
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 93-1934                                                JOHNNY LEWIS,                                Plaintiff, Appellant,                                          v.                                    GILLETTE, CO.,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Mark L. Wolf, U.S. District Judge]                                           ___________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Johnny Lewis on brief pro se.               ____________               Richard P. Ward, Robert B. Gordon  and Ropes & Gray on brief               _______________  ________________      ____________          for appellee.                                  __________________                                    April 26, 1994                                   ________________                      Per Curiam.   Plaintiff Johnny  Lewis appeals,  pro                      __________            se, from a summary judgment dismissing his employment            discrimination   action.     Lewis  alleges   that  defendant            Gillette, Co.,  unlawfully harassed  him over a  several year            period,  and  ultimately  discharged  him   from  employment,            because  he   testified  against   the  company  at   a  race            discrimination  arbitration  hearing.    His  complaint  also            asserts  race  discrimination and  breach of  contract claims            under  Massachussets and  federal law.   Lewis  abandoned the            race  discrimination claim  below.   On appeal  he challenges            only  the dismissal of his two retaliation claims under Mass.            Gen. L. ch. 151B,   4.                      The record  shows that Lewis, who  is black, worked            at Gillette in various line jobs from 1972 to 1987.  Sometime            in 1984 or 1985, he testified  on behalf of a co-worker at an            arbitration   hearing  held  pursuant   to  a   class  action            settlement of  race discrimination claims  by black employees            against Gillette.  He claims that thereafter a group campaign            of retaliatory  harassment was launched against  him by white            employees at  the plant.   Those involved  allegedly included            his immediate supervisor, Steve Cannon, the division manager,            George Carney, and Carney's secretary, Rita McAvoy.                        Lewis  stated  in  his  deposition  below that  the            primary  form of  harassment  was constant  daily "watching,"            "staring,"  or "gawking" at him while he went about his work.                                         -2-            The named employees  and others  allegedly would  stand as  a            group, or individually,  and stare at him while  he performed            his tasks.   This "watching," Lewis  claimed, occurred almost            daily, most  frequently from  9:00  A.M. to  11:00 A.M.,  and            while he  punched in  and punched  out for  the  day.   Lewis            acknowledged, however,  that his work station  during most of            this period was on the same floor as the others' offices, and            in a direct line  of vision through their office  windows, or            glass partitions.                      In June, 1985, Lewis complained about the "gawking"            to one of  the attorneys in the class action  case, Amos Hugh            Scott.  Scott,  in turn reported the  complaint to Gillette's            in-house  counsel, George  Walker.   According to  Lewis, the            only response to  the complaint came from  Cannon, who warned            Lewis  "whatever happens  in  Gillette you  leave it  there."            Lewis also complained directly to Walker, and to two Gillette            personnel  managers in 1986  and 1987.   An  internal company            report, written  by Carney  in May,  1987  shows that  Carney            warned  Lewis   that  his  persistence  in  these  "unfounded            allegations" constituted "a continued  display of an attitude            against the  best interests  of the  company, and  failure to            cooperate  with management"  which  could lead  to a  "final"            warning.                        In support  of its  motion for summary  judgment on            the  harassment  claim,  Gillette  produced  affidavits  from                                         -3-            Carney, Cannon and McAvoy.  Cannon  denied knowing that Lewis            had testified at an arbitration hearing until after Lewis was            fired.  McAvoy and Carney knew  that Lewis had testified at a            hearing,  but averred that they  did not know  the subject of            Lewis' testimony.                       The   evidence   relating  to   Lewis's  employment            discharge  focused on  events  that occurred  on November  3,            1987, when Lewis reported  to work late.  The  parties agreed            that unbeknownst  to  Lewis, another  worker  had  mistakenly            punched Lewis's time card.   Cannon, noticing that  Lewis was            not  at his work station, placed Lewis's punched time card on            Carney's desk.  When Lewis arrived, he retrieved the card and            punched  in.   Cannon  then  confronted Lewis  with  the mis-            punched card.                         The  parties dispute  what happened  next.   As the            details  are not necessary to our decision, we note only that            Lewis's  claim is  that  he  was  led  to  believe  that  his            employment  was  terminated  on the  spot,  and  after  a few            preliminaries he  left the building as instructed. Gillette's            version, based on Carney's report, is that Lewis responded to            Cannon in  a belligerent and  threatening manner, and  made a            personal telephone  call despite an order  and company policy            to the contrary.  Gillette alleges that Lewis' employment was            terminated   for   insubordination   displayed  during   this            confrontation.                                           -4-                      On  review  of  a  grant  of  summary  judgment  we            approach the record de novo drawing all reasonable inferences            in favor of the non-moving party.   LeBlanc v. Great Am. Ins.                                                _______    ______________            Co.,  6 F.3d  836,  840 (1st  Cir.  1993), cert.  denied,  62            ___                                        _____________            U.S.L.W. 3657 (U.S. 1994); Mesnick  v. General Elec. Co., 950                                       _______     _________________            F.2d 816, 820 (1st Cir. 1991), cert.  denied, 112 S. Ct. 2965                                           _____________            (1992).  Summary judgment is appropriate only when the moving            party shows there  is "no  genuine issue as  to any  material            fact  and [he] is  entitled to judgment as  a matter of law."            Fed. R. Civ. P. 56(c).                        When the  non-moving  party  bears  the  burden  of            persuasion at  trial, however,  to avoid summary  judgment he            must make a "showing sufficient to establish the existence of            [the] element[s] essential to [his]  case."  Celotex Corp. v.                                                         _____________            Catrett, 477  U.S. 317, 322-23  (1986).  The  nonmoving party            _______            "may  not  rest  upon  mere  allegation  or  denials  of  his            pleading."   LeBlanc,  6 F.3d  at  841 (quoting  Anderson  v.                         _______                    _______  ________            Liberty Lobby, Inc., 477  U.S. 242, 256 (1986)).   Rather, to            ___________________            establish  a  trial-worthy  issue,   there  must  be   enough            competent evidence "to enable a finding favorable to the non-            moving party."  LeBlanc, 6 F.3d at 841 (citations omitted).                             _______                      The  district court  granted  summary  judgment  to            Gillette on the retaliatory  discharge claim because it found            that  Lewis's proof on the elements  of causation and pretext            were insufficient  to make out a  claim for the jury.   As to                                         -5-            the harassment claim, the  court concluded that the "gawking"            of  which  Lewis  complained  was  not sufficiently  "severe"            conduct  to  constitute   actionable  harassment  within  the            meaning of Meritor Savs. Bank v. Vinson FSB, 477 U.S. 57, 64-                       __________________    __________            67 (1986).                          While  this  case  was  pending  on  appeal,  the            Supreme  Court decided Harris v.  Forklift Sys., Inc., 114 S.                                   ______     ___________________            Ct. 367  (1993).   There  the  Court explained  that  Meritor                                                                  _______            "takes a  middle path  between making actionable  any conduct            that is merely offensive and requiring the conduct to cause a            tangible psychological injury."   Harris, 114 S. Ct.  at 370.                                              ______            We need  not assess the  impact of this  reformulated Meritor                                                                  _______            standard,  however,  because  we  conclude  that  plaintiff's            evidence was otherwise insufficient  to make out the elements            of a prima  facie case of  retaliation.  See Garside  v. Osco                                                     ___ _______     ____            Drug, Inc., 895 F.2d 46, 48-49 (1st Cir. 1990) (in appraising            __________            summary  judgments, a court of  appeals is not  wedded to the            district   court's   reasoning,  but   may   affirm  on   any            independently sufficient ground).                            To succeed  on claims of retaliatory  discharge and            retaliatory harassment, a plaintiff  must establish the basic            fact that he  was subjected to  an adverse employment  action            because of his protected activity.  Mass. Gen. L. ch. 151B,              _______            4(4)  (making it  unlawful  for an  employer to  discriminate            because the employee opposed practices forbidden by the law);                                         -6-            College-Town, Div. of  Interco, Inc. v. Massachusetts  Comm'n            ____________________________________    _____________________            Against Discrimination,  400 Mass. 156, 167,  508 N.E.2d 587,            ______________________            594 (1987).  At  a minimum, there must be  competent evidence            that  the  alleged   retaliators  knew  of   the  plaintiff's            protected  activity and  that a  retaliatory motive  played a            part in  the adverse employment  actions alleged.   Hazel  v.                                                                _____            U.S.  Postmaster Gen., 7 F.3d  1, 3 (1st  Cir. 1993) (stating            _____________________            elements under federal  discrimination laws); Petitti v.  New                                                          _______     ___            England  Tel. & Tel.  Co., 909  F.2d 28,  33 (1st  Cir. 1990)            _________________________            (same); Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 194                    ______    ________________________            (1st  Cir. 1990) (same); see also College-Town, 508 N.E.2d at                                     ________ ____________            591,  594 (though  not  bound by  federal law,  Massachusetts            courts  usually  look  to interpretations  of  the  analogous            federal statute).                                 The only evidence Lewis produced  below which might            be characterized as probative  of a causal connection between            his protected  activity and the alleged  group harassment was            one of  his own  several  inconsistent deposition  statements            about the temporal sequence  of the events.1   Although Lewis                                            ____________________            1.  Lewis testified to various and widely divergent estimates            of the date when the alleged harassment began.  While he said            at one point, "it started the day  before I left . . . to  go            to the arbitration hearing," Lewis Dep. at 114, ll. 18-25, he            also  stated at  another point that  he gave  his arbitration            testimony  in June,  1984, but  the alleged gawking  began in            June, 1985.   Lewis Dep. at 83-25 to  84-1; 88, ll. 1-7.  See                                                                      ___            also  Lewis Dep. at  88-14 ("it  was the  month after  I come            ____            back");  Lewis Dep. at 88, ll. 16-19 ("I can't remember [when            it  started]");  Lewis  Dep.  at  114,  ll.9-13  (it  started            "sometime after"  the testimony);  Lewis Dep. Exh.  3, (sworn                                         -7-            repeatedly expressed his  personal belief that the  "gawking"            was  motivated  by  a  retaliatory  animus,  he  produced  no            evidence  to support  his  surmise.2   At  his deposition  he            candidly  admitted that he knew of no facts which showed that            the  alleged   harassers  even   knew  the  subject   of  his            arbitration hearing  testimony, nor that they  had any reason            to  be concerned about it.3  That Lewis' complaints about the            gawking  were conveyed to  Cannon and  Carney may  support an            inference  that  they  thereby  learned  of  Lewis's  earlier            protected  activity, but  that  inference does  not logically            extend  backwards to  prove that  the antecedent  gawking was            undertaken for a retaliatory purpose.                      For the same reason, we affirm the dismissal of the            retaliatory  discharge claim.   Lewis  offered no  additional            facts  to show a causal link  between his protected testimony            and his discharge from employment, more than two years later.            His claim to  a connection  was based solely  on the  alleged                                            ____________________            charge    2,  dating  testimony to  1985  and gawking  "since            then");  Lewis Dep.  at 311-7  (dating gawking  from "shortly            before" June, 1985).             2.  Lewis   apparently   expressed   his    personal   belief            frequently, in  the complaints  he made  to the  class action            attorney and others, as well as at his deposition. Lewis Dep.            at  100-114, 223-40, 287-91.   When pressed for  the basis of            his belief,  however, he could  only explain, "it's  the only            reason  I could come up  with I guess .  . . because I didn't            have these problems until  I come back [from  the arbitration            hearing]".  Lewis Dep. at 249, ll. 3-4, 7-8.            3.  Lewis Dep. at 260-62; 306, ll. 5-13.                                          -8-            campaign  of  gawking  and  Cannon's response  to  his  first            complaint about it.4   As  we have said,  however, there  was            insufficient  evidence  to  connect  the  gawking  itself  to            Lewis's  protected  testimony, so  it  does  not provide  the            needed bridge for the  retaliatory discharge claim.  Cannon's            ambiguous  response  to   Lewis'  1985  complaint,  "whatever            happens  in  Gillette you  leave  it there,"  does  not alone            provide  a  sufficiently strong  inference  of  a retaliatory            mindset to make out a claim of wrongful discharge more than a            year later.  Even adding whatever favorable inferences may be            gleaned from  Carney's later  warning  about "persistence  in            unfounded allegations," the sum of these two ambiguities does            not provide  sufficient evidence  to establish  the requisite            causal  connection.  While  circumstantial evidence sometimes            may  be  "sufficient  to leap  the  summary  judgment  . .  .            hurdle,"  there  must be  something  more  than  a  few  weak            inferences  to  create reasonable  proof  of  a link  between            events so widely  separated in  time.  Mesnick,  950 F.2d  at                                                   _______            828; see also Oliver  v. Digital Equip. Corp., 846  F.2d 103,                 ________ ______     ____________________            110-11  (1st  Cir.  1988)  (while  a  showing  of  employment            discharge  "soon after"  protected activity  may be  strongly            suggestive of a  causal connection, a  longer period of  time            does not  lend itself to  such an inference).   Since we find            that  Lewis  failed  to  establish  a  prima  facie  case  of                                            ____________________            4.  Lewis Dep. at 250-55.                                         -9-            retaliatory discharge, we  need not  consider the  additional            ground, insufficient evidence of pretext, relied upon below.                      Accordingly, the judgment below is affirmed.                                                         _________                                         -10-
