Isles v. WHC JR.

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[NOT FOR PUBLICATION]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

____________________

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. _______________________________


____________________

October 17, 1996
____________________




Per Curiam. Three months after being hired, plaintiff __________














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 ____________

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 _______________________

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- ___________

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)). _____________

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 _________________

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) __________________________

(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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