Isles v. WHC JR.

Opinion

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[NOT FOR PUBLICATION]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,
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                           Stahl and Lynch, Circuit Judges.
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                                 ____________________



            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.
        _______________________________


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                                   October 17, 1996

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Per Curiam.   Three months after  being hired, plaintiff
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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
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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
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            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


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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
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            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-
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            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)).
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                 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


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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
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            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)
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            (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.


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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.
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