F. Dennis Saylor IV, United States District Judge.
This is an action for workplace discrimination and retaliation. Plaintiff Marlyne M. Campbell, an African-American woman, alleges that her former employer, defendant Bristol Community College, discriminated against her on the basis of her race and retaliated against her by firing her after she complained about the use of a term she believed to be a racial slur.
Campbell was hired as a probationary employee in August 2012. Within weeks, according to the college, there were significant issues with her work performance, as well as questions about her behavior. By December 2012, she had been terminated.
Campbell had been hired pursuant to a federal grant in support of a program called Massachusetts Community College Workforce Development Transformation Agenda, or MACCWFDTA. Apparently due to the cumbersome name and unpronounceable nine-letter acronym, people at the college (and elsewhere) referred to it as the "Mack Daddy" program.
Campbell now contends that she was discriminated against on the basis of race, and that she was terminated because of her complaints about the use of the term "Mack Daddy." For the reasons set forth below, summary judgment will be granted to the college as to her claim for discrimination, but denied as to the claim for retaliation.
The facts set forth below are undisputed except as noted.
On August 20, 2012, Marlyne Campbell was hired by Bristol Community College as a "Career Development Counselor." (Def. SOF ¶ 8, 93).
Bristol Community College is a public community college that serves more than 9,000 students. (Def. SOF ¶ 1). The college has campuses in Fall River, New Bedford, Attleboro, and Taunton, Massachusetts. (Id.).
Campbell has a bachelor's degree in social work, a master's degree in education, and a doctorate in theology. (Id. ¶ 18). She was hired as part of the Massachusetts Community College Workforce Development Transformation Agenda ("MACCWFDTA"), an initiative supported by a $20 million federal grant given to community colleges in Massachusetts. The initiative was intended to help provide certificate or degree programs for unemployed or under-employed students. (Id. ¶¶ 9-10). Her job included providing various academic services to students, supporting outreach to unemployed and under-employed workers, and tracking and reporting student participation and progress. (Id. ¶ 16).
On August 28, 2012, Anthony Ucci, the college's Associate Vice President for Academic Affairs, asked Campbell if she was "part of the `Mack Daddy' grant." (Id. ¶ 102). According to Campbell, she asked Ucci if he knew what "Mack Daddy" meant; when he said he did not, she told him that she found the term offensive because she thought it referred to a black pimp. (Id. ¶ 103-04). Ucci apologized to Campbell and told her that he did not know the term carried that meaning. (Id. ¶ 105).
Campbell has submitted an exhibit that provides definitions of the term "Mack Daddy" from a variety of sources. According to the exhibit, the Merriam-Webster
On August 30, 2012, Campbell attended the college's annual professional day. (Id. ¶ 107). During a presentation, the college's President, John Sbrega, used the term "Mack Daddy" to refer to the grant program. (Id. 108).
As Campbell was leaving, Dean Richard Driscoll asked Campbell if she was "part of the `Mack Daddy' grant." (Id. ¶ 109). Campbell told Driscoll that the term was a racial slur and Driscoll responded that he did not know that. (Id. 109-110).
Within a week of the professional day, Campbell contends that she spoke with Gloria Saddler, a BCC administrator, and told her that she had been upset by Sbrega's use of the term. (Campbell Dep. at 67-68).
On September 5, 2012, Campbell attended her first staff meeting with her supervisor, Kristen McKenna, and two other co-workers, Dolores Gatley and Kayla Medeiros. (Id. at 71).
At some point in early September, McKenna raised concerns about the term at a statewide meeting of the program's directors. (Id. ¶ 115). McKenna decided to voice the issue because of Campbell's concerns, and because each of the colleges had been referring to the program by a different name. (Id. ¶ 117). Although she did not believe the term had a racial connotation, McKenna herself thought it could be used to refer to a pimp, and therefore was inappropriate. (Id. ¶ 118). The directors from each of the 15 community colleges involved in the grant program agreed to no longer refer to it by that term, and resolved instead to calling it the "Transformation Agenda." (Id. ¶ 116).
On September 7, 2012, Amilcar Ferreira, a vocational counselor at the Fall River Career Center (where Campbell was at times assigned to work) spoke about the "Mack Daddy grant." (Id. ¶ 120). Ferreira was not, however, an employee of the college. (Id.). Campbell told Ferreira that the term was "racial" and was "very offensive" to black people. (Id. ¶ 121).
On September 10, 2012, Campbell told Tafa Awolaju, the college's Vice President of Human Resources, about the use of the term. (Id. ¶¶ 122, 126).
On September 19, 2012, Campbell was at a student enrollment meeting with approximately ten people when she again heard the term "Mack Daddy." (Id. ¶ 123). She
Later in September, McKenna "started to feel that [Campbell] was not fulfilling [her] job duties." (McKenna Dep. at 65). McKenna "started to feel that [she] was a difficult person to work with" because, in her view, she was "disruptive in staff meetings" and would argue with her colleagues. (Id. at 66). In particular, McKenna noted that Campbell would argue with Dolores Gatley; McKenna soon became frustrated that she and Gatley were "acting up." (Id. at 66-69).
On October 10, 2012, at a meeting with Medeiros, Gatley, and Campbell, McKenna heard Gatley scream and gasp; when she turned around, she saw Gatley's face had "sandwich on it." (Id. at 70-72). According to an incident report filed by McKenna on October 21, 2012, Campbell admitted that she and Gatley had had a disagreement, and that she had "forced food" into her face and "said something like `eat this.'" (Def. Ex. B at 38). The incident report also stated that Gatley did not want to share an office with Campbell after that event. (Id.).
Campbell and Gatley also apparently had issues concerning the fact that Gatley would address her by names other than "Dr. Campbell," including "Dr. C," "Ms. C," and "Marlyne." (Def. SOF ¶ 29). For example, on the evening of October 10, 2012, Campbell sent an e-mail to Gatley with the subject line "Re: Civility" that stated, in part:
(Def. Ex. B at 35).
At some point in October, Campbell sent a letter to McKenna. (Id. at 30). The letter included various complaints about her work experience, and apparently referred to the fact that Gatley did not call her by her preferred title. (Id.). The letter also requested a meeting to discuss the issue with McKenna. (Id.).
McKenna responded by letter, and told Campbell, among other things, that Gatley would start calling her "Dr. Campbell." (Id. at 31). McKenna apparently addressed the issue with Gatley, and Gatley apologized to Campbell. (Def. SOF ¶ 29).
On November 5, 2012, McKenna sent Campbell an e-mail stating "I need you to update your calendar on a regular basis." (Campbell Dep. at 111).
On November 15, 2012, McKenna sent an e-mail to Campbell and Gatley stating that her supervisors, Aguilar and Menard, "want[ed] to see more progress." (Def. Ex. A at 48). In addition, the e-mail stated that Campbell and Gatley would need to complete counseling note templates for each student they worked with so that Aguilar
On November 19, 2012, McKenna sent Campbell a letter after meeting with Joe Vianna, the Director of the Fall River Career Center, and Amilcar Ferreira, a Vocational Counselor at the Center. (Id. at 44).
On November 23, 2012, McKenna sent Campbell another e-mail that stated, among other things, that she needed to focus on
(Id. at 49).
On November 26, 2012, McKenna sent an e-mail concerning Campbell's performance to Aguilar and Lisa Tarantino, the Associate Director of Human Resources for the college. (Def. Ex. B at 34). The e-mail stated that Campbell "exhibits some unstable behavior," was "very undisciplined, unorganized, lost, and confused," and was not "qualified" for the job. (Id.). McKenna also stated that since her e-mail on November 19, Campbell had been "extremely emotional and unstable." (Id.). She concluded, "I am very sensitive to employee's rights and I want to be respectful of the process. However ... I think we may want to consider if this is working out to the benefit of the grant and the college." (Id.).
On December 2, 2012, McKenna e-mailed Gatley and Campbell and essentially relayed the message that Menard wanted them to increase their "contact with the general public." (Def. Ex. A at 50).
On December 3, 2012, Campbell e-mailed McKenna and asked to be put on the staff meeting agenda for December 12, if she "last[ed] until" then. (Def. Ex. A at 52). McKenna e-mailed her and told her that she would "save her a slot" at the staff meeting. (Id.).
On December 5, 2012, Campbell was scheduled to work at the Attleboro Career Center. According to the college, none of its staff reported seeing Campbell on that day and she did not sign the Center's
On December 12, 2012, Campbell submitted 51 new-student forms to Medeiros. However, according to the college, many were duplicates submitted in error. (Def. SOF ¶ 74). Campbell states that she "disagree[s]" with that contention, but does not appear to dispute the underlying allegation; instead, she disputes only the date when she was given notice of the mistake. (Pl. Resp. to Def. SOF ¶ 74).
On December 17, 2012, Campbell met with Awolaju and Tarantino. (Def. SOF ¶ 81). During the meeting, she expressed concerns that her lack of resources and workload had been assigned to her in a discriminatory manner. (Campbell Dep. at 148-49). The parties disagree as to whether Campbell stated that she was being discriminated against based on her race; Campbell contends that she did, and the college contends that she did not. Later in the meeting, she again expressed concern that employees had been referring to the program as the "Mack Daddy" grant and stated that she believed the term meant "pimp." (Def. SOF ¶ 84). Awolaju responded that he did not know of a negative connotation for "Mack Daddy." He told her, however, that the college took her concerns seriously, that he would review the matter, and that she could file a formal complaint. (Def. SOF ¶ 86). The college contends that Campbell "indicated that she did not want to file a complaint but wanted a new position with less responsibilities." (Def. SOF ¶ 87). Campbell denies that she said this.
On December 19, 2012, McKenna wrote a letter addressed to Campbell "in regards to [her] job performance." (Def. Ex. B at 33). McKenna referred to the November letter and repeated the "concerns" raised in that letter. As to her attendance, McKenna noted that, although she had started to sign in on the Fall River attendance log, she had been reported as absent from the Attleboro Career Center on December 5 and had not signed in on that day. In addition, McKenna noted that she had only participated in one of the two required bi-weekly counselor meetings. McKenna did, however, note that she had agreed not to use the title of "pastor" during work. The letter concluded with the following:
(Id.).
On December 26, 2012, Campbell received a call from the Human Resources Department telling her to "come in" and see Awolaju. (Campbell Dep. at 143). Awolaju informed her that she had been terminated from her job and handed her a letter, dated December 26, stating that she was "dismissed from [her] employment at [the college]." (Def. Ex. A at 55).
It appears that on January 31, 2013, Campbell filed a grievance with the college that alleged that the college had breached its contract with her by not providing her with an "E-7 form." (Def. Ex. A at 64).
On February 19, 2013, Campbell sent a letter to Sbrega that "share[d] [her] concerns" about the "treatment" she had received at the college. (Id. at 69). Campbell wrote that she had been "repeatedly ... subjected to an offensive racial slur," "Mack Daddy," while working at the college. (Id.). The letter continued: "[a]s an African American Women [sic] and the President Barack H. Obama also an African American having the Massachusetts Community College Workforce Devolvement [sic] Transformation Agenda being referred as the Mack Daddy Grant is unacceptable and inappropriate, to say the least." (Id. at 70). In addition, she wrote that she had been retaliated against for voicing her concerns about the term with Human Resources on December 17, 2012. (Id.).
Sbrega forwarded the letter to Awolaju, who responded on March 12, 2013. (Id. at 59). Awolaju told her that "the College does not share your views or characterization" of the events leading to her firing. (Id.). He wrote that she had been fired due to "significant performance issues." (Id.). He also wrote that that at their December 17 meeting, she had "acknowledged" her "poor performance" and "anticipated" that she was "going to be fired." (Id.).
On April 11, 2013, the college denied Campbell's grievance.
On September 13, 2013, Campbell filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") and the Equal Employment Opportunity Commission ("EEOC") that alleged the college had discriminated against her "on the basis of age, race and color and retaliation." (Def. Ex. K).
On May 28, 2015, the MCAD found that Campbell's claim "lack[ed] ... probable cause." (Def. Ex. L).
Campbell appealed the MCAD's finding and a hearing was held on August 20, 2015. (Def. Ex. M). On September 28, 2015, the MCAD's finding was affirmed, and on April 15, 2016, the EEOC adopted the MCAD's finding. (Id.; Def. SMF ¶ 151).
On June 23, 2016 Campbell filed this action. The original complaint alleged claims for hostile work environment, discrimination on the basis of race, and retaliation in violation of Title VII of the Civil Rights Act of 1964, as well as state-law claims arising out of the same facts.
On February 23, 2017, the Court dismissed the Title VII claim for hostile work environment and the state-law claims. The
The role of summary judgment is to "pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (internal quotation marks omitted). Summary judgment is appropriate when the moving party shows that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue is "one that must be decided at trial because the evidence, viewed in the light most flattering to the nonmovant would permit a rational fact finder to resolve the issue in favor of either party." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) (citation omitted). In evaluating a summary judgment motion, the court indulges all reasonable inferences in favor of the non-moving party. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When "a properly supported motion for summary judgment is made, the adverse party must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (footnote omitted) (internal quotation marks omitted). The non-moving party may not simply "rest upon mere allegation or denials of his pleading," but instead must "present affirmative evidence." Id. at 256-57, 106 S.Ct. 2505.
The college first contends that Campbell failed to comply with Local Rule 56.1. Local Rule 56.1 requires, in part, that a party opposing a motion for summary judgment must "include a concise statement of the material facts of record as to which it is contended that there exists a genuine issue to be tried, with page references to affidavits, depositions and other documentation." District of Massachusetts Local Rule 56.1. According to the college, Campbell "completely fail[ed] to comply with" the rule because she did not include a statement of material facts, and instead only responded to the statement of material facts filed by the college. The college contends that the Court should consider all of its statement of facts to be undisputed.
Campbell did in fact file a document entitled "Plaintiff's Statement of Material Facts in Dispute." (Docket No. 116). Although that statement largely consists of Campbell's responses to the facts asserted by the college, it does assert some independent facts, albeit not always in the clearest manner. In any event, however, her statement makes clear which of the college's "material facts" she disputes, and provides citations to the evidence. Accordingly, while perhaps imperfect, her response in substance complies with the rules, and has not greatly prejudiced the college or created significant confusion for the Court in determining which material facts are at issue. Accordingly, the Court will not consider all of the college's asserted facts to be undisputed, nor will it grant summary judgment in favor of the college on that basis.
The complaint alleges that the college discriminated against Campbell in violation of Title VII of the Civil Rights Act of 1964 by firing her because of her race. Under Title VII, it is unlawful for an employer to "discharge any individual ... because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a).
Where, as here, there is no direct evidence of discriminatory intent in a Title VII case, the Court employs the burden-shifting analysis set forth in McDonnell Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, the burden falls initially to a plaintiff to set forth a prima facie case of discrimination. 411 U.S. at 802, 93 S.Ct. 1817. A properly-established prima facie case gives rise to an inference of intentional discrimination. See Ingram v. Brink's, Inc., 414 F.3d 222, 230 (1st Cir. 2005). The burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for its decision. Id. "If the employer does so, the burden of production reverts to the plaintiff, who must then prove that the employer's neutral reasons were actually a pretext for the alleged discrimination." Id.
To establish a prima facie case of discrimination, Campbell must show (1) that she is a member of a protected class; (2) that she performed her job at an acceptable level; (3) that she was terminated; and (4) that the employer filled her position with another individual with qualifications similar to her own. Windross v. Barton Protective Services, Inc., 586 F.3d 98, 103 (1st Cir. 2009). Although the burden of establishing a prima facie case lies with the plaintiff, a prima facie case requires only "a small showing, that is not onerous, and is easily made." Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003) (internal quotations omitted).
At the outset, there appears to be no dispute concerning the first and third requirements. As an African-American, Campbell is clearly a member of a protected class, and both parties agree that the college terminated her employment. The parties' main point of dispute concerns the second requirement—that is, whether Campbell can show that she performed her job at an acceptable level.
As noted, Campbell was a probationary employee who was on the job for only four months. The college contends that she "had a poor attendance and tardiness record[,] which adversely impacted the students and Career Center customers who relied on her services"; that she "miss[ed] staff meetings"; and that she "demonstrated an overall inability to stay organized, [ ] work efficiently, and [ ] properly maintain records." (Def. Mem. at 19). The college further alleges that those "performance issues [are] supported by contemporaneous documentation and observations by her supervisor ... as well as individuals outside of the college who relied on" her services. (Id.).
The college has submitted substantial evidence in support of its contentions. A few examples of evidence in particular suggest substandard performance.
First, the college submitted an "incident report" concerning an episode on October 12 where Campbell shoved a sandwich into a co-worker's face after a disagreement.
Second, the college submitted a letter sent by Kristen McKenna, Campbell's supervisor, on November 19 that it describes as a "Thirty-Day Warning Letter." (Def. Ex. A at 44). Among other concerns, the letter stated that a co-worker at one of the college's career centers was "ha[ving] difficulty placing students with [Campbell] for appointments because he [was] not certain where [she was]." (Id.). The letter also reminded her of the importance of regularly contacting students, attending counseling meetings, and collaborating with co-workers, and asks her to stop using the title of "pastor" on her business cards. The letter concludes by asking her to "[p]lease make every attempt to meet the above requirements over the next 30 days," at which time, the college would "reevaluate how our mutual and beneficial partnership is progressing." (Id. at 45).
As to that letter, Campbell contends only that it "does not indicate that it is a warning letter." (Pl. Mem. at 2). But although the letter may not include the actual word "warning," it certainly constituted a warning; it made clear that Campbell's supervisor had serious enough concerns regarding her work performance that the college would be reevaluating her position in 30 days. And she does not challenge the letter's statement that other employees had been having "difficulty placing students with [Campbell] for appointments because" they were uncertain, at times, where she was.
Third, the college submitted an e-mail sent by McKenna to other employees on November 26 stating that Campbell "exhibits some unstable behavior," is "very undisciplined, unorganized, lost, and confused," is not "qualified" for the job, and suggests the college "may want to consider" if her employment was "working out." (Def. Ex. B at 34). Campbell does not address the letter or dispute its contents.
Fourth, the college submitted a letter sent by McKenna to Campbell on December 19 in which she repeats the concerns she had raised in her November 19 letter. (Def. Ex. B at 33). In particular, the letter noted that Campbell had been reported absent from the Attleboro Career Center on December 5, had participated in only one of the two required bi-weekly counselor meetings, and had reportedly submitted paperwork filled with errors on December 12. (Id.). The letter concluded by telling her that McKenna felt she was unable "to organize [her] work, work efficiently and maintain records," and ultimately that she was "unable to fulfill the duties of the job." (Id.).
Although Campbell does address the December 19 letter, her responses are inconsistent.
Furthermore, Campbell offers little or nothing to suggest that she had been performing her job satisfactorily. She contends repeatedly that she was "qualified" for the position when she began her employment with the college. But making a prima facie case requires her to show that she was performing her job well, not that she was qualified for the job at the time of her hiring. See Caraballo-Caraballo v. Correctional Administration, 892 F.3d 53, 59 (1st Cir. 2018) (noting that in "discharge... cases ... the plaintiff's ability to satisfy the job qualifications element will ordinarily depend on whether she was successfully performing her job at the time of her discharge ..."). Indeed, she cites to only two pieces of evidence in support of her contention that she was performing her job in a satisfactory manner.
First, Campbell cites McKenna's deposition testimony that "in the beginning of [her] time ... at the Fall River Career Center," she spoke with Ferreira, who told McKenna that she was doing "very well." (McKenna Dep. at 93-94). She provides no date for when Ferreira said this, but it was obviously at the "beginning" of her employment. Furthermore, as noted, Ferreira was not an employee of the college.
Second, she cites to McKenna's testimony that Joe Vianna, the Director of the Fall River Career Center, "had expressed confidence in [her] ability to communicate well with students and [her] compassion to help students." (McKenna Dep. at 101). That contention appears to be based on McKenna's November 19 letter, where she wrote:
(Def. Ex. A at 44). Having the "ability" to perform is, of course, not the same as actually performing. Furthermore, the letter went on to state that "the Fall River Career Center staff"—including Vianna (and Ferreira)—had expressed "concerns" to McKenna regarding Campbell's job performance, including their "difficulty placing students with [her] for appointments because [they were] not certain where [she] was." And, again, the purpose of the letter was to put Campbell on notice that her performance had raised significant enough concerns that the college would be "reevaluat[ing]" how her job was "progressing" in 30 days. Vianna's expression of confidence in Campbell, therefore, can only be reasonably understood as a limited statement contained within a more serious expression of concern. And like Ferreira, Vianna was not an employee of the college.
In short, there are serious questions as to whether Campbell has provided evidence sufficient to show that she was performing her job at an acceptable level. Furthermore, and in any event, it is also unclear whether she has satisfied the fourth requirement of a prima facie case—that is, evidence that the college filled her position with an individual with similar qualifications. Campbell contends only that she "was replaced by a white female." In support of that contention, she cites to "Plaintiff's Exhibit 3, Deposition of John Sbrega, Exhibit 9." Although the form of that citation is not particularly clear, it appears to refer to a letter Campbell has submitted to the Court as part of an exhibit. The letter, which was written on February 24, 2014, appears to be a response sent
In short, there are ample reasons to conclude that Campbell has failed to establish a prima facie case. In any event, however, even assuming she has done so, her claim for discrimination still fails. Once a plaintiff has established a prima facie case, the burden shifts to the employee to provide a legitimate, nondiscriminatory reason for its decision. The college easily satisfies that requirement here. As noted, there is extensive evidence that Campbell was performing her job poorly, and that the college terminated her for that reason.
The burden then shifts back to Campbell, who must show that the stated reason was actually a pretext for discrimination. Campbell appears to offer various contentions as to why the college's stated reason for her firing—that she was performing her job inadequately—was pretextual.
First, Campbell refers to the letter Awolaju sent to her on March 12, 2013. She states that his claim about her poor work performance was "a general statement," and that President Sbrega "acknowledged" that Awolaju's statement was "general." (Pl. Mem. at 7). It is entirely unclear what Campbell means by this, and in any event, she offers nothing to indicate how a "general" statement would undercut the college's stated rationale.
Second, Campbell states in conclusory terms that the "reasons advanced by [the college] are false." (Id. at 8). But she offers nothing to suggest how or why those reasons are false.
Third, she states that "Dolores Gatley[,] who was the other Navigator[,] did not appear to be African-American." (Pl. Mem. at 8). To the extent she is alleging that she was treated differently than her white colleagues, she has put forth no evidence to show that they were performing their jobs inadequately, or even that Gatley was treated differently.
Fourth, she contends that she was not given the "progressive discipline" she should have been given, in the form of "oral warnings, written warnings and suspensions." (Id.). In support of that argument, she cites to portions of the deposition of Anthony Ucci. (Pl. Ex. 6). The cited testimony, however, only provides that in Ucci's view, it was "definitely a possibility" that an employee's "second level [of discipline] would be a written warning," and that it "seems like a reasonable progression" that an employee whose "performance didn't improve" after a written warning would be suspended. (Id. at 17). The undisputed evidence shows that Campbell was repeatedly warned by McKenna—both orally and in writing—that her performance was inadequate. Moreover, she was only a probationary employee, and there is no evidence that the system of progressive discipline applied equally to probationary and regular employees.
Taken as a whole, that evidence is insufficient to establish that the reasons provided by the college for the termination of Campbell's employment were pretextual. Accordingly, therefore, even if she has established a prima facie case, she cannot show that the college's stated reason for firing her was pretextual. Summary judgment on Campbell's claim of employment discrimination will therefore be granted to the college.
The college also seeks summary judgment on Campbell's claim of retaliation under Title VII. Section 704(a) of Title VII makes it unlawful for an employer to retaliate against an employee for engaging in certain protected activity. See 42 U.S.C. § 2000e-3(a). To establish a prima facie case of retaliation, a plaintiff must prove that "(1) [ ] she engaged in protected activity under Title VII, (2) [ ] she suffered an adverse employment action, and (3) the adverse employment action was causally connected to the protected activity." Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010).
"Once the plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for its employment decision." Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). "If the defendant carries this burden of production, the burden shifts back to the plaintiff to show that the defendant's explanation is a pretext for unlawful retaliation." Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015) (citing Collazo, 617 F.3d at 46).
Ultimately, "[t]o defeat summary judgment, the plaintiff need not prove retaliation by a preponderance of the evidence." Id. Instead, "[a]ll a plaintiff has to do is raise a genuine issue of fact as to whether [retaliation] motivated the adverse employment action." Collazo, 617 F.3d at 50 (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000).
Campbell contends that she was fired by the college in retaliation for complaining to Awolaju on December 17 about her colleagues' use of the term "Mack Daddy," a term she understood to be a racial slur.
The college contends that Campbell cannot establish that she participated in protected activity by complaining about the use of the term "Mack Daddy." To establish that she has participated in a protected activity, a plaintiff "need not prove that the conditions against which [s]he protested actually amounted to a violation of Title VII." Fantini v. Salem State College, 557 F.3d 22, 32 (1st Cir. 2009) (quoting Wimmer v. Suffolk County Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999). Instead, she "must demonstrate only that [she] had a `good faith, reasonable belief that the underlying challenged actions of the employer violated the law.'" Id.
The college contends that Campbell could not have had an objectively reasonable belief that the use of the term "Mack Daddy" violated Title VII. It relies on a summary order of the Second Circuit, Sosa v. Local Staff, LLC, 618 Fed. App'x 19 (2d Cir. 2015), which states that "[t]he objective reasonableness of an employee's belief that the employer has violated Title VII must `be measured against existing substantive law." Thus, the college continues, because the references to "Mack Daddy" were mere "stray remarks," made "without any racial connotation whatsoever," and because the law is clear that such "offhand" and "isolated" comments cannot constitute violations of Title VII, Campbell's belief that the use of the term violated Title VII was objectively unreasonable. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
Under the circumstances, the use of the term "Mack Daddy" cannot be characterized as "stray remarks" or an "isolated incident." It is undisputed that the term was repeatedly used to refer to the grant by a variety of Campbell's colleagues—including
It is certainly true that there is no evidence that a single one of those employees knew or understood that the term could have a racial connotation. There is also doubt as to whether an objectively reasonable person would consider the term to be racially offensive (as opposed to merely vulgar or inappropriate). Nonetheless, under the circumstances, the Court cannot say that Campbell's interpretation of the term is so objectively unreasonable that it cannot support a claim for retaliation.
The college does not dispute that Campbell suffered an adverse employment action, which is the second element of a prima facie case. It does, however, contend that she has failed to show that her termination was causally linked to her having complained to Awolaju, and thus that she has not established the third element of a prima facie case.
Campbell's only evidence of a causal link appears to be the temporal proximity between her complaining to Awolaju and her firing. "[M]ere temporal proximity between an employer's knowledge of protected activity and an adverse employment action," however, may be deemed "sufficient evidence of causality to establish a prima facie case" when the temporal proximity is "very close." Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001).
The First Circuit has held that a period of roughly a month may qualify as sufficiently close in time to establish a prima facie case. See Calero-Cerezo v. United States Dept. of Justice, 355 F.3d 6, 25 (1st Cir. 2004). Accordingly, therefore, the small amount of time between Campbell's last complaint (on December 17) and her firing (on December 20)—a period of roughly nine days—is sufficient to establish a reasonable inference of a causal link.
Accordingly, the Court concludes that Campbell has established a prima facie case of retaliation.
Because Campbell has made a prima facie case, the burden shifts to the college to articulate a legitimate, non-retaliatory explanation for its decision to fire her. See Collazo v. Bristol-Myers Squibb Mfg., Inc., 617 F.3d 39, 46 (1st Cir. 2010). As discussed, there is substantial evidence that the Campbell's supervisors had legitimate concerns about her performance as a college employee, and that the college notified her of these concerns. Accordingly, the college's explanation that it terminated her due to her continued poor work performance satisfies its burden to establish a non-retaliatory explanation for its decision.
Because the college has carried its burden, "the burden shifts back to [Campbell] to show that the [college's] explanation is a pretext for unlawful retaliation." Planadeball v. Wyndham Vacation Resorts, Inc., 793 F.3d 169, 175 (1st Cir. 2015) (citing Collazo, 617 F.3d at 46).
Campbell "need not prove retaliation by a preponderance of the evidence." Id. (citing Collazo, 617 F.3d at 50). Instead, "[a]ll [Campbell] has to do is raise a genuine issue of fact as to whether [retaliation] motivated the adverse employment action." Id. (quoting Dominguez-Cruz v. Suttle Caribe, Inc., 202 F.3d 424, 433 (1st Cir. 2000).
Campbell has satisfied that burden here. There is certainly abundant evidence to support the college's contention that it fired her due to her poor performance, and there is not sufficient evidence to prove that she was terminated on the basis
For the foregoing reasons, the motion of defendant Bristol Community College for summary judgment is GRANTED as to plaintiff's claim of employment discrimination on the basis of race and is DENIED as to her claim of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964.
