United States Court of Appeals
For the First Circuit
No. 08-1043
MARA SABINSON,
Plaintiff, Appellant,
v.
TRUSTEES OF DARTMOUTH COLLEGE,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Steven J. McAuliffe, U.S. District Judge]
Before
Torruella, Boudin and Dyk,*
Circuit Judges.
K. William Clauson with whom Clauson Atwood & Spaneas was on
brief for appellant.
Bruce W. Felmly with whom Linda S. Johnson, Michael T. Pearson
and McLane, Graf, Raulerson & Middleton, P.A. were on brief for
appellee.
September 12, 2008
*
Of the Federal Circuit, sitting by designation.
BOUDIN, Circuit Judge. Professor Mara Sabinson
challenges the district court's grant of summary judgment to her
employer, Dartmouth College, on her claims under Title VII, 42
U.S.C. § 2000e (2000) et seq., under the federal age discrimination
statute, 29 U.S.C. § 621 (2000) et seq., and for retaliation. We
review the grant of summary judgment de novo, drawing inferences in
favor of the nonmoving party, here Sabinson. Vesprini v. Shaw
Contract Flooring Servs., Inc., 315 F.3d 37, 39 n.1 (1st Cir.
2002).
The background facts, elaborated in the district court's
decision, Sabinson v. Trustees of Dartmouth Coll., No. 05-cv-424-
SM, 2007 WL 4191943, at *2-*5 (D.N.H. Nov. 21, 2007), can be
summarized briefly. Mara Sabinson is a professor in the Dartmouth
College Theater Department. She first visited the department in
1984, was hired in 1985 and has been tenured since 1991. Her
difficulties there date back at least to 1988, when she almost was
not reappointed to her pre-tenure position due to concerns about
her interactions with students and faculty. Her subsequent tenure
battle was contentious.
Sabinson served as chair of the Theater Department in
seven non-consecutive years, most recently from 1999 to 2002.
During that time, some of her colleagues and students complained to
school administrators about her behavior toward them. One of these
administrators, then-Dean of the Faculty Edward Berger, wrote her
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a critical letter in June 2001, asserting that her department was
"demoralized" and that she had generated a "high level of acrimony"
amongst the faculty.
Despite such criticisms, a number of Sabinson's student
evaluations for both teaching and directing were positive, and peer
reviews of the productions she directed were favorable. Some
faculty members who worked in the department in the past seem to
have gotten along well with her. Overall, there is evidence she
was a good teacher and director and other evidence suggesting that
her style of interacting with others, both students and faculty,
was controversial.
Sabinson's appointment as chair ended in 2002 and she
left on a year-long sabbatical. Lenore Grenoble, Associate Dean of
the Faculty for the Humanities, concluded that the Theater
Department was in disrepair and needed to be placed in
"receivership" due to the various student and faculty complaints
and the generally contentious atmosphere. Dean Grenoble took over
as chair and, when Sabinson returned in fall 2003, assigned
Sabinson's usual advanced acting class to a different professor; in
fall 2004, Dean Grenoble also reassigned the job (previously
Sabinson's) of directing the 2005-2006 main stage production.
That same fall, Dean Grenoble determined that an
intensive review of the Theater Department was required to get it
back on track. She selected three reviewers: Peter Saccio, Leon
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D. Black Professor of Shakespearean Studies at Dartmouth; Malcolm
Morrison, Dean of the Hartt School of Music at the University of
Hartford; and Anne Torsiglieri, a professional actress. The review
committee was charged with a review of the department that
encompassed its acting program.
The review committee met on campus on April 25 and 26,
2005. After conducting interviews and completing its review, the
committee compiled an extensive report detailing a number of
challenges facing the department. It expressed concern about
enrollment and about student attrition and morale, and it made
wide-ranging suggestions for changes in the department's
operations. There was no specific discussion of Sabinson in the
report itself.
However, in a confidential cover letter transmitting the
report, the review committee asserted that there had been
widespread criticism of Sabinson. It described her effect as
"corrosive" and strongly urged that she be offered a retirement
package. In the alternative, it said that she should be
"marginalized to certain courses" -- apparently to the exclusion of
directing. On June 3, 2005, after meeting with the review
committee, Dean Grenoble, along with Dean of the Faculty Carol Folt
and Provost Barry Scherr, met with Sabinson to discuss the
committee's findings, including the options it had proposed.
-4-
Sabinson claims that she was told in this meeting that
she did not fit into the "culture" of the department. Sabinson
agreed to consider the buyout offer once she was told what course
offerings would otherwise be assigned to her. Soon after Sabinson
returned to her office, Professor Margaret Spicer, a colleague but
also an antagonist of Sabinson, stopped by and, learning of the
meeting, suggested that Sabinson "find [her] rabbi and start . . .
a happy new life." The reference -- to a play in which the
character by Sabinson had done just that -- offended Sabinson.
On June 6, 2005, Sabinson met with Ozzie Harris, then a
diversity officer at the college, but she did not file a grievance
with him. On August 8, 2005, Sabinson filed a complaint with the
Equal Employment Opportunity Commission and the New Hampshire
Commission on Human Rights. On August 16, 2005, Dean Grenoble
offered Sabinson four courses for the upcoming academic year:
Acting for the Camera and three first-year writing seminars on a
topic of her choosing.
On November 30, 2005, Sabinson filed suit against
Dartmouth in federal district court, alleging wrongful constructive
discharge and demotion; breach of contract; discrimination based on
age, gender, and religion; and retaliation. On August 29, 2006,
the constructive discharge claim was dismissed and on November 21,
2007, the district court granted Dartmouth's motion for summary
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judgment as to the remaining discrimination and retaliation claims,
declining to exercise pendant jurisdiction over the contract claim.
Sabinson now appeals from the grant of summary judgment as to the
discrimination and retaliation claims.
In support of her discrimination claims, Sabinson argues
that the review committee was a sham designed to find against her
in accordance with a plan by Dean Grenoble, who was discriminatory
in appointing a biased committee and instructing it improperly, and
that the review committee was itself biased. According to
Sabinson, Dean Grenoble and the review committee failed to review
or recognize her good teaching evaluations and the review committee
members never saw her teach. In addition, Dean Grenoble allegedly
instructed the committee to make findings critical of Sabinson.
In claiming that material issues of fact precluded
summary judgment, Sabinson points to her own affidavit recounting
the events just described, an affidavit of Ozzie Harris that he
thought she was being unfairly treated, and three affidavits of
other professors speaking generally about their perceptions of
racism, anti-Semitism, and sexism at Dartmouth. Sabinson also says
that the buyout offer evidenced age-based animus and that the
decision to assign her to three first-year writing seminars was
retaliation for her complaint to the EEOC.
As the district court found, Sabinson offered no direct
evidence of religious, gender- or age-based discrimination. The
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statements by decision-makers about the "culture" of the department
were made in the context of a cover letter referring to antagonism
within the faculty and a failure to work together. Cf. Patten v.
Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st Cir. 2002) (comments
capable of different interpretations are not direct evidence).
Ozzie Harris, although sympathetic to Sabinson, agreed that this is
all that had been meant.1
By contrast, the three affidavits offered some anecdotal
evidence of racism, sexism, and anti-Semitism. But they were not
directed to any events concerning Sabinson and did not involve the
decision-makers in her case during the time period at issue here.
See Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 249 (1st
Cir. 1997). And the offer of a buyout to resolve an employment
dispute is by itself hardly direct evidence of age discrimination
even if the employee is elderly. Cf. Hazen Paper Co. v. Biggins,
507 U.S. 604, 609 (1993) (employment decisions not discriminatory
under ADEA if something besides age motives them).
Absent direct evidence of discrimination, the district
court appropriately applied the McDonnell Douglas burden-shifting
analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
1
Harris, who had left Dartmouth, said in his deposition that
he thought men were more generously treated than women on the
faculty and that Dartmouth was a Christian school; but he also said
that he thought that the review process had been fair, that
Grenoble had been fair minded, and that the retirement offer was
appropriate.
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Even assuming arguendo, as the district court did, that Sabinson
made out a prima facie case under this formula -- not a heavy
burden, Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003)
-- Dartmouth has produced a non-discriminatory justification for
its action, namely, the review committee's finding that Sabinson's
manner was damaging the department.
That conclusion, whether or not correct, accorded with
some of the history already recounted. Once such a colorable
nondiscriminatory explanation is provided, the burden under
McDonnell Douglas shifts back to the plaintiff to show that the
motive was discriminatory.2 The question is whether Sabinson
created a jury issue as to whether Dartmouth's explanation was
simply a pretext for discrimination. See LeBlanc v. Great Am. Ins.
Co., 6 F.3d 836, 842-43 (1st Cir. 1993).
Sabinson contends that the college's reliance on the
review committee was pretextual because the committee was not
genuinely examining her qualifications, but was rather appointed
and taking action merely to provide cover for a predetermined
adverse action. If arguable unfairness in treatment were enough,
2
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142-
43 (2000)(after employer offers legitimate nondiscriminatory
reason, "the sole remaining issue [is] 'discrimination vel non'")
(citation omitted); Zapata-Matos v. Reckitt & Colman, Inc., 277
F.3d 40, 44-45 (1st Cir. 2002) (same); Thomas v. Eastman Kodak, 183
F.3d 38, 56 (1st Cir. 1999) (at the third stage of the McDonnell
Douglas framework "the ultimate burden is on the plaintiff to
persuade the trier of fact that she has been treated differently
because of [a protected characteristic]").
-8-
Sabinson might well have a case for a jury. Allegedly, Saccio had
a history of enmity toward her; the other two review committee
members were friends of Professor Peter Hackett, the new chair of
the department, supposedly also hostile to Sabinson; Grenoble, who
appointed the review committee and participated in the final
ultimatum, already had an unfavorable view of Sabinson. And, it
might be a question of fact whether the review committee fairly
considered or properly weighed all of the relevant evidence.
But, whether or not personal or professional hostility
played a role in the assessment, federal law does not protect
generally against arbitrary or unfair treatment in private
employment, but only against actions motivated by listed prejudices
such as race, age and gender. Hazen Paper Co., 507 U.S. at 609;
Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 22 (1st
Cir. 1999); Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st
Cir. 1994). Discrimination is a form of unfairness; but not all
unfairness is discrimination.
Even if we were to assume that Sabinson has produced
evidence of pretext, the problem is that Sabinson's evidence did
not tend to establish a discriminatory purpose, but rather tended
to establish that a preexisting animus against her (unrelated to
discrimination) was the reason for the adverse action. Thus, in a
sense, the existence of personal or professional hostility toward
Sabinson based on other reasons tends to work against her claim of
-9-
discrimination. Sabinson's case might well be stronger if, after
raising doubts about the purported reason for her treatment, the
only plausible reason left appeared to be discrimination.3 In any
event, the pretext inquiry is heavily fact-specific, Zapata-Matos,
277 F.3d at 45, and in this case Dartmouth's judgment on Sabinson,
whether or not correct, shows no plausible taint of having been
made on grounds of gender, religion, or age.
As to the retaliation claim, the review committee's
recommendation to "marginalize" Sabinson in her course assignments
-- if she failed to accept a retirement package -- was made in the
May 31, 2005, report, and the decision to follow this course was
made at the June 3 meeting. The partly unattractive August 16
assignments, although occurring after Sabinson's agency complaints
on August 8, were the carrying out of a plan avowed well before the
complaint and therefore not even arguably caused by the complaint.
This failure to show causation is fatal to Sabinson's
retaliation claim. See, e.g., Douglas v. J.C. Penney Co., Inc.,
474 F.3d 10, 15 (1st Cir. 2007). The filing of a complaint cannot
be the basis for adverse employment action but it also cannot
immunize an employee from action already planned and not dependant
3
See Reeves, 530 U.S. at 147-48 (noting that, while a
factfinder generally can consider employer's dishonesty about its
true motivation as evidence of guilt and might be able to draw an
inference of discrimination from pretext, "an employer would be
entitled to judgment as a matter of law if the record conclusively
revealed some other, nondiscriminatory reason for the employer's
decision"); Thomas, 183 F.3d at 61.
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on the complaint. Absent a decision by Sabinson to retire,
unwelcome assignments were inevitable regardless of the complaint.
Affirmed.
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