USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-2201
DONNA HOEPPNER,
Plaintiff - Appellant,
v.
CROTCHED MOUNTAIN REHABILITATION CENTER, INC.,
Defendant - Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
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_____________________
Vincent C. Martina for appellant.
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James W. Donchess, with whom Wiggin & Nourie P.A., was on
__________________ _____________________
brief for appellee.
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August 3, 1994
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TORRUELLA, Circuit Judge. This action involves a
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retaliatory discharge claim under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. 2000(e)-2. Plaintiff-Appellant, Donna
Hoeppner, alleges that she was fired because she reported several
incidents of sexual harassment to her employer. The district
court granted summary judgment in favor of Hoeppner's employer
and we affirm.
I. BACKGROUND
I. BACKGROUND
Defendant-Appellee, Crotched Mountain Rehabilitation
Center, Inc. ("CMRC"), is a nonprofit school for the instruction
and rehabilitation of multiply handicapped children and young
adults. Hoeppner was employed as a special education teacher at
CMRC from September 1989 until November 9, 1990. Hoeppner was in
charge of a classroom at the school throughout her term of
employment. She was aided by several teacher assistants ("TAs"),
who normally rotated through different classrooms over periods of
three to six months.
Beginning in December of 1989, several TAs complained
to CMRC administrators about Hoeppner's management of her
classroom and about Hoeppner's poor communication with, and
supervision of, the TAs. Hoeppner contests the validity and
genuineness of some of these complaints, and questions the
existence of others, but does not dispute that some complaints
were made about her prior to her discharge and prior to her
report of sexual harassment. There is also no dispute that CMRC
placed Hoeppner on probation for ninety days in August of 1990.
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Subsequently, on November 1, 1990, Hoeppner reported several
incidents of sexual harassment by one of her TAs. On November 9,
1990, three days after the expiration of her probationary period,
CMRC discharged Hoeppner on the ground that Hoeppner had
allegedly failed to make suggested improvements in her classroom
during the probationary period. Hoeppner maintains that this
ground is merely a pretext for the real reason underlying her
termination: Hoeppner's report of sexual harassment. Before we
address whether this allegation can survive summary judgment, we
briefly recount the evidence concerning these events in more
detail.
CMRC's Principal, Barbara Cohen, and its Assistant
Principal, Archibald Campbell, state in affidavits that they
received complaints about Hoeppner's supervision of her classroom
on several occasions. Cohen attests that in December of 1989,
she met with Hoeppner's TAs to discuss problems between the TAs
and Hoeppner. Cohen claims that TAs Diana V lez and Jennifer Roy
complained to her in January about the way Hoeppner was treating
them in the classroom.
A meeting between Hoeppner, Cohen, and Hoeppner's TAs
was held on January 20, 1990. Cohen maintains that the meeting
was specifically scheduled for the purpose of discussing the TAs'
concerns about Hoeppner. In her affidavit, Hoeppner claims that
the meeting was a routine afterschool discussion of classroom
matters at which Cohen solicited corrective suggestions from the
TAs. Even according to Hoeppner's account, however, the TAs
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"talked basically at me" and TA V lez stated at the meeting that
Hoeppner was not providing V lez with sufficient feedback.
Hoeppner's first performance evaluation for the period
of September 11, 1989, through December 11, 1989, was completed
on February 12, 1990. Cohen met with Hoeppner on February 24 to
discuss the evaluation. The evaluation rated Hoeppner's overall
performance as fully satisfactory, although it noted several
problems with her classroom management abilities. Under a
category entitled "Developing and Motivating Subordinates," for
example, the evaluation stated that Hoeppner's "personal
relationships with teacher assistants have been strained" and
that Hoeppner needed to be more open to input from the TAs.
Hoeppner signed the evaluation and remembers discussing it with
Cohen. She alleges, however, that the negative comments were
untrue and fabricated.
Meanwhile, Assistant Principal Campbell claims that TAs
Heidi Beetcher and James LaBelle complained sometime in July of
1990 about the way Hoeppner was treating them. Campbell and
Cohen subsequently scheduled a meeting for July 31, 1990, to
discuss the problems. Sometime prior to this meeting, Hoeppner
alleges that she reported both Beetcher and LaBelle to CMRC for a
variety of inappropriate conduct, including physical abuse of
students, administering unauthorized medications, and tardiness.
The July 31 meeting was attended by Cohen, Campbell,
Hoeppner, and TAs Beetcher and LaBelle. Cohen wrote an extensive
memorandum documenting her version of the various complaints
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about Hoeppner that were raised at the meeting. Cohen concluded
in the memorandum that Hoeppner "had repeated problems properly
supervising and communicating with her staff. . . . As a result
. . . her performance as a teacher and as a classroom supervisor
is inadequate." Hoeppner does not dispute Cohen's account of the
meeting, nor does she dispute that Beetcher and LaBelle
complained about her supervision of the classroom. Rather,
Hoeppner alleges that Beetcher and LaBelle fabricated their
complaints in retaliation for Hoeppner's prior act of reporting
the two TAs to CMRC administrators for misconduct and abusing
students.
CMRC placed Hoeppner on probation on August 8, 1990.
Cohen met with Hoeppner the next day to discuss the reasons for
the probation and the applicable terms and consequences of the
ninety-day probationary period. At the meeting, Cohen presented
Hoeppner with the "Disciplinary Action Form" documenting the
probation. The form states that the probation resulted from
Hoeppner's failure to properly supervise and communicate with her
TAs. The form also listed five changes involving Hoeppner's
classroom management practices that "must be made" by Hoeppner to
improve her behavior. The form concluded with the statement:
"If behavior does not improve, further disciplinary action
may/will be taken: Up to and including termination." Hoeppner
signed the form but did not write anything in the space for
employee comments. Hoeppner objects to the validity of the
assertions contained in the form and alleges that CMRC placed her
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on probation as a threat to stop Hoeppner from reporting abuse of
students and otherwise "making waves" at the school.
Cohen states in her affidavit that Hoeppner's
performance did not improve during the probationary period. She
states that another TA, Pam Flannery, complained to her about
Hoeppner's classroom management and supervision on October, 31,
1990. Flannery signed a statement containing the details of her
complaints, including allegations that Hoeppner's intimate
relationship with another one of her TAs, Glenn Loucks, now
espoused to Hoeppner, was causing trouble in the classroom.
Cohen states that Flannery indicated that the classroom was in
chaos. Hoeppner claims that the CMRC administration solicited
Flannery's statement while it was pressuring Flannery to stay
away from the union which Glenn Loucks and others were trying to
organize at CMRC. Hoeppner alleges that Flannery signed the
statement to save her job and the statement is thus of dubious
validity. Mark Pierce, a Residential Counselor at CMRC, makes
the same allegation as Hoeppner in his affidavit.1
Meanwhile, CMRC Education Staff Development Chair,
Pamela Shea, states in an affidavit that she spoke with Hoeppner
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1 According to Hoeppner, Flannery's statement is allegedly
contradicted by a subsequent October 9, 1992 letter by Flannery
denying that the alleged incidents of sexual harassment had
occurred in Hoeppner's classroom. In the October 9 letter,
Flannery does state that "we all worked very well together" in
the classroom, however, she also states in the same letter that
the relationship between Loucks and Hoeppner "was causing
friction and tension in [Hoeppner's] staff." We see no
contradiction between Flannery's signed statement and her
subsequent letter.
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in early November (Cohen indicates that Shea informed her of this
conversation on November 1) and determined that the situation in
Hoeppner's classroom was chaotic and out of control.
On November 1, 1990, Hoeppner first reported several
incidents of sexual harassment to CMRC. Hoeppner informed
Assistant Principal Campbell that one of her TAs, Shane Waters,
had made several sexually inappropriate overtures toward her,
including touching her breasts from behind, placing his crotch
three inches from her face, and rubbing her back. Campbell and
Cohen spoke with Waters on several occasions between November 2
and November 5, 1992. Waters gave a somewhat different account
of the incidents and denied that any of his actions had sexual
connotations. Campbell and Cohen told Waters that sexual
harassment was not acceptable and that Waters should not do
anything that could be interpreted by Hoeppner as sexual
harassment. Neither Cohen nor Campbell took any administrative
action against Waters nor did they conduct any further
investigation of the incident beyond their conversations with
Waters. Hoeppner claims that despite promising a full
investigation, the CMRC administration did nothing and never
informed her of what they would do, or had done, about the
incidents.
CMRC discharged Hoeppner on November 9, 1990, three
days after her probationary period ended and eight days after she
reported the incidents of sexual harassment. According to the
final performance evaluation written by Cohen upon Hoeppner's
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discharge, Hoeppner continued to have problems with her staff and
did not improve her supervision and management of the classroom,
as required by the terms of Hoeppner's probation. In deposition
testimony, Hoeppner stated that she did not change her behavior
in response to the criticisms leveled by Cohen in the
Disciplinary Action Form accompanying Hoeppner's probation
because Hoeppner did not feel that the criticisms were valid.
Hoeppner does claim, however, that she did make changes in
response to the particular needs of individual TAs and that, in
general, she did improve her performance.
Hoeppner maintains that there were no significant
problems in her classroom and asserts that the criticisms and
complaints against her were untrue and fabricated. She proffered
affidavits of several current and former employees of CMRC who
attest to Hoeppner's good teaching and supervisory abilities and
who assert that Hoeppner did not have any problems with the staff
in her classroom. Hoeppner also points out that neither of her
supervisors, Cohen and Campbell, formally observed Hoeppner's
work in the classroom. CMRC's motive for fabricating the
complaints against her, Hoeppner claims, was to implicitly
threaten her job so that Hoeppner would stop "making waves" at
CMRC by reporting incidents of abuse of students, by reporting
misconduct of other employees, and by supporting the efforts to
organize a union at CMRC led by Glenn Loucks. Several current
and past employees assert in their affidavits that CMRC was
trying to keep its employees quiet about incidents of student
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abuse so that the incidents could be hidden from the state
regulators and from the public, thus avoiding the tarnishing of
CMRC's reputation. Several affiants make similar accusations
regarding CMRC's efforts to discourage unionization at the
school. One affiant claims that CMRC's method of silencing
employees was to falsify complaints against them and then
threaten to fire them.
The district court rejected Hoeppner's claim and
dismissed the case on summary judgment. The court found no
triable issue on the question of whether CMRC wrongfully
discharged Hoeppner because CMRC "reasonably and justifiably
concluded that there was a problem in plaintiff's classroom."
The court also noted that the complaints against Hoeppner were
made well before she reported the incidents of sexual harassment,
so these complaints could not have been a fabricated pretext to
cover up a retaliatory motive. Consequently, the court found no
evidence of a causal relationship between the protected activity
of reporting sexual harassment and Hoeppner's discharge.
II. ANALYSIS
II. ANALYSIS
To establish a claim of retaliatory discharge under
Title VII, Hoeppner must show by a preponderance of the evidence
that:
(1) she engaged in a protected activity as an employee, (2) she
was subsequently discharged from employment, and (3) there was a
causal connection between the protected activity and the
discharge. Ramos v. Roche Products, Inc., 936 F.2d 43, 48 (1st
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-9-
Cir.), cert. denied, 112 S. Ct. 379 (1991); Ju rez v. Ameritech
____ ______ ______ _________
Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 1992).
___________________________
Because reporting sexual harassment is a protected activity under
Title VII, Morgan v. Massachusetts General Hospital, 901 F.2d
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186, 194 (1st Cir. 1990), and because Hoeppner was discharged
after she reported the incidents of sexual harassment by Waters,
there is no dispute that Hoeppner has established the first two
elements of her retaliatory discharge claim. The issue on appeal
is whether, as the district court found, Hoeppner failed to
present sufficient evidence of a causal link between her sexual
harassment report and the subsequent discharge to defeat a motion
for summary judgment. To put it another way, the issue is
whether the evidence in the record can show that CMRC's true
reason or motive for firing Hoeppner was Hoeppner's report of
sexual harassment.
Because we are reviewing an order of summary judgment,
we must determine whether the pleadings, depositions, answers to
interrogatories and affidavits offered in this case, viewed in
the light most favorable to the nonmovant, Hoeppner, present a
genuine issue of material fact regarding the existence of a
causal connection between Hoeppner's sexual harassment report and
her subsequent discharge. Fed. R. Civ. P. 56(c); Serrano-P rez
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v. FMC Corp., 985 F.2d 625, 626 (1st Cir. 1993); Oliver v.
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Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988).
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Under the summary judgment standard, an issue is genuine "'if the
evidence is such that a reasonable jury could return a verdict
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for the nonmoving party.'" Oliver, 846 F.2d at 105 (quoting
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
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Although the party opposing the motion for summary judgment
benefits from all reasonable inferences favorable to that party,
the nonmovant "may not rest upon mere allegations; [he] must set
forth specific facts demonstrating that there is a genuine issue
for trial." Id. Even in discriminatory discharge cases, where
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the plaintiff can rarely present direct, subjective evidence of
an employer's actual motive, the plaintiff cannot survive summary
judgment with "unsupported allegations and speculations," but
rather must "point to specific facts detailed in affidavits and
depositions -- that is, names, dates, incidents, and supporting
testimony -- giving rise to an inference of discriminatory
animus." Lipsett v. University of Puerto Rico, 864 F.2d 881, 895
_______ _________________________
(1st Cir. 1988).
Hoeppner claims on appeal that she presented sufficient
evidence to create a genuine issue of material fact as to whether
CMRC fabricated the alleged complaints against Hoeppner so that
they could be used as a pretext for Hoeppner's later discharge,
which was ultimately caused by the sexual harassment report.
Hoeppner acknowledges that the complaints against her and her
subsequent probation preceded her report of sexual harassment to
CMRC. She argues, however, that CMRC fabricated the complaints
and placed her on probation in order to discourage her from
reporting staff abuse of students, supporting Loucks' union
efforts, and otherwise "making waves" at CMRC. Instead of
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remaining silent, Hoeppner ignored the implicit threats by CMRC
and reported her TA for sexual harassment. As a result, Hoeppner
concludes, her sexual harassment complaint, though maybe not the
sole reason for her discharge, was a "significant and final
reason" for her discharge.
Under Hoeppner's theory of the causal connection
required under Title VII, Hoeppner would not have been fired but
for her sexual harassment report because she defied CMRC's
implicit threats to remain quiet only at the point when she
reported the incidents involving Waters. Had she not reported
the incidents of sexual harassment, Hoeppner maintains, she would
not have been discharged because CMRC administrators would have
concluded that Hoeppner had ceased to "make waves" in response to
their threats against her.
Our review of the record convinces us that Hoeppner has
failed to present sufficient evidence to support her theory of
the causal connection between her report and her subsequent
discharge. Consequently, no genuine issue of material fact
remains for trial. Hoeppner's "evidence" consists mainly of
unsupported allegations without any "specific facts" such as
"names, dates, incidents, and supporting testimony." Lipsett,
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864 F.2d at 895. Specific facts are absent to support several
crucial links along Hoeppner's alleged chain of causality: (1)
that CMRC had a practice of implicitly threatening teachers with
fabricated negative teacher evaluations in order to cover up
abuse of students at the school; (2) that CMRC's practice of
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silencing teachers to cover up student abuse extended to the
general practice of threatening teachers who were "making waves"
by taking actions such as reporting incidents of sexual
harassment; and (3) that CMRC's alleged practice of threatening
teachers through fabricated complaints was instituted against
Hoeppner herself, resulting in Hoeppner's discharge after she
made the sexual harassment report. Because all these links are
crucial to the third element in Hoeppner's Title VII cause of
action, her failure to establish any one of them dooms her
objection to CMRC's motion for summary judgment. See, e.g.,
___ ____
Ramos, 936 F.2d at 49 (noting that plaintiff's "accusations
_____
remain largely conclusory and lacking in the concrete
documentation necessary to prove the causal link between her
protected activity and her retaliatory treatment").
1. Regarding the first causal link, Hoeppner presented
evidence showing that CMRC had problems with the mistreatment and
abuse of students by staff members. There is also some evidence,
although perhaps little more than a scintilla, that CMRC was
trying to hide the incidents of abuse and mistreatment from the
public, either to maintain its reputation or to avoid state
regulators. Hoeppner's further claim that CMRC fabricated
complaints against teachers who reported abuse of students in an
effort to silence them, however, is supported by nothing more
than unsubstantiated allegations. Hoeppner and Holly Brown, a
staff psychologist at CMRC, both make assertions regarding CMRC's
alleged silencing practice without noting any specific names,
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dates or incidents. Glenn Loucks claims in his affidavit that
sometime in November of 1990, "after attempting to talk to a
social worker from the state of Mass. for student P.C., Barbara
Cohen told me that I would be fired for reporting child abuse to
a state agency. That I had to follow [CMRC] policy and that
meant not breaking client confidentiality to any state agency.
[sic]" Loucks' statement might amount to some evidence of CMRC's
practice of silencing employees except for the fact that Loucks
states in the next paragraph of his affidavit that he did in fact
report a case of child abuse to the New Hampshire Department of
Children and Youth Service and yet he makes no claim that CMRC
took any actions against him as a result. More importantly,
Loucks' allegation does not support the claim that CMRC
administrators fabricated complaints against teachers to keep
them quiet. He makes no mention of fabrication or threats to
fabricate complaints in his affidavit.
Dr. Robert Grassi, CMRC's Clinical Director, states in
deposition testimony that CMRC's past Director of Psychology,
Marilyn Russell, was discharged because she reported incidents of
child abuse directly to state authorities in violation of CMRC
policy. Although this is the type of "incident" that might
normally raise a triable issue of fact as to an established
practice of CMRC, the practice is not one which involves
fabricating teacher complaints to implicitly threaten teachers to
keep quiet. No allegations are made that CMRC fabricated
complaints against Russell. The problem with the "evidence" from
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Grassi's testimony is that it provides no details of the alleged
retaliatory discharge of Russell -- nor does Hoeppner offer any
evidence from the people involved in the incident, including
Russell herself -- that would enable a reasonable jury to
determine if it is the type of occurrence that is consistent with
the alleged practice by CMRC to fabricate false complaints
against teachers to prevent them from reporting abuse of
students. Grassi himself does not explain how he discovered the
reasons for Russell's discharge and, indeed, states that he does
not remember talking about these reasons when he spoke with
Russell at the time of the alleged incident.
2. Even if Hoeppner had provided sufficient evidence
to show that CMRC had a practice of fabricating complaints
against teachers to discourage them from reporting student abuse,
Hoeppner has still failed to establish a second crucial link in
the chain connecting her discharge to the sexual harassment
report: that CMRC's concern with staff reports of student abuse
to outside parties extended to a concern with the types of staff
actions that Hoeppner engaged in, such as filing a sexual
harassment report and reporting two of her TAs for misconduct.
In other words, Hoeppner has not established that she did
anything that would cause CMRC to fabricate complaints against
her.
Aside from the incidents reported by Hoeppner in this
case, there is nothing in the record regarding any previous or
subsequent complaints of sexual harassment filed by a CMRC
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employee, or regarding CMRC's retaliation, or threat to
retaliate, against other employees who might have complained
about sexual harassment. Thus, Hoeppner has presented no
evidence that an internal sexual harassment report would qualify
as the type of conduct CMRC administrators would consider "making
waves" or the type of action that would induce CMRC to retaliate.
The closest thing to "evidence" concerning this issue
is an affidavit by August Tardiff, a teacher at CMRC, who claims
that in March of 1993, he reported to CMRC administrators that he
felt physically threatened by one of his TAs. Although the TA
was temporarily removed from Tardiff's room, Tardiff claims that
the administrators "refused to take my fears seriously [and] told
me I did not have a choice that I had to work with this man or
leave. They also gave me a disciplinary action in which they
blamed me for the problem. So I gave my resignation on April 12
to be effective on June 30th." This single incident, occurring
nearly three years after Hoeppner was discharged, would not by
itself allow a reasonable jury to conclude that CMRC had a
practice of fabricating complaints against teachers who reported
sexual harassment at the time Hoeppner was fired. To defeat a
motion for summary judgment, "[t]he mere existence of a scintilla
of evidence in support of the plaintiff's position will be
insufficient; there must be evidence on which the jury could
reasonably find for the plaintiff." Anderson v. Liberty Lobby,
________ _______________
Inc., 477 U.S. 242, 252 (1986); see also Serrano-P rez, 985 F.2d
____ ________ _____________
at 627; Milton v. Van Dorn Co., 961 F.2d 965, 969 (1st Cir.
______ _____________
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1992). Tardiff's incident is too remote and too isolated to
create a triable issue as to the fabrication of the complaints
against Hoeppner.
Hoeppner has further failed to provide evidence that
administrators would consider any of her other actions while at
CMRC as "making waves," such that the administrators would have
taken retaliatory action by fabricating complaints and placing
Hoeppner on probation. Hoeppner claims that she reported TAs
Beetcher and LaBelle for misconduct in July of 1990. Because
this occurred after several TAs had already complained about
Hoeppner, after CMRC wrote Hoeppner's first performance
evaluation which mentioned some of the problems in Hoeppner's
classroom, and possibly even after Beetcher and LaBelle first
complained about Hoeppner to Campbell, Hoeppner's actions could
not have led to CMRC's fabrication of the initial complaints
against Hoeppner.
Hoeppner also makes the unsupported assertion that CMRC
retaliated against her because of her relationship with Loucks,
who was attempting to organize a union at CMRC. Several of
Hoeppner's supporting affidavits discuss incidents in which CMRC
administrators took actions to discourage unionization or union
activities. However, the record contains no evidence that
Hoeppner ever took part in union activities and nothing indicates
that CMRC thought she was involved with the union efforts. Cohen
did know that Hoeppner had an intimate relationship with Glenn
Loucks, but nothing in the record indicates that Cohen or any
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other CMRC administrator imputed Loucks' union activity to
Hoeppner. The record is also devoid of any indication that
employees' union activities were occurring before August of 1990,
let alone that CMRC knew about any union activities before August
of 1990, when Hoeppner was put on probation. There is similarly
no evidence that Cohen or anyone else at CMRC knew about the
relationship between Loucks and Cohen until the "fall of 1990,"
well after Hoeppner's probation. Thus, there is insufficient
competent evidence to raise a genuine issue as to whether anti-
union animus motivated CMRC to fabricate complaints against
Hoeppner.
In sum, there is insufficient evidence from which a
reasonable jury could find that CMRC had a practice of silencing
employees by fabricating false negative evaluations against them,
that CMRC had a practice of retaliating against teachers who,
like Hoeppner, made reports of TA misconduct and sexual
harassment, or that Hoeppner herself engaged in any activities
that would cause CMRC to fabricate the complaints against her and
her subsequent probation. Thus, two important causal links
necessary for her Title VII action are missing from the evidence
in the record.
3. Finally, Hoeppner has failed to establish a third
crucial link in the causal chain between Hoeppner's report of
sexual harassment and her discharge: that CMRC's alleged
silencing practice was applied to Hoeppner in this specific case
through the fabrication of the complaints against her and through
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the subsequent discharge of Hoeppner when she continued to make
waves by reporting incidents of sexual harassment.
Hoeppner's evidence on this issue consists primarily of
affidavits stating that Hoeppner was a good teacher, that she did
not have problems in her classroom supervising, or communicating
with, her TAs, and that the TAs themselves were really the
troublemakers in Hoeppner's classroom. Hoeppner wants this
evidence to show that the complaints against her were not only
untruthful and inaccurate but also fabricated. As we have held
on previous occasions, "evidence contesting the factual
underpinnings of the reasons for the [employment decision]
proffered by the employer is insufficient, without more, to
present a jury question." Morgan, 901 F.2d at 191 (citing Dea v.
______ ___
Look, 810 F.2d 12, 15 (1st Cir. 1987)); see also Ramos, 936 F.2d
____ ________ _____
at 48. Hoeppner cannot establish that CMRC's reasons for
discharging her were merely a pretext for impermissible
retaliation "solely by contesting the objective veracity of [the
employer's] action." Morgan, 901 F.2d at 191. Rather, Hoeppner
______
must provide some additional evidence to indicate that the
complaints were purposefully fabricated with the intent of
threatening Hoeppner not to make waves. See St. Mary's Honor
___ _________________
Ctr. v. Hicks, 113 S. Ct. 2742, 2751-52 (1993) (finding that "a
____ _____
reason cannot be proved to be 'a pretext for discrimination'
unless it is shown both that the reason was false, and that
discrimination was the real reason"; and finding that Title VII
does not permit courts "to substitute for the required finding
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that the employer's action was the product of unlawful
discrimination, the much different (and much lesser) finding that
the employer's explanation of its action was not believable");
Ramos, 936 F.2d at 48 (noting that refuting the employer's
_____
articulated reasons for taking action against a plaintiff does
not suffice to meet the plaintiff's burden of demonstrating
discriminatory intent). Thus, given Hoeppner's theory regarding
CMRC's motives, Hoeppner's evidence that she was a good teacher
and that her TAs were troublemakers does not by itself establish
the necessary element of causality between the sexual harassment
report and the discharge to support her Title VII action.
Hoeppner presents no other evidence that would provide
this missing element. As we already noted, Hoeppner has failed
to establish a pattern of fabrication by CMRC that would indicate
there was fabrication in this particular case. Hoeppner provides
no affidavits from the complaining TAs stating that they did not
make the alleged complaints or that they were pressured into
lying by CMRC administrators. Instead, Hoeppner points to the
fact that neither Cohen nor Campbell formally observed her
classroom to verify the TAs' complaints. This fact may imply
something about the accuracy of the complaints against Hoeppner,
but it implies nothing about the allegation that CMRC fabricated
the complaints. CMRC administrators could fabricate their own
observations more easily than the complaints of third parties,
who might later recant or deny making the complaints. In fact,
their own fabrications would be more reliable as they could not
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be subsequently contradicted by the source of the complaint.
Hoeppner alleges that TAs Beetcher and LaBelle
complained about her classroom supervision in retaliation for her
reports of the TAs' own misconduct. If true, this would tend to
refute Hoeppner's own claim that CMRC administrators fabricated
her negative evaluations. The fact that Beetcher and LaBelle
lied to Campbell and Cohen implies that Campbell and Cohen
believed Hoeppner had problems managing her classroom or, at
least, that Hoeppner's TAs, rather than CMRC itself, were
responsible for Hoeppner's allegedly undeserved probation. In
any event, several of the other TAs' complaints, as well as
Hoeppner's first performance evaluation, preceded Hoeppner's
report of Beetcher and LaBelle so CMRC could not have fabricated
these complaints against Hoeppner in retaliation for Hoeppner's
report of Beetcher and LaBelle.
Hoeppner also attempts to cast doubt on the negative
reports of Hoeppner's classroom by Pam Flannery and Pamela Shea
that were provided to Cohen after Hoeppner's probationary period
had begun. Hoeppner points to an affidavit asserting that CMRC
coerced Flannery's signed statement and another affidavit
alleging that, contrary to Shea's own affidavit, Shea never spoke
with Cohen about Hoeppner's classroom. We do not think these
mere allegations are sufficient to invalidate the first-hand
statements by Flannery and Shea. Even if they are sufficient,
the allegations do not raise a triable issue as to the claim that
CMRC fabricated the prior complaints against Hoeppner and
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Hoeppner's probation.
In sum, even if a factual issue exists as to the
validity of the complaints against Hoeppner, summary judgment in
favor of CMRC would still be appropriate because Hoeppner has not
established that her discharge was causally related to the
protected activity of reporting sexual harassment.
The district court's judgment is therefore affirmed.
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