonforfeitable annual

more

than

benefit

the

through a

combination of his QBP benefit and the nonforfeitable portion


of his SERP
has

not

benefit.

been

manipulations

met

Morrissey argues
because

of the

the

law

pension benefit

within the exemption."

that the requirement


forbids

"last-minute

to bring

an employee

The district court's analysis

of the

intended function of the pension benefit provision compels us


to agree with the Bank.
The
interpretations

district
of the

interpretation, the
qualify as
receive
649.

court
pension

considered

benefit prong.

exemption would

apply to

high policymakers "provided that


_____________

an adequate

pension."

This view holds that

two

Morrissey,
_________

possible
Under

one

employees who
these employees

866 F.

Supp. at

the pension benefit prong is not

"part of the test to determine if an employee can be retired,


__
but rather [i]s

simply a requirement imposed on the employer

-1616

to

pay

out

policymaker

$44,000 annually
compelled to

interpretation,

both the
____

prongs

exemption

of

the

in

benefits

retire."
job

Id.
___

for every
Under

function and

comprise the

We think the first


to the statute.

court's

distinct temporal

to

determine

Id.
___

interpretation is more faithful

After all, Congress did not impose the

two-year minimum on
district

the second

pension benefit

test

whether compulsory retirement is permitted.

both prongs
analysis,

high

the

of the exemption.
exemption

restrictions, one of which

same

By

the

contains

two

applies to the

high policymaker prong, and the other of which applies to the


pension benefit prong:
On the one hand,
Congress prevented
manipulation of
the high policymaker
prong of the exemption by requiring that
high policymakers serve for two years
___ _____
before
the exemption
applies; thus,
promotions followed by quick retirement
are not permissible. On the other hand,
more modest time restrictions attach to
the pension funds prong: Congress merely
required that an employee be entitled to
an immediate benefit of $44,000 annually
_________
upon retirement.
Id.

___
Had Congress meant for both prongs to be subject to
the two-year
exemption

to

immediately
policymaking

minimum, it
the

presumably would have

employee

who

"for

the

before retirement, is employed


position,

[and]
___

is

limited the

2-year
in a .

. . high

entitled

immediate nonforfeitable annual retirement benefit

period

to

an

. . . . "

-1717

That, however, is not


the

what Congress wrote.

Under

the ADEA,

high policymaker who is compelled to retire need only be

entitled to

the statutory minimum

amount in

nonforfeitable

annual pension benefits immediately upon retirement.


In sum, we find the district court's analysis to be
persuasive and consistent with what the plain language of the
exemption would seem to require.4
C.
C.

The Rule 56(f) Motion


The Rule 56(f) Motion
_____________________

In opposition

to

the Bank's

motion

for

summary

judgment, Morrissey submitted a Rule 56(f) affidavit,


that summary judgment

be denied or,

urging

alternatively, deferred

on the ground that he had not had an opportunity to engage in


____________________
4. Our reading of the exemption forecloses Morrissey's other
argument, that both prongs of the exemption must be satisfied
at least as of the date the employee receives notice of his
involuntary retirement. Morrissey characterizes the date of
notice
of retirement
as
the time
of
the act
of
discrimination. As we construe the statute, as long as the
employee is entitled to the statutory minimum benefit as of
the day of his involuntary retirement, and as long as the
employee is otherwise within the exemption, the act of
compelling the high policymaking employee to retire does not
constitute an act of discrimination.
It
also forecloses
his argument that
the Bank's
modification
of
his
benefits
should be
viewed
as
"manipulation." In support of this argument, Morrissey urges
the case of Passer v. American Chem. Soc'y, 935 F.2d 322
______
_____________________
(D.C. Cir. 1991).
As the district court noted, Passer is
______
distinguishable from the case before us because it involved
"a material dispute of fact as to whether the employee was
`genuinely entitled by the terms of the governing pension
____________________________________________________________
plan to at least $44,000 in annual retirement income.'"
____
Morrissey, 866 F. Supp. at 650 (quoting Passer, 935 F.2d at
_________
______
330) (emphasis added). The "manipulation" in that case was a
matter of interpretive and accounting legerdemain.
Here,
there is no question that Morrissey was genuinely entitled to
at least this amount by the terms of his plan as amended.
-1818

"meaningful discovery."5
the court responded

At the

to the Rule 56(f) affidavit

the Bank to produce documents,


Directors meetings
also ordered
affidavit.

hearing,

by ordering

including minutes of Board of

that Morrissey had requested.

Morrissey to
Morrissey

memorandum

summary judgment

file a

responded

and affidavits

by

The court

more specific
by

four

filing a

Rule 56(f)
supplemental

individuals,6 which

he

contends clearly demonstrated that he was removed from a high


policymaking
memorandum

also

individuals.
these
dispute

position

when

requested

On appeal,

affidavits

Blampied
permission

Morrissey

demonstrated

of material

fact,

became
to

CEO.

The

depose

these

contends that,

the existence

the district

of

because
a genuine

court should

have

____________________
5.

Fed. R. Civ. P. 56(f) provides as follows:


Should it appear from the affidavits of a
party opposing the motion [for summary
judgment] that the party
cannot for
reasons stated present by affidavit facts
essential
to
justify
the
party's
opposition, the court may refuse the
application for judgment or may order a
continuance to permit affidavits to be
obtained or depositions to be taken or
discovery to be had or may make such
other order as is just.

6. The
affiants were Vernon L. Blodgett, Senior Vice
President and Treasurer of the Boston Five Bancorp from 19901993; J. Barbara Magnuson, Corporate Secretary at the Bank

from 1986-1993; Melissa J. Howard, Vice


President for
Marketing from 1987-1993; and Robert Spiller, President and
CEO of the Boston Five and the Boston Five Bancorp from 19701990.
-1919

denied

or deferred

summary

judgment to

allow for

further

discovery under Rule 56(f).


Rule 56(f) is

the means by which

a party opposing

summary judgment may obtain a denial or deferral of


upon

demonstration of

"an

entitlement to,

an additional

facts essential

to mount

Although the

need for,

interval in which

an opposition."

Co. v. North Bridge Assocs.,


___
_____________________
1994).

authentic

judgment
and

an

to marshal

Resolution Trust
________________

22 F.3d 1198,

1203 (1st

rule is "intended to safeguard

Cir.

against

judges swinging the summary judgment axe too hastily," id., a


___
party

who

seeks

to

authoritative and

the

timely proffer;

the failure to have


(iii) present a

invoke

rule

must

(i)

(ii) show good

make

an

cause for

discovered these essential facts sooner;

plausible basis for the

party's belief that

facts

exist that would likely suffice to raise a genuine and

material issue; and (iv) show that the facts are discoverable
within a reasonable amount of time.

Id.
___

See also Paterson___ ____ _________

Leitch v.
______

Massachusetts Mun. Wholesale Elec. Co.,


_______________________________________

985,

(1st Cir.

988

denial of a Rule

1988).

We

review a

840 F.2d

district court's

56(f) motion only for abuse

of discretion.

Resolution Trust Co., 22 F.3d at 1203.


____________________
The

supplemental

that, under CEO Blampied,

affidavits support

the argument

the Bank's high policymaking group

was no longer the Senior Officers Group, as it had been under


CEO Spiller, but rather comprised a subset of senior officers

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that

did

address

not include
any of

unequivocally

Morrissey.

the undisputed
establish

that

These affidavits

facts

set forth

Morrissey

was

do not

supra that
_____
a

high

policymaker.

Accordingly, the district court

its discretion by refusing to

did not abuse

deny or defer summary judgment

on the basis of these affidavits.


IV.
IV.
For the foregoing

Conclusion
Conclusion
__________
reasons, we affirm the district
we affirm the district
_______________________

court's order granting summary judgment for the Bank.


court's order granting summary judgment for the Bank.
_____________________________________________________
awarded to defendants.
awarded to defendants.
______________________

Costs
Costs
_____

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