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.
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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.
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
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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-
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);
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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
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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
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.
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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.
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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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