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[NOT FOR PUBLICATION]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-
