

                      [NOT FOR PUBLICATION]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  &amp; 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. &amp; 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-
