THOMPSON, Circuit Judge.
For the better part of a decade, Claudine Bhatti has been a dental hygienist at Boston University's Dental Health Center. She claims that a series of supervisors at the Center subjected her to unpaid work hours because she is black and then to selective discipline and other malfeasance in retaliation for questioning her unpaid hours. On the University's
Because Bhatti's case is before us on her appeal from a grant of summary judgment for the University, our framing of the facts reflects the evidence in the light most favorable to her. See Martinez-Rodriguez v. Guevara, 597 F.3d 414, 416 n. 1 (1st Cir.2010).
Bhatti—who, again, is black—began working at the Center in January 2003, joining fellow dental hygienists Sally Baldwin, Anne Jensen, and Julie Lidano, all of whom are white. Dr. Eyad Haidar was Director of the Center from the time of Bhatti's hire until July 2006. Reporting to Dr. Haidar was the Center's Manager Jacqueline Needham, who directly supervised the hygienists. In 2004 the Center hired hygienist Stefanie Charity, who is black, bringing the racial balance of the hygienists to three-to-two.
The Center's alleged discrimination against Bhatti began right at the outset of her employment in 2003, as Needham told her she had to perform a half-hour of unpaid setup time every morning in addition to her basic forty-hour workweek. In contrast, Bhatti says, the three white hygienists were credited for their setup time
In 2005, Bhatti confronted Needham about the perceived disparities based on an unwritten rule. Needham protested and proclaimed offense, and Dr. Haidar was drawn into the dispute. He clarified that the unwritten rule was just professional courtesy that applied to Bhatti, too, while reserving the right to approve or disapprove any scheduling deviations as might be necessary.
Bhatti's scheduling concerns ended in August 2005, when the Center switched all the hygienists from salaried to hourly status,
After her confrontation with Needham and her followup with Dr. Haidar, Bhatti says, Center management began retaliating against her. Specifically, she began receiving written reprimands for infractions that she says either were minor or didn't occur at all.
On September 7, 2005, Bhatti was called to a meeting with Needham and Dr. Haidar; there, she was presented a memo discussing "three performance issues that continue to be a problem despite our many
On September 12, 2005, Dr. Haidar issued a memo chastising Bhatti for making a "derogatory remark" to Needham about another Center manager, Yu-Wen Szeto. Specifically, after Szeto had accused Bhatti of leaving two hours early without approval, Bhatti said to Needham, "That is a lie!" Bhatti told Dr. Haidar that she had not actually left the Center early and that her remark was not actually derogatory.
On September 26, 2005, Bhatti met with Dr. Haidar and two University officials and complained to the University that the Center was subjecting her to racial discrimination. On September 30, Bhatti submitted a formal complaint to the University's Office of Equal Opportunity and Affirmative Action.
In the middle of this, on October 21, 2005, Needham and Dr. Haidar again called a meeting with Bhatti to discuss alleged performance issues. As usual, Bhatti disputed each of these issues. And on June 22, 2006, Dr. Haidar issued yet another letter, this time reprimanding Bhatti for claimed insubordination faced with conflicting duties due to a scheduling snafu, Bhatti had protested Dr. Haidar's request that she see a patient during a meeting she was also supposed to attend. Once again, Bhatti disputed the claim, noting that despite her initial protest she did see the patient as Dr. Haidar had requested.
In July 2006, Dr. Haidar left the Center and Dr. Margaret Errante took his place. Conditions markedly improved, although Bhatti still complained about Needham's arbitrary supervision. In March 2008, Dr. Errante forced Needham's resignation.
On August 6, 2008, Bhatti filed this action alleging discrimination, retaliation, and a hostile work environment in violation of various federal laws.
On October 19, 2010, the district court granted the motion, holding that none of Bhatti's grievances, individually or in the
We review the district court's summary judgment grant de novo, assessing the arguments and the record ourselves and affirming only if the record reveals undisputed facts that entitle the University to judgment as a matter of law. See Baltodano v. Merck, Sharp, and Dohme (I.A.) Corp., 637 F.3d 38, 41 (1st Cir.2011).
Bhatti grounds her claims in both Title VII
Bhatti claims that the University discriminated against her in several ways, first and most notably by requiring that she, but not her white counterparts, perform unpaid setup time. A prima facie case for discrimination based on disparate treatment presents a four-part test: (1) the plaintiff must be a member of a protected class; (2) she must be qualified for her job; (3) she must suffer an adverse employment action at the hands of her employer; and (4) there must be some evidence of a causal connection between her membership in a protected class and the adverse employment action, e.g., in the case of a firing, that the position was filled by someone with similar qualifications. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir.2000).
Bhatti's main evidence is her own interrogatory answers and unsworn, out-of-court statements that she "learned" and "became aware" of the alleged disparity because her coworkers "told" her they were paid for setup time. But Bhatti's tenuous mentions of her coworkers' out-of-court statements all constitute inadmissible hearsay. See Dávila v. Corporación de Puerto Rico Para La Difusión Pública, 498 F.3d 9, 17 (1st Cir.2007). Bhatti has pointed to no hearsay exception that might apply. And "[i]t is black-letter law that hearsay evidence cannot be considered on summary judgment for the truth of the matter asserted." Hannon v. Beard, 645 F.3d 45, 49 (1st Cir.2011) (internal quotation marks omitted). This makes sense. There is no way to test the reliability of an amorphous, out-of-court statement or to gage the intentions or credibility of the person who made the statement. See United States v. Benitez-Avila, 570 F.3d 364, 367-68 (1st Cir.2009). So, because they depend on hearsay, Bhatti's interrogatory answers and other references to her coworkers' out-of-court statements can have no bearing on our conclusion.
Other than that now-discounted evidence, Bhatti points to the following spots in the record to support her claim of scheduling disparities: (1) a schedule showing the white hygienists' hours two years before Bhatti was hired, when the Center operated under a different supervisor; (2) Needham's testimony supporting the uncontroversial proposition that "different employees work[ed] different hours"; and (3) her own statement of undisputed facts from the district court record, which has no independent evidentiary value but merely references sources (1) and (2). None of these even remotely shows that "the schedules of the three white hygienists made for a shorter workday than their black counterparts"—the proposition they're cited to support. Instead, the admissible evidence in the record—schedules showing Bhatti's and the white hygienists' work hours and deposition testimony from the other hygienists— indicates that unpaid setup time was standard. The record reveals no scheduling disparity.
Bhatti also relies on other alleged disparities in the University's treatment of the hygienists, particularly the application of "workplace rules about the hygienists having to request time off and be docked sick time when leaving early or taking an extended lunch."
Additionally, there is no evidence that Bhatti was ever actually denied this professional courtesy. For one, the other hygienists testified that they only took advantage of it occasionally, in particular when their last patient of the day failed to show. But the evidence indicates that when Bhatti's last patient of the day cancelled, she would generally take 45 minutes to an hour off instead of staying at the Center until the workday was almost complete. In fact, Bhatti never submitted a leave request seeking fewer than 20 minutes off. There's simply no indication in the record—and, most importantly, no testimony from Bhatti—that she ever would have departed work 15 minutes early but did not because she was unaware that leaving early was an option. Instead, Bhatti's evidence reflects only vagaries and generalities about how, e.g., she "had been required to submit a form requesting time off when she left early." This statement, and the rest of Bhatti's evidence on this point, does no more than reflect the Center's formal policy of requiring leave request forms but occasionally bypassing this requirement as a professional courtesy if work wrapped up early at the end of the day. In the end, the evidence shows that all hygienists had to submit a leave request if they left more than 15 minutes early and that no hygienists, including Bhatti, had to submit a leave request if they left fewer than 15 minutes early, so we can discern no disparate treatment.
Finally, even if we assume—despite the above discussion—that Bhatti has made out a prima facie case of discrimination, the claim fails under the burden-shifting regime that governs employment discrimination cases. See Conward, 171 F.3d at 19. The University has pointed to non-discriminatory reasons as to why Bhatti may not have been aware of the Center's extension of professional courtesy to the hygienists, and Bhatti has pointed to no evidence of actual bias or pretext. Specifically, the other hygienists learned of the Center's workplace policies from their supervisors when they were hired—well before Needham and Bhatti arrived. Bhatti learned of workplace policies and practices from Needham, who according to her deposition testimony knew nothing of the Center's practices regarding de minimis scheduling deviations. In fact, Needham says she was unaware of any hygienist leaving early without submitting a leave request. Once Bhatti learned of the courtesy extended to others, she raised the issue with Dr. Haidar, who immediately clarified that she, too, was entitled to this courtesy. Again, this uneven communication between administration personnel and between administration and staff certainly suggests some dysfunction in the Center's management, but it does not show bias.
These problems are dispositive: because there is no evidence in the record that
Bhatti's last discrimination claim stems from the Center's alleged failure to provide her with annual performance reviews before 2007. This claim falters because the record contains her annual performance reviews for the years 2004-2005, 2005-2006, 2006-2007, and 2007-2008.
On to retaliation. Bhatti claims that the University retaliated against her, primarily by issuing written warnings, in response to her complaints of race discrimination. To succeed on a retaliation claim, a plaintiff must show that her employer took some objectively and materially adverse action against her because she opposed a practice forbidden by Title VII, such as race discrimination. Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Bhatti claims that the reprimands she suffered at the hands of Needham and Dr. Haidar were materially adverse employment actions.
We have found before that a reprimand may constitute an adverse action, Billings v. Town of Grafton, 515 F.3d 39, 54-55 (1st Cir.2008), but the reprimands at issue here are tamer beasts than the one in Billings. Specifically, none of the reprimands here can be said to be material because none carried with it any tangible consequences. Rather, each was merely directed at correcting some workplace behavior that management perceived as needing correction; her working conditions were never altered except in the positive direction.
Finally, Bhatti claims the University subjected her to a racially-motivated hostile work environment where (as outlined above) she was subject to reprimand for the slightest misstep and regularly belittled and mistreated by her supervisors. To make out a prima facie case of a hostile work environment, Bhatti must point to evidence showing, inter alia, that facts and circumstances of her employment viewed objectively were so "severe," "pervasive," and "abusive" as to "alter the conditions" of her job. Vega-Colon v. Wyeth Pharmaceuticals, 625 F.3d 22, 32 (1st Cir.2010) (internal quotation marks omitted). On this point, we must consider several factors, none of which is individually determinative: "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance;
Bhatti cites several grounds for her hostile work environment claim: the requirement (belied by the record) that she work longer hours than her white counterparts, the unwritten rule about time off that applied to her coworkers but not to her, and Center management's selective enforcement of workplace rules against her in the form of critical memoranda. We have already held that, taken individually, none of these grounds amounts to an adverse employment action. Nevertheless, we must consider whether they amount to a hostile work environment in the aggregate.
The answer is no. The Center's conduct toward Bhatti was far from severe, never physically threatening, generally conducted in private so as not to be humiliating, and never overtly offensive; moreover, Bhatti has pointed to no effect whatsoever on her work performance. True, she sought psychological counseling, but this is evidence of subjective offense at best. Objectively, the Center's conduct here might have crossed the boundary from professional to unprofessional, but it never reached the level of abuse. And where a workplace objectively falls short of that "abusive" high-water-mark, it cannot sustain a hostile-work-environment claim.
The district court got this one right as a matter of both disposition and description: Bhatti has succeeded only in showing "a litany of petty insults, vindictive behavior, and angry recriminations." As these are not actionable, we uphold the district court's grant of summary judgment for the University on all claims.