Lewis v. Gillette, Co.

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

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No. 93-1934

JOHNNY LEWIS,

                                Plaintiff, Appellant,

                                          v.

                                    GILLETTE, CO.,

                                 Defendant, Appellee.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Mark L. Wolf, U.S. District Judge]
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                                 ___________________

                                        Before

                             Torruella, Boudin and Stahl,
                                   Circuit Judges.
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                                 ___________________

               Johnny Lewis on brief pro se.
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               Richard P. Ward, Robert B. Gordon  and Ropes & Gray on brief
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          for appellee.

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                                    April 26, 1994
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Per Curiam.   Plaintiff Johnny  Lewis appeals,  pro
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            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.

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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

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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.  

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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.
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            Co.,  6 F.3d  836,  840 (1st  Cir.  1993), cert.  denied,  62
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            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
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            "may  not  rest  upon  mere  allegation  or  denials  of  his

            pleading."   LeBlanc,  6 F.3d  at  841 (quoting  Anderson  v.
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            Liberty Lobby, Inc., 477  U.S. 242, 256 (1986)).   Rather, to
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            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

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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-
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            67 (1986).  

                        While  this  case  was  pending  on  appeal,  the

            Supreme  Court decided Harris v.  Forklift Sys., Inc., 114 S.
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            Ct. 367  (1993).   There  the  Court explained  that  Meritor
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            "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
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            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
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            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,  
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            4(4)  (making it  unlawful  for an  employer to  discriminate

            because the employee opposed practices forbidden by the law);

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College-Town, Div. of  Interco, Inc. v. Massachusetts  Comm'n
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            Against Discrimination,  400 Mass. 156, 167,  508 N.E.2d 587,
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            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
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            elements under federal  discrimination laws); Petitti v.  New
                                                          _______     ___

            England  Tel. & Tel.  Co., 909  F.2d 28,  33 (1st  Cir. 1990)
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            (same); Morgan v. Massachusetts Gen. Hosp., 901 F.2d 186, 194
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            (1st  Cir. 1990) (same); see also College-Town, 508 N.E.2d at
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            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

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            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
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            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

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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

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            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
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            828; see also Oliver  v. Digital Equip. Corp., 846  F.2d 103,
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            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

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            4.  Lewis Dep. at 250-55.

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retaliatory discharge, we  need not  consider the  additional

            ground, insufficient evidence of pretext, relied upon below.

                      Accordingly, the judgment below is affirmed.
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