Hoeppner v. Crotched Mountain Rehabilitation Center, Inc.

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., was on

brief for appellee.

August 3, 1994

TORRUELLA, Circuit Judge. This action involves a

retaliatory discharge claim under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. 2000(e)-2. Plaintiff-Appellant, Donna

Hoeppner, alleges that she was fired because she reported several

incidents of sexual harassment to her employer. The district

court granted summary judgment in favor of Hoeppner's employer

and we affirm.

I. BACKGROUND

Defendant-Appellee, Crotched Mountain Rehabilitation

Center, Inc. ("CMRC"), is a nonprofit school for the instruction

and rehabilitation of multiply handicapped children and young

adults. Hoeppner was employed as a special education teacher at

CMRC from September 1989 until November 9, 1990. Hoeppner was in

charge of a classroom at the school throughout her term of

employment. She was aided by several teacher assistants ("TAs"),

who normally rotated through different classrooms over periods of

three to six months.

Beginning in December of 1989, several TAs complained

to CMRC administrators about Hoeppner's management of her

classroom and about Hoeppner's poor communication with, and

supervision of, the TAs. Hoeppner contests the validity and

genuineness of some of these complaints, and questions the

existence of others, but does not dispute that some complaints

were made about her prior to her discharge and prior to her

report of sexual harassment. There is also no dispute that CMRC

placed Hoeppner on probation for ninety days in August of 1990.

-2-

Subsequently, on November 1, 1990, Hoeppner reported several

incidents of sexual harassment by one of her TAs. On November 9,

1990, three days after the expiration of her probationary period,

CMRC discharged Hoeppner on the ground that Hoeppner had

allegedly failed to make suggested improvements in her classroom

during the probationary period. Hoeppner maintains that this

ground is merely a pretext for the real reason underlying her

termination: Hoeppner's report of sexual harassment. Before we

address whether this allegation can survive summary judgment, we

briefly recount the evidence concerning these events in more

detail.

CMRC's Principal, Barbara Cohen, and its Assistant

Principal, Archibald Campbell, state in affidavits that they

received complaints about Hoeppner's supervision of her classroom

on several occasions. Cohen attests that in December of 1989,

she met with Hoeppner's TAs to discuss problems between the TAs

and Hoeppner. Cohen claims that TAs Diana V lez and Jennifer Roy

complained to her in January about the way Hoeppner was treating

them in the classroom.

A meeting between Hoeppner, Cohen, and Hoeppner's TAs

was held on January 20, 1990. Cohen maintains that the meeting

was specifically scheduled for the purpose of discussing the TAs'

concerns about Hoeppner. In her affidavit, Hoeppner claims that

the meeting was a routine afterschool discussion of classroom

matters at which Cohen solicited corrective suggestions from the

TAs. Even according to Hoeppner's account, however, the TAs

-3-

"talked basically at me" and TA V lez stated at the meeting that

Hoeppner was not providing V lez with sufficient feedback.

Hoeppner's first performance evaluation for the period

of September 11, 1989, through December 11, 1989, was completed

on February 12, 1990. Cohen met with Hoeppner on February 24 to

discuss the evaluation. The evaluation rated Hoeppner's overall

performance as fully satisfactory, although it noted several

problems with her classroom management abilities. Under a

category entitled "Developing and Motivating Subordinates," for

example, the evaluation stated that Hoeppner's "personal

relationships with teacher assistants have been strained" and

that Hoeppner needed to be more open to input from the TAs.

Hoeppner signed the evaluation and remembers discussing it with

Cohen. She alleges, however, that the negative comments were

untrue and fabricated.

Meanwhile, Assistant Principal Campbell claims that TAs

Heidi Beetcher and James LaBelle complained sometime in July of

1990 about the way Hoeppner was treating them. Campbell and

Cohen subsequently scheduled a meeting for July 31, 1990, to

discuss the problems. Sometime prior to this meeting, Hoeppner

alleges that she reported both Beetcher and LaBelle to CMRC for a

variety of inappropriate conduct, including physical abuse of

students, administering unauthorized medications, and tardiness.

The July 31 meeting was attended by Cohen, Campbell,

Hoeppner, and TAs Beetcher and LaBelle. Cohen wrote an extensive

memorandum documenting her version of the various complaints

-4-

about Hoeppner that were raised at the meeting. Cohen concluded

in the memorandum that Hoeppner "had repeated problems properly

supervising and communicating with her staff. . . . As a result

. . . her performance as a teacher and as a classroom supervisor

is inadequate." Hoeppner does not dispute Cohen's account of the

meeting, nor does she dispute that Beetcher and LaBelle

complained about her supervision of the classroom. Rather,

Hoeppner alleges that Beetcher and LaBelle fabricated their

complaints in retaliation for Hoeppner's prior act of reporting

the two TAs to CMRC administrators for misconduct and abusing

students.

CMRC placed Hoeppner on probation on August 8, 1990.

Cohen met with Hoeppner the next day to discuss the reasons for

the probation and the applicable terms and consequences of the

ninety-day probationary period. At the meeting, Cohen presented

Hoeppner with the "Disciplinary Action Form" documenting the

probation. The form states that the probation resulted from

Hoeppner's failure to properly supervise and communicate with her

TAs. The form also listed five changes involving Hoeppner's

classroom management practices that "must be made" by Hoeppner to

improve her behavior. The form concluded with the statement:

"If behavior does not improve, further disciplinary action

may/will be taken: Up to and including termination." Hoeppner

signed the form but did not write anything in the space for

employee comments. Hoeppner objects to the validity of the

assertions contained in the form and alleges that CMRC placed her

-5-

on probation as a threat to stop Hoeppner from reporting abuse of

students and otherwise "making waves" at the school.

Cohen states in her affidavit that Hoeppner's

performance did not improve during the probationary period. She

states that another TA, Pam Flannery, complained to her about

Hoeppner's classroom management and supervision on October, 31,

1990. Flannery signed a statement containing the details of her

complaints, including allegations that Hoeppner's intimate

relationship with another one of her TAs, Glenn Loucks, now

espoused to Hoeppner, was causing trouble in the classroom.

Cohen states that Flannery indicated that the classroom was in

chaos. Hoeppner claims that the CMRC administration solicited

Flannery's statement while it was pressuring Flannery to stay

away from the union which Glenn Loucks and others were trying to

organize at CMRC. Hoeppner alleges that Flannery signed the

statement to save her job and the statement is thus of dubious

validity. Mark Pierce, a Residential Counselor at CMRC, makes

the same allegation as Hoeppner in his affidavit.1

Meanwhile, CMRC Education Staff Development Chair,

Pamela Shea, states in an affidavit that she spoke with Hoeppner

1 According to Hoeppner, Flannery's statement is allegedly
contradicted by a subsequent October 9, 1992 letter by Flannery
denying that the alleged incidents of sexual harassment had
occurred in Hoeppner's classroom. In the October 9 letter,
Flannery does state that "we all worked very well together" in
the classroom, however, she also states in the same letter that
the relationship between Loucks and Hoeppner "was causing
friction and tension in [Hoeppner's] staff." We see no
contradiction between Flannery's signed statement and her
subsequent letter.

-6-

in early November (Cohen indicates that Shea informed her of this

conversation on November 1) and determined that the situation in

Hoeppner's classroom was chaotic and out of control.

On November 1, 1990, Hoeppner first reported several

incidents of sexual harassment to CMRC. Hoeppner informed

Assistant Principal Campbell that one of her TAs, Shane Waters,

had made several sexually inappropriate overtures toward her,

including touching her breasts from behind, placing his crotch

three inches from her face, and rubbing her back. Campbell and

Cohen spoke with Waters on several occasions between November 2

and November 5, 1992. Waters gave a somewhat different account

of the incidents and denied that any of his actions had sexual

connotations. Campbell and Cohen told Waters that sexual

harassment was not acceptable and that Waters should not do

anything that could be interpreted by Hoeppner as sexual

harassment. Neither Cohen nor Campbell took any administrative

action against Waters nor did they conduct any further

investigation of the incident beyond their conversations with

Waters. Hoeppner claims that despite promising a full

investigation, the CMRC administration did nothing and never

informed her of what they would do, or had done, about the

incidents.

CMRC discharged Hoeppner on November 9, 1990, three

days after her probationary period ended and eight days after she

reported the incidents of sexual harassment. According to the

final performance evaluation written by Cohen upon Hoeppner's

-7-

discharge, Hoeppner continued to have problems with her staff and

did not improve her supervision and management of the classroom,

as required by the terms of Hoeppner's probation. In deposition

testimony, Hoeppner stated that she did not change her behavior

in response to the criticisms leveled by Cohen in the

Disciplinary Action Form accompanying Hoeppner's probation

because Hoeppner did not feel that the criticisms were valid.

Hoeppner does claim, however, that she did make changes in

response to the particular needs of individual TAs and that, in

general, she did improve her performance.

Hoeppner maintains that there were no significant

problems in her classroom and asserts that the criticisms and

complaints against her were untrue and fabricated. She proffered

affidavits of several current and former employees of CMRC who

attest to Hoeppner's good teaching and supervisory abilities and

who assert that Hoeppner did not have any problems with the staff

in her classroom. Hoeppner also points out that neither of her

supervisors, Cohen and Campbell, formally observed Hoeppner's

work in the classroom. CMRC's motive for fabricating the

complaints against her, Hoeppner claims, was to implicitly

threaten her job so that Hoeppner would stop "making waves" at

CMRC by reporting incidents of abuse of students, by reporting

misconduct of other employees, and by supporting the efforts to

organize a union at CMRC led by Glenn Loucks. Several current

and past employees assert in their affidavits that CMRC was

trying to keep its employees quiet about incidents of student

-8-

abuse so that the incidents could be hidden from the state

regulators and from the public, thus avoiding the tarnishing of

CMRC's reputation. Several affiants make similar accusations

regarding CMRC's efforts to discourage unionization at the

school. One affiant claims that CMRC's method of silencing

employees was to falsify complaints against them and then

threaten to fire them.

The district court rejected Hoeppner's claim and

dismissed the case on summary judgment. The court found no

triable issue on the question of whether CMRC wrongfully

discharged Hoeppner because CMRC "reasonably and justifiably

concluded that there was a problem in plaintiff's classroom."

The court also noted that the complaints against Hoeppner were

made well before she reported the incidents of sexual harassment,

so these complaints could not have been a fabricated pretext to

cover up a retaliatory motive. Consequently, the court found no

evidence of a causal relationship between the protected activity

of reporting sexual harassment and Hoeppner's discharge.

II. ANALYSIS

To establish a claim of retaliatory discharge under

Title VII, Hoeppner must show by a preponderance of the evidence

that:

(1) she engaged in a protected activity as an employee, (2) she

was subsequently discharged from employment, and (3) there was a

causal connection between the protected activity and the

discharge. Ramos v. Roche Products, Inc., 936 F.2d 43, 48 (1st

-9-

Cir.), cert. denied, 112 S. Ct. 379 (1991); Ju rez v. Ameritech

Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 1992).

Because reporting sexual harassment is a protected activity under

Title VII, Morgan v. Massachusetts General Hospital, 901 F.2d

186, 194 (1st Cir. 1990), and because Hoeppner was discharged

after she reported the incidents of sexual harassment by Waters,

there is no dispute that Hoeppner has established the first two

elements of her retaliatory discharge claim. The issue on appeal

is whether, as the district court found, Hoeppner failed to

present sufficient evidence of a causal link between her sexual

harassment report and the subsequent discharge to defeat a motion

for summary judgment. To put it another way, the issue is

whether the evidence in the record can show that CMRC's true

reason or motive for firing Hoeppner was Hoeppner's report of

sexual harassment.

Because we are reviewing an order of summary judgment,

we must determine whether the pleadings, depositions, answers to

interrogatories and affidavits offered in this case, viewed in

the light most favorable to the nonmovant, Hoeppner, present a

genuine issue of material fact regarding the existence of a

causal connection between Hoeppner's sexual harassment report and

her subsequent discharge. Fed. R. Civ. P. 56(c); Serrano-P rez

v. FMC Corp., 985 F.2d 625, 626 (1st Cir. 1993); Oliver v.

Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 1988).

Under the summary judgment standard, an issue is genuine "'if the

evidence is such that a reasonable jury could return a verdict

-10-

for the nonmoving party.'" Oliver, 846 F.2d at 105 (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Although the party opposing the motion for summary judgment

benefits from all reasonable inferences favorable to that party,

the nonmovant "may not rest upon mere allegations; [he] must set

forth specific facts demonstrating that there is a genuine issue

for trial." Id. Even in discriminatory discharge cases, where

the plaintiff can rarely present direct, subjective evidence of

an employer's actual motive, the plaintiff cannot survive summary

judgment with "unsupported allegations and speculations," but

rather must "point to specific facts detailed in affidavits and

depositions -- that is, names, dates, incidents, and supporting

testimony -- giving rise to an inference of discriminatory

animus." Lipsett v. University of Puerto Rico, 864 F.2d 881, 895

(1st Cir. 1988).

Hoeppner claims on appeal that she presented sufficient

evidence to create a genuine issue of material fact as to whether

CMRC fabricated the alleged complaints against Hoeppner so that

they could be used as a pretext for Hoeppner's later discharge,

which was ultimately caused by the sexual harassment report.

Hoeppner acknowledges that the complaints against her and her

subsequent probation preceded her report of sexual harassment to

CMRC. She argues, however, that CMRC fabricated the complaints

and placed her on probation in order to discourage her from

reporting staff abuse of students, supporting Loucks' union

efforts, and otherwise "making waves" at CMRC. Instead of

-11-

remaining silent, Hoeppner ignored the implicit threats by CMRC

and reported her TA for sexual harassment. As a result, Hoeppner

concludes, her sexual harassment complaint, though maybe not the

sole reason for her discharge, was a "significant and final

reason" for her discharge.

Under Hoeppner's theory of the causal connection

required under Title VII, Hoeppner would not have been fired but

for her sexual harassment report because she defied CMRC's

implicit threats to remain quiet only at the point when she

reported the incidents involving Waters. Had she not reported

the incidents of sexual harassment, Hoeppner maintains, she would

not have been discharged because CMRC administrators would have

concluded that Hoeppner had ceased to "make waves" in response to

their threats against her.

Our review of the record convinces us that Hoeppner has

failed to present sufficient evidence to support her theory of

the causal connection between her report and her subsequent

discharge. Consequently, no genuine issue of material fact

remains for trial. Hoeppner's "evidence" consists mainly of

unsupported allegations without any "specific facts" such as

"names, dates, incidents, and supporting testimony." Lipsett,

864 F.2d at 895. Specific facts are absent to support several

crucial links along Hoeppner's alleged chain of causality: (1)

that CMRC had a practice of implicitly threatening teachers with

fabricated negative teacher evaluations in order to cover up

abuse of students at the school; (2) that CMRC's practice of

-12-

silencing teachers to cover up student abuse extended to the

general practice of threatening teachers who were "making waves"

by taking actions such as reporting incidents of sexual

harassment; and (3) that CMRC's alleged practice of threatening

teachers through fabricated complaints was instituted against

Hoeppner herself, resulting in Hoeppner's discharge after she

made the sexual harassment report. Because all these links are

crucial to the third element in Hoeppner's Title VII cause of

action, her failure to establish any one of them dooms her

objection to CMRC's motion for summary judgment. See, e.g.,

Ramos, 936 F.2d at 49 (noting that plaintiff's "accusations

remain largely conclusory and lacking in the concrete

documentation necessary to prove the causal link between her

protected activity and her retaliatory treatment").

1. Regarding the first causal link, Hoeppner presented

evidence showing that CMRC had problems with the mistreatment and

abuse of students by staff members. There is also some evidence,

although perhaps little more than a scintilla, that CMRC was

trying to hide the incidents of abuse and mistreatment from the

public, either to maintain its reputation or to avoid state

regulators. Hoeppner's further claim that CMRC fabricated

complaints against teachers who reported abuse of students in an

effort to silence them, however, is supported by nothing more

than unsubstantiated allegations. Hoeppner and Holly Brown, a

staff psychologist at CMRC, both make assertions regarding CMRC's

alleged silencing practice without noting any specific names,

-13-

dates or incidents. Glenn Loucks claims in his affidavit that

sometime in November of 1990, "after attempting to talk to a

social worker from the state of Mass. for student P.C., Barbara

Cohen told me that I would be fired for reporting child abuse to

a state agency. That I had to follow [CMRC] policy and that

meant not breaking client confidentiality to any state agency.

[sic]" Loucks' statement might amount to some evidence of CMRC's

practice of silencing employees except for the fact that Loucks

states in the next paragraph of his affidavit that he did in fact

report a case of child abuse to the New Hampshire Department of

Children and Youth Service and yet he makes no claim that CMRC

took any actions against him as a result. More importantly,

Loucks' allegation does not support the claim that CMRC

administrators fabricated complaints against teachers to keep

them quiet. He makes no mention of fabrication or threats to

fabricate complaints in his affidavit.

Dr. Robert Grassi, CMRC's Clinical Director, states in

deposition testimony that CMRC's past Director of Psychology,

Marilyn Russell, was discharged because she reported incidents of

child abuse directly to state authorities in violation of CMRC

policy. Although this is the type of "incident" that might

normally raise a triable issue of fact as to an established

practice of CMRC, the practice is not one which involves

fabricating teacher complaints to implicitly threaten teachers to

keep quiet. No allegations are made that CMRC fabricated

complaints against Russell. The problem with the "evidence" from

-14-

Grassi's testimony is that it provides no details of the alleged

retaliatory discharge of Russell -- nor does Hoeppner offer any

evidence from the people involved in the incident, including

Russell herself -- that would enable a reasonable jury to

determine if it is the type of occurrence that is consistent with

the alleged practice by CMRC to fabricate false complaints

against teachers to prevent them from reporting abuse of

students. Grassi himself does not explain how he discovered the

reasons for Russell's discharge and, indeed, states that he does

not remember talking about these reasons when he spoke with

Russell at the time of the alleged incident.

2. Even if Hoeppner had provided sufficient evidence

to show that CMRC had a practice of fabricating complaints

against teachers to discourage them from reporting student abuse,

Hoeppner has still failed to establish a second crucial link in

the chain connecting her discharge to the sexual harassment

report: that CMRC's concern with staff reports of student abuse

to outside parties extended to a concern with the types of staff

actions that Hoeppner engaged in, such as filing a sexual

harassment report and reporting two of her TAs for misconduct.

In other words, Hoeppner has not established that she did

anything that would cause CMRC to fabricate complaints against

her.

Aside from the incidents reported by Hoeppner in this

case, there is nothing in the record regarding any previous or

subsequent complaints of sexual harassment filed by a CMRC

-15-

employee, or regarding CMRC's retaliation, or threat to

retaliate, against other employees who might have complained

about sexual harassment. Thus, Hoeppner has presented no

evidence that an internal sexual harassment report would qualify

as the type of conduct CMRC administrators would consider "making

waves" or the type of action that would induce CMRC to retaliate.

The closest thing to "evidence" concerning this issue

is an affidavit by August Tardiff, a teacher at CMRC, who claims

that in March of 1993, he reported to CMRC administrators that he

felt physically threatened by one of his TAs. Although the TA

was temporarily removed from Tardiff's room, Tardiff claims that

the administrators "refused to take my fears seriously [and] told

me I did not have a choice that I had to work with this man or

leave. They also gave me a disciplinary action in which they

blamed me for the problem. So I gave my resignation on April 12

to be effective on June 30th." This single incident, occurring

nearly three years after Hoeppner was discharged, would not by

itself allow a reasonable jury to conclude that CMRC had a

practice of fabricating complaints against teachers who reported

sexual harassment at the time Hoeppner was fired. To defeat a

motion for summary judgment, "[t]he mere existence of a scintilla

of evidence in support of the plaintiff's position will be

insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986); see also Serrano-P rez, 985 F.2d

at 627; Milton v. Van Dorn Co., 961 F.2d 965, 969 (1st Cir.

-16-

1992). Tardiff's incident is too remote and too isolated to

create a triable issue as to the fabrication of the complaints

against Hoeppner.

Hoeppner has further failed to provide evidence that

administrators would consider any of her other actions while at

CMRC as "making waves," such that the administrators would have

taken retaliatory action by fabricating complaints and placing

Hoeppner on probation. Hoeppner claims that she reported TAs

Beetcher and LaBelle for misconduct in July of 1990. Because

this occurred after several TAs had already complained about

Hoeppner, after CMRC wrote Hoeppner's first performance

evaluation which mentioned some of the problems in Hoeppner's

classroom, and possibly even after Beetcher and LaBelle first

complained about Hoeppner to Campbell, Hoeppner's actions could

not have led to CMRC's fabrication of the initial complaints

against Hoeppner.

Hoeppner also makes the unsupported assertion that CMRC

retaliated against her because of her relationship with Loucks,

who was attempting to organize a union at CMRC. Several of

Hoeppner's supporting affidavits discuss incidents in which CMRC

administrators took actions to discourage unionization or union

activities. However, the record contains no evidence that

Hoeppner ever took part in union activities and nothing indicates

that CMRC thought she was involved with the union efforts. Cohen

did know that Hoeppner had an intimate relationship with Glenn

Loucks, but nothing in the record indicates that Cohen or any

-17-

other CMRC administrator imputed Loucks' union activity to

Hoeppner. The record is also devoid of any indication that

employees' union activities were occurring before August of 1990,

let alone that CMRC knew about any union activities before August

of 1990, when Hoeppner was put on probation. There is similarly

no evidence that Cohen or anyone else at CMRC knew about the

relationship between Loucks and Cohen until the "fall of 1990,"

well after Hoeppner's probation. Thus, there is insufficient

competent evidence to raise a genuine issue as to whether anti-

union animus motivated CMRC to fabricate complaints against

Hoeppner.

In sum, there is insufficient evidence from which a

reasonable jury could find that CMRC had a practice of silencing

employees by fabricating false negative evaluations against them,

that CMRC had a practice of retaliating against teachers who,

like Hoeppner, made reports of TA misconduct and sexual

harassment, or that Hoeppner herself engaged in any activities

that would cause CMRC to fabricate the complaints against her and

her subsequent probation. Thus, two important causal links

necessary for her Title VII action are missing from the evidence

in the record.

3. Finally, Hoeppner has failed to establish a third

crucial link in the causal chain between Hoeppner's report of

sexual harassment and her discharge: that CMRC's alleged

silencing practice was applied to Hoeppner in this specific case

through the fabrication of the complaints against her and through

-18-

the subsequent discharge of Hoeppner when she continued to make

waves by reporting incidents of sexual harassment.

Hoeppner's evidence on this issue consists primarily of

affidavits stating that Hoeppner was a good teacher, that she did

not have problems in her classroom supervising, or communicating

with, her TAs, and that the TAs themselves were really the

troublemakers in Hoeppner's classroom. Hoeppner wants this

evidence to show that the complaints against her were not only

untruthful and inaccurate but also fabricated. As we have held

on previous occasions, "evidence contesting the factual

underpinnings of the reasons for the [employment decision]

proffered by the employer is insufficient, without more, to

present a jury question." Morgan, 901 F.2d at 191 (citing Dea v.

Look, 810 F.2d 12, 15 (1st Cir. 1987)); see also Ramos, 936 F.2d

at 48. Hoeppner cannot establish that CMRC's reasons for

discharging her were merely a pretext for impermissible

retaliation "solely by contesting the objective veracity of [the

employer's] action." Morgan, 901 F.2d at 191. Rather, Hoeppner

must provide some additional evidence to indicate that the

complaints were purposefully fabricated with the intent of

threatening Hoeppner not to make waves. See St. Mary's Honor

Ctr. v. Hicks, 113 S. Ct. 2742, 2751-52 (1993) (finding that "a

reason cannot be proved to be 'a pretext for discrimination'

unless it is shown both that the reason was false, and that

discrimination was the real reason"; and finding that Title VII

does not permit courts "to substitute for the required finding

-19-

that the employer's action was the product of unlawful

discrimination, the much different (and much lesser) finding that

the employer's explanation of its action was not believable");

Ramos, 936 F.2d at 48 (noting that refuting the employer's

articulated reasons for taking action against a plaintiff does

not suffice to meet the plaintiff's burden of demonstrating

discriminatory intent). Thus, given Hoeppner's theory regarding

CMRC's motives, Hoeppner's evidence that she was a good teacher

and that her TAs were troublemakers does not by itself establish

the necessary element of causality between the sexual harassment

report and the discharge to support her Title VII action.

Hoeppner presents no other evidence that would provide

this missing element. As we already noted, Hoeppner has failed

to establish a pattern of fabrication by CMRC that would indicate

there was fabrication in this particular case. Hoeppner provides

no affidavits from the complaining TAs stating that they did not

make the alleged complaints or that they were pressured into

lying by CMRC administrators. Instead, Hoeppner points to the

fact that neither Cohen nor Campbell formally observed her

classroom to verify the TAs' complaints. This fact may imply

something about the accuracy of the complaints against Hoeppner,

but it implies nothing about the allegation that CMRC fabricated

the complaints. CMRC administrators could fabricate their own

observations more easily than the complaints of third parties,

who might later recant or deny making the complaints. In fact,

their own fabrications would be more reliable as they could not

-20-

be subsequently contradicted by the source of the complaint.

Hoeppner alleges that TAs Beetcher and LaBelle

complained about her classroom supervision in retaliation for her

reports of the TAs' own misconduct. If true, this would tend to

refute Hoeppner's own claim that CMRC administrators fabricated

her negative evaluations. The fact that Beetcher and LaBelle

lied to Campbell and Cohen implies that Campbell and Cohen

believed Hoeppner had problems managing her classroom or, at

least, that Hoeppner's TAs, rather than CMRC itself, were

responsible for Hoeppner's allegedly undeserved probation. In

any event, several of the other TAs' complaints, as well as

Hoeppner's first performance evaluation, preceded Hoeppner's

report of Beetcher and LaBelle so CMRC could not have fabricated

these complaints against Hoeppner in retaliation for Hoeppner's

report of Beetcher and LaBelle.

Hoeppner also attempts to cast doubt on the negative

reports of Hoeppner's classroom by Pam Flannery and Pamela Shea

that were provided to Cohen after Hoeppner's probationary period

had begun. Hoeppner points to an affidavit asserting that CMRC

coerced Flannery's signed statement and another affidavit

alleging that, contrary to Shea's own affidavit, Shea never spoke

with Cohen about Hoeppner's classroom. We do not think these

mere allegations are sufficient to invalidate the first-hand

statements by Flannery and Shea. Even if they are sufficient,

the allegations do not raise a triable issue as to the claim that

CMRC fabricated the prior complaints against Hoeppner and

-21-

Hoeppner's probation.

In sum, even if a factual issue exists as to the

validity of the complaints against Hoeppner, summary judgment in

favor of CMRC would still be appropriate because Hoeppner has not

established that her discharge was causally related to the

protected activity of reporting sexual harassment.

The district court's judgment is therefore affirmed.

-22-