Filed: Sep. 15, 2021
Latest Update: Sep. 16, 2021
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 20-2134
MARIA FOURNIER,
Plaintiff, Appellant,
v.
COMMONWEALTH OF MASSACHUSETTS, Executive Office of the Trial
Court, LEWIS SPENCE, JOHN BELLO, JONATHAN WILLIAMS,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, U.S. District Judge]
Before
Thompson, Barron, Hawkins,*
Circuit Judges.
Benjamin Flam, with whom Philip J. Gordon, and Gordon
Law Group LLP were on brief, for appellant.
J. David Hampton, Assistant Attorney General, with whom
Maura Healey, Attorney General of Massachusetts, was on brief, for
appellees.
September 15, 2021
* Of the Ninth Circuit, sitting by designation.
HAWKINS, Circuit Judge. Plaintiff Maria Fournier
("Fournier") appeals the grant of summary judgment in favor of
Defendants, Commonwealth of Massachusetts, Lewis Spence, John
Bello, and Jonathan Williams ("Defendants"), on her unlawful
retaliation claims under Title VII, 42 U.S.C. § 2000(e), and the
Massachusetts Whistleblower Act, Mass. Gen. Laws ch. 149 § 185
("MWA"). We reverse and remand.
I.1
Fournier became the Director of Support Services for
Massachusetts's Executive Office of the Trial Court ("Trial
Court") in 2013. One of the departments within Support Services,
the Office of Interpreter Services ("OCIS"), had been the frequent
subject of criticism by judges, clerks, and members of the public,
who complained about its efficiency. When Fournier started, her
supervisor, Court Administrator Lewis Spence ("Spence"), warned
her that some difficult changes needed to be made across Support
Services and that there would be opposition from court staff and
other stakeholders. But they worked together, and Spence was
initially encouraged by Fournier's determination.
During her tenure as Director of Support Services,
Spence conducted two annual performance reviews of Fournier and
1 We recite the facts in the light most favorable to Fournier
because her case has come before us on her appeal from a grant of
summary judgment. See Taite v. Bridgewater State Univ., Bd. of
Trustees, 999 F.3d 86, 89 n.2 (1st Cir. 2021).
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both highlighted positive and negative aspects of her work. For
example, in her 2015 review, Spence praised Fournier's ability to
"take hard actions with staff," but criticized her communication
skills and ability to "manage for the long term." In her 2016
review, Spence recognized that Fournier had increased the
efficiency of OCIS, while noting that her work was met with
"widespread dissatisfaction." At some point, Spence asked
Director of Facilities John Bello ("Bello") to supervise and train
Fournier due to his concerns with "Fournier's ability to manage."
By 2016, Spence became concerned that progress toward
organizational improvement at OCIS had waned.
To address OCIS's issues, the Trial Court hired a
consulting firm, the Ripples Group ("Ripples"), to examine OCIS's
problems and offer solutions. Attila Habip ("Habip"), a founding
partner of Ripples, largely executed the review. At the conclusion
of its investigation, Ripples gave a presentation to Trial Court
management, including Spence, that suggested Fournier was largely
the root cause of OCIS's deficiencies. As such, Habip specifically
suggested (1) "re-launching" Fournier, "meaning to undertake a
major effort to improve her performance and how she was perceived,"
or (2) removing her as Director of Support Services. Both Spence
and Habip went on vacation for a week following the presentation.
When Habip returned to the office, he met with Fournier
to discuss his findings, communicated the results of the Ripples
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investigation "pretty bluntly," and told her "that 'a relaunch of
OCIS and [her]' was necessary"; Fournier seemed to agree. She
also recalled that Habip stated: "I think we need to rebrand []
you," and tried to convince her to go somewhere else in the Trial
Court. But there was no discussion of transfer, demotion, or
removal.
A few days after her meeting with Habip, on March 30,
Fournier told Human Resources Director Mark Conlon ("Conlon")
about a blatantly racist comment directed at one of her colleagues,
Chief Experience and Diversity Officer John Laing ("Laing").
The next morning, on March 31, Spence called Fournier
into a meeting to inform her that he "did not have confidence in
her ability to continue as [] Director of Support Services" and
advised her of "the range of options available to [him], which
included demotion and/or separation."
The parties dispute whether Spence was aware of
Fournier's complaint to Conlon before their March 31 meeting.
Fournier testified that Conlon told her that he had told Spence
about her report on March 30. But Spence testified that he was
not aware of Fournier's complaint prior to their March 31 meeting.
See Fournier v. Exec. Off. of the Trial Ct., 498 F. Supp. 3d 193,
205 (D. Mass. 2020).
Spence proceeded to inform Fournier via letter (the
"charge letter") that he would convene an informal hearing
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regarding her removal to examine her performance problems, namely
her inappropriately adversarial nature and lack of managerial
skills. The hearing ultimately resulted in an impasse. Spence
placed Fournier on paid administrative leave, explaining that her
unsatisfactory behavior and performance were hindering the
operational needs of the Trial Court. The same day, Spence
retired, and Bello became the interim Court Administrator.
About two weeks later, Fournier contacted the Trial
Court's Human Resources Department ("HR"), stating that Spence had
retaliated against her for complaining about the racist comment
directed at Laing. HR promptly forwarded Fournier's account to
Administrative Attorney for Diversity Heena Trivedi, who commenced
an investigation. Trivedi met with Fournier to discuss her
retaliation allegations, in addition to interviewing a host of
other Trial Court stakeholders. Trivedi eventually issued a
lengthy report, concluding that Spence's actions were supported by
legitimate business reasons and not motivated by retaliatory
animus.
Meanwhile, as the interim Court Administrator, Bello
began to hear the same criticisms about Fournier's volatile
management style that Ripples identified, e.g., Fournier was prone
to "lash[ing] out in anger resulting in a lack of communication
for days." He also convened another informal hearing with Fournier
concerning her removal. Again, they reviewed Spence’s charge
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letter and the Ripples presentation's account of Fournier's poor
behavior and performance. Fournier responded in written, denying
any wrongdoing and requesting to be restored to her position as
Director of Support Services.
After the hearing, Bello sent a letter to Jonathan
Williams, who had assumed his role as Court Administrator,
recommending Fournier's termination based on her inability to
improve OCIS, due to her hostile management style and dismal
rapport with her subordinates. HR also sent a letter to Williams
consistent with Bello's termination recommendation.
Finally, having reviewed Fournier's written submissions,
HR's review and recommendation, and Bello's recommendation,
Williams terminated Fournier from her employment with the Trial
Court. Fournier did not appeal.
Fournier proceeded to bring this suit against
Defendants. After Defendants filed a motion to dismiss Fournier's
complaint, the parties agreed to dismiss certain claims with
prejudice but to allow Fournier to proceed with her unlawful
retaliation claims under Title VII and the MWA. The district court
subsequently granted Defendants' summary judgment on these claims,
and Fournier timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291.
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II.
We review a district court's grant of summary judgment
de novo, McDonough v. Donahoe, 673 F.3d 41, 46 (1st Cir. 2012),
and draw "all reasonable inferences in favor of the non-moving
party while ignoring conclusory allegations, improbable
inferences, and unsupported speculation," Shafmaster v. United
States,
707 F.3d 130, 135 (1st Cir. 2013) (internal quotations and
citations omitted).
A.
To establish a prima facie case of retaliation under
Title VII, a plaintiff must demonstrate:
(1) she engaged in protected conduct; (2) she
experienced an adverse employment action; and (3) there
was a causal connection between the protected conduct
and the adverse employment action.
Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir.
2004) (internal citation omitted). "[T]he prima facie burden in
this context is not an onerous one."
Id. at 26. Similarly, to
establish a retaliation claim under the MWA, a plaintiff "must
show that [she] engaged in protected activity and that [her]
participation in that activity played a substantial or motivating
part in the retaliatory action." Pierce v. Cotuit Fire Dist.,
741
F.3d 295, 303 (1st Cir. 2014) (internal quotations and citations
omitted).
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Fournier has established a prima facie case of
retaliation under Title VII and the MWA.
First, it is undisputed that Fournier engaged in
protected conduct when she complained about the racist comment.
Second, an adverse employment action is typically one
that "alter[s] a term or condition of employment," Bishop v. Bell
Atl. Corp., 299 F.3d 53, 59 (1st Cir. 2002), such as demotions,
disadvantageous transfers, or refusals to promote, Rivera-Rivera
v. Medina & Medina, Inc.,
898 F.3d 77, 94 (1st Cir. 2018). But
the anti-retaliation provisions of Title VII also cover employer
actions that are materially adverse, specifically those that are
harmful enough to dissuade a reasonable employee from complaining
about discrimination.
Id. at 95; see also Mole v. Univ. of
Massachusetts,
814 N.E.2d 329, 339 & n.14 (Mass. 2004)(An "adverse
action is any action to coerce, intimidate, threaten, or interfere
with the [employee]." (internal quotations omitted)). As such, a
juror could reasonably conclude that Fournier indeed suffered an
adverse employment action when Spence threatened Fournier with
termination, demotion, and/or transfer, even though she was not
officially terminated from the Trial Court on that day.
Finally, a reasonable juror could also find that there
was a causal connection between Fournier's complaint and the
adverse employment action she suffered. Although Defendants note
that employers, who are "proceeding along lines previously
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contemplated, though not yet definitively determined, is no
evidence whatever of causality," Clark County Sch. Dist. v.
Breeden, 532 U.S. 268, 272 (2001), such an objection is not fatal
here. First, Ripples did not, and could not, establish a
definitive course of action for Fournier's future with the Trial
Court, instead it suggested removing her from or "relaunching" her
within the organization. Second, Spence had knowledge of Ripples's
suggestions and their findings but did not act on this knowledge
until the end of his first week back from vacation and the day
after Fournier lodged her complaint. A reasonable factfinder could
also conclude that Spence knew of Fournier's complaint before their
March 31 meeting, given her testimony. Third, the temporal
proximity between Fournier's complaint and the adverse employment
action she suffered was one day, which is a sufficiently brief
period for a reasonable factfinder to determine causation. See
Calero-Cerezo,
355 F.3d at 25 (stating that "very close" temporal
proximity can be sufficient evidence of causality alone to
establish a prima facie case (quoting Clark County Sch. Dist.,
532
U.S. at 273–74)).2
2
To the extent that Fournier alternatively argues her ultimate
termination from the Trial Court was influenced by Spence's
retaliatory animus as well, a reasonable juror could find that
Williams rubber-stamped Spence's decision. See Ameen v. Amphenol
Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015).
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B.
When a prima facie case of Title VII retaliation is
established, absent direct evidence of retaliation, we employ the
burden-shifting approach announced by the Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973):
[The] defendant must articulate a legitimate, non-
retaliatory reason for its employment decision. If the
defendant meets this burden, the plaintiff must now show
that the proffered legitimate reason is in fact a pretext
and that the job action was the result of the defendant's
retaliatory animus.
Calero-Cerezo, 355 F.3d at 26. A similar burden-shifting
framework is also employed for MWA claims. See Pierce, 741 F.3d
at 303.
Defendants have proffered legitimate, non-retaliatory
reasons for their removal decision, namely a lack of confidence in
Fournier's ability to manage due to her unprofessionalism and
underperformance. See Ponte v. Steelcase Inc., 741 F.3d 310, 322–
23 (1st Cir. 2014).
Turning to pretext, courts typically view the record as
a whole and focus on whether the plaintiff "adduced sufficient
evidence to create a genuine issue as to whether retaliation was
the real motive underlying [her] dismissal." Harrington v.
Aggregate Indus. Ne. Region, Inc., 668 F.3d 25, 31 (1st Cir. 2012).
Such evidence may include "weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
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employer's proffer," the close temporal proximity between the
protected conduct and the adverse action, or the sequence of events
leading up to the adverse action. Id. at 33 (quotations,
citations, and alterations omitted). Moreover, "[c]ourts should
be especially cautious before granting summary judgment when
pretext and retaliatory animus are at issue."
Id.
A juror could reasonably find that Spence's proffered
reasons for removing Fournier from Director of Support Services
were pretextual in nature.3 As discussed, Spence waited over a
week to take any steps to confront Fournier about his concerns
with her performance in light of the Ripples presentation. What's
more, Spence informed Fournier of his removal decision the day
after she submitted her complaint. There is also no evidence that
anyone at the Trial Court, including Spence, ever explicitly
contemplated removing Fournier before her complaint. The Ripples
report, which detailed Fournier's shortcomings at length, even
suggested "relaunching" her within the organization. Finally, the
temporal proximity between Fournier's complaint and her removal
was a one-day period. Taken together, these circumstances present
material questions that a jury must resolve.
3Fournier uses the same evidence to demonstrate causation
and pretext. Because similar evidence can support causation and
pretext, see, e.g., Ponte, 741 F.3d at 323, we can consider all of
Fournier's proffered evidence as support for pretext.
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III.
For the foregoing reasons, we reverse the decision of
the district court and remand for further proceedings consistent
with this decision. The parties shall bear their own costs on
appeal.
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