
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                 ____________________        No. 96-2062                                    MANUEL GALVAO,                                Plaintiff, Appellant,                                          v.                                THE GILLETTE COMPANY,                                 Defendant, Appellee.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Douglas P. Woodlock, U.S. District Judge]                                              ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                      Coffin and Bownes, Senior Circuit Judges.                                         _____________________                                 ____________________            Mark F. Itzkowitz for appellant.            _________________            Richard  P. Ward  with whom  Bonnie B.  Edwards was  on  brief for            ________________             __________________        appellee.                                 ____________________                                   August 12, 1997                                 ____________________               COFFIN,  Senior Circuit Judge.   Appellant Manuel  Galvao, a                        ____________________          black  Cape Verdean male, contends that  the district court erred          in   dismissing  his   federal  and   state  discrimination   and          retaliation  claims  against his  former  employer,  the Gillette          Company ("Gillette").1  He also maintains that the district court          erred in  denying his  former counsel's motion  to withdraw.   We          affirm.                                          FACTS                                        _____               We recite the facts in the light most favorable to the party          opposing summary judgment.   See Fennell v.  First Steps Designs,                                       ___ _______     ____________________          Ltd., 83 F.3d 526, 534 (1st Cir. 1996).  The incidents underlying          ____          this case began in approximately 1989, when Galvao was working in          the Boston Research  and Development Division (BRAD)  of Gillette          as a Grade 7 technician.  He sought a promotion or upgrade of his          job  classification,   which  was  denied.2    Instead,  Gillette          supervisors  presented  Galvao  with a  Career  Development  plan          designed to qualify  him for promotion to a Grade 8 position.  On          Galvao's protest, an  audit of his position was  performed by the          Gillette Human Resources Compensation Department, which concluded          that  his  position  was  properly  graded.    Galvao sought  and                                        ____________________               1    Galvao specifically claims that it was Gillette as a          corporate entity, and not any specific individuals there, who          discriminated against him.               2    There seems to be some confusion as to whether the          change sought was a promotion or a regrading of Galvao's existing          job.  Indeed, Galvao himself testified in his deposition that he          was unclear as to the distinction between the two.  The issue is          irrelevant to our analysis, however, since Galvao is unable to          show that there were others similarly situated for either          circumstance.                                           -2-          received a  review of  the audit by  Gillette's Open  Door Review          Panel, which also upheld the denial of the upgrade.3                In July 1992, Galvao filed a complaint with the Massachusetts          Commission Against Discrimination ("MCAD"), alleging  that he had          been   denied  a  promotion  and  given  a  negative  performance          evaluation  due to  his  race,  color and  national  origin.   He          maintains  that  after  his  filing,  his  supervisors  distanced          themselves from him,  and subjected him to  greater criticism and          demands.   He  was assigned  to a new  supervisor, Dr.  Hoang Mai          Trankiem,  in February  1993.4    Although  Trankiem  and  Galvao          initially had a positive relationship  as a result of an in-house          project they had previously worked on together, relations between          them rapidly deteriorated.  Trankiem instituted a system of daily          worksheets  and productivity reports on Galvao, and, according to          him, exerted tremendous pressure on  him, with the result that he          felt  increasingly stressed.  Despite repeated requests by Galvao          to  both  Trankiem and  her  supervisor,  Dr. Stan  Wreford,  for          intervention  vis  a   vis  his   working  responsibilities   and                                        ____________________               3     The Panel was composed of Doris Ferrer Roach, an          attorney in Gillette's General Counsel's Office and a Hispanic          female; Timothy W. Horan, Director of Human Resources-          Manufacturing, a white male; and Robert A. Williams, III, Vice          President, Corporate Director, Urban Affairs, a black male.                 4    Dr. Trankiem is a Vietnamese female.  Trankiem          testified in her deposition that she requested she supervise          Galvao in an effort to improve his productivity, which had become          a source of concern under a previous supervisor.                                         -3-          Trankiem's supervision of him, no help was forthcoming.5  Rather,          Galvao was eventually provided with a Final Written Warning,6 and          then terminated on November 8, 1993.  He subsequently filed suit,          bringing both federal  and state  discrimination and  retaliation          claims.     The  district  court  granted  summary  judgment  for          Gillette, and this appeal followed.                                      DISCUSSION                                      __________               We review the district court's  grant of summary judgment de                                                                         __          novo.   See Mesnick v.  General Electric Co.,  950 F.2d 816,  822          ____    ___ _______     ____________________          (1st Cir.  1992).  In so  doing, we have thoroughly  reviewed the          record  and the  briefs, and  find ourselves  in accord  with the          district  court's conclusions.   Mindful  that  where a  district          court  has produced  a  comprehensive, well-reasoned  opinion, we          should  not needlessly  expound  at length,  we  discuss each  of          Galvao's claims  briefly.  See  Lawton v. State Mut.  Life Assur.                                     ___  ______    _______________________          Co. of America, 101 F.3d 218, 220 (1st Cir. 1996).            ______________          1.Title VII Discrimination.            _________________________          Under the well-established McDonnell Douglas  framework for Title                                     _________________          VII cases,  see McDonnell  Douglas Corp. v.  Green, 411  U.S. 792                      ___ ________________________     _____          (1973); see also  Smith v. F.W. Morse  & Co., Inc., 76  F.3d 413,                  ___ ____  _____    _______________________          420 (1st Cir.  1996), a plaintiff seeking to prove discrimination                                        ____________________               5    In one memo to Dr. Wreford, Galvao described Dr.          Trankiem's management style as "Vietnamese" and said he was being          subjected to psychological torture and treated like a prisoner or          a slave.                 6    As part of his Final Written Warning, Galvao was          upgraded to Grade 8 by Dr. Trankiem in an effort to remove a          perceived barrier to his productivity.                                           -4-          without  direct evidence  of bias  must first  establish a  prima          facie  case of discrimination.  See  Lattimore v. Polaroid Corp.,                                          ___  _________    ______________          99 F.3d 456  (1st Cir. 1996).7   This is accomplished  by showing          that the  employee is  a member  of a  protected  class and  that          similarly situated  employees who were  not members of  the class          were treated more favorably.  See id.  If such a showing is made,                                        ___ __          the burden then shifts to the employer to articulate a legitimate          non-discriminatory reason for its actions.  See id.  Once this is                                                      ___ __          accomplished,  the employee  may then attempt  to prove  that the          proffered reason is a pretext.  See id.8                                            ___ __               The district court found that Galvao had failed to show that          there were  similarly situated employees  who could be used  as a          basis of  comparison.   We see  no flaw  in its  reasoning.   The          employees identified by Galvao either  were not in the same grade          as him, or they worked in different areas.                 We recently  cautioned that courts must  exercise particular          care when evaluating a plaintiff's claim that an employer applied                                        ____________________               7    Cases decided under the ADEA (Age Discrimination in          Employment Act, 29 U.S.C.    621-634) are applicable in the Title          VII context, see Fennell, 83 F.3d at 535 n. 9, and we therefore                       ___ _______          cite to cases of both types for purposes of the McDonnell-Douglas                                                          _________________          analysis.                 8      The district court concluded this was a "non-          competitive promotion" case (rather than what it termed a "garden          variety" failure to promote case), and therefore adopted a          modification promulgated in a district court case in Tennessee,          Young v. State Farm Mut. Auto. Ins. Co., 868 F.Supp. 937, 944-45          _____    ______________________________          (W.D. Tenn. 1994).  As both the "garden variety" and "non-          competitive promotion" analyses require a plaintiff to address          the key issue here -- i.e. whether the plaintiff is treated          differently from others similarly situated -- we do not for the          present distinguish between non-competitive promotion and other          failure to promote cases.                                           -5-          its  standards differentially  (i.e.,  distinguished between  the                                          ____          plaintiff and those similarly situated).  See E.E.O.C.  v. Amego,                                                    ___ ________     ______          Inc., 110 F.3d 135, 145  (1st Cir. 1997)(citing Banerjee v. Board          ____                                            ________    _____          of Trustees, 648 F.2d 61,  63 (1st Cir. 1981))(in academic tenure          ___________          context, plaintiffs who were  denied tenure must show that  their          qualifications  are  at least  comparable to  those of  "a middle          group of  tenure candidates as  to whom both a  decision granting          tenure  and a  decision denying  tenure could  be justified  as a          reasonable exercise  of discretion by the  tenure-decision making          body").  A  plaintiff must be able, at a  minimum, to demonstrate          that  there are  at least  some  basically comparable  employees.          Galvao was unable to do this.               Although the district court's finding that Galvao had failed          to make out  a prima facie  case made it unnecessary  to continue          the McDonnell Douglas  analysis, the  district court  went on  to              _________________          find that Gillette's proffered reason for not upgrading Galvao --          that he lacked  the credentials and characteristics of  a Grade 8          technician -- was  not a pretext.  The  district court thoroughly          addressed the evidence on this issue, and we  need not repeat it.          We agree  that, on this  record, a jury  could not conclude  that          Gillette's  reasons  were  pretextual,  and  Galvao s  Title  VII          discrimination claim therefore fails.            2.   Title VII Retaliation.               ______________________               Galvao  also contends  that  the  district  court  erred  in          dismissing his separate  claim that  Gillette retaliated  against          him  for  filing  the  MCAD  complaint.    He  asserts  that  his                                         -6-          supervisor subjected him to undue supervision and assessment, and          ultimately  terminated  him  in response  to  his  administrative          claim.                The  McDonnell Douglas burden shifting analysis is also used                    _________________          in  retaliation claims  where there  is no  direct evidence  of a          defendant's retaliatory animus.  See Fennell, 83 F.3d at 535.   A                                           ___ _______          plaintiff seeking to show a prima facie case of retaliation under          Title  VII must show  1) he or  she engaged  in protected conduct          under  Title VII and that the alleged retaliator was aware of it,          2)  an adverse  employment  action, and  3)  a causal  connection          between the first two elements.  See id.; see also Petitti v. New                                           ___ __   ___ ____ _______    ___          England Tel. & Tel. Co., 909 F.2d  28, 33 (1st Cir. 1990).   Once          _______________________          this showing has been made, the burden shifts to the defendant to          articulate  a   legitimate  non-discriminatory  reason   for  its          employment decision.  See Fennell, 853 F.3d at 535.                                ___ _______               Even given  a generous  reading, Galvao's  retaliation claim          falters.   While he  can establish that  he engaged  in protected          conduct -- the filing  of the MCAD complaint -- he  has failed to          show that Gillette personnel knew  about this at the time of  the          allegedly adverse employment actions, or that there was  a causal          relationship  between his  filing  his  MCAD  complaint  and  the          challenged conduct.  As the district court  explained, the record          shows that  the adverse employment actions of which he complains,          including  his  termination,  were the  result  of  his own  poor          performance and insubordination.                                           -7-          3.   Motion of Counsel to Withdraw.               ______________________________               Galvao  also contends  that  the  district  court  erred  in          denying his  previous counsel's  motion to  withdraw.  He  argues          that the court's ruling compelled him to continue with counsel in          whom  he  had lost  faith, and  whose commitment  to his  case he          doubted, and that  his case was thereby prejudiced.   Under Local          Rule 83.5.2(c), because  successor counsel had not  been obtained          by Galvao, it was within  the court's discretion whether to grant          his counsel's  motion to  withdraw.9   In  the circumstances,  we          cannot say  that the  court's refusal to  do so  was an  abuse of          discretion.   See Andrews v.  Bechtel Power Corp., 780  F.2d 124,                        ___ _______     ___________________          135 (1st Cir. 1985).   Title VII litigation is complex  and a pro          se   litigant  embarks  on   this  path  with   some  significant          disadvantage.   The court's conclusion that Galvao was better off          with counsel, even  if they were not  exactly seeing eye  to eye,          was not an unreasonable one.   Moreover, the court indicated that          it would be willing to  reconsider the issue later.  Furthermore,                                        ____________________               9    Rule 83.5.2(c) states:              An attorney may withdraw from a case by              serving notice of his withdrawal on his              client and all other parties and filing the              notice, provided that (1) such notice is              preceded or accompanied by notice of the              appearance of other counsel; (2) there are no              motions pending before the court; (3) no              trial date has been set; and (4) no hearings              or conferences are scheduled, and no reports,              oral or written, are due.  Unless these              conditions are met, an attorney (including              one whose services have been terminated by              his client) may withdraw from a case only by              leave of court.                                         -8-          although we  realize that  a serious  difference existed  between          Galvao  and his  counsel, it  appears  from the  record that  the          district court made every effort  to permit Galvao to present his          case as he wished.10                Additionally,  Galvao's  counsel  was  bound  by an  ethical          obligation  to  prosecute his  case fully  and effectively.   See                                                                        ___          Hammond  v. T.J.  Little, 809  F.Supp.  156, 159  (D.Mass. 1992).          _______     ____________          Galvao maintains that his counsel failed to do so because she did          not  present  various  documents obtained  during  the  course of          discovery to the court which  he alleges would have bolstered his          case.    We  decline  Galvao's  invitation  to  second guess  his          counsel's  strategic decisions about  the evidence to  present in          support of a claim.            4.   State law claims.               _________________               Finally,  Galvao  appeals  the dismissal  of  his  state law          discrimination  and retaliation  claims  by  the district  court,          arguing   that  under   the  more   relaxed   standard  used   in          Massachusetts ("pretext  only"), a jury could have  found, on the          basis of the evidence that  he presented, that Gillette's reasons          for  failing to upgrade him and  terminating him were pretextual.          In support  of  this  contention, Galvao  cites  Blare  v.  Husky                                                           _____      _____          Injection Molding Systems Boston, Inc., 419 Mass. 437 (1995).  We          ______________________________________                                        ____________________               10   In a pretrial hearing, the district court specifically          informed Galvao that he had instructed his counsel that in any          situation where a difference arose between Galvao and counsel as          to the presentation of arguments, Galvao's counsel should present          it both in the form that Galvao wished and in the form that          counsel's legal judgment suggested.                                         -9-          read Blare as  holding that Massachusetts, while  adhering to the               _____          three stage McDonnell Douglas analysis, requires that a plaintiff                      _________________          show only  that it was more likely  than not that the articulated          reason  for the  employer's action  was  pretextual, rather  than          providing  more  direct  proof of  discriminatory  motive  by the          employer, as the  federal standard requires.  See  id. at 444-45;                                                        ___  __          see also Lattimore,  99 F.3d  at 465.   As discussed, infra  (and          ___ ____ _________                                    _____          putting to one side his failure to show that there were similarly          situated  employees), Galvao  failed  to  adduce any  significant          evidence to support his claim that Gillette's articulated reasons          for its  actions were pretextual.   Accordingly, his  state claim          founders on this lack of evidence of pretext, just as his federal          one did.            Affirmed.          _________                                    -10-
