Cherkaoui v. City of Quincy , 877 F.3d 14 ( 2017 )

United States Court of Appeals
For the First Circuit
No. 16-2304
DEBRA CHERKAOUI,
Plaintiff, Appellant,
v.
CITY OF QUINCY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Leo T. Sorokin, U.S. District Judge]
Before
Torruella, Lynch, and Lipez,
Circuit Judges.
Marisa A. Campagna and Law Office of Marisa A. Campagna on
brief, for appellant.
Sarah A. Catignani, Brandon H. Moss and Murphy, Hesse, Toomey
& Lehane, LLP on brief, for appellee.
December 4, 2017
TORRUELLA, Circuit Judge. Debra Cherkaoui ("Cherkaoui"
or "Plaintiff") appeals from the district court's grant of summary
judgment in favor of her former employer, the City of Quincy,
Massachusetts ("City" or "Defendant"), on her claims of employment
discrimination, retaliation, and constructive discharge. She
argues that the district court erred by adopting the magistrate
judge's Report and Recommendation and granting the City's motion
for summary judgment. After careful consideration, we find no
such error, and thus affirm.
I. Background
Because this is an appeal from a grant of summary
judgment, "we review the facts in a manner as favorable to [the
plaintiff] as the record allows, 'keenly aware that we cannot
accept conclusory allegations, improbable inferences, and
unsupported speculation.'" Pina v. Children's Place, 740 F.3d
785, 788 (1st Cir. 2014) (quoting Medina-Rivera v. MVM, Inc., 713
F.3d 132, 134 (1st Cir. 2013)).
A. Factual History
Cherkaoui was hired by the City as a Spanish teacher in
1998. For approximately eleven years, except for a brief period
when her child was born and the 2001-2002 school year when she
worked as a full-time Spanish teacher at Sterling Middle School
("Sterling"), Cherkaoui worked part-time at Atlantic Middle School
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("Atlantic"). She originally only taught Spanish, but later
transitioned to the English Language Learners ("ELL") department.
Prior to 2009, Cherkaoui had not been subject to any disciplinary
action.
Plaintiff converted to Islam in 1998. In April 2009,
she began wearing a headscarf to work for religious reasons. It
is from that point forward, Cherkaoui alleges, that she was
subjected to "hostile treatment" by the Defendant. This alleged
"hostile treatment" consisted of: 1) several events of
discourteous and differential treatment as compared to other
similarly situated teachers; 2) inappropriate or impractical
assignments; 3) and failure by Defendant to properly respond to
her grievances. In addition, Cherkaoui suffers from Attention
Deficit Hyperactivity Disorder ("ADHD"), known to the employer,
and further alleges that the City did not adequately respond to
her requests for reasonable accommodations. We review each of the
alleged discriminatory incidents by academic year.
1. 2009-2010 Academic Year
a. Different Treatment as Compared to Similarly Situated
Teachers
During the spring of 2009, Cherkaoui requested a full-
time teaching assignment for the following school year. She
indicated that her first preference was for an assignment in
Atlantic, but that she was open to the possibility of a split
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assignment with another school. The City granted Cherkaoui's
request, offering her the only full-time teaching position
available: a split assignment between Atlantic and Sterling.
Cherkaoui accepted the split assignment. This was to be her first
time teaching classes at two different schools. According to
Plaintiff, having teachers split their time between two schools is
a disfavored practice in the Quincy Public Schools ("QPS") system.
In June 2009, Cherkaoui received the details of her
assignment for the 2009-2010 academic year, consisting of three
ELL classes at Atlantic and two at Sterling. However, just a few
days before the school year started, the City informed Plaintiff
that her teaching assignment in Atlantic would instead consist of
two ELL classes and one Spanish class. The Sterling teaching
assignment remained unchanged. Plaintiff claims that this last
minute reassignment was disadvantageous for her because she had
not taught Spanish for many years. She also asserts that it is
"extraordinary" for teachers to receive their final assignments so
close to the new school year. Cherkaoui objected to this last
minute change. Nevertheless, she began teaching her split
assignment for the school year.
By the time the school year started, Cherkaoui had still
not been assigned a classroom at Sterling. Sterling's principal,
Christine Barrett ("Principal Barrett"), had instead offered her
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a section of the school's library known as the media center. The
media center lacked a desk and a place for her to securely store
her materials. Principal Barrett then offered Plaintiff another
classroom typically used by the special education teacher.
b. Tardiness
Cherkaoui alleges that between her assignments at
Atlantic and Sterling, she was not afforded sufficient time for
travel, preparation, and lunch, as the Teacher's Union contract
required. Because of this, Plaintiff was late to her teaching
assignment at Sterling on several occasions and received oral
reprimands, three written warnings, and ultimately a suspension.
On September 30, 2009, Cherkaoui complained about the
insufficiency of her allotted time to travel between schools, and
met with QPS officials to discuss this alleged violation of her
Union contract. From then on, Defendant gave Cherkaoui an
additional ten minutes to travel between Atlantic and Sterling.
Despite this adjustment, Cherkaoui was again late on
October 7. On November 17, 2009, Principal Barrett sent her a
written warning. That same day, Cherkaoui met with Principal
Barrett to discuss her tardiness. The parties' recollection of
this meeting differ. Plaintiff alleges she asked Principal
Barrett if she was being treated in a hostile manner because she
wore a headscarf. The City, however, contends that Plaintiff
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exhibited inappropriate and hostile behavior towards Principal
Barrett during the meeting.
Principal Barrett issued Plaintiff a second written
warning on November 18, 2009, referencing Cherkaoui's tardiness
issues and alleged inappropriate conduct during their meeting the
day before. Cherkaoui denies being late on all the referenced
dates in the warning letters. On December 3, 2009, Principal
Barrett sent Cherkaoui a third written warning due to her tardiness
earlier that week. On that same day, after unsuccessfully
attempting to discuss this warning letter with Principal Barrett,
Cherkaoui left Sterling and met briefly with Superintendent
Richard DeCristofaro ("DeCristofaro"). Plaintiff went home after
that meeting, taking a half-day on sick leave.
On December 22, 2009, DeCristofaro issued Plaintiff a
Notice of Intent to Suspend for "tardiness and inappropriate
conduct." Plaintiff was offered the opportunity to request a
meeting to review and discuss the contemplated suspension.
Plaintiff requested such a meeting; however, she failed to attend
it and did not return to work after December 22, 2009. The next
day, Cherkaoui sent an email to the Director of Human Resources,
Kevin Mulvey ("Mulvey"), disclosing to the City for the first time
that she suffered from ADHD, and requesting reasonable
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accommodations under the Americans with Disabilities Act (ADA), 42
U.S.C. §§ 12101-12213.
On January 7, 2010, the City sent Cherkaoui a letter
suspending her for three days due to her "consistent tardiness and
inappropriate conduct that ha[d] occurred throughout the school
year." On January 9, 2010, Cherkaoui filed a discrimination
charge with the Equal Employment Opportunity Commission ("EEOC"),
alleging religious discrimination and retaliation.
c. Independent Medical Examiner
Under the Union contract, once a QPS employee has used
up her accumulated sick leave, she may avail herself of extended
paid sick leave. Once an employee requests this benefit, the City
may request from the employee any form of evidence of the
employee's disability, including an independent medical exam
("IME"). Cherkaoui did not return to work after the suspension
for the rest of the 2009-2010 academic year due to her ADHD,
exhausting her accumulated sick leave. While on sick leave,
Cherkaoui learned through her Union president that she could apply
for extended sick leave. The Union president also explained that
the City could request an IME as part of her application.
Ultimately, Cherkaoui sought access to the extended sick leave
benefit and the City exercised its right to have her undergo an
IME to substantiate her leave application. After Plaintiff
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underwent the IME and was deemed unable to return to work, she was
awarded extended sick leave benefits. Cherkaoui then amended her
EEOC charge to include the City's request for an IME as an
additional instance of retaliation.
2. 2010-2011 Academic Year
Over the summer of 2010, Cherkaoui notified Defendant
that she would be able to return to work for the upcoming 2010-
2011 school year. In anticipation of her return, on June 28, 2010,
she sent Mulvey a written request for reasonable accommodations
for her diagnosed ADHD. Cherkaoui requested: (1) that her
teaching assignments be limited to one school; (2) that she receive
the names and contents of the assigned courses one month before
the start of the school year; (3) that she receive an opportunity
to have a meeting with her supervisor before the start of the
school year to establish clear lines of communications; and (4)
that she be notified 24 hours in advance of any meetings other
than those that all teachers are required to attend.
Defendant granted all of Cherkaoui's requests except for
the 24-hour advance notice for meetings because, according to
Defendant, this was not possible. Starting in the 2010-2011
school year, Cherkaoui became a full-time ELL teacher at Atlantic.
The rest of the school year seemed incident-free, except for three
events highlighted by Plaintiff. First, the City requested
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Plaintiff to submit to another IME before she would be able to
return to work. Second, on the first day of the 2010-2011 school
year, she was asked to sit and wait in a conference room for about
an hour before a meeting. Third, Plaintiff had a couple of run-
ins with a coworker at Atlantic named Elizabeth Angell ("Angell"),
which consisted of Angell checking on Plaintiff and once falsely
claiming that Plaintiff was not in her classroom when she was
supposed to be.
3. 2011-2012 Academic Year
Before Plaintiff joined the ELL Department at Atlantic,
the school had decided that ELL teachers were to incorporate a
"content area" -- math, science, social studies, or language arts
-- into their curriculum. When Cherkaoui joined the Department,
Defendant asked her to incorporate social studies content into her
ELL classes. However, in June 2011, Defendant communicated to
Plaintiff that, for the upcoming academic year, she would be
assigned to incorporate science content into her ELL classes.
Cherkaoui expressed to the principal of Atlantic, Maureen MacNeil
("Principal MacNeil"), that she was uncomfortable teaching science
as part of her ELL curriculum because she did not have a background
in science. Principal MacNeil allegedly told Plaintiff that she
could either "take it or leave it." Ultimately, Plaintiff taught
ELL with science content for the 2011-2012 academic year.
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At the end of the 2011-2012 academic year, Cherkaoui had
another run-in with her coworker, Angell. On June 15, 2012, Angell
wrote a letter to Plaintiff detailing certain "frustrations" as to
Plaintiff's job performance. In response, Cherkaoui sent a letter
to Principal MacNeil complaining about Angell's letter and
requesting that the Principal address it. Because this incident
occurred at the end of the school year, Principal MacNeil did not
address it until the beginning of the following academic year.
4. 2012-2013 Academic Year
At the beginning of the 2012-2013 school year, Principal
MacNeil met separately with both Angell and Cherkaoui. At her
meeting with Angell, Principal MacNeil warned Angell that the
letter she had sent to Plaintiff at the end of the previous school
year was inappropriate and that all personnel conflicts should be
addressed through the Principal's office. Further, at Principal
MacNeil's meeting with Plaintiff, they discussed all the issues
raised by both Angell and Cherkaoui's letters, while Plaintiff
also stressed her request for open lines of communications with
Principal MacNeil. In December 2012, Angell transferred into a
different department and thus no longer worked with Plaintiff.
On January 14, 2013, Plaintiff wrote a letter to
Principal MacNeil detailing another run-in with a different
coworker, Timothy Ryan ("Ryan"). In her letter, Plaintiff claimed
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that Ryan had acted inappropriately and unprofessionally towards
her in front of students. Plaintiff's grievances allegedly went
unacknowledged by Principal MacNeil, and, on June 29, 2013,
Plaintiff reiterated her concerns about Ryan in another letter to
the Principal. In addition, Cherkaoui made reference to the "on-
going overt and subtle discrimination as well as hostility" she
was experiencing at Atlantic and raised concerns over her class
schedule for the upcoming 2013-2014 academic year.
Plaintiff's letter of June 29, 2013 prompted an
investigation by the City. Mulvey conducted an investigation
during the summer of 2013, and sought to meet with Plaintiff to
address the allegations. However, due to personal reasons,
Plaintiff was unavailable to meet with Mulvey during the first two
weeks of August 2013. On August 2, 2013, Plaintiff filed another
charge with the EEOC reiterating her allegations of discrimination
spelled out in the June 29, 2013 letter.
5. 2013-2014 Academic Year
At the end of August 2013, Plaintiff requested a job
transfer to another school within the same district, North Quincy
High School. However, on September 6, 2013, Cherkaoui informed her
Union president, Allison Cox ("Cox"), that she was withdrawing her
transfer request because she was "not interested in moving schools
this far into the year." Still, Plaintiff expected to have a
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meeting with Mulvey in order to discuss unresolved issues
concerning her June 29, 2013 letter.
During the first days of the school year, Cherkaoui tried
to meet with Principal MacNeil, but for some reason this did not
happen. On September 11, 2013, Plaintiff went on sick leave
because she felt that the cumulative effect of all that had
happened was causing her "to give up," and that her "[coworkers]
were going to wear [her] down until [she] gave up."
At some point in September 2013, Cox met with Principal
MacNeil and Mulvey. On September 30, 2013, Cox informed Cherkaoui
via email about the meeting, during which Cox and Principal MacNeil
discussed Plaintiff's concerns over her large class size of low-
fluency students, and the challenges that created for designing a
science-based curriculum for a mix of students from sixth, seventh,
and eighth grade. Cox further mentioned that Principal MacNeil
agreed to "make every effort" to keep Plaintiff's classes from
having mixed-grade students. At the meeting, however, Cox and
Principal MacNeil did not discuss any of the other concerns that
Plaintiff had stressed in her June 29, 2013 letter.
During October 2013, Plaintiff exchanged several emails
and letters with Mulvey, in which she reiterated her claims of
discrimination and "hostile environment" at Atlantic and her claim
that Principal MacNeil was "not willing to provide any meaningful
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remedies." On October 2, 2013, Defendant filed its position
statement to Plaintiff's EEOC charge, where, among other things,
it stated that, after completing an investigation of the claims in
Cherkaoui's June 29, 2013 letter, it had found no evidence of
harassment. The next day, Cherkaoui emailed Mulvey to notify him
that she was still on sick leave and that, "[p]rior to returning
to work, [she] need[ed] to know exactly what c[ould] be done to
remedy the hostile environment [she was] continuing to
experience."
Mulvey replied to Plaintiff's emails with a letter on
October 8, 2013. In that letter, Mulvey referred Plaintiff to the
position statement that the City submitted to the EEOC summarizing
the result of his investigation of the claims in Plaintiff's
June 29, 2013 letter. He also instructed Plaintiff that if any
new events not mentioned in the June 29, 2013 letter had
transpired, which she alleged had been discriminatory, she should
provide him with more specifics to allow him to investigate and
address those events. Plaintiff responded a week later expressing
her frustrations over the impossibility of meeting with Mulvey
regarding his investigation of her June 29, 2013 letter. In
addition, in response to Mulvey's request for specific allegations
of new discriminatory events, Cherkaoui pointed to the City's
failure to adopt interim measures to ensure that the discriminatory
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behavior would not continue, its disregard of her complaint
concerning the department class scheduling for the 2013-2014
school year, misleading or incomplete information in the City's
EEOC position statement, and the City's incorrect conclusion that
"no one acted inappropriately toward[s her]." Lastly, Plaintiff
attached a doctor's note indicating that returning to the same
worksite would be detrimental to her health, and requested a
transfer to a part-time ELL language arts teacher position at North
Quincy High School.
Cherkaoui's transfer request was denied by Mulvey via
letter on October 23, 2013, because it was made outside of the
Union contract's window for transfer requests, and because there
were no vacancies at North Quincy High School at that time. In
addition, regarding Plaintiff's alleged disability, Mulvey noted
that the doctor's note did not indicate that a transfer or part-
time position was necessary for her to perform her essential
functions as a teacher. If Plaintiff desired to pursue such an
accommodation, he continued, she should submit to him a more
specific physician's report with the accommodation request, along
with an explanation of the accommodation's necessity by
October 30, 2013.
On October 28, 2013, Plaintiff submitted a letter of
resignation from her position as an ELL teacher at Atlantic. In
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her letter she cited "the absolutely intolerable working
conditions [that] caused [her] to experience serious health
problems, both physically and emotionally" as the reason for her
resignation. The City accepted her resignation on the following
day.
B. Procedural History
On January 9, 2010, Cherkaoui filed charges of
discrimination based on religion and retaliation with the EEOC
against Defendant. On February 17, 2010, Cherkaoui amended her
charge to include a claim for disability discrimination. On
August 7, 2013, Cherkaoui filed an additional charge with the EEOC
based on further and continuing discrimination and retaliation
based on the same discriminatory animus. Cherkaoui then amended
this charge in November 2013 to include a claim for constructive
discharge. On December 11, 2013, the EEOC issued a Right to Sue
Letter on Cherkaoui's claims.
On March 7, 2014, Cherkaoui filed a complaint with the
district court, which she amended on June 27, 2014. Her amended
complaint alleged that she was discriminated against on the basis
of her religion and disability, that she had suffered retaliation
due to her exercise of protected activity, and that she was
constructively discharged, all in violation of state and federal
laws. The City moved for summary judgment on all claims. After
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a hearing on the motion for summary judgment, the magistrate judge
issued his Report and Recommendations on the motion, which
recommended that the district court grant summary judgment in favor
of the City on all counts of the amended complaint. The district
court adopted this recommendation and entered judgment for the
City dismissing the amended complaint. This timely appeal
followed.
II. Analysis
A. Summary Judgment
We review the district court's grant of summary judgment
de novo. ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94
(1st Cir. 2002). "Although we will draw all reasonable inferences
in the nonmovant's favor, we will not 'draw unreasonable inferences
or credit bald assertions, empty conclusions, rank conjecture, or
vitriolic invective.'" Pina, 740 F.3d at 795 (quoting Cabán-
Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.
2007)). Summary judgment is proper when "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).
Facts are material when they have the "potential to
affect the outcome of the suit under the applicable law." Sánchez
v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996). "A dispute is
'genuine' if 'the evidence about the fact is such that a reasonable
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jury could resolve the point in the favor of the non-moving
party.'" Id. (quoting Rivera-Muriente v. Agosto-Alicea, 959 F.2d
349, 352 (1st Cir. 1992)). A court will disregard "conclusory
allegations, improbable inferences, and unsupported speculation"
in determining whether a genuine factual dispute exists. Sullivan
v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (citation
omitted). Furthermore, the nonmovant must provide sufficiently
supported evidence, without relying "upon mere allegation or
denials of [the movant's] pleading," to establish a genuine issue
for trial. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st
Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
256 (1986)). That is, the "plaintiff . . . [must] offer[]. . .
'significant probative evidence tending to support the
complaint.'" Feliciano v. Rhode Island, 160 F.3d 780, 784 (1st
Cir. 1998) (quoting Anderson, 477 U.S. at 256).
Plaintiff brings both federal and pendent state claims.
It is true that the Massachusetts Supreme Judicial Court ("SJC")
has interpreted Mass. Gen. Laws ch. 151B differently on occasion
than Title VII of the Civil Rights Act of 1964 ("Title VII"), 42
U.S.C. §§ 2000e-2000e-17. See, e.g., Cuddyer v. Stop & Shop
Supermarket Co., 750 N.E.2d 928, 939-40 (Mass. 2001). It has also
interpreted state disability discrimination claims differently
than the ADA, 42 U.S.C. §§ 12101-12213. See, e.g., Dahill v.
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Police Dep't of Bos., 748 N.E.2d 956, 963-64 (Mass. 2001). But
Plaintiff has not argued there are any material differences
relevant here, and the SJC has consistently applied the three-step
burden-shifting framework from McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), to antidiscrimination suits under chapter
151B. See, e.g., Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky
& Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016). And so we refer
to federal law.
1. Discrimination
"Where, as here, there is no direct evidence of
discrimination, [Plaintiff] must rely on the three-stage burden-
shifting framework outlined in McDonnell Douglas Corp." Garmon
v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 313 (1st Cir. 2016)
(citing McDonnell Douglas, 411 U.S. at 802). Under this
framework, a plaintiff bears the initial burden of proffering
evidence sufficient to establish a prima facie case of
discrimination. McDonnell-Douglas, 411 U.S. at 802. "The prima
facie case varies according to the nature of the plaintiff's claim
but it requires, among other things, a showing of an adverse
employment action." Alvarado-Santos v. Dep't of Health of P.R.,
619 F.3d 126, 132 (1st Cir. 2010). Once a plaintiff has made a
prima facie showing, she "creates a rebuttable presumption that
[Defendant] engaged in discrimination." Pina, 740 F.3d at 796.
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The defendant may then "rebut this presumption by pointing to
evidence of a legitimate, non-discriminatory reason for the
challenged conduct." Garmon, 844 F.3d at 313. If the defendant
is able to make that showing, "the presumption of discrimination
disappears and the burden of production again shifts to
[plaintiff], who must offer evidence that [defendant's]
explanation is pretextual and that discriminatory animus prompted
the adverse action." Id.
Cherkaoui argues, on appeal, that the district court
failed to consider all the evidence in the light most favorable to
her, that it improperly weighed witnesses' credibility, and that
it failed to consider the cumulative effect of all of her alleged
adverse incidents. Cherkaoui further alleges that the City failed
to articulate legitimate nondiscriminatory reasons for the actions
taken against her, and that, even if it did, she offered sufficient
evidence of pretext for a reasonable jury to infer discriminatory
intent. As we will explain, Plaintiff's arguments are without
merit.
The district court found that Plaintiff "made a prima
facie case of religious and disability discrimination but the
[C]ity ha[d] proffered legitimate nondiscriminatory reasons for
its treatment of the plaintiff." Cherkaoui v. City of Quincy, 213
F. Supp. 3d 264, 279 (D. Mass. 2016). Furthermore, the court
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below determined that the record lacked evidence "that would allow
a jury to find by a preponderance of the evidence that those
reasons were pretextual." Id. The parties disagree as to whether
Cherkaoui made a prima facie showing of discrimination. In
particular, the City alleges that there is no evidence that
Cherkaoui suffered any adverse employment action.
Plaintiff alleges several incidents with QPS personnel
as proof of discrimination; however, neither in her briefs below
nor on appeal does she identify any specific incident amounting to
an "adverse employment action," nor does she specify whether these
incidents were based on her religion or her alleged disability.
"An 'adverse employment action' is one that 'affect[s] employment
or alter[s] the conditions of the workplace.'" Morales-
Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 740, 761 (1998)). To
determine if an employment action is in fact "adverse," we look
for whether it has "materially change[d] the conditions of
plaintiff['s] employ." Gu v. Bos. Police Dep't, 312 F.3d 6, 14
(1st Cir. 2002). These changes "must be more disruptive than a
mere inconvenience or an alteration of job responsibilities."
Burns v. Johnson, 829 F.3d 1, 10 (1st Cir. 2016) (quoting Morales-
Vallellanes, 605 F.3d at 35). Reassignments may be actionable if
they involve "significant different responsibilities." Id.; see
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also Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002)
("[A] transfer or reassignment that involves only minor changes in
working conditions normally does not constitute an adverse
employment action."). "We gauge whether such a change is materially
adverse 'by an objective standard.'" Burns, 826 F.3d at 10; see
also Booker v. Mass. Dep't of Pub. Health, 612 F.3d 34, 42 (1st
Cir. 2010).
Some of the complained-of actions clearly fail to meet
that test. We will assume arguendo that certain actions arguably
qualify. These are: (1) the three-day suspension in 2010; (2) the
change in her ELL teaching assignment to include a science
component and larger class sizes; and (3) the City's failure to
accommodate her requests for transfer.1 See Burns, 829 F.3d at 10
(noting that reassignment with significantly different
responsibilities may be an actionable "adverse employment
action"); Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d
145, 157 (1st Cir. 2009) (noting that showing that an employer
failed to provide a reasonable accommodation after knowing of an
employee's alleged disability may be an "adverse employment
action").2 We need not decide if these actions in fact constitute
1 We take no position as to whether these requests would
constitute "reasonable requests" for purposes of Plaintiff's
disability claims.
2 We find that Cherkaoui's split assignment between Atlantic and
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adverse employment actions because even if we ruled that Cherkaoui
established a prima facie case of discrimination, "her claim[s]
still fail[] because she cannot show that the nondiscriminatory
explanation for her [treatment] articulated by [Defendant] was
pretextual cover for their true, discriminatory motive." Pina,
740 F.3d at 797.
Assuming Cherkaoui has established a prima facie case of
discrimination based on these three "adverse employment actions,"
the next step of the McDonnell Douglas framework requires the
defendant to produce and "articulat[e] a legitimate,
nondiscriminatory reason for the adverse employment decision[s].
. . ." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir.
1991). This is only a "burden of production, not a burden of
persuasion. . . ." Id. It is the Plaintiff who carries the
Sterling in 2009 was not an "adverse employment action" because
this assignment was the result of Defendant accommodating
Plaintiff's request for a full-time position, and this split
assignment was the only full-time position available at that time.
Cf. Deleon v. Kalamazoo Cty. Rd. Comm'n, 739 F.3d 914, 922 (6th
Cir. 2014), cert. denied, 135 S. Ct. 783 (2015) (Sutton, J.,
dissenting) ("No case to my knowledge holds that granting a sought-
after transfer by itself amounts to an adverse employment action.")
(emphasis added); Simpson v. Borg–Warner Auto., Inc., 196 F.3d
873, 876 (7th Cir. 1999) (finding no adverse employment action
when employee voluntarily sought her new position). But see Spees
v. James Marine, Inc., 617 F.3d 380, 387 (6th Cir. 2010) (noting
that if an employee "believed the change was necessary in order to
keep her job," then the employee could recover in light of a
requested transfer).
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burden of persuasion at all times. See id.; Pina, 740 F.3d at
796.
As the record shows, Defendant provided competent
evidence showing that each of the above-mentioned adverse
employment actions were based on legitimate nondiscriminatory
reasons. First, the City's disciplinary actions against Plaintiff
were in response to Cherkaoui's tardiness, even after Defendant
had provided her an additional ten minutes of travel time between
schools. Furthermore, the City produced evidence that other
teachers in the QPS were similarly disciplined for being tardy,
and that Plaintiff had admitted to being late on at least one
occasion.
Second, Defendant offered evidence showing that
Plaintiff's abnormally large class and the directive that she
include a science component in her ELL classes were based on
student needs and the qualifications of the pool of teachers at
Atlantic at the time. In 2011, due to budgetary constraints,
Atlantic lost their science-content ELL teacher, Thai Dang. At
that moment, Plaintiff was the only one, out of the three remaining
ELL teachers at Atlantic, who was not specifically qualified to
teach any of the other content areas required to be incorporated
into the ELL classes. 3 After the three ELL teachers met and
3 The other two ELL teachers at Atlantic were Angell, certified
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discussed the matter, Plaintiff agreed to cover the need for the
science content of the ELL classes.
Third, Defendant also provided evidence as to why it
could not accommodate all of Cherkaoui's requests. To begin with,
Defendant did provide Plaintiff with clear lines of communications
by directing her to Principal MacNeil and Elizabeth Hallet, the
ELL Department Chair, to discuss her teaching responsibilities at
the beginning of the 2010-2011 academic year. Yet, Defendant
explained to Plaintiff the infeasibility of her request for 24-
hour notice of all meetings due to the way a school normally
operates.4 As to Plaintiff's 2013 transfer requests, the City
offered evidence showing it denied them because of legitimate
nondiscriminatory reasons. Cherkaoui withdrew her first transfer
request before the administration could respond to it. On the
other hand, the City denied her second transfer request because it
was submitted outside of the Union's contract window for transfer
as an English/Reading teacher, and Thao Nguyen-Ippolito who was in
pursuit of her certification as a math teacher.
4 According to a letter sent to Plaintiff on July 20, 2010, the
school was unable to accommodate her request for a 24-hour notice
for all meetings, other than ordinary meetings, because part of
the school administration supervision of students and staff is
done in an informal manner, such as through walkthroughs.
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requests and there were no vacancies available at the requested
school.5
Since Defendant successfully submitted evidence showing
a legitimate nondiscriminatory reason for each of the adverse
employment actions alleged by Plaintiff, the burden shifts back to
Plaintiff to show, by a preponderance of the evidence, that the
reasons provided "w[ere] mere pretext and that their true motive
was discriminatory." Pina, 740 F.3d at 797. It is insufficient
that Plaintiff "'impugn the veracity' of the employer's proffered
reason[s] . . . ; instead, a plaintiff must proffer specific facts
that would enable a reasonable factfinder to conclude that the
employer's reason for termination was a 'sham' intended to cover
up the employer's true motive." Ponte v. Steelcase Inc., 741 F.3d
310, 323 (1st Cir. 2014) (quoting Mesnick, 950 F.2d at 824).
Plaintiff "may point to 'weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons'" to support an inference
5 Moreover, we do not find the City's request for an IME to be an
"adverse employment action." Defendant provided evidence that it
was part of the school's policy to require its employees to undergo
an examination by an IME upon applying for extended sick leave.
Also, even though Plaintiff alleges that the City failed to address
her concerns as to her discrimination claims in her June 29, 2013
letter, the record shows otherwise. Plaintiff may not agree with
its conclusions, but Defendant proffered evidence that it did
investigate Plaintiff's claims and found no evidence of
discrimination or a hostile work environment.
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that these were not legitimate nondiscriminatory reasons. Pina,
740 F.3d at 797 (quoting Straughn v. Delta Airlines, Inc., 250
F.3d 23, 42 (1st Cir. 2001)). However, Plaintiff fails to make
this showing. Plaintiff points to the fact that she had ten
successful years of employment in the QPS without a negative
incident, and it was not until April 2009 -- when she started
wearing her headscarf to school -- that she began to have conflicts
with coworkers and supervisors. This is insufficient to raise a
triable issue of fact. "[T]emporal proximity alone can suffice
to 'meet the relatively light burden of establishing a prima facie
case of retaliation.'" DeCaire v. Mukasey, 530 F.3d 1, 19 (1st
Cir. 2008) (emphasis added) (quoting Mariani-Colón v. Dep't of
Homeland Sec. ex. rel. Chertoff, 511 F.3d 216, 224 (1st Cir.
2007)). Nevertheless, "while temporal proximity is one factor
from which an employer's bad motive can be inferred, by itself, it
is not enough--especially if the surrounding circumstances
undermine any claim of causation." Carrero-Ojeda v. Autoridad de
Energía Eléctrica, 755 F.3d 711, 720 (1st Cir. 2014).
Plaintiff does not point to any specific facts or
evidence in the record that would demonstrate pretext. At most,
her case rests on unsupported speculation and conclusory
allegations that Defendant purposely created a "hostile
environment" by changing her assignments and denying her transfer
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requests. She is unable to show that Defendant's proffered
reasons were pretextual, and therefore does not raise a triable
issue of fact. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
507-08 (1993).6
Accordingly, because Cherkaoui was unable to rebut the
City's proffered legitimate, nondiscriminatory basis for its
actions with evidence of pretext and discriminatory motive, the
district court properly granted summary judgment in favor of the
City as to Plaintiff's discrimination claims.
2. Retaliation
Plaintiff's retaliation claims, both state and federal,
are also governed by the McDonnell Douglas three-stage burden-
shifting framework. Pina, 740 F.3d at 800; see also Prescott v.
Higgins, 538 F.3d 32, 40 (1st Cir. 2008). To establish a prima
facie case of retaliation, Plaintiff must "show that (1) she
undertook protected conduct; (2) she suffered an adverse
employment action, and (3) the two were causally linked."
Noviello v. City of Bos., 398 F.3d 76, 88, (1st Cir. 2005); Calero-
Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004).
6 While Cherkaoui cites case law supporting the proposition that
discriminatory enforcement of the City's IME policy is illegal,
see Flynn v. Raytheon Co., 868 F. Supp. 383, 387-88 (D. Mass.
1994), she fails to provide any evidence that the City has
implemented or enforced the IME policy differently against persons
outside of her protected class.
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Once Plaintiff has made a prima facie showing of retaliation,
"[D]efendant must articulate a legitimate, non-retaliatory reason
for its employment decision." Id. at 26. "If the [D]efendant
meets this burden, then [P]laintiff must show that the proffered
legitimate reason is pretextual and that 'the job action was the
result of the [D]efendant's retaliatory animus.'" Kelley v. Corr.
Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013) (quoting St.
Mary's Honor Ctr., 509 U.S. at 510-11).
It is beyond dispute that Plaintiff engaged in protected
conduct when she filed her first EEOC charges on January 9, 2010,
and again when she filed her second charge, as a continuing action,
on August 7, 2013. 7 Only some of the adverse actions that
Cherkaoui alleges came after the protected conduct. These are:
(1) the City's requirement that Plaintiff undergo an IME to
substantiate her application for extended sick leave benefits; (2)
the change in Cherkaoui's teaching assignment which included
7 Plaintiff alleges that she "engaged in explicit protected
activity when she asked Barrett if she was being treated in a
hostile manner because of her headscarf" during the meeting on
November 17, 2009. However, Plaintiff does not develop the
argument as to why her comment during a meeting to discuss a
written warning constitutes a protected opposition activity under
Title VII. Plaintiff's "skeletal" allegation is not enough for
this Court to rightfully consider her comment during the
November 17, 2009 meeting as a protected opposition activity. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").
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abnormally large class sizes, a mixture of students of different
grade-levels, and the requirement that she include a science
component in her ELL classes; (3) the City's denial of Plaintiff's
transfer requests; and (4) the City's alleged failure to
investigate the claims in Plaintiff's June 29, 2013 letter.
For purposes of our analysis, we will assume without
deciding that these were all "adverse employment actions" against
Plaintiff. A review of the records reveals that Plaintiff fails
to provide any evidence that the City took any of these actions
against her because of her protected activity. Instead, Plaintiff
relies solely on temporal proximity to establish causation. "The
cases that accept mere temporal proximity between an employer's
knowledge of protected activity and an adverse employment action
as sufficient evidence of causality to establish a prima facie
case uniformly hold that the temporal proximity must be 'very
close.'" Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001) (quoting O'Neil v. Ferguson Constr. Co., 237 F.3d 1248,
1253 (10th Cir. 2001)). Most of the alleged "adverse employment
actions" here occurred years after Plaintiff filed her first EEOC
charge. We have recognized that "[t]hree and four month periods
have been held insufficient to establish a causal connection based
on temporal proximity." Calero-Cerezo, 355 F.3d at 25. In
addition, as previously discussed, Defendant produced legitimate
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and non-retaliatory reasons for Cherkaoui's teaching assignment,
large class sizes, and mixture of students of different grade-
levels. At the time, these decisions were made based on student
needs and ELL faculty availability. The City's denial of
Plaintiff's transfer requests was not related to her protected
conduct, but to the fact that Cherkaoui withdrew her first transfer
request and her second transfer request was submitted outside of
the Union's contract window.
As to Plaintiff's allegation that the City failed to
investigate the claims raised in her June 29, 2013 letter, the
record shows that Defendant did conduct an investigation and
sought, to no avail, to include Plaintiff's participation.
The only alleged "adverse employment action" against
Plaintiff with a close temporal proximity to her first EEOC charge
was the City's requirement that Plaintiff undergo an IME to
substantiate her application for extended sick leave benefits.
But, the City produced evidence that, under the Union contract,
the City "may request any form of evidence of the [employee's]
disability, to wit: a report from the [City's] own doctor," and
that it had required the same from other teachers in similar
circumstances. The City informed Plaintiff that it was exercising
its right under the Union contract's provision, and Plaintiff
indicated her willingness to comply as long as she was
-30-
"reasonabl[y] accommodat[ed] for [her] religious faith." The City
conformed to her request and, once it received the IME report,
approved Plaintiff's request for extended sick leave. The City
proffered enough evidence to show it required the IME for
legitimate non-retaliatory reasons. Plaintiff has failed to
provide any evidence to the contrary.
In conclusion, the record lacks evidence that shows that
the City retaliated against Cherkaoui because she filed EEOC
charges of religious and disability discrimination against
Defendant. Therefore, the district court properly granted
Defendant's motion for summary judgment on Plaintiff's retaliation
claims.
3. Constructive Discharge
Finally, Cherkaoui claims that Defendant constructively
discharged her, in violation of Mass. Gen. Laws ch. 151B and Title
VII. In order to prevail on a constructive discharge claim, a
plaintiff "must show that (1) 'a reasonable person in [her]
position would have felt compelled to resign' and (2) '[she]
actually resigned.'" Vélez–Ramírez v. P.R. through Sec'y of
Justice, 827 F.3d 154, 158 (1st Cir. 2016) (quoting Green v.
Brennan, 136 S. Ct. 1769, 1777, (2016)).
When we assess a constructive discharge claim, we "must
gauge whether the working conditions imposed by the employer had
-31-
become so onerous, abusive, or unpleasant that a reasonable person
in the employee's position would have felt compelled to resign."
Suárez v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000).
Our assessment cannot rest solely on Plaintiff's subjective views
of her work situation. See id. As we have explained, "[t]he
ultimate test is one of objective reasonableness." Id.After a review of the record, and viewing the facts in
a manner most favorable to the Plaintiff, we cannot conclude that
Plaintiff's working conditions had reached a level of
unbearableness where a reasonable person would have resigned.
Even though Plaintiff did encounter several uncomfortable
situations within her work place, none of these show a pattern of
unusually aggravating working conditions. GTE Prod. Corp. v.
Stewart, 653 N.E.2d 161, 169 (Mass. 1995) ("In order to amount to
a constructive discharge, adverse working conditions must be
unusually aggravated or amount to a continuous pattern before the
situation will be deemed intolerable." (internal quotation marks
and citations omitted)). In fact, the City had taken steps to
investigate her allegations of discriminatory treatment and
accommodated many of her requests.
Midway through the 2013-2014 academic year, Plaintiff
was working full-time at Atlantic, she no longer worked with any
of her alleged harassers, her school Principal had agreed to make
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every effort to reduce her class sizes and mixed-grade students,
and Defendant had inquired into her allegations made in the
June 29, 2013 letter. As to her transfer request as a reasonable
accommodation, the City did not deny her request outright, but
rather requested further information in order to properly review
her request. The City's request was nothing more than the
fulfillment of its duty "to engage in an interactive process"
regarding Plaintiff's accommodation request. See Ortiz-Martínez
v. Fresenius Health Partners, PR, LLC, 853 F.3d 599, 605 (1st Cir.
2017) (quoting EEOC v. Kohl's Dep't Stores, Inc., 774 F.3d 127,
132 (1st Cir. 2014)).
"The workplace is not a cocoon, and those who labor in
it are expected to have reasonably thick skins--thick enough, at
least, to survive the ordinary slings and arrows that workers
routinely encounter in a hard, cold world." Suárez, 229 F.3d at
54 (1st Cir. 2000). Plaintiff did not meet her burden to show she
was constructively discharged. Accordingly, the district court
properly granted summary judgment to Defendant on Plaintiff's
constructive discharge claims.
III. Conclusion
For the foregoing reasons, the district court judgment
is affirmed.
Affirmed.
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