United States Court of Appeals
For the First Circuit
No. 09-1985
EILEEN AHERN ET AL.,
Plaintiffs, Appellants,
v.
ERIC K. SHINSEKI, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary M. Lisi, U.S. District Judge]
[Hon. Lincoln D. Almond, U.S. Magistrate Judge]
Before
Lynch, Chief Judge,
Selya and Thompson, Circuit Judges.
Thomas E. Folcarelli for appellants.
Richard B. Myrus, Assistant United States Attorney, with whom
Peter F. Neronha, United States Attorney, was on brief, for
appellee.
December 13, 2010
SELYA, Circuit Judge. In the last half-century, Congress
has enacted a safety net of antidiscrimination laws designed to
protect workers' rights. These laws serve salutary purposes, but
they are not intended to function as a collective panacea for every
work-related experience that is in some respect unjust, unfair, or
unpleasant. This case, which involves the introduction of an
abrasive supervisor into a workplace accustomed to a kinder,
gentler way of doing business, illustrates the point.
The underlying dispute takes the form of an action
brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e-2(a) and 2000e-3(a). The plaintiffs proffer claims of
gender-based discrimination, retaliation, and constructive
discharge. The district court rejected these claims and entered
summary judgment for the employer. The plaintiffs now appeal.
We conclude, as did the court below, that the evidence is
insufficient to permit a reasonable factfinder to resolve any of
the claims in the plaintiffs' favor. Accordingly, we affirm.
I. BACKGROUND
We rehearse the facts in the light most agreeable to the
nonmoving parties (here, the plaintiffs), consistent with record
support. Cox v. Hainey, 391 F.3d 25, 27 (1st Cir. 2004); Garside
v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). Under that
paradigm, the nonmovants are entitled to the benefit of all
reasonable inferences that the facts will bear. Noviello v. City
-2-
of Boston, 398 F.3d 76, 81-82 (1st Cir. 2005). We recount here
only a synopsis, reserving further facts for inclusion in our
discussion of particular claims.
We start with the cast of characters. The plaintiffs,
Eileen Ahern, Debra Auger, Maureen Mastalerz, and Lynda Parker, are
women who, at the times material hereto, were employed as radiology
technologists in the diagnostic imaging service (DIS) at a
Department of Veterans Affairs medical center in Providence, Rhode
Island (the VA Hospital). Ahern and Mastalerz worked primarily as
computed tomography (CT) technologists, Auger split her time
between CT and angiography, and Parker functioned as a "backup
angiography technologist/clinical coordinator." The plaintiffs'
immediate superior was the chief technologist, Joan Beaudoin, who
in turn reported to the administrative officer, Mehrdad Khatib.
Khatib — the alleged villain of the piece — reported in turn to the
chief of the DIS, Dr. Casimira Sta Ines. The defendant Eric K.
Shinseki is the Secretary of Veterans Affairs; he is sued in his
official capacity.
To understand the plaintiffs' allegations, it is
necessary to understand the way in which the DIS operated. As
administrative officer, Khatib was responsible for personnel
management. When Khatib took over, the DIS employed sixteen staff
technologists, fourteen of whom were female. At Khatib's
instigation, a number of contract technologists were brought
-3-
aboard. These contract technologists were independent contractors
rather than employees and, as such, were not entitled to receive
the usual perquisites of federal employee status. The new
recruits, eleven of whom were male and seven of whom were female,
nevertheless performed the same duties as the staff technologists.
Khatib's portfolio also included responsibility for the
day-to-day operations of the DIS. Beginning in September of 2003,
the plaintiffs and their coworkers made numerous complaints to
Beaudoin and Dr. Sta Ines about Khatib's performance of these
duties. In meetings held in October 2003 and January 2004, they
protested that Khatib's management style was creating "stressful
working conditions and [a] hostile work environment in DIS."
In response, Dr. Sta Ines sent Khatib two memoranda
(dated February 2 and 9, 2004, respectively), bringing these
charges to his attention and offering to "work together to resolve
any issues and continue the numerous improvements that have
occurred since your arrival."
Another relevant series of events transpired in the same
time frame. Early in 2004, Khatib advised Beaudoin that he
believed the CT department was functioning inefficiently and
causing delays in service. He attributed this malfunctioning in
part to the fact that the technologists in the CT department
operated on a compressed weekly schedule. Under that schedule,
each of them worked four ten-hour days per week.
-4-
On March 31, 2004, Khatib recommended to Dr. Sta Ines
that the CT technologists, like all other technologists in the DIS,
should work five eight-hour shifts per week. Dr. Sta Ines endorsed
a modified version of this proposal and announced the plan in
April. The CT technologists opposed the change on a number of
grounds, claiming that it would make their work schedules
uncertain, limit their overtime opportunities, and curtail their
freedom to conduct personal business during the week.
On April 22, 2004, the plaintiffs and five coworkers (two
male and three female) submitted a lengthy memorandum to Dr. Sta
Ines, which they identified as a "formal complaint of harassment,
sexual discrimination and creation of a hostile work environment."
In this diatribe, they suggested that Khatib had instigated the
scheduling change as a retaliatory measure "after complaints were
made about him at the meeting with Dr. Sta Ines"; that he had
treated a particular male contract technologist "with more
respect"; that he was "bullying" the staff; and that he harbored
"unreasonable and unrealistic expectations" about them, thus
setting them up "to look and feel like failures."
Despite the charge of "sexual discrimination," the
plaintiffs' complaints were not restricted to Khatib's treatment of
female employees. Some complaints were gender-neutral; others
groused that he had disrespected a male doctor and treated certain
male file clerks "horribly."
-5-
The memorandum prompted the Department of Veterans
Affairs (DVA) to commission a probe of this compendium of
complaints. Upon completion of its investigation, the DVA review
team issued a report of its findings under date of September 30,
2004. It concluded that Khatib had not engaged in discriminatory
practices but that his abrasive management style had contributed to
a serious morale problem among a majority of the staff.
Khatib retained his post. His proposal for conversion of
the CT department to a five-day workweek did not fare as well. The
plan was never implemented.
Although the record is short on particulars, the
plaintiffs allege that internal strife continued even after the
review team's investigation. Citing anxiety and stress ostensibly
induced by Khatib's antics, each of them looked for greener
pastures. Ahern took an extended medical leave, later returned to
work, and eventually resigned. Mastalerz took a medical leave,
returned to work briefly, and then found employment elsewhere.
Parker quit to take a job with another employer; Auger took annual
leave and never came back. By 2005, all of the plaintiffs had left
their positions at the VA Hospital.
The plaintiffs did not go quietly but, rather, filed
charges of gender-based discrimination, retaliation, and harassment
with the Equal Employment Opportunity Commission. After obtaining
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right-to-sue letters, they brought suit in the United States
District Court for the District of Rhode Island.
The operative pleading for present purposes is the
plaintiffs' second amended complaint. In it, they alleged
disparate treatment with respect to hiring, compensation, and
promotion; retaliation; and constructive discharge. Following the
completion of pretrial discovery, the defendant moved for summary
judgment. The plaintiffs opposed the motion. The district court
referred the matter to a magistrate judge.
After a hearing, the magistrate judge recommended that
the motion be granted in its entirety. Ahern v. Shinseki, No. 05-
cv-117, 2009 WL 1615402, at *22 (D.R.I. June 9, 2009).1 He
concluded that the plaintiffs had failed to adduce any probative
evidence in support of many of their allegations, id. at *18-19;
that they had failed to identify any adverse employment actions,
id. at *13; and that they had failed to show that similarly
situated male employees had been treated more favorably, id. The
plaintiffs objected. See Fed. R. Civ. P. 72(b)(2). The district
court adopted the magistrate judge's recommendation. Ahern, 2009
WL 1615402, at *9. This timely appeal followed.
1
The electronic version of the opinion, filed by the district
judge, annexes and incorporates the magistrate judge's report and
recommendation. Both documents, therefore, share the same
citation.
-7-
II. ANALYSIS
We review a district court's grant of summary judgment de
novo. Noviello, 398 F.3d at 84. "We will affirm only if the record
reveals 'no genuine issue as to any material fact' and 'the movant
is entitled to judgment as a matter of law.'" Vineberg v.
Bissonnette, 548 F.3d 50, 55 (1st Cir. 2008) (quoting Fed. R. Civ.
P. 56(c)).2 In carrying out that tamisage, we must scrutinize the
evidence in the light most agreeable to the nonmovants, who are
entitled to the benefit of all reasonable inferences therefrom.
Cox, 391 F.3d at 29. Where, as here, the nonmovants have the burden
of proof on the dispositive issue, they must point to "specific
facts sufficient to deflect the swing of the summary judgment
scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.
2003). A properly supported summary judgment motion cannot be
defeated by relying upon conclusory allegations, improbable
inferences, acrimonious invective, or rank speculation. Pagano v.
Frank, 983 F.2d 343, 347 (1st Cir. 1993); Mesnick v. Gen. Elec. Co.,
950 F.2d 816, 822 (1st Cir. 1991); cf. G.F. Northall, Folk-Phrases
of Four Counties 23 (1894) (memorializing the venerable adage that
"[s]ticks and stones will break my bones, but names will never hurt
me").
2
Rule 56 has been amended, effective December 1, 2010. The
substantive standard for summary judgment remains unchanged. See
Fed. R. Civ. P. 56 advisory committee's note. At any rate, the
version of the rule that was previously in effect controls here.
-8-
It is against the backdrop of this familiar standard that
we consider the three issues that the plaintiffs purport to raise
on appeal.
A. Discrimination in Hiring.
In this venue, the plaintiffs narrow their disparate
treatment claim. They press only one aspect of it: that their
employer (through Khatib) engaged in a pro-male pattern of
discriminatory hiring. This claim is easily dispatched.
The core inquiry in a gender-based disparate treatment
case is whether the defendant intentionally discriminated against
the plaintiff because of her gender. Rathbun v. Autozone, Inc., 361
F.3d 62, 71 (1st Cir. 2004). The plaintiff is not required to
adduce direct proof of discrimination. Id. (citing U.S. Postal
Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 716-17 (1983)). She may
instead take advantage of a burden-shifting framework to raise an
inference of disparate treatment. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-04 (1973).
A plaintiff who chooses to follow this path first must
establish a prima facie case. The elements of the prima facie case
depend upon the particular type of employment decision at issue.
Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1st Cir. 1994).
Adapted to the instant case, the elements of a failure-to-hire claim
are: (i) that the plaintiffs are members of a protected class; (ii)
that they were qualified for the position to which they aspired;
-9-
(iii) that they were not hired; and (iv) that a person possessing
similar or inferior qualifications was hired. Morón-Barradas v.
Dep't of Educ., 488 F.3d 472, 478 (1st Cir. 2007); Keyes v. Sec'y
of Navy, 853 F.2d 1016, 1023 (1st Cir. 1988). Making this modest
showing raises an inference of intentional discrimination. Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981).
Once raised, that inference shifts the burden of
production to the employer to articulate a legitimate,
nondiscriminatory reason for the challenged employment decision.
Id. at 254; Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5,
9 (1st Cir. 1990). So long as the employer comes forward with such
a reason, the burden of production reverts to the plaintiffs. See
Conward v. Cambridge Sch. Comm., 171 F.3d 12, 19 (1st Cir. 1999).
In order to carry that burden, the plaintiffs must proffer evidence
tending to prove that the reason offered by the employer was
apocryphal; that is, a pretext for discrimination. Rathbun, 361
F.3d at 72. Unlike the burden of production, the burden of proving
intentional discrimination never shifts; it remains with the
plaintiff throughout the burden-shifting pavane. See Mesnick, 950
F.2d at 823.
In this case, the plaintiffs cannot make out a prima
facie case of discriminatory hiring. Although they are members of
a protected class — women — they make no effort to satisfy any of
the three remaining elements needed for a prima facie case. None
-10-
of them applied — let alone applied unsuccessfully — for any open
position during Khatib's tenure and, thus, none of them can maintain
a failure-to-hire claim. See, e.g., Morón-Barradas, 488 F.3d at
478; Gu v. Boston Police Dep't, 312 F.3d 6, 11 (1st Cir. 2002).
The plaintiffs' effort to demonstrate gender-based
discrimination by direct evidence is no more fruitful. This line
of attack relies on raw statistics reflecting Khatib's engagement
of a cadre of predominantly male contract technologists. Leaving
to one side that these numbers lack statistical significance,3 the
plaintiffs' claim is again undone by their failure to demonstrate
that the alleged discrimination affected their own employment
prospects. Put simply, the plaintiffs had jobs. During the
relevant period, none of them sought to be engaged as a contract
technologist (or, for that matter, in any other new capacity).
Because Khatib did not refuse to hire any of the plaintiffs, the
record presents no trialworthy issue as to discriminatory hiring.
B. Retaliation.
We turn next to the plaintiffs' retaliation claim. Title
VII makes it unlawful "for employers to retaliate against persons
3
Statistical evidence "is permissible in the disparate
treatment context to show that the employer's conduct conformed to
a general pattern of discrimination." Rathbun, 361 F.3d at 79.
Here, however, the evidence is merely that a few more males than
females were hired. The plaintiffs provided nothing to show that
this small disparity was statistically significant. More
importantly, they failed to present the figures "in a context which
would lend them probative value." Rodríguez v. Smithkline Beecham,
224 F.3d 1, 7 (1st Cir. 2000).
-11-
who complain about unlawfully discriminatory employment practices."
Noviello, 398 F.3d at 88 (citing 42 U.S.C. § 2000e-3(a)). A
specialized burden-shifting framework applies to retaliation claims.
This framework also encompasses a prima facie case requirement. To
satisfy this requirement, a plaintiff must show (i) that she engaged
in protected activity; (ii) that she bore the brunt of a materially
adverse action; and (iii) that the first two elements were causally
linked to one another. Dixon v. Int'l Bhd. of Police Officers, 504
F.3d 73, 81 (1st Cir. 2007).
In this instance, the employer does not dispute that the
plaintiffs' complaints about Khatib's stewardship constituted
protected activity. Consequently, we combine the two remaining
elements and focus the lens of our inquiry on whether the facts,
taken in the light most favorable to the plaintiffs, can support a
finding that they suffered some materially adverse action that was
causally connected to their protected activity.
The Supreme Court has made it pellucid that the category
of adverse actions sufficient to trigger Title VII's antiretaliation
provision is "not limited to discriminatory actions that affect the
terms and conditions of employment." Burlington N. & Santa Fe Ry.
Co. v. White, 548 U.S. 53, 64 (2006). Unlike the substantive
antidiscrimination provision of Title VII, 42 U.S.C. § 2000e-2(a),
the antiretaliation provision covers all "employer actions that
would have been materially adverse to a reasonable employee,"
-12-
defined as actions that are "harmful to the point that they could
well dissuade a reasonable worker from making or supporting a charge
of discrimination." Id. at 57. This objective assessment "should
be judged from the perspective of a reasonable person in the
plaintiff's position, considering all the circumstances." Oncale
v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998)
(quotation omitted).
The principal adverse action highlighted by the
plaintiffs is Khatib's proposal to abolish the four-day work
schedule for CT technologists. They argue that after they griped
to Dr. Sta Ines, Khatib fabricated a fictitious backlog in order to
justify altering their work schedule in a punitive fashion.
This argument is all cry and no wool. Merely proposing
a change in an employee's schedule does not, in and of itself,
constitute a materially adverse action. See, e.g., Roebuck v.
Washington, 408 F.3d 790, 794 (D.C. Cir. 2005); Grube v. Lau Indus.,
Inc., 257 F.3d 723, 731-32 (7th Cir. 2001). To qualify, the
proposal must be brought to fruition; and here the four-day work
schedule remained intact.
The plaintiffs next cite a plethora of petty indignities,
which they suggest amount to materially adverse actions. They
assert that Khatib derailed Parker's opportunity for CT training,
reassigned Ahern and Mastalerz to the x-ray department and denied
-13-
them "call" pay, and deprived Auger of certain unofficial
honorifics.4
Perscrutation of the plaintiffs' allegations reveals that
they overstate the reality of events. To begin, Parker admitted
that the delay in her training was justified. Moreover, it was
temporary; Khatib agreed that she should receive the CT training
once she had completed a preexisting commitment to undergo
angiography training and after another female technologist had
completed CT training.5 At any rate, a minor delay in timing is
not, in the circumstances of this case, significant enough to
constitute a materially adverse action. See Morales-Vallellanes v.
Potter, 605 F.3d 27, 38 (1st Cir. 2010).
As to Ahern and Mastalerz, the record indicates that they
were assigned to the x-ray department for less than two weeks when
they returned from extended medical leaves in October of 2004, that
they experienced no diminution in pay or benefits, and that this
temporary reassignment was due to a need for training. Indeed,
Mastalerz herself acknowledged that this temporary reassignment
"probably wasn't unreasonable." There is nothing to suggest, as the
plaintiffs would have it, that the temporary reassignment was a
4
Before the district court, the plaintiffs also alleged that
Khatib unfairly reprimanded Auger and Ahern. They do not pursue
these claims on appeal.
5
While the plaintiffs argue that Khatib contributed to the
delay by facilitating CT training for a male contract technologist,
the record does not support that argument.
-14-
demotion or a punishment. In the absence of a labor agreement or
other contractual bar, employers must be accorded reasonable
flexibility in operational matters, such as shifting work
assignments and arranging for the sharpening of skills. On the
facts of this case, the short-term reassignments of which the
plaintiffs complain cannot plausibly be said to constitute
materially adverse actions. See Morales-Vallellanes, 605 F.3d at
38.
The plaintiffs' reliance on their omission from the call
schedule is equally unavailing. When a technologist is on call, she
is required to be available to come in after hours. Compensation
is de minimis unless the technologist actually performs a procedure.
Because of its income-generating potential, inclusion in the call
list is a benefit of a staff technologist's position. See, e.g.,
Reinhardt v. Albuquerque Pub. Sch. Bd. of Educ., 595 F.3d 1126, 1133
(10th Cir. 2010);6 Noviello, 398 F.3d at 88.
In the case at hand, Ahern and Mastalerz complain that
they were omitted from the call schedule for one month. That is
true as far as it goes, but it does not take them very far.
The call schedule is prepared in advance, on a month-to-
month basis. The record is uncontradicted that Ahern and Mastalerz
were absent on sick leave (and, thus, unable to work). They were
6
While Reinhardt is a case brought under the Rehabilitation
Act, not under Title VII, it relies on earlier Title VII cases for
this point. See 595 F.3d at 1133.
-15-
omitted from the call schedule during that period. They complain,
however, that they also were omitted from the call schedule for
October of 2004 — the month in which they returned to work. The
employer's explanation — that the timing of their return from sick
leave dictated that result because that month's call schedule
already had been finalized — is uncontradicted and comports with the
common-sense notion that a certain amount of lead time was needed
to set the roster.7 Moreover, the two individuals were restored to
the call schedule the following month.
On these facts, we hold that this temporary interruption
was not a materially adverse action. Morales-Vallellanes, 605 F.3d
at 38; Lapka v. Chertoff, 517 F.3d 974, 986 (7th Cir. 2008).
This brings us to Auger's alleged removal from two
unofficial positions, "substitute lead tech" and "educational
facilitator," as well as from certain x-ray duties. To begin, these
allegations are not supported by the record citations proffered by
the plaintiffs. That, in itself, rendered them insufficient to
create a triable issue. See Higgins v. New Balance Ath. Shoe, Inc.,
194 F.3d 252, 261 (1st Cir. 1999); Medina-Muñoz, 896 F.2d at 8; see
also D.R.I. R. 56(a)(2).
7
To be sure, the plaintiffs argue that the October 2004 call
schedule could have been amended to include them. But they point
to no significantly probative evidence to support this argument.
Their self-serving speculation is insufficient to cast doubt on the
legitimacy of the employer's action. See Mesnick, 950 F.2d at 822.
-16-
In all events, the claim fails on the merits. Auger
admits that her responsibilities were never curtailed and that her
compensation and benefits were not reduced. The informal
designations that she enjoyed before Khatib arrived were simply
that: informal designations. They did not carry with them any
emoluments. So viewed, the loss of these designations does not show
sufficient harm to constitute a materially adverse action. See
Noviello, 398 F.3d at 88.
That ends the litany of adverse actions cited by the
plaintiffs in support of their retaliation claim. None suffices to
meet the standard of material adversity that the Court has required.
See Burlington N., 548 U.S. at 68.
If more were needed — and we doubt that it is — there is
a second reason why the plaintiffs' retaliation claim fails. The
plaintiffs rely on the temporal proximity of their complaints to
Khatib's actions to show a causal connection between the two. That
proximity, however, is more imagined than real.
The plaintiffs' complaints were voiced during a period
that ran from September of 2003 through April of 2004. They have
not shown, however, that Khatib's allegedly retaliatory actions
occurred close in time to those complaints.
With respect to some of these actions, the plaintiffs do
not specify when they occurred. As to those actions — Parker's
delayed training and Auger's alleged loss of her unofficial
-17-
designations — any temporal link is entirely conjectural.
Conclusions that rest wholly on speculation are insufficient to
defeat a motion for summary judgment. Pagano, 983 F.2d at 347.
The remaining actions, including the temporary
reassignment and denial of call opportunities, took place in October
of 2004. That was several months after the plaintiffs complained.
The Supreme Court has noted that "[t]he 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 Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001) (internal quotation marks
omitted). It follows that the interval separating the complaints
and the allegedly retaliatory conduct must be capable of
"support[ing] an inferred notion of a causal connection between the
two." Bennett v. Saint-Gobain Corp., 507 F.3d 23, 32 (1st Cir.
2007).
That tight fit is lacking here. Without some
corroborating evidence suggestive of causation — and there is none
here — a gap of several months cannot alone ground an inference of
a causal connection between a complaint and an allegedly retaliatory
action. See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25
(1st Cir. 2004) (noting that periods of three or four months have
been held insufficient to establish the necessary causal
-18-
connection); see also Morón-Barradas, 488 F.3d at 481; Ramírez
Rodríguez v. Boehringer Ingelheim Pharms. Inc., 425 F.3d 67, 85 (1st
Cir. 2005). The bottom line is that when the interval between a
complaint and the alleged retaliation is attenuated, chronological
data, by itself, does not forge the causal link needed to establish
a prima facie case of retaliation. Wright v. CompUSA, Inc., 352
F.3d 472, 478 (1st Cir. 2003); Soileau v. Guilford of Maine, Inc.,
105 F.3d 12, 16 (1st Cir. 1997). This is such a case.
At the expense of carting coal to Newcastle, we also note
that the employer has articulated a legitimate, nondiscriminatory
reason for each of the challenged actions. The plaintiffs, for
their part, have adduced no significantly probative evidence tending
to show that the proffered reasons were a pretext masking a
retaliatory animus. This, in itself, might well be enough to
warrant summary judgment for the employer on the retaliation claim.
See Higgins, 194 F.3d at 262.
C. Constructive Discharge.
Finally, the plaintiffs contend that the poor treatment
they received at Khatib's hands forced them to leave the DVA. In
the court below, they offered only a terse, wholly conclusory
allegation in support of this contention. Both the magistrate judge
and the district judge concluded that the plaintiffs had waived the
claim through their failure to develop it, but both judges
-19-
nonetheless proceeded to reject the claim on the merits. Ahern,
2009 WL 1615402, at *7, *21.
In this court, the plaintiffs do not address the finding
of waiver. Rather, they make a merits-based argument — but not an
argument that they made below. In this newly minted argument, they
attempt to substantiate the constructive discharge claim through
references to (i) the September 2004 report compiled by the DVA
review team and (ii) the fact that several employees took extended
stress leave during Khatib's reign.
An appellant cannot change horses in mid-stream, arguing
one theory below and a quite different theory on appeal. See, e.g.,
Tasker v. DHL Ret. Sav. Plan, 621 F.3d 34, 40 (1st Cir. 2010);
Clauson v. Smith, 823 F.2d 660, 666 (1st Cir. 1987). The plaintiffs
have done violence to this principle and, therefore, have waived
(or, at least, forfeited) their constructive discharge claim.
We need not probe this point too deeply because, in the
final analysis, the claim fails on the merits. Title VII does not
create a general civility code for the workplace. Burlington N.,
548 U.S. at 68; Ríos-Jiménez v. Principi, 520 F.3d 31, 44 (1st Cir.
2008). Consequently, a plaintiff who seeks to withstand summary
judgment on a claim of constructive discharge must point to evidence
in the record showing that, as a result of discrimination, her
"working conditions were so difficult or unpleasant that a
reasonable person in her shoes would have felt compelled to resign."
-20-
Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 28 (1st Cir. 2002)
(quotation omitted); accord Suárez v. Pueblo Int'l, Inc., 229 F.3d
49, 54 (1st Cir. 2000).
The DVA review team's report does not help the plaintiffs
to make this showing. Although the report concluded that Khatib's
management style left much to be desired and that his actions had
created divisiveness and unrest among employees who worked under
him, it made clear that he had not engaged in discriminatory
practices. By the same token, the plaintiffs' vague and conclusory
allegations tend to show — insofar as they show anything — that
Khatib's conduct may have engendered a nerve-wracking environment,
but not a nerve-wracking environment based on gender. Viewing the
evidence in the light most favorable to the plaintiffs, it indicates
only that Khatib was an inefficient manager lacking in interpersonal
skills.
Toiling under a boss who is tough, insensitive, unfair,
or unreasonable can be burdensome, but Title VII does not protect
employees from the "ordinary slings and arrows that suffuse the
workplace every day." Smith v. F.W. Morse & Co., 76 F.3d 413, 425
(1st Cir. 1996). Nevertheless, generally disagreeable behavior and
discriminatory animus are two different things.
Absent some showing that gender-based discrimination
polluted the workplace, the plaintiffs' constructive discharge claim
must fail. See Wagner v. Devine, 122 F.3d 53, 55 n.4 (1st Cir.
-21-
1997) (explaining that "a finding of constructive discharge . . .
require[s] some showing that the challenged conduct actually was
attributable to the alleged discrimination"); see also Carter v.
George Washington Univ., 387 F.3d 872, 883 (D.C. Cir. 2004);
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 718 (3d Cir. 1997).
We add that, notwithstanding the plaintiffs' repeated
references to employees taking stress leaves, the work environment
that they depict, though far from ideal, was not so difficult or
noxious that a reasonable person would have felt compelled to
resign. Roman v. Potter, 604 F.3d 34, 42 (1st Cir. 2010); Suárez,
229 F.3d at 54-55. Indeed, the vast majority of the employees who
worked under Khatib, male and female, were subjected to the same
treatment and chose to stay. This fact underscores the absence of
any foundation for a claim of constructive discharge. See Greenberg
v. Union Camp Corp., 48 F.3d 22, 28 (1st Cir. 1995).
III. CONCLUSION
We need go no further. The district court appropriately
concluded that the plaintiffs had not produced sufficient evidence
to survive summary judgment on any of their claims. Consequently,
we uphold its entry of summary judgment.
Affirmed.
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