hoeppner v. crotched mountain, 1st cir. (1994)
TRANSCRIPT
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USCA1 Opinion
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________
No. 93-2201
DONNA HOEPPNER,
Plaintiff - Appellant,
v.
CROTCHED MOUNTAIN REHABILITATION CENTER, INC.,
Defendant - Appellee.
____________________
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. ______________
_____________________
Vincent C. Martina for appellant. __________________ James W. Donchess, with whom Wiggin & Nourie P.A., wa
__________________ _____________________ brief for appellee.
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____________________
August 3, 1994 ____________________
TORRUELLA, Circuit Judge. This action involve______________
retaliatory discharge claim under Title VII of the Civil Ri
Act of 1964, 42 U.S.C. 2000(e)-2. Plaintiff-Appellant,
Hoeppner, alleges that she was fired because she reported se
incidents of sexual harassment to her employer. The dist
court granted summary judgment in favor of Hoeppner's empl
and we affirm.
I. BACKGROUND I. BACKGROUND
Defendant-Appellee, Crotched Mountain Rehabilita
Center, Inc. ("CMRC"), is a nonprofit school for the instruc
and rehabilitation of multiply handicapped children and y
adults. Hoeppner was employed as a special education teache
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CMRC from September 1989 until November 9, 1990. Hoeppner wa
charge of a classroom at the school throughout her ter
employment. She was aided by several teacher assistants ("T
who normally rotated through different classrooms over perio
three to six months.
Beginning in December of 1989, several TAs compla
to CMRC administrators about Hoeppner's management of
classroom and about Hoeppner's poor communication with,
supervision of, the TAs. Hoeppner contests the validity
genuineness of some of these complaints, and questions
existence of others, but does not dispute that some compla
were made about her prior to her discharge and prior to
report of sexual harassment. There is also no dispute that
placed Hoeppner on probation for ninety days in August of 1
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Subsequently, on November 1, 1990, Hoeppner reported se
incidents of sexual harassment by one of her TAs. On Novembe
1990, three days after the expiration of her probationary per
CMRC discharged Hoeppner on the ground that Hoeppner
allegedly failed to make suggested improvements in her class
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during the probationary period. Hoeppner maintains that
ground is merely a pretext for the real reason underlying
termination: Hoeppner's report of sexual harassment. Befor
address whether this allegation can survive summary judgment
briefly recount the evidence concerning these events in
detail.
CMRC's Principal, Barbara Cohen, and its Assis
Principal, Archibald Campbell, state in affidavits that
received complaints about Hoeppner's supervision of her class
on several occasions. Cohen attests that in December of 1
she met with Hoeppner's TAs to discuss problems between the
and Hoeppner. Cohen claims that TAs Diana V lez and Jennifer
complained to her in January about the way Hoeppner was trea
them in the classroom.
A meeting between Hoeppner, Cohen, and Hoeppner's
was held on January 20, 1990. Cohen maintains that the mee
was specifically scheduled for the purpose of discussing the
concerns about Hoeppner. In her affidavit, Hoeppner claims
the meeting was a routine afterschool discussion of class
matters at which Cohen solicited corrective suggestions fro
TAs. Even according to Hoeppner's account, however, the
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"talked basically at me" and TA V lez stated at the meeting
Hoeppner was not providing V lez with sufficient feedback.
Hoeppner's first performance evaluation for the pe
of September 11, 1989, through December 11, 1989, was compl
on February 12, 1990. Cohen met with Hoeppner on February 2
discuss the evaluation. The evaluation rated Hoeppner's ove
performance as fully satisfactory, although it noted se
problems with her classroom management abilities. Unde
category entitled "Developing and Motivating Subordinates,"
example, the evaluation stated that Hoeppner's "pers
relationships with teacher assistants have been strained"
that Hoeppner needed to be more open to input from the
Hoeppner signed the evaluation and remembers discussing it
Cohen. She alleges, however, that the negative comments
untrue and fabricated.
Meanwhile, Assistant Principal Campbell claims that
Heidi Beetcher and James LaBelle complained sometime in Jul
1990 about the way Hoeppner was treating them. Campbell
Cohen subsequently scheduled a meeting for July 31, 1990,
discuss the problems. Sometime prior to this meeting, Hoep
alleges that she reported both Beetcher and LaBelle to CMRC f
variety of inappropriate conduct, including physical abuse
students, administering unauthorized medications, and tardine
The July 31 meeting was attended by Cohen, Campb
Hoeppner, and TAs Beetcher and LaBelle. Cohen wrote an exten
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memorandum documenting her version of the various compla
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about Hoeppner that were raised at the meeting. Cohen concl
in the memorandum that Hoeppner "had repeated problems prop
supervising and communicating with her staff. . . . As a re
. . . her performance as a teacher and as a classroom super
is inadequate." Hoeppner does not dispute Cohen's account of
meeting, nor does she dispute that Beetcher and LaB
complained about her supervision of the classroom. Rat
Hoeppner alleges that Beetcher and LaBelle fabricated t
complaints in retaliation for Hoeppner's prior act of repor
the two TAs to CMRC administrators for misconduct and abu
students.
CMRC placed Hoeppner on probation on August 8, 1
Cohen met with Hoeppner the next day to discuss the reasons
the probation and the applicable terms and consequences of
ninety-day probationary period. At the meeting, Cohen prese
Hoeppner with the "Disciplinary Action Form" documenting
probation. The form states that the probation resulted
Hoeppner's failure to properly supervise and communicate wit
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TAs. The form also listed five changes involving Hoeppn
classroom management practices that "must be made" by Hoeppne
improve her behavior. The form concluded with the state
"If behavior does not improve, further disciplinary ac
may/will be taken: Up to and including termination." Hoep
signed the form but did not write anything in the space
employee comments. Hoeppner objects to the validity of
assertions contained in the form and alleges that CMRC place
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on probation as a threat to stop Hoeppner from reporting abus
students and otherwise "making waves" at the school.
Cohen states in her affidavit that Hoeppn
performance did not improve during the probationary period.
states that another TA, Pam Flannery, complained to her a
Hoeppner's classroom management and supervision on October,
1990. Flannery signed a statement containing the details of
complaints, including allegations that Hoeppner's inti
relationship with another one of her TAs, Glenn Loucks,
espoused to Hoeppner, was causing trouble in the classr
Cohen states that Flannery indicated that the classroom wa
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chaos. Hoeppner claims that the CMRC administration solic
Flannery's statement while it was pressuring Flannery to
away from the union which Glenn Loucks and others were tryin
organize at CMRC. Hoeppner alleges that Flannery signed
statement to save her job and the statement is thus of dub
validity. Mark Pierce, a Residential Counselor at CMRC,
the same allegation as Hoeppner in his affidavit.1
Meanwhile, CMRC Education Staff Development C
Pamela Shea, states in an affidavit that she spoke with Hoep
____________________
1 According to Hoeppner, Flannery's statement is alle contradicted by a subsequent October 9, 1992 letter by Flan denying that the alleged incidents of sexual harassment
occurred in Hoeppner's classroom. In the October 9 let Flannery does state that "we all worked very well together
the classroom, however, she also states in the same letterthe relationship between Loucks and Hoeppner "was cau
friction and tension in [Hoeppner's] staff." We seecontradiction between Flannery's signed statement andsubsequent letter.
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in early November (Cohen indicates that Shea informed her of
conversation on November 1) and determined that the situatio
Hoeppner's classroom was chaotic and out of control.
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On November 1, 1990, Hoeppner first reported se
incidents of sexual harassment to CMRC. Hoeppner info
Assistant Principal Campbell that one of her TAs, Shane Wat
had made several sexually inappropriate overtures toward
including touching her breasts from behind, placing his cr
three inches from her face, and rubbing her back. Campbell
Cohen spoke with Waters on several occasions between Novemb
and November 5, 1992. Waters gave a somewhat different acc
of the incidents and denied that any of his actions had se
connotations. Campbell and Cohen told Waters that se
harassment was not acceptable and that Waters should not
anything that could be interpreted by Hoeppner as se
harassment. Neither Cohen nor Campbell took any administra
action against Waters nor did they conduct any fur
investigation of the incident beyond their conversations
Waters. Hoeppner claims that despite promising a
investigation, the CMRC administration did nothing and n
informed her of what they would do, or had done, about
incidents.
CMRC discharged Hoeppner on November 9, 1990, t
days after her probationary period ended and eight days after
reported the incidents of sexual harassment. According to
final performance evaluation written by Cohen upon Hoeppn
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discharge, Hoeppner continued to have problems with her staff
did not improve her supervision and management of the classr
as required by the terms of Hoeppner's probation. In deposi
testimony, Hoeppner stated that she did not change her beha
in response to the criticisms leveled by Cohen in
Disciplinary Action Form accompanying Hoeppner's proba
because Hoeppner did not feel that the criticisms were va
Hoeppner does claim, however, that she did make changes
response to the particular needs of individual TAs and that
general, she did improve her performance.
Hoeppner maintains that there were no signifi
problems in her classroom and asserts that the criticisms
complaints against her were untrue and fabricated. She proff
affidavits of several current and former employees of CMRC
attest to Hoeppner's good teaching and supervisory abilities
who assert that Hoeppner did not have any problems with the s
in her classroom. Hoeppner also points out that neither of
supervisors, Cohen and Campbell, formally observed Hoeppn
work in the classroom. CMRC's motive for fabricatin
complaints against her, Hoeppner claims, was to implic
threaten her job so that Hoeppner would stop "making waves
CMRC by reporting incidents of abuse of students, by repor
misconduct of other employees, and by supporting the efforts
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organize a union at CMRC led by Glenn Loucks. Several cur
and past employees assert in their affidavits that CMRC
trying to keep its employees quiet about incidents of stu
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abuse so that the incidents could be hidden from the s
regulators and from the public, thus avoiding the tarnishin
CMRC's reputation. Several affiants make similar accusat
regarding CMRC's efforts to discourage unionization at
school. One affiant claims that CMRC's method of silen
employees was to falsify complaints against them and
threaten to fire them.
The district court rejected Hoeppner's claim
dismissed the case on summary judgment. The court foun
triable issue on the question of whether CMRC wrongf
discharged Hoeppner because CMRC "reasonably and justifi
concluded that there was a problem in plaintiff's classro
The court also noted that the complaints against Hoeppner
made well before she reported the incidents of sexual harass
so these complaints could not have been a fabricated pretex
cover up a retaliatory motive. Consequently, the court foun
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evidence of a causal relationship between the protected acti
of reporting sexual harassment and Hoeppner's discharge.
II. ANALYSIS II. ANALYSIS
To establish a claim of retaliatory discharge u
Title VII, Hoeppner must show by a preponderance of the evi
that:
(1) she engaged in a protected activity as an employee, (2)
was subsequently discharged from employment, and (3) there
causal connection between the protected activity and
discharge. Ramos v. Roche Products, Inc., 936 F.2d 43, 48_____ ____________________
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Cir.), cert. denied, 112 S. Ct. 379 (1991); Ju rez v. Ameri
____ ______ ______ ____
Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 19 ___________________________
Because reporting sexual harassment is a protected activity u
Title VII, Morgan v. Massachusetts General Hospital, 901______ _______________________________
186, 194 (1st Cir. 1990), and because Hoeppner was discha
after she reported the incidents of sexual harassment by Wat
there is no dispute that Hoeppner has established the first
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elements of her retaliatory discharge claim. The issue on ap
is whether, as the district court found, Hoeppner faile
present sufficient evidence of a causal link between her se
harassment report and the subsequent discharge to defeat a mo
for summary judgment. To put it another way, the issue
whether the evidence in the record can show that CMRC's
reason or motive for firing Hoeppner was Hoeppner's repor
sexual harassment.
Because we are reviewing an order of summary judg
we must determine whether the pleadings, depositions, answer
interrogatories and affidavits offered in this case, viewe
the light most favorable to the nonmovant, Hoeppner, presen
genuine issue of material fact regarding the existence o
causal connection between Hoeppner's sexual harassment report
her subsequent discharge. Fed. R. Civ. P. 56(c); Serrano-P________
v. FMC Corp., 985 F.2d 625, 626 (1st Cir. 1993); Oliver_________ _____
Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 19 ________________________
Under the summary judgment standard, an issue is genuine "'if
evidence is such that a reasonable jury could return a ver
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for the nonmoving party.'" Oliver, 846 F.2d at 105 (quo ______
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (198
________ _____________________
Although the party opposing the motion for summary jud
benefits from all reasonable inferences favorable to that pa
the nonmovant "may not rest upon mere allegations; [he] must
forth specific facts demonstrating that there is a genuine i
for trial." Id. Even in discriminatory discharge cases,__
the plaintiff can rarely present direct, subjective evidenc
an employer's actual motive, the plaintiff cannot survive su
judgment with "unsupported allegations and speculations,"
rather must "point to specific facts detailed in affidavits
depositions -- that is, names, dates, incidents, and suppor
testimony -- giving rise to an inference of discrimina
animus." Lipsett v. University of Puerto Rico, 864 F.2d 881,_______ _________________________
(1st Cir. 1988).
Hoeppner claims on appeal that she presented suffic
evidence to create a genuine issue of material fact as to whe
CMRC fabricated the alleged complaints against Hoeppner so
they could be used as a pretext for Hoeppner's later discha
which was ultimately caused by the sexual harassment rep
Hoeppner acknowledges that the complaints against her an
subsequent probation preceded her report of sexual harassmen
CMRC. She argues, however, that CMRC fabricated the compla
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the causal connection between her report and her subse
discharge. Consequently, no genuine issue of material
remains for trial. Hoeppner's "evidence" consists mainly
unsupported allegations without any "specific facts" suc
"names, dates, incidents, and supporting testimony." Lips ___
864 F.2d at 895. Specific facts are absent to support se
crucial links along Hoeppner's alleged chain of causality:
that CMRC had a practice of implicitly threatening teachers
fabricated negative teacher evaluations in order to cover
abuse of students at the school; (2) that CMRC's practic
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silencing teachers to cover up student abuse extended to
general practice of threatening teachers who were "making wa
by taking actions such as reporting incidents of se
harassment; and (3) that CMRC's alleged practice of threate
teachers through fabricated complaints was instituted aga
Hoeppner herself, resulting in Hoeppner's discharge after
made the sexual harassment report. Because all these links
crucial to the third element in Hoeppner's Title VII cause
action, her failure to establish any one of them dooms
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objection to CMRC's motion for summary judgment. See, e ___
Ramos, 936 F.2d at 49 (noting that plaintiff's "accusat _____
remain largely conclusory and lacking in the conc
documentation necessary to prove the causal link between
protected activity and her retaliatory treatment").
1. Regarding the first causal link, Hoeppner prese
evidence showing that CMRC had problems with the mistreatment
abuse of students by staff members. There is also some evide
although perhaps little more than a scintilla, that CMRC
trying to hide the incidents of abuse and mistreatment fro
public, either to maintain its reputation or to avoid s
regulators. Hoeppner's further claim that CMRC fabric
complaints against teachers who reported abuse of students i
effort to silence them, however, is supported by nothing
than unsubstantiated allegations. Hoeppner and Holly Bro
staff psychologist at CMRC, both make assertions regarding C
alleged silencing practice without noting any specific na
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dates or incidents. Glenn Loucks claims in his affidavit
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sometime in November of 1990, "after attempting to talk
social worker from the state of Mass. for student P.C., Bar
Cohen told me that I would be fired for reporting child abus
a state agency. That I had to follow [CMRC] policy and
meant not breaking client confidentiality to any state age
[sic]" Loucks' statement might amount to some evidence of C
practice of silencing employees except for the fact that Lo
states in the next paragraph of his affidavit that he did in
report a case of child abuse to the New Hampshire Department
Children and Youth Service and yet he makes no claim that
took any actions against him as a result. More importan
Loucks' allegation does not support the claim that
administrators fabricated complaints against teachers to
them quiet. He makes no mention of fabrication or threats
fabricate complaints in his affidavit.
Dr. Robert Grassi, CMRC's Clinical Director, state
deposition testimony that CMRC's past Director of Psychol
Marilyn Russell, was discharged because she reported incident
child abuse directly to state authorities in violation of
policy. Although this is the type of "incident" that
normally raise a triable issue of fact as to an establi
practice of CMRC, the practice is not one which invo
fabricating teacher complaints to implicitly threaten teacher
keep quiet. No allegations are made that CMRC fabric
complaints against Russell. The problem with the "evidence"
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Grassi's testimony is that it provides no details of the all
retaliatory discharge of Russell -- nor does Hoeppner offer
evidence from the people involved in the incident, inclu
Russell herself -- that would enable a reasonable jury
determine if it is the type of occurrence that is consistent
the alleged practice by CMRC to fabricate false compla
against teachers to prevent them from reporting abuse
students. Grassi himself does not explain how he discovere
reasons for Russell's discharge and, indeed, states that he
not remember talking about these reasons when he spoke
Russell at the time of the alleged incident.
2. Even if Hoeppner had provided sufficient evi
to show that CMRC had a practice of fabricating compla
against teachers to discourage them from reporting student ab
Hoeppner has still failed to establish a second crucial lin
the chain connecting her discharge to the sexual harass
report: that CMRC's concern with staff reports of student a
to outside parties extended to a concern with the types of s
actions that Hoeppner engaged in, such as filing a se
harassment report and reporting two of her TAs for miscon
In other words, Hoeppner has not established that she
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anything that would cause CMRC to fabricate complaints aga
her.
Aside from the incidents reported by Hoeppner in
case, there is nothing in the record regarding any previou
subsequent complaints of sexual harassment filed by a
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employee, or regarding CMRC's retaliation, or threat
retaliate, against other employees who might have compla
about sexual harassment. Thus, Hoeppner has presente
evidence that an internal sexual harassment report would qua
as the type of conduct CMRC administrators would consider "ma
waves" or the type of action that would induce CMRC to retali
The closest thing to "evidence" concerning this i
is an affidavit by August Tardiff, a teacher at CMRC, who cl
that in March of 1993, he reported to CMRC administrators tha
felt physically threatened by one of his TAs. Although t
was temporarily removed from Tardiff's room, Tardiff claims
the administrators "refused to take my fears seriously [and]
me I did not have a choice that I had to work with this ma
leave. They also gave me a disciplinary action in which
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blamed me for the problem. So I gave my resignation on Apri
to be effective on June 30th." This single incident, occur
nearly three years after Hoeppner was discharged, would no
itself allow a reasonable jury to conclude that CMRC ha
practice of fabricating complaints against teachers who repo
sexual harassment at the time Hoeppner was fired. To defe
motion for summary judgment, "[t]he mere existence of a scint
of evidence in support of the plaintiff's position will
insufficient; there must be evidence on which the jury c
reasonably find for the plaintiff." Anderson v. Liberty Lo ________ __________
Inc., 477 U.S. 242, 252 (1986); see also Serrano-P rez, 985____ ________ _____________
at 627; Milton v. Van Dorn Co., 961 F.2d 965, 969 (1st______ _____________
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1992). Tardiff's incident is too remote and too isolate
create a triable issue as to the fabrication of the compla
against Hoeppner.
Hoeppner has further failed to provide evidence
administrators would consider any of her other actions while
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CMRC as "making waves," such that the administrators would
taken retaliatory action by fabricating complaints and pla
Hoeppner on probation. Hoeppner claims that she reported
Beetcher and LaBelle for misconduct in July of 1990. Bec
this occurred after several TAs had already complained a
Hoeppner, after CMRC wrote Hoeppner's first perfor
evaluation which mentioned some of the problems in Hoeppn
classroom, and possibly even after Beetcher and LaBelle f
complained about Hoeppner to Campbell, Hoeppner's actions c
not have led to CMRC's fabrication of the initial compla
against Hoeppner.
Hoeppner also makes the unsupported assertion that
retaliated against her because of her relationship with Lou
who was attempting to organize a union at CMRC. Several
Hoeppner's supporting affidavits discuss incidents in which
administrators took actions to discourage unionization or u
activities. However, the record contains no evidence
Hoeppner ever took part in union activities and nothing indic
that CMRC thought she was involved with the union efforts. C
did know that Hoeppner had an intimate relationship with
Loucks, but nothing in the record indicates that Cohen or
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other CMRC administrator imputed Loucks' union activity
Hoeppner. The record is also devoid of any indication
employees' union activities were occurring before August of 1
let alone that CMRC knew about any union activities before Au
of 1990, when Hoeppner was put on probation. There is simil
no evidence that Cohen or anyone else at CMRC knew about
relationship between Loucks and Cohen until the "fall of 19
well after Hoeppner's probation. Thus, there is insuffic
competent evidence to raise a genuine issue as to whether a
union animus motivated CMRC to fabricate complaints aga
Hoeppner.
In sum, there is insufficient evidence from whi
reasonable jury could find that CMRC had a practice of silen
employees by fabricating false negative evaluations against t
that CMRC had a practice of retaliating against teachers
like Hoeppner, made reports of TA misconduct and se
harassment, or that Hoeppner herself engaged in any activi
that would cause CMRC to fabricate the complaints against her
her subsequent probation. Thus, two important causal l
necessary for her Title VII action are missing from the evi
in the record.
3. Finally, Hoeppner has failed to establish a t
crucial link in the causal chain between Hoeppner's repor
sexual harassment and her discharge: that CMRC's all
silencing practice was applied to Hoeppner in this specific
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through the fabrication of the complaints against her and thr
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the subsequent discharge of Hoeppner when she continued to
waves by reporting incidents of sexual harassment.
Hoeppner's evidence on this issue consists primaril
affidavits stating that Hoeppner was a good teacher, that she
not have problems in her classroom supervising, or communica
with, her TAs, and that the TAs themselves were really
troublemakers in Hoeppner's classroom. Hoeppner wants
evidence to show that the complaints against her were not
untruthful and inaccurate but also fabricated. As we have
on previous occasions, "evidence contesting the fac
underpinnings of the reasons for the [employment decis
proffered by the employer is insufficient, without more,
present a jury question." Morgan, 901 F.2d at 191 (citing De______ _
Look, 810 F.2d 12, 15 (1st Cir. 1987)); see also Ramos, 936____ ________ _____
at 48. Hoeppner cannot establish that CMRC's reasons
discharging her were merely a pretext for impermiss
retaliation "solely by contesting the objective veracity of
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employer's] action." Morgan, 901 F.2d at 191. Rather, Hoep ______
must provide some additional evidence to indicate that
complaints were purposefully fabricated with the intent
threatening Hoeppner not to make waves. See St. Mary's H
___ ____________
Ctr. v. Hicks, 113 S. Ct. 2742, 2751-52 (1993) (finding tha____ _____
reason cannot be proved to be 'a pretext for discriminat
unless it is shown both that the reason was false, and
discrimination was the real reason"; and finding that Title
does not permit courts "to substitute for the required fin
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that the employer's action was the product of unla
discrimination, the much different (and much lesser) finding
the employer's explanation of its action was not believabl
Ramos, 936 F.2d at 48 (noting that refuting the employ _____
articulated reasons for taking action against a plaintiff
not suffice to meet the plaintiff's burden of demonstra
discriminatory intent). Thus, given Hoeppner's theory regar
CMRC's motives, Hoeppner's evidence that she was a good tea
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and that her TAs were troublemakers does not by itself estab
the necessary element of causality between the sexual harass
report and the discharge to support her Title VII action.
Hoeppner presents no other evidence that would pro
this missing element. As we already noted, Hoeppner has fa
to establish a pattern of fabrication by CMRC that would indi
there was fabrication in this particular case. Hoeppner pro
no affidavits from the complaining TAs stating that they di
make the alleged complaints or that they were pressured
lying by CMRC administrators. Instead, Hoeppner points to
fact that neither Cohen nor Campbell formally observed
classroom to verify the TAs' complaints. This fact may i
something about the accuracy of the complaints against Hoepp
but it implies nothing about the allegation that CMRC fabric
the complaints. CMRC administrators could fabricate their
observations more easily than the complaints of third part
who might later recant or deny making the complaints. In f
their own fabrications would be more reliable as they coul
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be subsequently contradicted by the source of the complaint.
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Hoeppner alleges that TAs Beetcher and LaB
complained about her classroom supervision in retaliation for
reports of the TAs' own misconduct. If true, this would ten
refute Hoeppner's own claim that CMRC administrators fabric
her negative evaluations. The fact that Beetcher and LaB
lied to Campbell and Cohen implies that Campbell and C
believed Hoeppner had problems managing her classroom or,
least, that Hoeppner's TAs, rather than CMRC itself,
responsible for Hoeppner's allegedly undeserved probation.
any event, several of the other TAs' complaints, as wel
Hoeppner's first performance evaluation, preceded Hoeppn
report of Beetcher and LaBelle so CMRC could not have fabric
these complaints against Hoeppner in retaliation for Hoeppn
report of Beetcher and LaBelle.
Hoeppner also attempts to cast doubt on the nega
reports of Hoeppner's classroom by Pam Flannery and Pamela
that were provided to Cohen after Hoeppner's probationary pe
had begun. Hoeppner points to an affidavit asserting that
coerced Flannery's signed statement and another affi
alleging that, contrary to Shea's own affidavit, Shea never s
with Cohen about Hoeppner's classroom. We do not think t
mere allegations are sufficient to invalidate the first-
statements by Flannery and Shea. Even if they are suffici
the allegations do not raise a triable issue as to the claim
CMRC fabricated the prior complaints against Hoeppner
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Hoeppner's probation.
In sum, even if a factual issue exists as to
validity of the complaints against Hoeppner, summary judgmen
favor of CMRC would still be appropriate because Hoeppner has
established that her discharge was causally related to
protected activity of reporting sexual harassment.
The district court's judgment is therefore affirme _______
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