Petition for Writ of Certiorari — Galvao v. Gillette Co.
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Supreme Court, U.S.
FILED
(i) OF 90 5 Nov 26 197
No. OFFICE OF- BHE CLERK
In The
Supreme Court of the United States
October Term, 1997
+
MANUEL GALVAO,
Petitioner,
THE GILLETTE COMPANY,
Respondent.
On Petition For A Writ Of Certiorari To The
United States Court Of Appeals
For The First Circuit
¢
PETITION FOR A WRIT OF CERTIORARI
¢
JoserpH F. DuGAN*
Attorney for Petitioner
132 Dorrance Street
Providence, RI 02903
401-273-4990
*Counsel of Record
COCKLE LAW BRIEF PRINTING CO., (800) 225-6964
OR CALL COLLECT (402) 342-2831
QUESTION PRESENTED
Whether the decision of the Federal District Court
upheld on appeal by the Circuit Court which decision
based on Local Rule 83.5.2(c) refused to permit Peti-
tioner’s counsel to withdraw and allow Petitioner to Pro-
ceed Pro Se denied Petitioner the right to represent
himself as permitted by 28 U.S.C. § 1654 and denied him
his right to choice of counsel.
il
TABLE OF CONTENTS
Page
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TABLE CF Ad TII ee ooo ne kchunsiccdnshasmeanas iii
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STATUTORY PROVISION INVOLVED AND COURT
REL RVUs « «6 a ktnicckscscsnouaubeealeres 1
5 | Pe rr rr te eee rs pi eo 2
A. Summary of Proceedings Below ............... 2
B. Facts Regarding Attempted Withdrawal of Coun-
POI yr AL NE by Bed las ER 4
REASONS FOR GRANTING THE WRIT ........... 8
A. The Petitioner was Entitled to Counsel of His
Own Choosing or to Proceed Pro Se........... 8
B. The Interpretation of a Court Rule Controlling
the Conduct of Lawyers Denies Litigants the
Right to Self Representation and Counsel of Their
Be PETERS ETOC ER e eE 17
iil
TABLE OF AUTHORITIES
Page
CASES
Adams v. U.S. ex rel., McCann, 317 U.S. 269
ee i iseinicg ta vian ven eves ns 5 +s 11, 12
Andrews v. Bechtel Power Corp., 780 F.2d 124 (1st
Cir. 1985), cert. denied, 476 U.S. 1084............. 10
Carter v. Illinois, 329 U.S. 173 (1947)........----55:- 11
Chapman v. U.S., 553 F.2d 886 (5th Cir. 1977)....... 11
Cohen v. Beneficial Industrial Loan Corp., 337
OES, SEF CIDER) ow noc ccc cece scene cccccess 14
Faretta v. California, 422 U.S. 806 (1975)
PL, MEE ee ey eee ee ii, 22, 34, 15, 26, 17
Frazier v. Heebe, 482 U.S. 641 (1987)..........--+++: 17
In Re Ruffalo, 390 U.S. 544 (1968)........---+22-+e 17
O'Reilly v. New York Times Co., 692 F.2d 863 (2nd
ku dee be enn seeseestesccpeses 13, 14, 15
U.S. v. Dougherty, 473 F.2d 1113, 154 U.S. App.
ky 9» eee eo oe ti, 12
U.S. v. Treff, 924 F.2d 975 (10th Cir. 1991), cert.
denied, 111 S.Ct. 2272, 114 L.Ed. 723 ............. 12
U.S. v. Wolfish, 525 F.2d 457 (2nd Cir. 1975), cert.
denied, 423 U.S. 1059. ........ cece e cece cece eeeeee 13
STATUTES AND RULES
2B US. © 1654... 2... cece cree ceeees 1, 11, 12, 16, 18
ee oh esi cigasssnnsenesy: 17
District Court of Massachusetts Local Rule
NS ees cswa new senannassseressccece 1, 5, 8, 17
OPINIONS BELOW
The opinion of the Court of Appeals, unpublished,
(App. 2-11) and of the District Court (App. 12-43) are
included in the Appendix.
JURISDICTION
The Court of Appeals entered its judgment on
August 12, 1997 (App. 1). The jurisdiction of this court is
invoked under 28 U.S.C. § 1254(1).
¢
STATUTORY PROVISION AND
COURT RULE INVOLVED
28 U.S.C. § 1654 provides: “in all courts of the United
States the parties may plead and conduct their own cases
personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes
therein.”
Local Rule 83.5.2 of the Massachusetts Federal Dis-
trict Court provides:
(c) Withdrawal of Appearance. 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 sched-
uled, 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.
¢
STATEMENT
A. Summary of Proceedings Below
Manuel Galvao, the petitioner-appellant, a black
Cape Verdean national, brought this action before the
Massachusetts Commission Against Discrimination
(“MCAD”) on July 16, 1992, alleging that the respondent-
defendant, Gillette Company, his employer of twenty
years, had discriminated against him in terms and condi-
tions of his employment by repeatedly denying his
request for a reclassification of his employment “grade”
because of his race and nationality. At that time, Mr.
Galvao remained the lowest graded employee in the
Advanced Processing Group of the Boston Research and
Development Division of Gillette, and the only Cape
Verdean national.
After Galvao filed his complaint, Gillette commenced
a pattern of retaliation which culminated in his reassign-
ment to a supervisor, Dr. Hong Mai Trankiem, in January,
1993, whose unrelenting, unjustified criticism of every
aspect of his job performance caused him intense emo-
tional distress and exhaustion, the exacerbation of physi-
cal injury unrelated to his work, and led to his eventual
discharge. In November 1993, after earlier amendments
alleging retaliation were filed with MCAD, Mr. Galvao
added a claim of retaliation based upon his November 8,
1993 termination to his MCAD complaint.
After his discharge, Galvao withdrew his complaint
from the MCAD on March 3, 1995 and filed this action in
the Norfolk County Superior Court of Massachusetts on
April 6, 1995. The defendant removed the proceedings to
the Federal District Court on April 25, 1995.
In November 1995, Patricia L.: Davidson, Galvao’s
lawyer, filed a Motion to Withdraw Appearance and an
Affidavit (App. 44-47). Davidson informed the court that
Galvao had sent Davidson a letter discharging her as
legal counsel and had retrieved his file. The motion was
- denied. (App. 48). His Counsel filed a Motion for Recon-
sideration and a Hearing with an accompanying affidavit
in December 1996. (App. 49-51).
On January 12, 1996 a hearing was held on the
Motion for Reconsideration. The District Court Judge
stated he had received a letter from Galvao. (App. 53) but
again denied the motion (App. 60).
On April 11, 1996 the District Court held a hearing on
the timing of Galvao’s response to Gillette’s Motion for
Summary Judgment and indicated he would “revisit” the
issue of withdrawal of counsel after summary judgment
was decided. (App. 63). On July 31, 1996 the court
granted Gillette’s Motion for Summary Judgment. (App.
44). Galvao obtained new counsel and noticed his appeal
on August 29, 1996.
On August 12, 1997 the Court of Appeals upheld the
District Court’s granting of Gillette’s Motion for Sum-
mary Judgment and the denial of Galvao’s counsel’s
attempts to withdrawal. A timely Petition for Certiorari
was filed with this court.
B. Facts Regarding Attempted Withdrawal of Counsel
Galvao found himself in the Federal District Court in
April 1995 as the result of Gillette’s Removal Petition. On
November 13, 1995 Galvao’s lawyer, Patricia L. Davidson,
filed a Motion to Withdrawal stating that there was dis-
agreements on the future course of the litigation, that she
had received a letter of discharge from Galvao, and that
Galvao had retrieved his entire case file. (App. 46-47).
Davidson further indicated in her motion that no motions
were pending and trial had not yet been scheduled. (App.
46).
The District Court summarily denied the motion.
(App. 48).
In December 1995 Davidson filed a Motion for Recon-
sideration and Request for a Hearing (App. 49) stating
that Galvao was in the process of getting new counsel,
was not cooperating with Davidson, and wanted to
address the court. Davidson relates the following conclu-
sion:
“deterioration of the communication
between the Plaintiff and our office and the
Plaintiff’s articulated lack of respect for both the
Federal Rules of Procedure and our professional
opinion have made it impossible for us to fulfill
our obligations to him, this Honorable Court
and the opposing Party.” (App. 56).
On January 12, a hearing was held on the Motion to
Withdraw. The court indicated that it had received a
letter from Galvao which discusses his disagreements
with counsel, the court had reviewed it and was sealing
it. (App. 56). Galvao attempted to explain his problems to
the judge, but backed off when the court admonished him
that this would not be wise in the presence of opposing
counsel. (App. 56).
Galvao’s letter firing Davidson as his attorney is not
part of the appellate record nor is his letter to the judge.
However, certain things are clear, that he has fired his
attorney and that he has lost all confidence in Davidson.
The Court evaluates the situation as one of eco-
nomics:
“there is no question that there is a dis-
parity from time to time between parties. ... But
it’s not a grounds to demand everything from
counsel and, then, if counsel is unable to pro-
vide that level of service, because of limitations
on the resources, to make counsel the responsi-
ble party for various kinds of very practical
decisions that arise during the course of litiga-
tion.” (App. 56).
The court stated it was not going to allow counsel to
withdraw until Local Rule 83.5.2 was complied with.
Local Rule 83.5.2 provides:
(c) Withdrawal of Appearance. An attor-
ney 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 ser-
vices have been terminated by his client) may
withdraw from a case only by leave of court.
Although not part of the record Galvao states that he
indicated to the judge in his letter that part of the prob-
lem in getting a new lawyer was his present lawyer had
not withdrawn.
The court lectures Galvao on the importance of a
prompt resolution of the case, abiding by the rules, and
attending discovery. Galvao accepts the judge’s ruling.
(App. 56-57).
The court enters an order on January 12, 1996 deny-
ing the Motion to Withdrawal, stating as the reason “no
successor counsel having been identified”. (App. 60).
On April 11, 1996 Court holds a conference on the
timing of Gillette’s Motion for Summary Judgment and
the Response. The motion is due on April 27, 1996. (App.
62). The judge indicates that he has held an ex parte
conference with Plaintiff’s attorneys relating to how to
proceed given differences of opinion between Galvao and
his lawyer. (App. 63). The judge states he will “revisit”
the issue of counsel after he has ruled on Summary
Judgment (App. 66).
The judge states he has told counsel that if there is a
disagreement about certain arguments to be presented it
should be presented the way Galvao wants them pre-
sented and counsel wants them presented. (App. 65).
On July 30, 1996 the District Court entered a Mem-
orandum and Order (App. 12) and on July 31, 1996 a
Judgment granting summary judgment to Gillette. (App.
44).
Galvao hired new counsel to handle the appeal: Mark
F. Itzkowitz. Itzkowitz attempted to supplement the
record appendix with documents which Galvao wanted
included, but Galvao’s trial attorney had not. On January
17, 1997 the Circuit Court denied Itzkowitz’s Motion to
Supplement. (App. 68).
Itzkowitz then attempted to file a brief which refer-
enced matters which Galvao wanted included in the
record. These included a number of internal Gillette doc-
uments Galvao considered important. The brief was
ordered stricken. (App. 69).
Although the District Court Judge had admonished
Davidson in the pre-trial conference of April 11, 1996 that
Galvao’s arguments with which Davidson disagreed
should be designated as such and presented alternatively
in the response to Gillette’s Motion for Summary Judg-
ment, it is clear from the desperate and futile attempts of
his appellate counsel to amend the record in the appellate
court that this was not done to Galvao’s satisfaction.
The Circuit Court in its opinion of August 12, 1997
determined that the District Court’s conclusion that Gal-
vao was abetter off with present counsel “even if they
were not seeing eye to eye was not an unreasonable one”
(App. 9). The Circuit Court declined to “second guess his
counsel’s strategic decisions.” (App. 10).
The District Court had in effect denied Galvao the
right to proceed pro se and coerced him into proceeding
with counsel he did not want. Furthermore counsel did
not advance arguments Galvao though important. His
appellate counsel was prohibited by the Circuit Court
from making these arguments.
+
REASONS FOR GRANTING THE WRIT
A. The Petitioner was Entitled to Counsel of His Own
Choosing or to Proceed Pro Se
This Lawsuit was removed to the Federal Court in
the end of April 1995. Galvao’s counsel, Davidson, in
early November 1995 filed an Affidavit in Support of
Motion to Withdraw reciting that Galvao had discharged
her as counsel, had retrieved his file, and that communi-
cation between counsel and client had deteriorated as the
result of a disagreement. (App. 46).
The District Court summarily rejected the motion on
the grounds that no substitute counsel had entered their
appearance as required for automatic approval under
Local Rule 83.5.2(c). Galvao sent the judge a letter, which
was not made part of the record on appeal which pre-
sumably detailed the disagreements and Galvao’s desire
for other representation.
On January 12, 1996 District Court Judge besides
denying him the right to fire his lawyer also deals with
Galvao’s refusal to appear at a deposition presumably
because he does not want to be represented by Davidson.
The court discusses its obligation under Civil Justice
Reform Act to secure the parties a prompt resolution of a
lawsuit. The court reminds Galvao of his obligation to
attend a deposition and the consequences of not doing so.
(App. 56).
The quality of the relationship between lawyer
Davidson and Galvao may be gleaned from the following
comments to the judge by Davison:
“ ...1 believe you have addressed my chief
concerns, that the plaintiff understands the
importance of complying with the discovery
rules and that discovery depositions, interroga-
tories... .” (App. 55).
On April 11, 1996 the judge states that he will
“revisit” the question of withdrawal after he has dealt
with the Motion for Summary Judgment. He also indi-
cates that will he be more willing to permit withdrawal of
counsel after the summary judgment process. (App. 66).
Logic would dictate the opposite. The closer the case
comes to trial and the more deeply his “fired lawyers” get
involved in the case the more difficult it will be for them
to withdraw without prejudicing Galvao and the more
difficult it will be to secure substitute counsel. Cases
which Petitioner will shortly discuss indicate the closer
trial nears the more reason there is not to let lawyers
withdraw.
The District Court Judge will never have an oppor-
tunity to “revisit” the issue of withdrawal of counsel.
Galvao’s case will never go to trial. He is bound and
strapped to counsel he has fired, in which he has no
confidence, and who are handling the case contrary to his
wishes. His rights have been circumscribed by a court
rule really intended to prevent lawyers from withdraw-
ing on the eve of trial or when other major matters are
10
pending. Unsaid is the real reason: the horror for the trial
judge of a pro se Plaintiff in a relatively complex case
faced with the resources of the Gillette Company and a
major law firm.
Galvao’s appellate lawyer, Itzkowitz, tried to add
documents Galvao wanted included in his Opposition to
Summary Judgment as a Supplemental Record Appendix.
The Motion was denied. (App. 68). He tried to argue from
them in his first brief and the brief was stricken by the
Circuit Court. (App. 69).
Itzkowitz’s efforts to supplement the record on
appeal bear witness to the fact the District Court’s “shot-
gun marriage” of Galvao to lawyer Davidson was not
entirely successful.
The Circuit Court determined that the District Court
had not abused its discretion in refusing to allow counsel
to withdraw. The Circuit Court found that the lower
court’s conclusion that Title VII litigation is complex, and
that Galvao was better off with counsel he had fired than
with none was “not unreasonable.” (App. 9). The Circuit
Court was also impressed with the lower court's inten-
tion to “consider the issue later”. (App. 9).
In support of its decision the Circuit cites Andrews v.
Bechtel Power Corp., 780 F.2d 124 (1st Cir. 1985), cert.
denied, 444 U.S. 1084. Andrews is the poll opposite of this
case. Andrews had been allowed to fire numerous coun-
sel. He had asked the court to appoint him counsel and
the court actually got involved helping Andrews in find-
ing a lawyer. The trial had been postponed many times
because Andrews did not have counsel. The egregious
facts in that case in no way compare to this where Galvao
11
five months after the case is filed with no motions pend-
ing, and no trial date set, seeks to discard his lawyer.
28 U.S.C. § 1654 provides:
“In all courts of the United States the parties
may plead and conduct their own cases person-
ally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and con-
duct causes therein.”
In Chapman v. U.S., 553 F.2d 886, 891 (5th Cir. 1977)
the fundamental place of Section 1654 in the scheme of
American justice was noted:
“The precursor of § 1654 was enacted by the
First Congress as section 35 of the Judiciary Act
of 1789, 1 Stat. 73.92. It was passed in the con-
text of colonial tribunals composed largely of
laymen. Section 35 was enacted by the Congress
' and signed by President Washington one day
before the sixth amendment was proposed.”
The right of a person to act pro se in a criminal case
arises out of the Sixth Amendment of the Constitution
and is not a mere product of legislation. Adams v. U.S. ex.
rel., McCann, 317 U.S. 269, 279 (1942). Carter v. Illinois, 329
U.S. 173, 174-175 (1947). Faretta v. California, 422 U.S. 806
(1975).
In U.S. v. Dougherty, 473 F.2d 1113, 154 U.S. App. D.C.
76 (1972) the court stated:
“Defendant has a moral right to stand alone
in his hour of trial and denial of that right is not
to be redeemed through the prior estimate of
someone else that the practical position of the
defendant will be enhanced through representa-
tion by another or the subsequent conclusion
12
;
~
that that defendant's position has not been dis-
advantaged.”
Although Dougherty, supra was a criminal case the
sentiments expressed by the Appeals Court should have
guided the District Court’s review of the Motion to With-
draw. Instead of considering Galvao’s rights under 28
U.S.C. § 1654, the court focused on the court rule requir-
ing substitute counsel. Galvao’s statutory rights were,
never mentioned either by the District Court or the Cir-
cuit Court. |
The right to self representation is a fundamental right
in criminal cases whether based on the Sixth Amendment
or on statute. U.S. v. Treff, 924 F.2d 975 (10th Cir. 1991),
cert. denied, 111 S. Ct. 2272, 114 L. Ed. 2d 723. The right to
self representation in civil cases although not fundamen-
tal is firmly rooted in a statute embodying rights pre-
dating the Constitution. It should not be circumscribed
by a housekeeping court rule.
The Circuit Court suggests that the standard of
review of the District Court’s decision denying counsel's
Motion to Withdraw is one of “abuse of discretion”. The
right to self representation in criminal cases is absolute.
Adams v. U.S., supra. The right in a civil case is of such a
low quality that it is measured by a standard of abuse of
discretion.
28 U.S.C. § 1654 is a lineal descendent of the First
Judicary Act. This Court in Faretta, supra at 830 n.39,
recited Tom Paione’s statement made in defense of the
1776 Pennsylvania Constitution:
“The right to plead one’s own cause is a ‘natural
right.’ ”
13
The right to represent one’s self does not confer on
the Petitioner any right to “hybrid representation.” U.S. v.
Wolfish, 525 F.2d 457 (2nd Cir. 1975), cert. denied, 423 U.S.
1059. “Hybrid” is referring to representation by both
client and counsel. Galvao was not seeking hybrid repre-
sentation. He had fired his lawyer, and wanted her to
withdraw. The judge would not allow her to withdraw.
Instead he forced Galvao into an unhappy marriage con-
taining elements of the “hybrid representation” con-
demned in Wolfish, supra.
The District Court promised to “revisit” the issue of
the withdrawal of counsel with a more flexible attitude
after it had decided the Motion for Summary Judgment.
The reason for this is unclear since now an extensive
discovery process had been completed and the time for
trial was approaching. If avoiding court delays was
behind the court’s reasoning then the sooner counsel got
out of the case the better.
The U.S. Supreme Court has not addressed the qual-
ity of the right of counsel in civil cases in the exhaustive
manner it has in criminal ones. The First Circuit appears
to believe that the standard to be used in determining
whether the lower court erred in refusing to allow Galvao
to fire his counsel and proceec pro se at least for a period
of time is whether the lower court “abused its discre-
tion”.
Petitioner offers a decision of Judge Friendly in
O'Reilly v. New York Times Co., 692 F.2d 863 (2nd Cir. 1982)
as the proper measurement of the right to discharge
counsel and proceed pro se in civil cases.
14
In O'Reilly, supra, Rev. John O'Neill, a Plaintiff in a
liable action against the New York Times, had discharged
his brother William as his attorney 13 days after the
Times had filed a Motion for Summary Judgment. He
intended to proceed pro se.
The District Court Judge denied the motion to pro-
ceed pro se because it would be “disruptive” of the trial
in that there would be two opening statements, two cross
examinations, and there would be a summation by Father
O’Reilly in a Roman Collar before a jury. O'Reilly, supra,
692 F.2d 863, 865 (1992).
The Circuit Court found Father O’Reilly’s Appeal of
the District Court Order denying him the right of self
representation to be an “appealable order” and was not
barred under the collateral order doctrine of Cohen v.
Beneficial Industrial Loan Corp., 337 U.S. 541 (1949).
The Circuit Court quoted at length from this court’s
decision in Faretta, supra and deemed O’Reilly’s right of
self representation in a civil case “a right of high standing
not simply a practice to be honored or dishonored by a
court depending on its assessment of the desiderata of a
particular case... ” O'Reilly, supra, 692 F.2d 863, 867.
Quoting from Faretta, supra, 830 n. 39, self representa-
tion was characterized “as a basic right of a free people.”
The court one by one reviewed the lower courts
arguments, possible disruption, identity of interests
between the two Plaintiffs, O’Reilly’s wearing a clerical
collar and others, and discarded them.
The Circuit Court characterized the right to self rep-
resentation as “unqualified” if invoked prior to trial but
15
sharply curtailed if asserted after the trial has begun.
However, a party asserting his statutory right of self
representation must clearly and unequivocally discharge
any lawyer retained. O'Reilly, supra, 869.
The lower court’s fear of “disruption” was charac-
terized “as the price the framers of the sixth amendment
and the First Judicary Act thought well worth paying.”
O'Reilly, supra, 869 n.7.
It might be argued that Galvao’s attitude was equivo-
cal about whether he actually wanted his lawyer dis-
charged or merely brought around to Galvao’s position.
This argument of course flies in the face of Davidson's
affidavit that she was fired and Galvao took back the file.
(App. 45).
Faretta, supra like this case presented equivocal facts
on whether Faretta wanted to represent himself or
wanted a new lawyer. Like Galvao, Faretta did not want
his present lawyer, the public defender, which he viewed
as too busy to handle his case, but did ask for the
appointment of a private attorney. If faced with the
choice of the Public Defender or self representation, he
wished self representation. The judge in Faretta as in this
case had paraded before the defendant all the horrors of
self representation, before refusing him the right to do so.
This court did not view Faretta’s request for non-
public defenders to defend him as any lessening of his
right to fire his public defender and stand unrepresented.
This court quoted Mr. Justice Jackson:
“We confront here a nearly universal con-
viction, on the part of our people as well as our
16
courts, that forcing a lawyer upon an unwilling
defendant is contrary to his basic right to
defend himself if he truly wants to do so.” Fare-
tta, supra, 817.
At the hearing of January 12, 1996 the court fails to
note that a trial date has not even been set and the only
motion before the court is that of counsel to withdraw.
On April 11, 1996 the judge meets with Galvao’s
lawyers ex parte (App. 62). This conference has not been
made part of the appellate record. However the court
reviews with Galvao a portion of the conference where he
has told the lawyers to present arguments in response to
Gillette’s Motion for Summary Judgment in an alternative
fashion if there is a dispute between Galvao and his
attorneys. (App. 62) He also informs Galvao he will con-
sider his right to counsel after he has ruled on summary
judgment. (App. 66)
The Federal Court has denied Galvao the right to fire
his lawyer, coerced him to stay with the lawyer he fired,
denied Galvao the right of self representation which
would at least temporarily be the consequence of firing
his lawyer all in violation of 28 U.S.C. § 1654 and Faretta,
supra.
The District Court’s rulings occurred when no
motions were pending and no trial had been set. There
were no counterbalancing reasons why Galvao should
not have been permitted to fire his lawyer.
The Circuit Court’s decision that the District Court
was looking out for Galvao’s interests and did not abuse
its discretion in coercing Galvao to stay with his lawyers
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17
was the wrong standard. The proper standard was there
any compelling reason for not letting Galvao fire his
lawyers. Faretta, supra.
B. The Interpretation of a Court Rule Controlling the
Conduct of Lawyers Denies Litigants the Right to
Self Representation and Counsel of Their Choice
The effect of Rule 83.5.2(c) is to prevent litigants from
discharging their present lawyer until they have engaged
another lawyer. A rule to control lawyers is impinging on
the substantial rights of litigants to free choice of counsel
and self representation.
The U.S. Supreme Court has recognized although
local federal courts have the right to pass local rules the
local rules must be consistent with Acts of Congress.
Frazier v. Heebe, 482 U.S. 641, 646 (1987), In Re Ruffalo, 390
U.S. 544 (1968). This court’s power over local court rule
making is not only inherent in its supervisory function, it
is embodied in statute. See 28 U.S.C. § 2071.
This Court in Frazier, supra struck down a local rule
of the Federal Court for the Eastern District of Louisiana
which prohibited attorneys admitted to the Bar in Louisi-
ana, but not residing in Louisiana, from appearing in the
Eastern District. The Louisiana local rule was charac-
terized as “irrational” by this court and stricken.
Local Rule 83.5.2(c) is a rational on its face as an
attempt to prevent lawyers from abandoning clients and
cases leaving the client unrepresented and the court cal-
endar clogged with unrepresented parties, unresponded
to motions, and untried cases.
18
Petitioner suggests the purpose of the rule is only to
control the activities of attorneys, not those of parties.
The Federal Judge in this case has been advised by a
uncontradicted affidavit (App. 46-47) that lawyer David-
son has been fired and the client has retrieved his file.
This is clear evidence that Galvao no longer wants David-
son’s representation. Galvao presumably has told the
judge in a letter he has fired Davidson.
The judge does not believe firing Davidson is in
Galvao’s best interests. Equally important the judge per-
ceives that, not now, but soon Gillette’s rights to a speedy
trial will be impinged. (App. 54). Based on these two
considerations the judge denys Galvao the right to fire his
lawyer.
The interpretation of the local rules which forces a
litigant to unfire his attorney in this early stage of the
proceedings, then compels him to proceed to extensive
discovery wttt a lawyer not of his choosing, be offered
the opportunity to present alternative arguments is irra-
tional and a perversion of the purpose of the rule. It is a
violation of 28 U.S.C. § 1654.
¢
19
CONCLUSION
The Petitioner respectively request this court grant
his request for a Writ of Certiorari.
Respectfully submitted,
Joseph F. Dugan
Attorney for Petitioner
132 Dorrance Street
Providence, RI 02903
401-273-4990
App. 1
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
NO. 96-2062
MANUEL GALVAO,
Plaintiff, Appellant,
V.
THE GILLETTE COMPANY,
Defendant, Appellee.
JUDGMENT
Entered: August 12, 1997
This cause came on to be heard on appeal from the
United States District Court for the District of Massa-
chusetts, and was argued by counsel.
Upon consideration whereof, it is now here ordered,
adjudged and decreed as follows: The judgment of the
district court is affirmed.
By The Court
Vincent F. Flanagan
Acting Clerk
By /s/ JANICE M. O’NEILL
Chief Deputy Clerk
App. 2
[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
App. 3
COFFIN, Senior Circuit Judge. Appellant Manuel Gal-
vao, a black Cape Verdean male, contends that the district
court erred in dismissing his federal and state discrimina-
tion and retaliation claims against his former employer,
the Gillette Company (“Gille‘te”).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.? Instead, Gillette super-
visors 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
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.
App. 4
was performed by the Gillette Human Resources Com-
pensation Department, which concluded that his position
was properly graded. Galvao sought and received a
review of the audit by Gillette’s Open Door Review
Panel, which also upheld the denial of the upgrade.
In July 1992, Galvao filed a complaint with the Mas-
sachusetts 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
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.
i i ti
App. 5
Wreford, for intervention vis a vis his working respon-
sibilities and Trankiem’s supervision of him, no help was
forthcoming.5 Rather, Galvao was eventually provided
with a Final Written Warning,® 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 judg-
ment 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).
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.
App. 6
1. Title VII Discrimination.
Under the well-established McDonnell Douglas frame-
work 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 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
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.
App. 7
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 par-
ticular care when evaluating a plaintiff's claim that an
employer applied its standards differentially (i.e., distin-
guished between the plaintiff and those similarly situ-
ated). 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 qualifica-
tions 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 com-
parable 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 rea-
sons were pretextual, and Galvao’s Title VII discrimina-
tion claim therefore fails.
App. 8
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 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 employ-
ment 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 con-
duct. As the district court explained, the record shows
that the adverse employment actions of which he com-
plains, including his termination, were the result of his
own poor performance and insubordination.
App. 9
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 com-
mitment 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.? 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 signifi-
cant 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. More-
over, the court indicated that it would be willing to
reconsider the issue later. Furthermore, although we real-
ize that a serious difference existed between Galvao and
his counsel, it appears from the record that the district
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.
App. 10
court made every effort to permit Galvao to present his
case as he wished.!°
Additionally, Galvao’s counsel was bound by an ethi-
cal 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 Gal-
vao’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 Gil-
lette’s reasons for failing to upgrade him and terminating
him were pretextual. In support of this contention, Gal-
vao cites Blare v. Husky Injection Molding Systems Boston,
Inc., 419 Mass. 437 (1995). We read Blare as holding that
Massachusetts, while adhering to the three stage McDon-
nell Douglas analysis, requires that a plaintiff show only
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.
App. 11
that it was more likely than not that the articulated rea-
son 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 pretex-
tual. Accordingly, his state claim founders on this lack of
evidence of pretext, just as his federal one did.
Affirmed.
App. 12
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
MANUEL GALVAO,
Plaintiff, CIVIL ACTION NO.
- 95-10843-DPW
THE GILLETTE
)
)
)
)
)
COMPANY, )
)
Defendant.
MEMORANDUM AND ORDER
July 30, 1996
Manuel Galvao, a black male of Cape Verdean
national origin and a former employee of defendant the
Gillette Company (“Gillette”), brings this action alleging
that Gillette, by failing to promote him, discriminated
against him because of his race and national origin
thereby violating Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq. (1994) (Counts I and II). He also
alleges that Gillette engaged in retaliation in violation of
42 U.S.C. § 2000e-3(a) (Count III). Galvao also claims
three parallel violations of Mass. Gen. L. ch. 151B, § 4
(1996) (Counts IV, V and VI). Gillette has moved for
summary judgment. After hearing, I have determined to
grant the motion.
he
Manuel Galvao was employed by Gillette from June
1973 to November 8, 1993. In July of 1987, Galvao was a
Grade 6 Technician in Gillette’s Advanced Processing
App. 13
Group of the Boston Research and Development Division
(“BRAD”). In August 1987, Patricia Foley, a Compensa-
tion Analyst and employee of Gillette, conducted a job
audit of Galvao’s functions and reclassified his position
as a Grade 7. Galvao was the only Grade 7 Technician in
his division; all other technicians were classified as Grade
8. Further, Galvao was the sole black technician in his
division and the only one of Cape Verdean origin.’ All
other technicians were Caucasian-Americans.
By 1989, Galvao was convinced that he qualified for
an upgrade to Grade 8 and accordingly, requested that
Gillette reclassify him. This request was denied. Galvao
reiterated his request for an upgrade on several occasions
but was rebuffed each time. In June of 1990, Gillette have
Galvao a personalized “Career Development Plan” to
assist him in qualifying for a Grade 8 position. In 1991,
after another request by Galvao for an upgrade, Foley
was directed to conduct a new audit of Galvao’s position.
With her during the audit was Steven Brack, a new Com-
pensation Analyst. Foley performed the audit by observ-
ing Galvao work, questioning him, and subsequently
comparing her findings with Grade 8 Senior Technician
job descriptions. On November 4, 1991, Foley notified
Galvao that his proper classification was Grade 7.
Shortly thereafter, Galvao requested that the Gillette
Open Review Panel (the “Panel”) investigate his allega-
tion that he was unfairly denied a promotion to Grade 8.
The Panel was comprised of: Doris Ferrer Roach, an
1 Working side by side with Galvao, however, at least
during his final summer with Gillette, was a female, Cape
Verdean student technician. See Infra, Section III.B.3.c.
App. 14
Hispanic attorney in Gillette’s General Counsel’s Office;
Timothy W. Horan, Director of Human Resources-Manu-
facturing, G.N.A., a Caucasian; and Robert A. Williams,
Ill, Vice President, Corporate Director, Urban Affairs,
G.N.A., an African-American. The Panel interviewed Gal-
vao, his supervisor and other employees, and reviewed
Foley’s audits and memoranda written both by and to
Galvao. On March 31, 1992, the Panel decided that Galvao
was properly classified as a Grade 7 and after issuing a
Memorandum, informed him of its decision on April 21,
1992.
In July of 1992, Gillette again refused Galvao’s
request for an upgrade to Grade 8 and on July 16, 1992,
he filed a complaint with the Massachusetts Commission
Against Discrimination (“MCAD”) alleging violations of
Mass. Gen. L. ch. 151B, § 4 based on race, color and
national origin discrimination. Galvao alleges that subse-
quent to the filing of the complaint with MCAD, he was
subjected to a pattern of retaliation including but not
limited to “needless and intrusive monitoring of work,
unjustifiable criticism of work, unwarranted personal
criticisms, excessive assignments, diminished scores on
performance evaluations, denial of overtime pay, insuffi-
cient training, poor communication about work-related
issues and indifference to [his] attempts to rectify the
deterioration of his employment relationship with Gil-
lette.” (Complaint at { 22.)
Early in 1993, Dr. Mai Trankiem, a Chief Scientist in
the BRAD division, offered to take over supervision of
Galvao, believing that she could “turn around” what
Gillette contends was his inadequate performance.
Trankiem believed that she could help Galvao save his job
App. 15
and qualify for the upgrade to Grade 8. Three months
later, Trankiem issued Galvao a final written warning
which she discussed with him on April 29, 1993. During
this discussion Trankiem told Galvao that he had sixty
days to “improve his performance and cease being rude
and uncivil” to her. (Def. Undisp. Mat. Facts, { 20.) This
warning period was extended through August 31, 1993
because Galvao, due to a non-work related accident,
worked reduced hours during May of that year. In
August, Trankiem wrote a memorandum to file concern-
ing Galvao which stated “I have to face his inconsistent,
abusive, argumentative and humiliating behavior, with a
consequent reduction in my own productivity level.” (Id.
at § 21.) Shortly thereafter, however, Trankiem extended
the warning period another sixty days and on September
1, 1993 reclassified Galvao as a Grade 8, in order to avoid
further controversy on the reclassification issue. On
November 8, 1993, however, Trankiem terminated Gal-
vao’s employment.
Galvao subsequently filed this action in Norfolk
Superior Court on April 6, 1995. On April 24, 1995, Gil-
lette filed notice of removal to this court.
Galvao specifically alleges that Gillette discriminated
against him on account of his race and national origin by
failing to reclassify his job to a grade 8. He further alleges
that Gillette engaged in a program of retaliation follow-
ing his initial complaint to MCAD culminating in the
termination of his employment.
App. 16
Il.
Summary judgment will be granted if “the pleadings,
depositions, answers to interrogatories, and admissions
on file, together with affidavits, if any, show that there is
no genuine issue of any material fact and that the moving
party is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c); Mesnick v. General Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991), cert. denied, 504 U.S. 985 (1992). The non-
moving party “may not rest upon the mere allegation or
denials of the . . . pleadings, but . . . must set forth
specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). The evidence put forth “cannot
be conjectural or problematic; it must have substance in
the sense that it limns differing versions of the truth
which a factfinder must resolve at an ensuing trial.”
Mesnick, 950 F.2d at 822 (quoting Mack v. Great Atl. & Pac.
Tea Co., 871 F.2d 179, 181 (1st Cir. 1989)).
Summary judgment may be appropriate even in an
employment discrimination case “ ‘where elusive con-
cepts such as motive or intent are at issue .. . if the
nonmoving party rests upon conclusory allegations,
improbable inferences, and unsupported speculation.’ ”
Smith v. Stratus Computer Inc., 40 F.3d 11, 13 (1st Cir.
1994), cert. denied, 115 S. Ct. 1958 (1995) (quoting Goldman
v. First Nat'l Bank of Boston, 985 F.2d 1113, 1116 (1st Cir.
1993) (citations omitted)). When deciding a motion for
summary judgment, a court must “ ‘view the entire
record in the light most hospitable to the party opposing
summary judgment, indulging all reasonable inferences
in that party’s favor.’” McCarthy v. Northwest Airlines,
Inc., 56 F.3d 313, 315 (1st Cir. 1995) (quoting Griggs-Ryan
v. Smith, 904 F.2d 112, 115 (1st Cir. 1990)).
App. 17
Ill. Title VII Violations
Where there is no “smoking gun” evidence of dis-
crimination, as is the case here, claims of disparate treat-
ment pursuant to Title VII require analysis under the
burden-shifting paradigm of McDonnell-Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Texas Dep't of Community
Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). Under
McDonnell-Douglas, a plaintiff must first establish a prima
facie case of discrimination. Once he has done so, the
burden shifts to the defendant to articulate a legitimate,
non-discriminatory reason for its actions. At that point,
the presumption of illegal discrimination vanishes, Mes-
nick, 950 F.2d at 825 (citing Medina-Munoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)), and the plaintiff
is required to prove by a preponderance of the evidence
that “the asserted reason is a mere pretext for unlawful
discrimination.” Dance v. Ripley, 776 F.2d 370, 372 (1st Cir.
1985). The burden that shifts between the parties is the
burden of production; the burden of persuasion remains
at all times with the plaintiff. Saint Mary’s Honor Ctr. v.
Hicks, 509 U.S. 502, 507 (1993); Burdine, 450 U.S. at 253;
Woods v. Friction Materials, Inc., 30 F.3d 255, 260 (1st Cir.
1994).
I will review Galvao’s claims within the McDonnell-
Douglas framework, separating for more logical analysis
the alleged failure to promote and the retaliation claims.
A. Failure to Upgrade
1. The Prima Facie Case - Gillette has not argued that
Galvao has failed to establish a prima facie case. Upon
review of the record, I find both parties have dismissed
App. 18
this requirement too easily. In an ordinary failure to pro-
mote case, the plaintiff is required to show that 1) he is a
member of a protected group; 2) he was qualified for
promotion; 3) he applied for and was denied the promo-
tion; and 4) the person actually promoted was not a
member of the protected group. Bundy v. Jackson, 641 F.2d
945, 951 (D.C. Cir. 1981). The instant action, however,
does not fit the mold of a garden-variety failure to pro-
mote claim because here, unlike in other failure to pro-
mote situations, there was no open position for which
Galvao applied, and consequently there were no non-
protected persons promoted in his stead.
In the sole similar reported case I have been able to
find, the court noted that a different test was required in
the case of a non-competitive promotion. See Young v.
State Farm Mut. Auto. Ins. Co., 868 F. Supp. 937, 944-45
(W.D. Tenn. 1994). The court in Young modified the failure
to promote test in order to allow the plaintiff to show that
“1) she was a member of a protected class and 2) that for
the same or similar conduct she was treated differently
than similarly-situated non-protected persons.” Id. at 945
(citing Mitchell v. Toledo Hosp., 964 F.2d 577, 582-83 (6th
Cir. 1992)). Although Young involved a claim under the
Age Discrimination in Employment Act of 1967
(“ADEA”), the First Circuit, like the Sixth Circuit, has
directed that ADEA claims be analyzed under the McDon-
nell-Douglas framework utilized in Title VII discrimina-
tion cases. Loeb v. Textron, Inc., 600 F.2d 1003, 1014-19 (1st
Cir. 1979). Accordingly, I adopt the non-competitive fail-
ure to promote test and proceed to apply it to the instant
case.
App. 19
Galvao has met the first requirement by showing that
he is both black and of Cape Verdean national origin. The
second requirement is, however, problematic in that
because Galvao was the sole Grade 7 technician in his
division, there are no similarly situated non-protected
persons to whom he can compare himself. See Young, 868
F. Supp. at 945 (observing that “similarly-situated” anal-
ysis compared plaintiff to the non-protected members of
her grade and job who were non-competitively promoted
in less time than she).
Galvao’s version of the similarly-situated analysis is
to compare himself to Caucasian-American Grade 8 and 9
Senior Technicians and a Grade 10 Engineer, arguing that
he was as-well or better qualified for their grade destina-
tion. The task of the prima facie case, however, is to
establish a presumption of illegal discrimination on the
part of the defendant. Burdine, 450 U.S. at 253-54.
Although the application of the McDonnell-Douglas
framework should not be “rigid, mechanized or ritualis-
tic,” Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577
(1978), if Galvao cannot adduce sufficient evidence to
allow a factfinder to infer that he was denied a promotion
while others in a non-protected group were more or less
contemporaneously moved up the ladder, there can be no
successful claim of discrimination. See Oliver v. Digital
Equip. Corp., 846 F.2d 103, 108 (1st Cir. 1988) (noting that
in order to establish a prima facie case the plaintiff must
demonstrate “ ‘at least that his rejection did not result
from . . . the absence of a vacancy in the job sought.’ ”)
(quoting Teamsters v. United States, 431 U.S. 324, 358 n.44
(1977)); Loeb, 600 F.2d at 1014. There is no such evidence
to be found in the record here. Consequently, I conclude
App. 20
that Galvao has failed to establish a prima facie case of
race and national origin discrimination.
Because Gillette, arguendo assumed that the prima
facie case was met, I will continue my evaluation of
defendant’s motion to include those grounds on which
the defendant does expressly rely.
2. Legitimate, Non-Discriminatory Explanation — Gill-
ette contends that Galvao was not upgraded to a Grade 8
Senior Technician because he did not possess the quali-
fications required for that job. Lack of qualifications is a
legitimate, nondiscriminatory reason for an adverse
employment action. See Woods, 30 F.3d at 261-62. Gillette
has thereby rebutted the discriminatory inference that
would have resulted had Galvao established his prima
facie case. Under the McDonnell-Douglas framework, Gal-
vao would now have the burden of adducing evidence
that Gillette’s non-discriminatory explanation is a pretext.
3. Pretext - Galvao first points to the Career Devel-
opment Plan given him by Gillette after he had been
refused an upgrade but prior to Foley’s second audit.
According to Galvao, this plan is evidence of pretext
because the requirements for promotion laid out in the
plan were apparently not imposed on Caucasian-Ameri-
cans at the time they were promoted to Grade 8. In
support of this contention, he selects three Grade 8 Senior
Technicians, a Grade 9 Technical Associate and a Grade
10 Engineer and enumerates skills listed on his Career
Development Plan that these five Caucasian-American
employees do not have. He does not, however, pause to
examine what skills these employees do have that he
does not. Galvao’s attempt to compare himself with these
App. 21
five employees is unpersuasive. A brief comparative
review will illustrate why.
I begin with Brendan McFadden and Richard Fewer
who are Grade 9 and 10 respectively. A comparison of
Galvao to these two employees is inapposite. It is barely
relevant which pieces of equipment and software either
of these two employees are familiar with. It may be
anticipated that employees classified as Grade 9 Technical
Associates and Grade 10 Engineers would be familiar
with and proficient on different equipment and computer
programs, especially when neither of these two positions
are in the chemicals area in which Galvao worked. There
is no basis to presume that because they hold a hi#her
grade that they are automatically required to have a
lower grade’s skills as a prerequisite. Galvao is not com-
plaining of a failure to obtain a Grade 9 or 10.position.
Indeed, he has not presented me with any description of
these grade jobs, therefore the qualifications of these
employees have no particular bearing on this action.
Similarly, a comparison to Scott Batson does not help
Galvao. At the time of his deposition, Batson had been a
Grade 8 Senior Technician for twenty years. While he is
not proficient on all machines listed in Galvao’s Career
Development Plan, he noted in his testimony that at the
time of his promotion, certain of these machines were not
owned by Gillette. (Batson Dep. at 13.) Moreover, Bat-
son’s area in BRAD appears to be plastics while Galvao’s
area was chemicals. See Galvao Dep., Exh. § 2. Batson’s
own promotion twenty years ago is simply too attenuated
to have any relevance to qualifications now required for
Galvao’s advancement.
App. 22
Steve McDonough, another Grade 8, was employed
in the materials research area and has never been
employed in the chemicals area. It is not especially rele-
vant that he is not familiar with many of the machines
listed in Galvao’s Plan. He too is not similarly situated to
Gaivao.
Gerald O’Reilly, the final Grade 8 designated by Gal-
vao, does not appear on the BRAD organization chart,
however Gillette acknowledges that he works in Galvao’s
area. (Defendant’s Memorandum in Support of Summary
Judgment (“Def. Mem. Supp.”) at 10.) He cannot operate
two of the eleven machines listed in the Galvao Plan, is
unfamiliar with chemical principles and does not use the
software the Plan suggested Galvao learn. O'Reilly, how-
ever, testified he was proficient on the nine other
machines listed on the Plan. (O’Reilly Dep. at 7-13.) He
further testified that he was proficient on these nine
machines prior to his promotion to Grade 8. (Id.) Galvao
also alleges that O’Reilly does not fulfill the computer
requirements suggested in the Plan. O’Reilly, however,
testified that he is proficient on personal computers and
while he doesn’t use Lotus 1-2-3, he does use other
spreadsheet software. In short, he has most of the quali-
fications listed in the Plan.2
The gravamen of Galvao’s complaint is that the plan
given him by Gillette apprising him of skills he needed to
acquire in order to prepare for a reclassification to Grade
2 Since Galvao has not attempted to enumerate the skills
listed on the Plan that he himself possesses, an accurate
comparison between him and O’Reilly is not possible.
ER ENON AY ET PO a
App. 23
8 is too demanding when compared to the skills pos-
sessed by others currently holding that position. His
argument misses the point. First, Galvao’s Plan states that
its function was to assist in “establish[ing] the basic com-
petencies necessary for consideration for promotion to
Grade 8, Senior Technician.” (Pl. Mem. Opp., Exh. 1 at 1)
(emphasis supplied.) This is clearly different from pro-
viding requirements for an automatic reclassification.
Second, to show that others who are similarly situated —
accepting for the purposes of argument that employees in
a different grade than Galvao are a valid comparison -
were given opportunities he was denied because of dis-
crimination, he must at least point to others who had
only his level of skills or less when promoted to the job
described in the Plan.
The Plan was specifically developed for Galvao and
by strongly urging him to take a basic chemistry course,
it is clear that the promotion it addresses is principally in
the chemicals area. Efforts to measure Galvao against
Senior Technicians in other areas who apparently were
promoted at different times is not valid in the absence of
a demonstration not attempted here - that those in other
areas required substantially the same skills for the same
job and grade as are now required.3
3 I note that in his July 1990 to June 1991 Performance
Planning and Review Form (covering the time period when
Galvao was given the Plan), Section III, labeled “Prior Period
Objectives,” states that Galvao had met his prior period
objectives which included developing proficiency on the use of
the shaving friction tester with special protocols. “New
Objectives” included the completion of an internally offered
video cassette course on chemical skills. The comments attached
App. 24
Galvao’s second piece of evidence is the memoran-
dum he received from the Open Door Committee justify-
ing the refusai to reclassify him and stating that Grade 8
Senior Technicians are able to write simple computer
programs, have completed or are in the process of work-
ing toward an associate’s degree or equivalent certifica-
tion, and supervise lower level employees. Galvao alleges
that none of the five Caucasian-American employees he
deposed had all of these qualifications or proficiencies.
The memorandum is of no assistance to Galvao, however,
because it also makes clear that he lacked the ability to
work independently and to “take on new tasks and
responsibilities or work with new equipment,” and was
reluctant to work with chemicals. (Pl. Mem. Opp., Exh. 2
at 2.) This is in strong contrast to O'Reilly, the single
Grade 8 who could conceivably be compared with Gal-
vao. O'Reilly does not write computer programs, and
does not have nor was he working toward an associate's
degree. He testified, however, that prior to his promotion
to a Grade 8 he possessed all of the attitudinal charac-
teristics the Open Door Committee found lacking in Gal-
vao. O’Reilly’s lack of education and programming
ability, while possessing all the other characteristics listed
to the overall rating state that “[Galvao] will be considered for
advancement to the next grade level on completion of a course
in chemical laboratory skills.” (Pl. Mem. Opp., Exh. 3.)
Even if I were to hold that this commentary supplanted the
Plan’s requirements it would be of no avail as Galvao took no
steps to complete this course. On the next evaluation, the
comments pointed out that one year later, Galvao had failed to
complete the video cassette course. (Id.)
*
é
App. 25
in the Memorandum, will not support an inference of
discrimination against Galvao.
Galvao also contends that the second audit Foley
conducted was discriminatory in that she compared him
to a hypothetical Grade 8 Technician instead of to the
actual Grade 8’s. in the BRAD division. Gillette counters
that because Foley’s mission was to evaluate the level of
work Galvao was capable of, and not the actual job
performance of currently employed Grade 8 Senior Tech-
nicians, any other method of evaluation would have been
outside her jurisdiction. Galvao has failed to explain how
this procedure discriminated against him. He has
adduced no evidence that Foley’s auditing procedure was
different in any way than any other audit she conducted.
While Galvao may have preferred the audit to measure
his skills against named Senior Technicians, this is not
what Foley was directed to do.
Galvao next argues that Gillette has a history of
fostering a workplace environment that excludes minor-
ities. In support of this argument, he offers the testimony
of Mark Meadows, a black, Grade 12 Engineer. This testi-
mony, however, falls far short of supporting Galvao’s
thesis. While Meadows testified that he believes he expe-
rienced a delay in promotion because of his race in 1979,
he also testified that he received two further promotions
without any delay, the last occurring in the mid to late
1980's. (Meadows Dep. at 6-7, 42-44.) Although he testi-
fied that in the 1970’s when minorities were scarce at
Gillette, a minority applicant would receive a higher level
of scrutiny than a white applicant, (Id. at 51-52), he went
on to state that after that particular time period, this was
no longer true. (Id.) Indeed, Meadows makes it clear that
App. 26
he believes that after the early 1980’s the atmosphere at
Gillette became more welcoming to minorities, most of
whom were hired in the 1980’s. He goes on to acknowl-
edge that he did not personally experience, nor does he
know of any incidents of discrimination or bias against
minorities at Gillette after the 1980's. (Jd. at 51-57.)
Even assuming such anecdotal and lay opinion evi-
dence were admissible - an assumption I do not make -
Meadow’s testimony is not supportive of Galvao’s efforts
to show pretext on the part of Gillette as to him. No
inference of discrimination can be drawn from Meadow’s
belief that his promotion was delayed based on his race
in 1979 and his testimony makes it clear that whatever
possibly discriminatory atmosphere existed at Gillette in
the 1970’s was gone by the time Galvao began to experi-
ence his problems in the late 1980's.
Gillette’s stated reason for not upgrading Galvao was
that he was not qualified for the job. Instead of attacking
the qualifications of others who were not similarly situ-
ated, it would have been more appropriate for Galvao to
have presented evidence of his own qualifications. He has
failed to show that he possesses the qualifications
required for the upgrade, including significantly, the abil-
ity to work without supervision, which every Grade 8
interviewed, possessed. I therefore find that Galvao has
failed to show that Gillette’s legitimate, nondiscrimina-
tory reason for its failure to promote him is a pretext for
illegal discrimination.
a
e
PY
.
ri
App. 27
B. Retaliation
Section 2000e-3(a) of Title VII provides in relevant
part:
(a) It shall be an unlawful employment prac-
tice for an employer to discriminate against any
of his employees or applicants for employ-
ment . . . because he has opposed any practice
made an unlawful employment practice by this
subchapter, or because he has made a charge,
testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing
under this subchapter.
42 U.S.C. § 2000e-3(a) (1994). Galvao alleges that after he
filed his initial discrimination claim with the MCAD, he
was subjected to retaliatory behavior and ultimately dis-
charged in violation of § 2000e-3(a).
1. The Prima Facie Case — Claims of retaliation under
title VII are subjected to the same McDonnell-Douglas
analysis as claims of discrimination. To establish his
prima facie case, a plaintiff must show:
(1) that he engaged in protected activity, .. . (2)
that his employer was aware of the protected
activity, (3) that he subsequently suffered an
adverse employment action and absent other
evidence tending to establish a retaliatory
motivation, (4) that the adverse employment
action followed his protected activities within
such a period of time that the court can infer
retaliatory motivation.
Saad v. Stanley Street Treatment and Resources, Inc., 1994
WL 846911, *11 (D. Mass. 1994) (citing Lewis v. Gillette Co.,
1993 WL 291771, *3 (D. Mass. 1993), aff'd, 22 F.3d 22
| aaa
App. 28
(1994); Hazel v. U.S. Postmaster General, 7 F.3d 1, 3 (1st Cir.
1993); Petitti v. New England Tel. & Tel. Co., 909 F.2d 28, 33
(ist Cir. 1990).
Galvao’s filing of his MCAD complaint on July 16,
1992 meets the criteria of the first element. of the prima
facie test and his termination by Gillette in November of
1993 is clearly an adverse employment action that satis-
fies the third element. Evidence on the second prong of
the test, however, is thin at best. In the Complaint, Galvao
alleges that “[o]n at least one occasion, [his] manager told
him that his supervisors did not want to talk to [him]
because he had ‘a legal case going on.’” (Complaint
{ 24.) He does not, however, provide any specifics as to
who actually made this remark. In his deposition, Galvao
testified that Trankiem knew of his concern with Gil-
lette’s refusal to reclassify him and supported him in his
quest. (Galvao Dep. Vol. I, at 124.) Trankiem testified that
she first learned of the MCAD complaint through Gil-
lette’s counsel sometime during the period she super-
vised Galvao.* (Trankiem Dep. at 90.) Because Galvao’s
problems with Trankiem appear to have started imme-
diately after his transfer to her supervision and he has
not presented evidence that Trankiem knew of his com-
plaint at that time, it is not clear that Galvao has fulfilled
this requirement for establishing a prima facie case.
While Galvao’s termination is certainly the requisite
adverse employment action satisfying the third element,
4 Mark Meadows did testify that “[e]veryone was aware,”
that Galvao had taken legal action, adding that he heard about it
by “hearing people talk, casually just walking through a
laboratory.” (Meadows Dep. at 34.)
App. 29
his inability to adduce evidence establishing when his
direct supervisor found out about his MCAD complaint
vitiates his showing on the fourth prong of the test
requiring some evidence that would allow me to infer a
causal connection between the filing of the complaint and
the subsequent complained of behavior and termination.
This causal connection can, in the absence of other evi-
dence, perhaps be demonstrated circumstantially by a
short period of time between the protected action and the
subsequent retaliatory activities. In the instant case, Gal-
vao began working for Trankiem in February of 1993,
seven months after he filed the MCAD complaint, and he
alleges that her harassment of him began sometime soon
after. The relevant time period, however, is still the seven
month gap between the complaint and the complained of
action. This span of time is too long for a factfinder to be
able reasonably to draw the required inference here.
Even assuming that Trankiem knew of the complaint
when the complained of behavior began and that the
seven month gap does not matter because the alleged
retaliatory behavior began soon enough after Trankiem
entered the picture, Galvao’s attempts to evade summary
judgment still must fail because Gillette has articulated a
legitimate, non-discriminatory reason for Galvao’s termi-
nation and Galvao has not produced any evidence that
this reason is pretextual.
2. Legitimate, Non-Discriminatory Reason for Termina-
tion — In response to the allegations of retaliation, Gillette
has produced well-documented evidence of Galvao’s fail-
ure to perform his work up to his employer’s specifica-
tions and that his attitude toward his supervisor and
other Gillette management was rude and insubordinate.
App. 30
Evidence of the failure to perform is contained in Gal-
vao’s July 1992-August 1993 Performance and Planning
Review Form terming his overall performance “Unac-
ceptable,” and in testimony by Trankiem accompanied by
copies of memoranda she wrote both to Galvao and to
file. Evidence of Galvao’s insubordinate attitude is also
contained in Trankiem’s deposition testimony and mem-
oranda, and in testimony by Dr. Stan Wreford, Director of
the BRAD division. I find that Gillette has produced a
non-discriminatory, legitimate reason for Galvao’s dis-
missal.
3. Evidence of Pretext - Galvao argues that the very
fact that his first evaluation after filing the MCAD com-
plaint declined is proof of pretext. Galvao was supervised
by Mike Kwiecien for a portion of the evaluation period —
from September of 1992 until February of 1993 - after
which time his supervision was taken over by Trankiem.
The July 1992-June 1993 report, completed by Trankiem
and reflecting the year following the complaint, is to be
sure abysmal. On this report, Galvao received 6 “Unac-
ceptable” ratings and 2 “Adequate” ratings. (Pl. Mem.
Opp., Exh. 3.) The applicable scale is “Exceptional,”
“Highly Effective,” “Effective,” “Adequate,” and “Unac-
ceptable.” “Adequate” is the term used for expected per-
formance for newly assigned employees. (Jd.) This
evaluation, however, is not particularly without compari-
son to prior ratings. Review of Galvao’s last four pre-
vious evaluations will assist in placing his final rating in
context.
App. 31
July 1989-June 1990
Job Knowledge Highly Effective
Productivity Effective
Quality of Work Exceptional
Establishing Needs
and Meeting Priorities Highly Effective
Problem Solving Effective
Communication and
Interpersonal Skills Highly Effective
Adaptability Effective
Attendance and
Punctuality Effective
Overall Rating Highly Effective
July 1990-June 1991
Job Knowledge . Highly Effective
Productivity Effective
Quality of Work Highly Effective
Establishing Needs
and Meeting Priorities Highly Effective
Problem Solving Effective
Communication and
Interpersonal Skills Highly Effective
Adaptability Effective
Attendance and
Punctuality Effective
Overall Rating Highly Effective
July 1991-June 1992
Job Knowledge Highly Effective
Productivity Effective
Quality of Work Highly Effective
Establishing Needs
and Meeting Priorities Effective
Problem Solving Effective
Communication and
Interpersonal Skills Effective
Adaptability Effective
App. 32
Attendance and
Punctuality Effective
Overall Rating Effective
July 1992-June 1993
Job Knowledge Unacceptable
Productivity Unacceptable
Quality of Work Adequate
Establishing Needs
and Meeting Priorities Unacceptable
Problem Solving Unacceptable
Communication and
Interpersonal Skills Unacceptable
Adaptability Adequate
Attendance and
Punctuality Unacceptable
Overall Rating Unacceptable
Galvao began lobbying for his promotion in 1989. In
1989 and 1990, his rating was still “Highly Effective.” His
1991 rating then fell to “Effective” with individual scores
of 6 “Effectives and 2 “Highly Effectives” versus 4 scores
of each rating the prior year. It was at this point that
Galvao filed his complaint with the MCAD. In relative
terms, the post-complaint evaluation dropped twice as
much as the prior one had, when viewed in comparison
to two years before.
This drop in ratings while marked, however, does not
provide sufficient evidence of pretext. First, Galvao’s
evaluations significantly deteriorated prior to filing his
complaint. In fact, one of his stated reasons for filing his
complaint with MCAD was this decline in his evalua-
tions. (Def. Reply Mem., Exh. A {J 11-12.) Second, he has
App. 33
adduced no evidence to tie the final freefall to anything
but the change in supervisor and his own attitudinal
problems. For this to be relevant, Galvao must show that
his treatment by Trankiem was motivated by his filing the
complaint. The evidence shows otherwise.
Galvao argues in general that first Kwiecien and then
Trankiem subjected him to retaliatory harassment after he
filed the complaint. Evidence pertaining to Kwiecien is
almost completely lacking. Galvao’s only specific com-
plaints about him are a “lack of support,” (Galvao Dep.
Vol. I at 30) and that Kwiecien ordered Galvao to call him
when he got in each morning. (Id. at 34.) The evidence
cannot lead to a finding of pretext as to Kwiecien.
Galvao also complains that Fred Thomkins, his man-
ager at that time, assigned him to inventory chemicals,
something that Galvao admittedly was not happy about
doing. (Id. at 37.) In his deposition, however, Galvao
acknowledged that it was not only his lack of chemical
knowledge that made him uncomfortable; he also admit-
ted that he didn’t like being exposed to chemicals at all.
(Id. at 37-41.) His allegation that Gillette failed to train
him to do this job, however, is undercut by his admission
that when he could not identify a chemical, he could ask
a supervisor or manager for assistance. (Id. at 99.) Fur-
ther, instead of doing so, by his own admission, he would
“just put some name, any name,” on the container (Id. at
102), despite the fact that he was aware that mislabeling
could endanger others. (Id.)5
> Meadows testified that he believed that Galvao had the
qualifications to do the chemical inventory because of his
App. 34
Giving Galvao an assignment that he disliked is not
evidence of pretext. This is especially so when Galvao’s
career plan was designed to increase his knowledge of
chemistry. Galvao’s resistance to taking advantage of
enhancing his chemistry knowledge is further evidenced
by his failure to follow through on the video cassette
chemistry course consistently recommended in his eval-
uation commentary.
Once Galvao was transferred to Trankiem’s supervi-
sion, he was clearly under intensive supervision. Accord-
ing to Galvao, in addition to the poor evaluation,
Trankiem subjected him to:
[N]eedless and intrusive monitoring of work,
unjustifiable criticism of work, unwarranted
personal criticisms, excessive assignments,
diminished scores on performance evaluations,
denial of overtime pay, insufficient training,
poor communication about workrelated issues
and indifference to his attempts to rectify the
deterioration of his employment relationship
with Gillette.
(Complaint { 22.) It is apparent from the evidence that
this working relationship was tempestuous and often
unpleasant. However, there is no support for the proposi-
tion that it was the result of a retaliatory motive.® Galvao
“ability to summarize the data.” (Meadows Dep. at 31.)
Although Meadows didn’t think Galvao had the chemical
background necessary to do the job, he concurred in giving
Galvao the assignment. (Id. at 32.)
6 I note that in his deposition Galvao stated that he did not
believe that Trankiem was personally motivated to retaliate
against him for filing the MCAD Complaint. (Galvao Dep. Vol.
a eee
App. 35
admits that there were “inaccuracies in his work,” (Pl.
Mem. Opp. at 12) while supervised by Trankiem but
offers the numerous explanations, urging that each is
proof of pretext. I will briefly review each category of
explanation.
a. Insufficient Training - While working under
Trankiem, Galvao was required to use a differential scan-
ning calorimeter (“DSC”) and a thermographometric
analyzer (“TGA”). He contends that he lacked the proper
training to use these instruments and that a Grade 8
Caucasian-American technician, Gerald O’Reilly,
attended a two week training course for these machines.
O’Reilly, however, simply testified that he took a special
equipment course in North Carolina sponsored by Gil-
lette. (O’Reilly Dep. at 5.) There was no testimony that
the special equipment included these two machines.
Galvao also alleges that Trankiem refused to person-
ally provide him with adequate training. He admits that
Trankiem gave him training at the beginning of his stint
with her, (Galvao Dep. Vol. I at 60-64) but thereafter
urged him to ask other technicians for help. Galvao’s
response was to demand that Trankiem conduct his train-
ing personally. In a memorandum dated April 22, 1993,
Galvao complained to Trankiem about “basic training
problems” and concluded:
III at 63-64.) He does, however, allege that Trankiem was the
tool by which Wreford and Dr. Bush, Wreford’s superior,
retaliated against him for filing the complaint. (Id. at 143.) There
is no evidence, however, that Wreford or Bush overcame what
Galvao admits was Trankiem’s natural non.discriminatory
motivation.
App. 36
With regard to ‘consulting other technicians
first,’ I believe that other technicians have their
own responsibility and I respect their own time.
I expect you to train me.
(Id. at Exh. 17.) Training, apparently, was not unavailable
as Galvao asserts. That Trankiem didn’t administer it
personally is hardly the point. Indeed these complaints
serve to underscore the proposition that Galvao refused
either to work effectively with others or show individual
initiative.”
b. Malfunctioning Equipment - Galvao contends that
another reason his work was inaccurate was that the
machines he was assigned to work on were poorly main-
tained and constantly malfunctioned. Specifically he com-
plains about the felt-cutter, the fiber-cutter, the sprayer,
the TGA, the occiliscopes and the computers. According
to Galvao, when he would call these deficiencies to
Trankiem’s attention, she would insist that he stop talk-
ing and walk away.
When O’Reilly, who operated the felt-cutter prior to
Galvao and trained him on its use, was asked if there was
ever a problem with the equipment, he said he had occa-
sional problems with it. (O’Reilly Dep. at 19.) Francis
Smith, another Grade 8 Senior Technician testified that
although the felt-cutter broke down on occasion, he felt it
was a “pretty reliable instrument.” (Smith Dep. at 35-36.)
7 Ina similar vein, Galvao argues that when machinery was
not working properly, it was Trankiem’s job to deal with it even
though he had been told to take the initiative and either repair
the instrument or arrange for someone else to repair it. (Galvao
Dep., Exh. 9.)
App. 37
McFadden once repaired a fiber-cutter (McFadden Dep.
at 37), however this is apparently a different machine
from the felt-cutter (O’Reilly Dep. at 19.)
Similarly, the other technicians Galvao deposed testi-
fied that they repaired the sprayer. Smith, however,
called the sprayer “very reliable,” (Smith Dep. at 36), and
McFadden could recall only two occasions when it was
necessary to repair the machine and testified that he
never heard any Gillette employee complain about it.
(McFadden Dep. at 35-36.) McDonough found the sprayer
“inconsistent” but would not call it defective, merely
“old.” (McDonough Dep. at 26.) In regard to the TGA,
Smith testified that he was once required to repair the
TGA, however after diagnosing it as “no good,” he rec-
ommended that the company “get rid of it,” which it did.
(Smith Dep. at 38-39.) It seems clear from the testimony
proffered by Galvao and the others, that the equipment
he used was not perfect; however, no one else found it to
be perpetually malfunctioning or a hinderance to perfor-
mance. In any event, there is no basis for a finding of
retaliation on this point.
¢. Trankiem’s Scrutiny of Galvao’s Productivity — It is
undisputed that while Trankiem supervised Galvao she
developed and kept assorted productivity charts on his
work. Trankiem testified that the productivity standards
she expected from Galvao were based on how long it
would have taken her or Gerry O'Reilly, a technician she
Previously supervised, to complete an assignment.
(Trankiem Dep. at 27.) In Trankiem’s opinion, the time
estimates allowed a “comfortable time to finish.” (Id.)
Trankiem also testified that while she kept extensive
notes on Galvao’s performance, she also kept notes on
App. 38
two other employees when their productivity levels were
unacceptable. (Id. at 62-63.) Galvao was the only
employee, however, who in her opinion had a “severe
problem.” (Id.)
Trankiem may have been demanding and exhaustive
in her supervision, but a showing that Galvao’s lack of
production and poor quality of work was not the motivat-
ing factor for termination cannot be mounted on that
basis. A review of Trankiem’s daily memoranda to Galvao
and her daily recording of his accomplishments - or lack
thereof - reveal that Galvao was not producing. See
Trankiem Dep. Exhibits. Two other employees Trankiem
supervised apparently were able to meet her demanding
standards. O’Reilly found her to be a “good supervisor”
although one who “expects an awful lot out of you... . “8
(O’Reilly Dep. at 21.) Significantly, another Cape Verdean,
Kathy Mederia, a student who worked with Trankiem at
the same time as Galvao, apparently was able to meet
Trankiem’s standards and occasionally redid Galvao’s
work. (Trankiem Dep. at 49-50.) Galvao asserts that many
of the comments Trankiem made in her daily reviews of
his work were “gratuitous, personal and disparaging,”
and occasionally punctuated with an exclamation point,
thereby elucidating her prejudicial state of mind. (PI.
Mem. Opp. at 14.) What is clear from a review of these
documents is that Trankiem’s state of mind was one of
8 Galvao was adamant about not having his production
compared to other technicians like O’Reilly (Trankiem Dep. at
48). This is ironic considering that O’Reilly is one of the Grade 8
Technicians Galvao wants to be compared to when it comes to
skills and proficiencies. See supra Section III.A.3.
Dirrnerrees stes isi e, sies ania inane i ce
App. 39
increasing frustration. None of these comments, however,
reflect a state of mind involving an illegal motivation.
Galvao’s final point is that Wreford, the Director of
BRAD, instructed Trankiem to “write down everything
Galvao says.” (Id.) This, in Galvao’s opinion is evidence
that Gillette was attempting. to put him on an “express
track to termination.” When read in context, however,
Wreford did not tell Trankiem to write down everything
Galvao said, but to write down all comments Galvao
made which Trankiem felt were harassing or related to
confrontations between the two. (Trankiem Dep. at 19.)
d. Galvao’s Stress - Galvao’s reaction to Trankiem’s
tracking of his work was to declare that he was under
stress and depressed. In a memorandum to Wreford, he
claimed that he was “under lots of pressure, continuous
harassment and psychological torture,” and analogized
himself to a slave. (Wreford Dep., Exh. 4.) Galvao blames
this stress for inaccuracies in his work and alleges that
Trankiem, by both putting on the pressure and then fail-
ing to alleviate his feelings, was motivated by discrimina-
tory animus. Like his other allegations, this also is
unsupported by the evidence. That Trankiem and
Wreford knew that Galvao was becoming more and more
upset and did little to attempt to change it may be unfor-
tunate from a human resources perspective, but is not
indicative of illegal discrimination.
e€. Failure to Follow Personnel Policies - Galvao alleges
that Gillette did not follow established personnel policies
in order to address his concerns. The policy in question,
however, does not appear to help Galvao’s case. Gillette
Company Policy E-3 puts the burden on the employee
App. 40
who must present a problem first to his immediate super-
visor, or in the alternative to two successive levels of
management. (Wreford Dep., Exh. 7.) Galvao complied
with both of these requirements by first complaining to
Trankiem and then to Wreford. The policy further pro-
vides that if no satisfaction is to be had at that point, the
employee can bring his problem to the Open Door Panel,
something Galvao had already done with a different
problem. (Id.) Galvao, did not, however, take that next
step here. It is hard to see, therefore, how Gillette devi-
ated from its policy. Galvao does not allege that he was
prevented from going to the Open Door Panel.
f. Probationary Period and Termination — Galvao
argues that Gillette has misrepresented his job perfor-
mance but this proposition is not supported. His previous
acceptable performance, commented on by Meadows
(Meadows Dep. at 16), does not assure continued accept-
able performance, especially in light of the change in
supervisors.
His argument that if his work was so unsatisfactory,
he should have been removed sooner is even less viable.
After claiming that Gillette didn’t follow its personnel
policies, he is now complaining that they did. A proba-
tionary period prior to a final warning and dismissal is an
opportunity for the poorly performing employee to turn
himself around. That Galvao did not do so to Trankiem’s
satisfaction is not indicative of a discriminatory motive.
Further, Trankiem’s belief that Galvao could do the
job prior to taking on his supervision does not raise an
issue of material fact concerning his actual performance
App. 41
during her supervisory period. That performance is thor-
oughly documented, as are Galvao’s often insubordinate
refusals to do anything to help himself.9
8. Insubordinate, Rude and Emotional Behavior — Gal-
vao vehemently denies that he was ever insubordinate!0
or uncivil to Trankiem. The evidence of record belies this
supposition. Trankiem documented one occasion when
she asked Galvao to leave her office and he refused,
forcing her to threaten to call security and finally to leave
her office to get away from him. (Galvao Dep., Exh. 7.) At
other times identified above, he refused to follow a direct
instruction to see other technicians for assistance. Galvao
also disparaged Trankiem to others by referring to her
Vietnamese national origin in the context of “torturing
him.” (Wreford Dep. at 36-40.) The final-written warning
issued to Galvao on May 5, 1993 also documents “disre-
spectful and rude” behavior. (Trankiem Dep., Exh. 20.)
Galvao has presented no evidence that Trankiem’s
response to this behavior was motivated by illegal dis-
crimination.
® Galvao also argues that pretext can be discerned from
Trankiem’s admission that his performance improved during
her supervisory period. Trankiem’s testimony, however, while
acknowledging that Galvao’s performance did not deteriorate,
and in fact improved slightly, clearly indicated that his
performance was at no time, up to her standards. (Trankiem
Dep. at 76-77.)
10 Insubordination is recognized by Gillette as a form of
misconduct rendering an employee ineligible for termination
pay. See Trankiem Dep., Exh. 1.
App. 42
h. Reclassification to Grade 8 —- Apparently hoping
that Galvao’s attitude was the result of his chronic dissat-
isfaction with his grade level, Trankiem reclassified him
as a Grade 8 Senior Technician in September of 1993,
approximately two months prior to termination. The
stated reason for the reclassification was the realization
that “the issue of [Galvao’s] grade level may have been
distracting to [him] and impacted [his] performance.” (Id.
at Exh. 21.)
The reclassification memorandum made clear, how-
ever, that Galvao’s performance in no way warranted the
reclassification. (Id.) The memorandum also enumerated
performance characteristics which would have to be met
by Galvao during the sixty day period subsequent to the
reclassification. Id. These requirements included accurate
and timely completion of work, maintenance of certain
machines, and civil behavior toward and cooperation
with Trankiem. (Id.)
Galvao argues that the promotion was a pretextual
afterthought on the part of Gillette, devised to make it
seem that his planned termination was not discrimina-
tory. As evidence of this, Galvao points out that he had
not mentioned an upgrade during the previous ten
months. This is not compelling. The entire record, read
together, paints a picture of a supervisor who took Gal-
vao on because she was his friend and wanted to help,
was nevertheless quite demanding, and ended up with a
difficult employment situation. This picture is consistent
with the probation period extensions, daily reviews, the
written final warning and a last ditch effort to help Gal-
vao, in which Trankiem finally eliminated what she
App. 43
thought was a bone of contention, the reclassification to
Grade 8.
Galvao’s explanations of pretext reflect a working
relationship that precipitously deteriorated during the
course of seven months. Whether Trankien was overly
demanding or prescriptive is ultimately immaterial to my
analysis. Galvao has failed to adduce sufficient evidence
to satisfy a reasonable factfinder that the actions of
Trankiem and Gillette were a mask for illegal discrimina-
tion; therefore he cannot forestall summary judgment.
IV. Claims under Chapter 151B, § 4
Although Massachusetts has a lower threshold for
the pretext hurdle, see Blare v. Husky Injection Molding
Systems, Boston, Inc., 419 Mass. 437 (1995), I conclude
from the foregoing analysis that Galvao has not presented
“evidence that the defendant's asserted reasons were not
the real reasons for the action.” Id. at 443. I therefore hold
that Galvao has failed to offer sufficient evidence from
which I can infer pretext simpliciter, not to mention pre-
text for discrimination or retaliation.
V.
For the reasons set forth more fully above, the motion
for summary judgment is GRANTED.
/s/ Douglas P. Woodlock
DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT
JUDGE
App. 44
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION
NO. 95-10843-DPW
MANUAL GALVEO,
Plaintiff,
V.
THE GILLETTE COMPANY,
)
)
)
)
)
Defendant. )
JUDGMENT
WOODLOCK, District Judge
In accordance with this Court’s Memorandum and
Order issued on July 30, 1996, allowing the Defendant's
Motion for Summary Judgment, it is hereby ORDERED
Judgment for the defendant against the plaintiff.
BY THE COURT,
/s/ Rebecca Greenberg
Deputy Clerk
DATED: July 31, 1996
App. 45
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
MANUEL GALVAO, CIVIL ACTION NO.
Plaintiff 95-10843-DPW
v.
THE GILLETTE COMPANY.
Defendant
ee eee eee eee
MOTION TO WITHDRAW APPEARANCE
The undersigned counsel, Helene Horn Figman and
Patricia L. Davidson, on behalf of Kramer & Figman, P.C.,
hereby request permission to withdraw as attorneys for
the Plaintiff, Manuel Galvao, in the above-captioned mat-
ter.
In support of this motion, we state that communica-
tion between our office and the Plaintiff has deteriorated
as a result of disagreement regarding the future course of
the litigation of this matter.
On November 2, 1995, we received a letter from the
Plaintiff discharging this office as his legal counsel. On
November 9, 1995, the Plaintiff retrieved his entire case
file from our office. :
At this time, the Plaintiff has informed us that he has
not retained new counsel. There are no motions presently
pending in this matter and the trial has not been sched-
uled. Discovery is scheduled to be completed by Febru-
ary 15, 1996 and the final pre-trial conference is
scheduled for April 11, 1995.
App. 46
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
MANUEL GALVAO, CIVIL ACTION NO.
)
)
Plaintiff ! 95-10843-DPW
v. )
THE GILLETTE COMPANY,
Defendant
AFFIDAVIT OF PATRICIA L. DAVIDSON
IN SUPPORT OF MOTION
TO WITHDRAW APPEARANCE
I, Patricia L. Davidson, on Oath do depose and say as
follows:
1. I am an attorney licensed to practice law in Mas-
sachusetts. I am admitted to the United States
District Court for the District of Massachusetts. I
practice law with the firm of Kramer & Figman,
os
2. In February 1995, the Plaintiff, Manuel Galvao,
retained our firm to represent him in a discrimi-
nation action against The Gillette Company.
3. In March, 1995 we filed a complaint on his behalf
pursuant to M.G.L. c.151B and Title VII of the
Civil Rights Act of 1964.
4. Since that time, communication between our
office and the Plaintiff has deteriorated as a result
of disagreement regarding the future course of
the litigation of this matter.
5. On November 2, 1995, we received a letter from
the Plaintiff discharging this office as his legal
i cil ieee aac ee
App. 47
counsel. On November 9, 1995, the Plaintiff
retrieved his entire case file from our office.
6. At this time, the Plaintiff has informed us that he
has not retained new counsel. I advised the Plain-
tiff to retained legal representation as soon as
possible.
7. There are no motions presently pending in this
matter and the trial has not been scheduled. Dis-
covery is scheduled to be completed by February
15, 1996 and the final pre-trial conference is
scheduled for April 11, 1995. I have advised the
Plaintiff to pay close attention to the Scheduling
Order in this matter.
8. The Plaintiff has been notified of the Motion to
Withdraw Appearance by certified mail.
Signed under the pains and penalties of perjury this
9th day of November, 1995.
Patricia L. Davidson
App. 48
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
MANUEL GALVAO, CIVIL ACTION NO.
)
)
Plaintiff 95-10843-DPW
v. ) (Filed Nov. 13, 1995)
THE GILLETTE COMPANY, ?
Defendant
MOTION TO WITHDRAW APPEARANCE
The undersigned counsel, Helene Horn Figman and
Patricia L. Davidson, on behalf of Kramer & Figman, P.C.,
hereby request permission to withdraw as attorneys for the
Plaintiff, Manuel Galvao, in the above-captioned matter.
In support of this motion, we state that communica-
tion between our office and the Plaintiff has deteriorated
as a result of disagreement regarding the future course of
the litigation of this matter.
On November 2, 1995, we received a letter from the
Plaintiff discharging this office as his legal counsel. On
November 9, 1995, the Plaintiff retrieved his entire case
file from our office.
At this time, the Plaintiff has informed us that he has
not retained new counsel. There are no motions presently
pending in this matter and the trial has not been sched-
uled. Discovery is scheduled to be completed by Febru-
ary 15, 1996 and the final pre-trial conference is
scheduled for. April 11, 1995.
Douglas P. Woodlock, U.S.D.J.
App. 49
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
MANUEL GALVAO, CIVIL ACTION NO.
Plaintiff 95-10843-DPW
v.
THE GILLETTE COMPANY,
Defendant
el i
MOTION TO RECONSIDER MOTION TO WITHDRAW
APPEARANCE AND REQUEST FOR A HEARING
The undersigned counsel, Helene Horn Figman and
Patricia L. Davidson, on behalf of Kramer & Figman, P.C.,
hereby request that this Court reconsider its decision of
December 6, 1995 denying counsel’s Motion to Withdraw,
attached hereto as Exhibit A.
In support of this Motion and in addition to reasons
outlined in the Motion to Withdraw and accompanying
Affidavit, we state the following:
1. Since the Plaintiff's discharge of this office by
letter dated October 30, 1995, the Plaintiff has
made repeated representations and assurances
that he was about to retain new counsel.
2. However, the Plaintiff currently informs us that
he has not obtained successor counsel and that he
will need ten (10) or twelve (12) months to obtain
a new attorney.
3. The Defendant noticed the Plaintiff's deposition
for December 12, 1995 and agreed to continue the
App. 50
deposition until January 15, 1995 upon the Plain-
tiff’s representation that he was in the process of
retaining new counsel.
4. The Plaintiff has strongly indicated that he will
not appear at the deposition and will not partici-
pate in a meeting to prepare him for the deposi-
tion.
5. The Plaintiff refuses to cooperate in Answering
the Defendant's Interrogatories or Responding to
the Plaintiff's Request for Production of Docu-
ments.
6. On at least one occasion, the Plaintiff has
instructed us not to have contact with the Defen-
dant’s attorneys.
7. The Plaintiff refuses to accept our recommenda-
tions regarding his obligations pursuant to the
Federal Rules of Civil Procedure.
8. The Plaintiff has insisted that we take action on
his behalf beyond the parameters of the Federal
Rules of Civil Procedure, including insisting that
we continue all events scheduled in this matter
for ten (10) or twelve (12) months.
9. The Plaintiff wishes to address the Court directly
on his perceived need for said continuance.
In conclusion, the deterioration of the communica-
tion between the Plaintiff and our office and the Plain-
tiff’s articulated lack of respect for both the Federal Rules
of Procedure and our professional opinion have made it
impossible for us to fulfill our obligations to him, this
Honorable Court and the opposing party.
WHEREFORE, we respectfully request that this Court
allow this firm to withdraw as attorneys for the Plaintiff.
App. 51
We also respectfully request a hearing on this motion so
that all interested parties, including the Plaintiff himself,
may address issues relevant to this matter.
Respectfully submitted,
Attorneys for Plaintiff
/s/ Patricia L. Davidson
Helene Horn Figman, BBO #164860
Patricia L. Davidson, BBO #556647
KRAMER & FIGMAN, P.C.
Three Allied Drive, Suite 120
Dedham, MA 02026
(617) 329-1515
Dated: December 5, 1996
App. 52
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
2b hab hah a ae a ae a a a ae ae aa a
MANUEL GALVAO
Plaintiff
VERSUS
THE GILLETTE COMPANY
Defendant
2 bb a a a a a a a a
CA-95-10843-DPW
+ + & &£& & & &
BEFORE THE HONORABLE DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT COURT JUDGE
HEARING
JANUARY 12, 1996
APPEARANCES:
PATRICIA L. DAVIDSON, ESQ, Kramer & Figman,
P.C., 3 Allied Drive, Dedham, Massachusetts 02026,
on behalf of the Plaintiff
BONNIE B. EDWARDS, ESQ, Ropes & Gray, One
International Place, Boston, Massachusetts
02110-2624, on behalf of the Defendant
Courtroom No. 8 - 2nd Floor
Post Office & Courthouse Bldg.
Boston, Massachusetts 02109
11:00 A.M. - 11:12 A.M.
Pamela R. Owens - Official Court Reporter
204 Post Office & Courthouse Building
Boston, Massachusetts 02109
Method of Reporting: Computer-Aided Transcription
"
App. 53
[p. 2] CA-95-10843-DPW
JANUARY 12, 1996
MS. DAVIDSON: Good morning, Your Honor.
THE COURT: If the parties could introduce
themselves. }
MS. DAVIDSON: I’m Patricia Davidson. I’m the
attorney who represents the plaintiff, Manuel Galvao. I’d
like to thank the Court for meeting with us this morning.
This is my client, Manuel Galvao.
THE COURT: Okay.
MS. EDWARDS: I’m Bonnie Edwards and I rep-
resent the Gillette Company.
THE COURT: Well, I have received a letter from
Mr. Galvao showing a copy to Ms. Davidson. It does not
show a copy to opposing counsel. And I don’t think it
should go to opposing counsel since it is reflects commu-
nications between Mr. Galvao and his counsel over the
conduct of the case. I have, in addition, this Motion to
Reconsider the Motion to Withdraw Appearance and
Request for a Hearing here, which I gather was served on
Opposing counsel as well.
The circumstances are these. I want to make this
abundantly clear. Until there is compliance with our local
rule regarding withdrawal — and that’s Rule 83.5.2, sub-
section (c) which requires that any notice of [p. 3] with-
drawal or effort to withdraw be preceded or accompanied
by a notice of appearance of other counsel, I’m not going
to permit withdrawal in this case. The relationship
between counsel and client is, at least in this action, not
App. 54
something that I’m going to review in the absence of
compliance with the rule. The way in which we have set
up the Civil Justice Reform Act proposals requires that
there be a consultation between counsel and the client
concerning the conduct of the case, budget involved in
the case, that sort of thing, that there be a certification
provided. One was provided here. And beyond that, if
there are disagreements or views that certain things that
should be done are not being done, for whatever reason,
that’s a matter between counsel and the client.
There is other dimension. If someone files a lawsuit
in this jurisdiction, there is an entitlement — and it’s been
reinforced by the Civil Justice Reform Act — to the prompt
resolution of it. And I’m not going to interfere with the
schedule that I established in this case. It will be met. If
there is dissatisfaction with the level of preparation,
that’s another matter to be taken up on another occasion,
if taken up at all. But, disinclination to appear at a depo-
sition is not something that I’m going to find acceptable. I
don’t find it [p. 4] acceptable. The desire to do additional
things may or may not be well founded, but it is not
going to be a basis for extending the time in this case. In
the absence of some other counsel appearing on your
behalf, your present counsel will remain in place here.
So, it really comes down to just that. There is no
other choice as far as I’m concerned here. I have read
through the materials. I express no view about the sub-
stance of the discussions between you and your counsel
about the proper resolution of the case. That’s a matter
for both of you to decide. This much is clear: That the
defendant has been accused of certain wrongdoing. They
are entitled to a prompt disposition of those allegations.
vO
App. 55
And more than that, the public is entitled to a prompt
disposition of any case that’s placed in this Court.
So, I want you to understand what my position is
with respect to it. I see no basis to allow the Motion to
Reconsider the Motion to Withdraw under the present
premises. But I’ll hear you any further. Ms. Davidson, do
you have anything else?
MS. DAVIDSON: Well, Your Honor, I believe
you have addressed my chief concerns, that the plaintiff
understands the importance of complying with the dis-
covery rules and that discovery depositions, interrogato-
ries, producing documents are an integral part of every
case. [p. 5] And that as long as Mr. Galvao and I have this
professional relationship, that we must work together to
comply with the rules that the Court outlined.
THE COURT: Well, that’s absolutely the case.
And more than that, failure to comply with those rules
can lead to various sanctions, including dismissal of the
case. Failure to appear at a deposition, for example,
under these circumstances would prompt me to consider
very seriously whether or not I would simply dismiss the
action. Failure to provide discovery of other types would
also lead to such an inquiry or consideration of other
lesser sanctions such as precluding evidence from being
presented. But this is not an undertaking in which one of
the parties does what it feels like doing. This is an under-
taking in which important rules are in place. Important
procedures must be followed. If they are not followed,
consequences flow from that. And I emphasize again that
recalcitrance is not going to be a basis for extending the
time here.
App. 56
Mr. Galvao, anything else?
MR. GALVAO: Well, if your order is for that, all
I have to say is the relationship — the reasons why the
relationship turned this way is that when we first agreed
to -
THE COURT: Well, let me say, Mr. Galvao, two
[p. 6] things: Number one, I think you should be very
careful about making any statements in the presence of
opposing counsel.
MR. GALVAO: I'm sorry.
THE COURT: Number two, I have your letter. I
have reviewed it very carefully. I’m going to seal it in the
records of the court because I do not believe it should be
shown to the other side because it reflects discussions
that you have had with your counsel about how this case
should proceed and relative judgments about various
aspects of the case. But I’m familiar with all that you have
said here. I have to tell you that I’m not of the view that
this is the occasion to evaluate the level of services of
counsel or the difficult economic judgments that parties
have to make when they engage in litigation.
There is no question that there is a disparity from
time to time between parties. And consideration is given
to that in various sorts of ways. But it’s not a grounds to
demand everything from counsel and, then, if counsel is
unable to provide that level of service, because of limita-
tions on the resources, to make counsel the responsible
party for various kinds of very practical decisions that
arise during the course of litigation. When I say - or
when you say I’m firm, you're right. But [p. 7] I’m firm
; oe
’
App. 57
because our rules are firm. Our rules have been devel-
oped in an effort to provide every litigant in this court
with a speedy, inexpensive and fair determination of their
case. And firm and forceful are those rules, as necessary,
to provide that for everyone, both plaintiffs and defen-
dants.
So, is there anything else beyond what you’ve pro-
vided in your letter?
MR. GALVAO: I accept your ruling.
THE COURT: All right. So, you'll be going for-
ward, I gather, on the 15th with the deposition?
MR. GALVAO: Yes.
THE COURT: And you'll follow through with
discovery promptly thereafter?
MS. DAVIDSON: Absolutely.
MS. EDWARDS: Your Honor, may I ask -
would Your Honor enter an order that the deposition go
forward?
THE COURT: Well, I’m not going to change the
ordinary rulings. Mr. Galvao has heard what I’ve had to
say. He’ll make his own judgments about it. I see no
reason at this point to enter a separate order here.
MS. EDWARDS: Your Honor, at this point, doc-
uments were requested that are overdue.
THE COURT: Well, the way to deal with that is
to make a motion, although I strongly suggest that you
try [p. 8] to work it out among yourselves before that.
App. 58
I'm only going to act on what’s before me. What's
before me formally is a Motion to Reconsider. I’m deny-
ing the Motion to Reconsider for the reasons that I’ve set
forth here and the parties will work toward a prompt
resolution of the case.
MS. EDWARDS: Thank you.
MS. DAVIDSON: Thank you very much, Your
Honor.
THE COURT: All right. Then we'll be in recess.
RECESSED AT 11:12 A.M.
CERTIFICATE
I, PAMELA R. OWENS, Official Court Reporter, U. S.
District Court, do hereby certify that the foregoing is a
true and correct transcription of the proceedings taken
down by me in machine shorthand and transcribed by
same. I certify that the transcript fees charged and the
page format used by me comply with the requirement of
this Court’s court reporter plan and the requirements of
the Judicial Conference of the United States.
App. 59
UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MASSACHUSETTS
MANUEL GALVAO,
Plaintiff CIVIL ACTION NO.
95-10843-DPW
(Filed Jan. 15, 1996)
v.
THE GILLETTE COMPANY,
Defendant
lll i i a a
|
MOTION TO RECONSIDER MOTION
TO WITHDRAW APPEARANCE
AND REQUEST FOR A HEARING
The undersigned counsel, Helene Horn Figman and
Patricia L. Davidson, on behalf of Kramer & Figman, P.C.,
hereby request that this Court reconsider its decision of
December 6, 1995 denying counsel’s Motion to Withdraw,
attached hereto as Exhibit A.
In support of this Motion and in addition to reasons
outlined in the Motion to Withdraw and accompanying
Affidavit, we state the following:
1. Since the Plaintiff’s discharge of this office
by letter dated October 30, 1995, the Plaintiff
has made repeated representations and
assurances that he was about to retain new
counsel.
2. However, the Plaintiff currently informs us
that he has not obtained successor counsel
and that he will need ten (10) or twelve (12)
months to obtain a new attorney.
sen: -agite -teemmmurats ~ ulurunpittinn maianaimnn cr ecummmmli ia, cadmas
App. 60
1/12/96 DENIED, no successor counsel having been
identified
/s/ Douglas P. Woodlock, U.S.D_J.
App. 61
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
EAEELELELAAAELEEEEEAALA ALAA ALEDAAEE ES
j
MANUEL GALVAO *
Plaintiff ;
VERSUS , CA-95-10843-DPW
THE GILLETTE COMPANY :
Defendant *
secaceceacacacsasacececcacecsqcaceqcees
BEFORE THE HONORABLE DOUGLAS P. WOODLOCK
UNITED STATES DISTRICT COURT JUDGE
HEARING
APRIL 11, 1996
APPEARANCES:
PATRICIA L. DAVIDSON, ESQ. AND MICHAEL M.
KRAMER, ESQ., Kramer & Figman, P.C., 3 Allied
Drive, Dedham, Massachusetts 02026, on behalf of
the Plaintiff
RICHARD P. WARD, ESQ, Ropes & Gray, One Inter-
national Place, Boston, Massachusetts 02110-2624, on
behalf of the Defendant
Courtroom No. 8 — 2nd Floor
Post Office & Courthouse Bldg.
Boston, Massachusetts 02109
2:55 P.M. — 3:15 P.M. (Chambers)
3:30 P.M. — 3:40 P.M.
App. 62
Pamela R. Owens - Official Court Reporter
204 Post Office & Courthouse Building
Boston, Massachusetts 02109
Method of Reporting: Computer-Aided Transcription
[p. 2] CA-95-10843-DPW
APRIL 11, 1996
NOTE: (Ex parte conference held in chambers
between the Court and counsel for plaintiff not made a
part of this transcript).
THE COURT: Well, Ms. Asiaf, on my behalf,
allowed the Motion for Extension of Time to File the
Motion for Summary Judgment until April 27th here. Is
this going to be a complete motion for summary judg-
ment?
MR. WARD: A complete -
THE COURT: A complete motion for summary
judgment, partial motion for summary judgment?
MR. WARD: No, complete. Yes.
THE COURT: Well, it seems to me not appropri-
ate to move forward in a trial posture until I have dealt
with the motion for summary judgment.
MR. WARD: I believe you’re correct, Your
Honor.
THE COURT: I should acknowledge - you may
be seated.
MR. WARD: Thank you, Your Honor.
THE COURT: I should acknowledge that I have
received correspondence from the plaintiff some time ago
App. 63
and as well had a conference with counsel for the plaintiff
here earlier this afternoon concerning the nature of the
relationship and difficulties that have been [p. 3] created
by my unwillingness to permit the withdrawal of plain-
tiff’s counsel at various points. I have not been, I think,
exposed to any discussions on the merits of the case, but
simply expressions of concern, first in January by Mr.
Galvao and more recently by plaintiff’s counsel, concern-
ing how best to proceed given some differences of opin-
ion and view with respect to the case.
Plaintiff’s counsel have properly sought the assis-
tance of the Court in understanding how they should
proceed in this case and were prompted to do so after
seeking direction from the Massachusetts Bar Associa-
tion.
I’m going to set a time for plaintiff to respond to the
Motion for Summary Judgment; we’ll set a date for argu-
ment on it; and I will revisit the question of withdrawal
after dealing with the Motion for Summary Judgment so
that I understand fully what is involved in this matter.
Ms. Davidson, how long do you need after the 27th
to respond?
MS. DAVIDSON: We’re cognizant that the rules
provide 14 days. If the Judge would indulge us and give
us 30 days, that would be greatly appreciated.
THE COURT: Yes. So that’s —
MR. WARD: Your Honor, may we have - since
we're scheduling it, we'd like the opportunity to file a [p.
4] reply brief in the usual time in employment cases.
App. 64
THE COURT: Well, yes. I think I’ll permit that.
So, we'll have a response by plaintiff on May 27th and a
reply brief —- is that Memorial Day? Then we'll make it
May 31st for plaintiff’s brief, then a reply by defendant
on June 14th. Mrs. Beatty, when can we set this down for?
OFF THE RECORD
THE COURT: What’s the situation of counsel
for either July 24th or July 31st? Are you in town? Am I
trenching on somebody’s vacations?
MS. DAVIDSON: That’s fine with the plaintiff.
MR. WARD: That last week in July, I was hop-
ing to be down on the Cape, Your Honor.
THE COURT: The 24th, I think, is the week
before. Is that agreeable? I’d just as soon deal with it as
promptly as I can.
MR. WARD: That’s fine.
THE COURT: For summary judgment hearing.
MR. WARD: Oh, for summary judgment hear-
ing?
THE COURT: Yes.
MR. WARD: Oh, that will be fine. Sure.
THE COURT: Okay. So, we'll make it July 24th
for the summary judgment hearing.
Mr. Galvao, I want you to understand that the [p. 5]
nature of the discussions that I have received, both from
you and from counsel, are such that I think you should
App. 65
understand that I anticipate that all of the positions or
arguments that you wish to make will be made to me
given that direction to counsel. You should also under-
stand, however, that counsel are sophisticated in these
kinds of matters, understand the nature and legal argu-
mentation of what needs to be done. And I would urge
you to consider very carefully advice that you receive
from them about the way in which particular arguments
may most effectively be presented to the Court. But I
expect to — and I know I will - receive from your counsel
the relevant arguments that you wish to make in addition
to whatever arguments they also believe would be help-
ful to you.
I have told counsel if there is a disagreement about
the presentation of certain arguments, that they are
authorized by me to present the argument in a fashion
that you want to have it presented, but also to have it
presented alternatively in their legal judgment. I am con-
cerned — on the basis of the communications that I have
received, including your letter of January 6th - that you
are insufficiently aware of the value of reliance on coun-
sel.
And, so, to avoid any misunderstandings here, I have
given directions to take the broadest possible view [p. 6]
of their response in order that choices that you may
believe are appropriate not foreclose your actual legal
interest.
In any event, I will be reviewing this carefully for
purposes of summary judgment and will then review it
for purposes of trial.
App. 66
I should indicate, however, that while I have taken a
very hard line on withdrawal of counsel, both here and in
other cases, that I am - if it continues to be pressed -
likely to be more willing to permit withdrawal of counsel
after the summary judgment process.
And, so, while I recognize that you have in the past
indicated that you have looked for other counsel in this
case, I urge you to continue to look for other counsel here
so that there be only a modest interruption, either that or
work more carefully and more cooperatively with your
current counsel. But I will revisit the question of with-
drawal after I have reviewed the Motion for Summary
Judgment in this case.
Is there anything else that we need to take up?
NOTE: (No response from counsel).
THE COURT: So, I will see you on the 24th. All
right?
MR. WARD: Thank you, Your Honor.
THE COURT: Thanks very much.
[p. 7] MS. DAVIDSON: Thank you very much,
Your Honor.
RECESSED AT 3:40 P.M.
CERTIFICATE
I, PAMELA R. OWENS, Official Court Reporter, U. S.
District Court, do hereby certify that the foregoing is a
true and correct transcription of the proceedings taken
down by me in machine shorthand and transcribed by
App. 67
same. I certify that the transcript fees charged and the
page format used by me comply with the requirement of
this Court’s court reporter plan and the requirements of
the Judicial Conference of the United States.
App. 68
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2062
MANUEL GALVAO,
Plaintiff, Appellant,
V.
THE GILLETTE COMPANY,
Defendant, Appellee.
ORDER OF COURT
Entered January 17, 1997
The appellant’s motion for leave to file a supplemen-
tal record appendix is denied. The clerk is hereby
instructed to return the proffered supplemental appendix
to the appellant.
By the Court:
/s/ William Ng
Clerk.
[cc: Messrs. Itzkowitz, Davidson, Ward and Edwards]
App. 69
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-2062
MANUEL GALVAO,
Plaintiff, Appellant,
v.
THE GILLETTE COMPANY,
Defendant, Appellee.
ORDER OF COURT
Entered January 28, 1997
The appellee’s motion to strike the appellant's brief is
granted. The appellant shall file a new brief without refer-
ence to non-record material on or before February 7, 1997.
By the Court:
/s/ William Ng
Clerk.
[cc: Messrs. Edwards, Ward, Davidson and Itzkowitz]
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.