
USCA1 Opinion

	




                                           [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-2339                                   SUSAN G. ISLES,                                Plaintiff, Appellant,                                          v.                                 WHC JR./COC, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                 [Hon. Frank H. Freedman, Senior U.S. District Judge]                                          __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Stahl and Lynch, Circuit Judges.                                            ______________                                 ____________________            Susan G. Isles on brief pro se.            ______________            Francis D. Dibble, Jr., Ellen M. Randle, Carol E. Kamm and            ______________________  _______________  _____________        Bulkley, Richardson and Gelinas on brief for appellees.        _______________________________                                 ____________________                                   October 17, 1996                                 ____________________                 Per Curiam.   Three months after  being hired, plaintiff                 __________            Susan Isles  was discharged from her  position as housekeeper            at the residence  of William and Camille Cosby  in Shelburne,            Massachusetts.  She responded by filing the instant action in            which   she  claimed,   inter  alia,  that   her  termination                                    ___________            constituted:  (1) sex  discrimination in  violation  of Title            VII,  42 U.S.C.   2000e-2(a); (2)  retaliation for the filing            of a worker's  compensation claim, in violation of Mass. Gen.            L.  ch. 152,    75B(2);  and (3)  breach of  contract.   Upon            completion of discovery, the  district court rejected each of            these   contentions  and   granted   summary   judgment   for            defendants.   Having reviewed  the record in  full, we affirm            substantially for the reasons recited by the district court.                  We have little to  add to Judge Freedman's comprehensive            analysis.  As to the Title VII claim, we agree that plaintiff            has  failed  to  adduce  sufficient  evidence  from  which  a            reasonable jury could  conclude that defendants'  articulated            reasons for the firing were a pretext for sex discrimination.            See,  e.g., Udo  v. Tomes,  54  F.3d 9,  13 (1st  Cir. 1995).            ___   ____  ___     _____            Defendants explained, on the basis of abundant evidence, that            plaintiff was fired primarily because of an overly aggressive            attitude and  a tendency  to criticize  the work  of others--            traits that  proved disruptive to staff  cohesion and morale.            Such  concerns constitute a  justifiable basis for discharge.            See, e.g.,  Johnson v. Allyn &  Bacon, Inc., 731  F.2d 64, 73            ___  ____   _______    ____________________            (1st Cir.), cert.  denied, 469 U.S. 1018 (1984).  Plaintiff's                        _____________                                         -2-            principal  evidence  to the  contrary--a vague  denial voiced            during  her  deposition--proves  insufficient  to   create  a            genuine dispute as to whether defendants' articulated reasons            were  pretextual.    See,  e.g., Kaiser  v.  Armstrong  World                                 ___   ____  ______      ________________            Indus., Inc., 872  F.2d 512, 518 (1st  Cir. 1989) ("[s]ummary            ____________            judgment  is  appropriate even  in  the  face of  conflicting            evidence  if the  latter is  insufficient to  support  a jury            verdict in the nonmovant's  favor").  Indeed, plaintiff's own            written  words (in the form  of letters mailed  to the Cosbys            and to an earlier employer) only lend further credence to the            concerns cited by defendants.                  Plaintiff's evidence, in any  event, fails to support an            inference of  discriminatory animus.   As the  district court            explained, the  specific factors on  which she relies  are of            minimal probative value.  For example, the male employees who            allegedly  received  more lenient  treatment  in disciplinary            matters were not similarly situated to plaintiff.  See, e.g.,                                                               ___  ____            Smith  v. Stratus Computers, Inc.,  40 F.3d 11,  17 (1st Cir.            _____     _______________________            1994), cert. denied,  115 S.  Ct. 1958 (1995).   The  alleged                   ____________            division  of  labor  in   the  household  staff  entailed  no            disadvantage to her with respect to conditions of employment.            And the alleged "breadwinner" remark was properly disregarded            as hearsay.   Moreover, it  is undisputed that  plaintiff was            fired  by a  female, that she  was replaced by  a female, and                                         -3-            that  the  only other  household employee  ever to  have been            discharged was a male.                 As to  plaintiff's claim of retaliation,  what we stated            in  Byrd  v. Bonayne,  61 F.3d  1026,  1033 (1st  Cir. 1995),                ____     _______            applies as  well here:  "For the  most part,  her retaliatory            discharge claim rests on  the identical inferences of pretext            found  wanting above."  Id.  at 1033; accord,  e.g., Grant v.                                    ___           ______   ____  _____            News Group Boston, Inc., 55 F.3d 1, 7 (1st Cir. 1995) (noting            _______________________            that showing  of pretext is essential  to retaliation claim).            In  any  event,  we  agree  with   the  district  court  that            plaintiff's evidence fails to support the inference that Mrs.            Cosby even knew of plaintiff's alleged head injury, much less            that  she  harbored  a  retaliatory  motive  in  deciding  to            discharge  her.   See,  e.g., Medina-Munoz  v. R.J.  Reynolds                              ___   ____  ____________     ______________            Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (noting  that non-            ___________            moving  party's  reliance  on  "conclusory  allegations"  and            "improbable inferences"  is  insufficient to  defeat  summary            judgment,  even "where  elusive  concepts such  as motive  or            intent  are  at  issue") (quoted  in  Fennell  v. First  Step                                                  _______     ___________            Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996)).            _____________                 Finally, plaintiff's claim that she enjoyed a "lifetime"            contract, terminable only  for cause, is equally  unavailing.            As  the district  court  explained, nothing  in the  comments            voiced by  Mrs.  Adams  or  Mrs. Cosby  could  be  reasonably            construed  under  the  circumstances  as  creating  any  such                                         -4-            arrangement.  See, e.g., O'Brien v.  Analog Devices, Inc., 34                          ___  ____  _______     ____________________            Mass. App.  Ct. 905, 906-07 (1993)  (requiring "strong proof"            and   "particularly  explicit   expressions  of   intent"  to            establish lifetime  contract); accord,  e.g.,  Smith v.  F.W.                                           ______   ____   _____     ____            Morse & Co., Inc., 76 F.3d 413, 427 (1st Cir. 1996).  Nor did            _________________            Mrs. Adams have the authority to commit  the Cosbys to such a            permanent contract.   See, e.g., Simonelli  v. Boston Housing                                  ___  ____  _________     ______________            Auth., 334 Mass. 438, 440-41 (1956).             _____                 Plaintiff also advances a trio of  procedural challenges            on  appeal, each of which we reject.  First, she complains of            a  discovery   ruling   restricting  access   to   employment            information concerning defendants'  past and present workers.            This  court will intervene in such matters "only upon a clear            showing  of  manifest injustice,  that  is,  where the  lower            court's  discovery order  was plainly  wrong and  resulted in            substantial prejudice to the aggrieved party."  Mack v. Great                                                            ____    _____            Atlantic & Pacific Tea Co., 871 F.2d 179, 186 (1st Cir. 1989)            __________________________            (quoted in Ayala-Gerena v. Bristol Myers-Squibb Co., ___ F.3d                       ____________    ________________________            ___, 1996 WL 494221, at *2 (1st Cir. 1996)).  No such showing            has been made.   Far from being plainly wrong,  the discovery            order  strikes  us  as  balanced and  fair.    And  plaintiff            suffered minimal prejudice.   Indeed, we  note that seven  of            the nine excluded employees ended  up being deposed, and that            the payroll  information sought as to  such individuals would            have been of negligible relevance.                                         -5-                 Second, plaintiff challenges the court's award of costs.            Her  contention  that  the  costs of  depositions  cannot  be            taxable when a case is resolved at the summary judgment stage            is  misplaced.   See, e.g., Merrick  v. Northern  Natural Gas                             ___  ____  _______     _____________________            Co.,  911  F.2d 426,  434-35  (10th  Cir. 1990);  10  Charles            ___            Wright,  Arthur  Miller &  Mary  Kane,  Federal Practice  and                                                    _____________________            Procedure    2676,  at 341  &  n.17 (1983  & '96  Supp.); see            _________                                                 ___            generally Templeman v. Chris Craft  Corp., 770 F.2d 245,  249            _________ _________    __________________            (1st Cir.), cert. denied, 474 U.S. 1021 (1985).  The district                        ____________            court acted within its  discretion in taxing costs  only with            respect to those depositions on which it had relied in ruling            on the summary judgment motion.                  Finally,  plaintiff  complains   of  the   circumstances            surrounding the  district court's  allowance of  her original            attorney's motion to withdraw.   As with its handling  of all            other  aspects of the case,  we think the  court resolved the            matter  in  an  equitable  and  conscientious  fashion.    No            discussion  is required,  however, inasmuch as  plaintiff has            not identified (and we do not discern) any legally cognizable            prejudice stemming therefrom.                 Affirmed.                 _________                                         -6-
