Cherkaoui v. City of Quincy

United States Court of Appeals
For the First Circuit

No. 16-2304

DEBRA CHERKAOUI,

Plaintiff, Appellant,

v.

CITY OF QUINCY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Leo T. Sorokin, U.S. District Judge]

Before

Torruella, Lynch, and Lipez,
Circuit Judges.

Marisa A. Campagna and Law Office of Marisa A. Campagna on
brief, for appellant.
Sarah A. Catignani, Brandon H. Moss and Murphy, Hesse, Toomey
& Lehane, LLP on brief, for appellee.

December 4, 2017
 TORRUELLA, Circuit Judge. Debra Cherkaoui ("Cherkaoui"

or "Plaintiff") appeals from the district court's grant of summary

judgment in favor of her former employer, the City of Quincy,

Massachusetts ("City" or "Defendant"), on her claims of employment

discrimination, retaliation, and constructive discharge. She

argues that the district court erred by adopting the magistrate

judge's Report and Recommendation and granting the City's motion

for summary judgment. After careful consideration, we find no

such error, and thus affirm.

I. Background

Because this is an appeal from a grant of summary

judgment, "we review the facts in a manner as favorable to [the

plaintiff] as the record allows, 'keenly aware that we cannot

accept conclusory allegations, improbable inferences, and

unsupported speculation.'" Pina v. Children's Place, 740 F.3d

785, 788 (1st Cir. 2014) (quoting Medina-Rivera v. MVM, Inc., 713

F.3d 132, 134 (1st Cir. 2013)).

A. Factual History

Cherkaoui was hired by the City as a Spanish teacher in

1998. For approximately eleven years, except for a brief period

when her child was born and the 2001-2002 school year when she

worked as a full-time Spanish teacher at Sterling Middle School

("Sterling"), Cherkaoui worked part-time at Atlantic Middle School

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("Atlantic"). She originally only taught Spanish, but later

transitioned to the English Language Learners ("ELL") department.

Prior to 2009, Cherkaoui had not been subject to any disciplinary

action.

Plaintiff converted to Islam in 1998. In April 2009,

she began wearing a headscarf to work for religious reasons. It

is from that point forward, Cherkaoui alleges, that she was

subjected to "hostile treatment" by the Defendant. This alleged

"hostile treatment" consisted of: 1) several events of

discourteous and differential treatment as compared to other

similarly situated teachers; 2) inappropriate or impractical

assignments; 3) and failure by Defendant to properly respond to

her grievances. In addition, Cherkaoui suffers from Attention

Deficit Hyperactivity Disorder ("ADHD"), known to the employer,

and further alleges that the City did not adequately respond to

her requests for reasonable accommodations. We review each of the

alleged discriminatory incidents by academic year.

1. 2009-2010 Academic Year

a. Different Treatment as Compared to Similarly Situated
Teachers

During the spring of 2009, Cherkaoui requested a full-

time teaching assignment for the following school year. She

indicated that her first preference was for an assignment in

Atlantic, but that she was open to the possibility of a split

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assignment with another school. The City granted Cherkaoui's

request, offering her the only full-time teaching position

available: a split assignment between Atlantic and Sterling.

Cherkaoui accepted the split assignment. This was to be her first

time teaching classes at two different schools. According to

Plaintiff, having teachers split their time between two schools is

a disfavored practice in the Quincy Public Schools ("QPS") system.

In June 2009, Cherkaoui received the details of her

assignment for the 2009-2010 academic year, consisting of three

ELL classes at Atlantic and two at Sterling. However, just a few

days before the school year started, the City informed Plaintiff

that her teaching assignment in Atlantic would instead consist of

two ELL classes and one Spanish class. The Sterling teaching

assignment remained unchanged. Plaintiff claims that this last

minute reassignment was disadvantageous for her because she had

not taught Spanish for many years. She also asserts that it is

"extraordinary" for teachers to receive their final assignments so

close to the new school year. Cherkaoui objected to this last

minute change. Nevertheless, she began teaching her split

assignment for the school year.

By the time the school year started, Cherkaoui had still

not been assigned a classroom at Sterling. Sterling's principal,

Christine Barrett ("Principal Barrett"), had instead offered her

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a section of the school's library known as the media center. The

media center lacked a desk and a place for her to securely store

her materials. Principal Barrett then offered Plaintiff another

classroom typically used by the special education teacher.

b. Tardiness

Cherkaoui alleges that between her assignments at

Atlantic and Sterling, she was not afforded sufficient time for

travel, preparation, and lunch, as the Teacher's Union contract

required. Because of this, Plaintiff was late to her teaching

assignment at Sterling on several occasions and received oral

reprimands, three written warnings, and ultimately a suspension.

On September 30, 2009, Cherkaoui complained about the

insufficiency of her allotted time to travel between schools, and

met with QPS officials to discuss this alleged violation of her

Union contract. From then on, Defendant gave Cherkaoui an

additional ten minutes to travel between Atlantic and Sterling.

Despite this adjustment, Cherkaoui was again late on

October 7. On November 17, 2009, Principal Barrett sent her a

written warning. That same day, Cherkaoui met with Principal

Barrett to discuss her tardiness. The parties' recollection of

this meeting differ. Plaintiff alleges she asked Principal

Barrett if she was being treated in a hostile manner because she

wore a headscarf. The City, however, contends that Plaintiff

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exhibited inappropriate and hostile behavior towards Principal

Barrett during the meeting.

Principal Barrett issued Plaintiff a second written

warning on November 18, 2009, referencing Cherkaoui's tardiness

issues and alleged inappropriate conduct during their meeting the

day before. Cherkaoui denies being late on all the referenced

dates in the warning letters. On December 3, 2009, Principal

Barrett sent Cherkaoui a third written warning due to her tardiness

earlier that week. On that same day, after unsuccessfully

attempting to discuss this warning letter with Principal Barrett,

Cherkaoui left Sterling and met briefly with Superintendent

Richard DeCristofaro ("DeCristofaro"). Plaintiff went home after

that meeting, taking a half-day on sick leave.

On December 22, 2009, DeCristofaro issued Plaintiff a

Notice of Intent to Suspend for "tardiness and inappropriate

conduct." Plaintiff was offered the opportunity to request a

meeting to review and discuss the contemplated suspension.

Plaintiff requested such a meeting; however, she failed to attend

it and did not return to work after December 22, 2009. The next

day, Cherkaoui sent an email to the Director of Human Resources,

Kevin Mulvey ("Mulvey"), disclosing to the City for the first time

that she suffered from ADHD, and requesting reasonable

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accommodations under the Americans with Disabilities Act (ADA), 42

U.S.C. §§ 12101-12213.

On January 7, 2010, the City sent Cherkaoui a letter

suspending her for three days due to her "consistent tardiness and

inappropriate conduct that ha[d] occurred throughout the school

year." On January 9, 2010, Cherkaoui filed a discrimination

charge with the Equal Employment Opportunity Commission ("EEOC"),

alleging religious discrimination and retaliation.

c. Independent Medical Examiner

Under the Union contract, once a QPS employee has used

up her accumulated sick leave, she may avail herself of extended

paid sick leave. Once an employee requests this benefit, the City

may request from the employee any form of evidence of the

employee's disability, including an independent medical exam

("IME"). Cherkaoui did not return to work after the suspension

for the rest of the 2009-2010 academic year due to her ADHD,

exhausting her accumulated sick leave. While on sick leave,

Cherkaoui learned through her Union president that she could apply

for extended sick leave. The Union president also explained that

the City could request an IME as part of her application.

Ultimately, Cherkaoui sought access to the extended sick leave

benefit and the City exercised its right to have her undergo an

IME to substantiate her leave application. After Plaintiff

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underwent the IME and was deemed unable to return to work, she was

awarded extended sick leave benefits. Cherkaoui then amended her

EEOC charge to include the City's request for an IME as an

additional instance of retaliation.

2. 2010-2011 Academic Year

Over the summer of 2010, Cherkaoui notified Defendant

that she would be able to return to work for the upcoming 2010-

2011 school year. In anticipation of her return, on June 28, 2010,

she sent Mulvey a written request for reasonable accommodations

for her diagnosed ADHD. Cherkaoui requested: (1) that her

teaching assignments be limited to one school; (2) that she receive

the names and contents of the assigned courses one month before

the start of the school year; (3) that she receive an opportunity

to have a meeting with her supervisor before the start of the

school year to establish clear lines of communications; and (4)

that she be notified 24 hours in advance of any meetings other

than those that all teachers are required to attend.

Defendant granted all of Cherkaoui's requests except for

the 24-hour advance notice for meetings because, according to

Defendant, this was not possible. Starting in the 2010-2011

school year, Cherkaoui became a full-time ELL teacher at Atlantic.

The rest of the school year seemed incident-free, except for three

events highlighted by Plaintiff. First, the City requested

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Plaintiff to submit to another IME before she would be able to

return to work. Second, on the first day of the 2010-2011 school

year, she was asked to sit and wait in a conference room for about

an hour before a meeting. Third, Plaintiff had a couple of run-

ins with a coworker at Atlantic named Elizabeth Angell ("Angell"),

which consisted of Angell checking on Plaintiff and once falsely

claiming that Plaintiff was not in her classroom when she was

supposed to be.

3. 2011-2012 Academic Year

Before Plaintiff joined the ELL Department at Atlantic,

the school had decided that ELL teachers were to incorporate a

"content area" -- math, science, social studies, or language arts

-- into their curriculum. When Cherkaoui joined the Department,

Defendant asked her to incorporate social studies content into her

ELL classes. However, in June 2011, Defendant communicated to

Plaintiff that, for the upcoming academic year, she would be

assigned to incorporate science content into her ELL classes.

Cherkaoui expressed to the principal of Atlantic, Maureen MacNeil

("Principal MacNeil"), that she was uncomfortable teaching science

as part of her ELL curriculum because she did not have a background

in science. Principal MacNeil allegedly told Plaintiff that she

could either "take it or leave it." Ultimately, Plaintiff taught

ELL with science content for the 2011-2012 academic year.

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 At the end of the 2011-2012 academic year, Cherkaoui had

another run-in with her coworker, Angell. On June 15, 2012, Angell

wrote a letter to Plaintiff detailing certain "frustrations" as to

Plaintiff's job performance. In response, Cherkaoui sent a letter

to Principal MacNeil complaining about Angell's letter and

requesting that the Principal address it. Because this incident

occurred at the end of the school year, Principal MacNeil did not

address it until the beginning of the following academic year.

4. 2012-2013 Academic Year

At the beginning of the 2012-2013 school year, Principal

MacNeil met separately with both Angell and Cherkaoui. At her

meeting with Angell, Principal MacNeil warned Angell that the

letter she had sent to Plaintiff at the end of the previous school

year was inappropriate and that all personnel conflicts should be

addressed through the Principal's office. Further, at Principal

MacNeil's meeting with Plaintiff, they discussed all the issues

raised by both Angell and Cherkaoui's letters, while Plaintiff

also stressed her request for open lines of communications with

Principal MacNeil. In December 2012, Angell transferred into a

different department and thus no longer worked with Plaintiff.

On January 14, 2013, Plaintiff wrote a letter to

Principal MacNeil detailing another run-in with a different

coworker, Timothy Ryan ("Ryan"). In her letter, Plaintiff claimed

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that Ryan had acted inappropriately and unprofessionally towards

her in front of students. Plaintiff's grievances allegedly went

unacknowledged by Principal MacNeil, and, on June 29, 2013,

Plaintiff reiterated her concerns about Ryan in another letter to

the Principal. In addition, Cherkaoui made reference to the "on-

going overt and subtle discrimination as well as hostility" she

was experiencing at Atlantic and raised concerns over her class

schedule for the upcoming 2013-2014 academic year.

Plaintiff's letter of June 29, 2013 prompted an

investigation by the City. Mulvey conducted an investigation

during the summer of 2013, and sought to meet with Plaintiff to

address the allegations. However, due to personal reasons,

Plaintiff was unavailable to meet with Mulvey during the first two

weeks of August 2013. On August 2, 2013, Plaintiff filed another

charge with the EEOC reiterating her allegations of discrimination

spelled out in the June 29, 2013 letter.

5. 2013-2014 Academic Year

At the end of August 2013, Plaintiff requested a job

transfer to another school within the same district, North Quincy

High School. However, on September 6, 2013, Cherkaoui informed her

Union president, Allison Cox ("Cox"), that she was withdrawing her

transfer request because she was "not interested in moving schools

this far into the year." Still, Plaintiff expected to have a

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meeting with Mulvey in order to discuss unresolved issues

concerning her June 29, 2013 letter.

During the first days of the school year, Cherkaoui tried

to meet with Principal MacNeil, but for some reason this did not

happen. On September 11, 2013, Plaintiff went on sick leave

because she felt that the cumulative effect of all that had

happened was causing her "to give up," and that her "[coworkers]

were going to wear [her] down until [she] gave up."

At some point in September 2013, Cox met with Principal

MacNeil and Mulvey. On September 30, 2013, Cox informed Cherkaoui

via email about the meeting, during which Cox and Principal MacNeil

discussed Plaintiff's concerns over her large class size of low-

fluency students, and the challenges that created for designing a

science-based curriculum for a mix of students from sixth, seventh,

and eighth grade. Cox further mentioned that Principal MacNeil

agreed to "make every effort" to keep Plaintiff's classes from

having mixed-grade students. At the meeting, however, Cox and

Principal MacNeil did not discuss any of the other concerns that

Plaintiff had stressed in her June 29, 2013 letter.

During October 2013, Plaintiff exchanged several emails

and letters with Mulvey, in which she reiterated her claims of

discrimination and "hostile environment" at Atlantic and her claim

that Principal MacNeil was "not willing to provide any meaningful

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remedies." On October 2, 2013, Defendant filed its position

statement to Plaintiff's EEOC charge, where, among other things,

it stated that, after completing an investigation of the claims in

Cherkaoui's June 29, 2013 letter, it had found no evidence of

harassment. The next day, Cherkaoui emailed Mulvey to notify him

that she was still on sick leave and that, "[p]rior to returning

to work, [she] need[ed] to know exactly what c[ould] be done to

remedy the hostile environment [she was] continuing to

experience."

Mulvey replied to Plaintiff's emails with a letter on

October 8, 2013. In that letter, Mulvey referred Plaintiff to the

position statement that the City submitted to the EEOC summarizing

the result of his investigation of the claims in Plaintiff's

June 29, 2013 letter. He also instructed Plaintiff that if any

new events not mentioned in the June 29, 2013 letter had

transpired, which she alleged had been discriminatory, she should

provide him with more specifics to allow him to investigate and

address those events. Plaintiff responded a week later expressing

her frustrations over the impossibility of meeting with Mulvey

regarding his investigation of her June 29, 2013 letter. In

addition, in response to Mulvey's request for specific allegations

of new discriminatory events, Cherkaoui pointed to the City's

failure to adopt interim measures to ensure that the discriminatory

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behavior would not continue, its disregard of her complaint

concerning the department class scheduling for the 2013-2014

school year, misleading or incomplete information in the City's

EEOC position statement, and the City's incorrect conclusion that

"no one acted inappropriately toward[s her]." Lastly, Plaintiff

attached a doctor's note indicating that returning to the same

worksite would be detrimental to her health, and requested a

transfer to a part-time ELL language arts teacher position at North

Quincy High School.

Cherkaoui's transfer request was denied by Mulvey via

letter on October 23, 2013, because it was made outside of the

Union contract's window for transfer requests, and because there

were no vacancies at North Quincy High School at that time. In

addition, regarding Plaintiff's alleged disability, Mulvey noted

that the doctor's note did not indicate that a transfer or part-

time position was necessary for her to perform her essential

functions as a teacher. If Plaintiff desired to pursue such an

accommodation, he continued, she should submit to him a more

specific physician's report with the accommodation request, along

with an explanation of the accommodation's necessity by

October 30, 2013.

On October 28, 2013, Plaintiff submitted a letter of

resignation from her position as an ELL teacher at Atlantic. In

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her letter she cited "the absolutely intolerable working

conditions [that] caused [her] to experience serious health

problems, both physically and emotionally" as the reason for her

resignation. The City accepted her resignation on the following

day.

B. Procedural History

On January 9, 2010, Cherkaoui filed charges of

discrimination based on religion and retaliation with the EEOC

against Defendant. On February 17, 2010, Cherkaoui amended her

charge to include a claim for disability discrimination. On

August 7, 2013, Cherkaoui filed an additional charge with the EEOC

based on further and continuing discrimination and retaliation

based on the same discriminatory animus. Cherkaoui then amended

this charge in November 2013 to include a claim for constructive

discharge. On December 11, 2013, the EEOC issued a Right to Sue

Letter on Cherkaoui's claims.

On March 7, 2014, Cherkaoui filed a complaint with the

district court, which she amended on June 27, 2014. Her amended

complaint alleged that she was discriminated against on the basis

of her religion and disability, that she had suffered retaliation

due to her exercise of protected activity, and that she was

constructively discharged, all in violation of state and federal

laws. The City moved for summary judgment on all claims. After

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a hearing on the motion for summary judgment, the magistrate judge

issued his Report and Recommendations on the motion, which

recommended that the district court grant summary judgment in favor

of the City on all counts of the amended complaint. The district

court adopted this recommendation and entered judgment for the

City dismissing the amended complaint. This timely appeal

followed.

II. Analysis

A. Summary Judgment

We review the district court's grant of summary judgment

de novo. ATC Realty, LLC v. Town of Kingston, 303 F.3d 91, 94

(1st Cir. 2002). "Although we will draw all reasonable inferences

in the nonmovant's favor, we will not 'draw unreasonable inferences

or credit bald assertions, empty conclusions, rank conjecture, or

vitriolic invective.'" Pina, 740 F.3d at 795 (quoting Cabán-

Hernández v. Philip Morris USA, Inc., 486 F.3d 1, 8 (1st Cir.

2007)). Summary judgment is proper when "there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law." Fed. R. Civ. P. 56(a).

Facts are material when they have the "potential to

affect the outcome of the suit under the applicable law." Sánchez

v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996). "A dispute is

'genuine' if 'the evidence about the fact is such that a reasonable

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jury could resolve the point in the favor of the non-moving

party.'" Id. (quoting Rivera-Muriente v. Agosto-Alicea, 959 F.2d

349, 352 (1st Cir. 1992)). A court will disregard "conclusory

allegations, improbable inferences, and unsupported speculation"

in determining whether a genuine factual dispute exists. Sullivan

v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (citation

omitted). Furthermore, the nonmovant must provide sufficiently

supported evidence, without relying "upon mere allegation or

denials of [the movant's] pleading," to establish a genuine issue

for trial. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st

Cir. 1993) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

256 (1986)). That is, the "plaintiff . . . [must] offer[]. . .

'significant probative evidence tending to support the

complaint.'" Feliciano v. Rhode Island, 160 F.3d 780, 784 (1st

Cir. 1998) (quoting Anderson, 477 U.S. at 256).

Plaintiff brings both federal and pendent state claims.

It is true that the Massachusetts Supreme Judicial Court ("SJC")

has interpreted Mass. Gen. Laws ch. 151B differently on occasion

than Title VII of the Civil Rights Act of 1964 ("Title VII"), 42

U.S.C. §§ 2000e-2000e-17. See, e.g., Cuddyer v. Stop & Shop

Supermarket Co., 750 N.E.2d 928, 939-40 (Mass. 2001). It has also

interpreted state disability discrimination claims differently

than the ADA, 42 U.S.C. §§ 12101-12213. See, e.g., Dahill v.

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Police Dep't of Bos., 748 N.E.2d 956, 963-64 (Mass. 2001). But

Plaintiff has not argued there are any material differences

relevant here, and the SJC has consistently applied the three-step

burden-shifting framework from McDonnell Douglas Corp. v. Green,

411 U.S. 792 (1973), to antidiscrimination suits under chapter

151B. See, e.g., Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky

& Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016). And so we refer

to federal law.

1. Discrimination

"Where, as here, there is no direct evidence of

discrimination, [Plaintiff] must rely on the three-stage burden-

shifting framework outlined in McDonnell Douglas Corp." Garmon

v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 313 (1st Cir. 2016)

(citing McDonnell Douglas, 411 U.S. at 802). Under this

framework, a plaintiff bears the initial burden of proffering

evidence sufficient to establish a prima facie case of

discrimination. McDonnell-Douglas, 411 U.S. at 802. "The prima

facie case varies according to the nature of the plaintiff's claim

but it requires, among other things, a showing of an adverse

employment action." Alvarado-Santos v. Dep't of Health of P.R.,

619 F.3d 126, 132 (1st Cir. 2010). Once a plaintiff has made a

prima facie showing, she "creates a rebuttable presumption that

[Defendant] engaged in discrimination." Pina, 740 F.3d at 796.

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The defendant may then "rebut this presumption by pointing to

evidence of a legitimate, non-discriminatory reason for the

challenged conduct." Garmon, 844 F.3d at 313. If the defendant

is able to make that showing, "the presumption of discrimination

disappears and the burden of production again shifts to

[plaintiff], who must offer evidence that [defendant's]

explanation is pretextual and that discriminatory animus prompted

the adverse action." Id.

Cherkaoui argues, on appeal, that the district court

failed to consider all the evidence in the light most favorable to

her, that it improperly weighed witnesses' credibility, and that

it failed to consider the cumulative effect of all of her alleged

adverse incidents. Cherkaoui further alleges that the City failed

to articulate legitimate nondiscriminatory reasons for the actions

taken against her, and that, even if it did, she offered sufficient

evidence of pretext for a reasonable jury to infer discriminatory

intent. As we will explain, Plaintiff's arguments are without

merit.

The district court found that Plaintiff "made a prima

facie case of religious and disability discrimination but the

[C]ity ha[d] proffered legitimate nondiscriminatory reasons for

its treatment of the plaintiff." Cherkaoui v. City of Quincy, 213

F. Supp. 3d 264, 279 (D. Mass. 2016). Furthermore, the court

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below determined that the record lacked evidence "that would allow

a jury to find by a preponderance of the evidence that those

reasons were pretextual." Id. The parties disagree as to whether

Cherkaoui made a prima facie showing of discrimination. In

particular, the City alleges that there is no evidence that

Cherkaoui suffered any adverse employment action.

Plaintiff alleges several incidents with QPS personnel

as proof of discrimination; however, neither in her briefs below

nor on appeal does she identify any specific incident amounting to

an "adverse employment action," nor does she specify whether these

incidents were based on her religion or her alleged disability.

"An 'adverse employment action' is one that 'affect[s] employment

or alter[s] the conditions of the workplace.'" Morales-

Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (quoting

Burlington Indus., Inc. v. Ellerth, 524 U.S. 740, 761 (1998)). To

determine if an employment action is in fact "adverse," we look

for whether it has "materially change[d] the conditions of

plaintiff['s] employ." Gu v. Bos. Police Dep't, 312 F.3d 6, 14

(1st Cir. 2002). These changes "must be more disruptive than a

mere inconvenience or an alteration of job responsibilities."

Burns v. Johnson, 829 F.3d 1, 10 (1st Cir. 2016) (quoting Morales-

Vallellanes, 605 F.3d at 35). Reassignments may be actionable if

they involve "significant different responsibilities." Id.; see

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also Marrero v. Goya of P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002)

("[A] transfer or reassignment that involves only minor changes in

working conditions normally does not constitute an adverse

employment action."). "We gauge whether such a change is materially

adverse 'by an objective standard.'" Burns, 826 F.3d at 10; see

also Booker v. Mass. Dep't of Pub. Health, 612 F.3d 34, 42 (1st

Cir. 2010).

Some of the complained-of actions clearly fail to meet

that test. We will assume arguendo that certain actions arguably

qualify. These are: (1) the three-day suspension in 2010; (2) the

change in her ELL teaching assignment to include a science

component and larger class sizes; and (3) the City's failure to

accommodate her requests for transfer.1 See Burns, 829 F.3d at 10

(noting that reassignment with significantly different

responsibilities may be an actionable "adverse employment

action"); Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d

145, 157 (1st Cir. 2009) (noting that showing that an employer

failed to provide a reasonable accommodation after knowing of an

employee's alleged disability may be an "adverse employment

action").2 We need not decide if these actions in fact constitute

1 We take no position as to whether these requests would
constitute "reasonable requests" for purposes of Plaintiff's
disability claims.
2 We find that Cherkaoui's split assignment between Atlantic and

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adverse employment actions because even if we ruled that Cherkaoui

established a prima facie case of discrimination, "her claim[s]

still fail[] because she cannot show that the nondiscriminatory

explanation for her [treatment] articulated by [Defendant] was

pretextual cover for their true, discriminatory motive." Pina,

740 F.3d at 797.

Assuming Cherkaoui has established a prima facie case of

discrimination based on these three "adverse employment actions,"

the next step of the McDonnell Douglas framework requires the

defendant to produce and "articulat[e] a legitimate,

nondiscriminatory reason for the adverse employment decision[s].

. . ." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1st Cir.

1991). This is only a "burden of production, not a burden of

persuasion. . . ." Id. It is the Plaintiff who carries the

Sterling in 2009 was not an "adverse employment action" because
this assignment was the result of Defendant accommodating
Plaintiff's request for a full-time position, and this split
assignment was the only full-time position available at that time.
Cf. Deleon v. Kalamazoo Cty. Rd. Comm'n, 739 F.3d 914, 922 (6th
Cir. 2014), cert. denied, 135 S. Ct. 783 (2015) (Sutton, J.,
dissenting) ("No case to my knowledge holds that granting a sought-
after transfer by itself amounts to an adverse employment action.")
(emphasis added); Simpson v. Borg–Warner Auto., Inc., 196 F.3d
873, 876 (7th Cir. 1999) (finding no adverse employment action
when employee voluntarily sought her new position). But see Spees
v. James Marine, Inc., 617 F.3d 380, 387 (6th Cir. 2010) (noting
that if an employee "believed the change was necessary in order to
keep her job," then the employee could recover in light of a
requested transfer).

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burden of persuasion at all times. See id.; Pina, 740 F.3d at

796.

As the record shows, Defendant provided competent

evidence showing that each of the above-mentioned adverse

employment actions were based on legitimate nondiscriminatory

reasons. First, the City's disciplinary actions against Plaintiff

were in response to Cherkaoui's tardiness, even after Defendant

had provided her an additional ten minutes of travel time between

schools. Furthermore, the City produced evidence that other

teachers in the QPS were similarly disciplined for being tardy,

and that Plaintiff had admitted to being late on at least one

occasion.

Second, Defendant offered evidence showing that

Plaintiff's abnormally large class and the directive that she

include a science component in her ELL classes were based on

student needs and the qualifications of the pool of teachers at

Atlantic at the time. In 2011, due to budgetary constraints,

Atlantic lost their science-content ELL teacher, Thai Dang. At

that moment, Plaintiff was the only one, out of the three remaining

ELL teachers at Atlantic, who was not specifically qualified to

teach any of the other content areas required to be incorporated

into the ELL classes. 3 After the three ELL teachers met and

3 The other two ELL teachers at Atlantic were Angell, certified

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discussed the matter, Plaintiff agreed to cover the need for the

science content of the ELL classes.

Third, Defendant also provided evidence as to why it

could not accommodate all of Cherkaoui's requests. To begin with,

Defendant did provide Plaintiff with clear lines of communications

by directing her to Principal MacNeil and Elizabeth Hallet, the

ELL Department Chair, to discuss her teaching responsibilities at

the beginning of the 2010-2011 academic year. Yet, Defendant

explained to Plaintiff the infeasibility of her request for 24-

hour notice of all meetings due to the way a school normally

operates.4 As to Plaintiff's 2013 transfer requests, the City

offered evidence showing it denied them because of legitimate

nondiscriminatory reasons. Cherkaoui withdrew her first transfer

request before the administration could respond to it. On the

other hand, the City denied her second transfer request because it

was submitted outside of the Union's contract window for transfer

as an English/Reading teacher, and Thao Nguyen-Ippolito who was in
pursuit of her certification as a math teacher.
4 According to a letter sent to Plaintiff on July 20, 2010, the
school was unable to accommodate her request for a 24-hour notice
for all meetings, other than ordinary meetings, because part of
the school administration supervision of students and staff is
done in an informal manner, such as through walkthroughs.

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requests and there were no vacancies available at the requested

school.5

Since Defendant successfully submitted evidence showing

a legitimate nondiscriminatory reason for each of the adverse

employment actions alleged by Plaintiff, the burden shifts back to

Plaintiff to show, by a preponderance of the evidence, that the

reasons provided "w[ere] mere pretext and that their true motive

was discriminatory." Pina, 740 F.3d at 797. It is insufficient

that Plaintiff "'impugn the veracity' of the employer's proffered

reason[s] . . . ; instead, a plaintiff must proffer specific facts

that would enable a reasonable factfinder to conclude that the

employer's reason for termination was a 'sham' intended to cover

up the employer's true motive." Ponte v. Steelcase Inc., 741 F.3d

310, 323 (1st Cir. 2014) (quoting Mesnick, 950 F.2d at 824).

Plaintiff "may point to 'weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons'" to support an inference

5 Moreover, we do not find the City's request for an IME to be an
"adverse employment action." Defendant provided evidence that it
was part of the school's policy to require its employees to undergo
an examination by an IME upon applying for extended sick leave.
Also, even though Plaintiff alleges that the City failed to address
her concerns as to her discrimination claims in her June 29, 2013
letter, the record shows otherwise. Plaintiff may not agree with
its conclusions, but Defendant proffered evidence that it did
investigate Plaintiff's claims and found no evidence of
discrimination or a hostile work environment.

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that these were not legitimate nondiscriminatory reasons. Pina,

740 F.3d at 797 (quoting Straughn v. Delta Airlines, Inc., 250

F.3d 23, 42 (1st Cir. 2001)). However, Plaintiff fails to make

this showing. Plaintiff points to the fact that she had ten

successful years of employment in the QPS without a negative

incident, and it was not until April 2009 -- when she started

wearing her headscarf to school -- that she began to have conflicts

with coworkers and supervisors. This is insufficient to raise a

triable issue of fact. "[T]emporal proximity alone can suffice

to 'meet the relatively light burden of establishing a prima facie

case of retaliation.'" DeCaire v. Mukasey, 530 F.3d 1, 19 (1st

Cir. 2008) (emphasis added) (quoting Mariani-Colón v. Dep't of

Homeland Sec. ex. rel. Chertoff, 511 F.3d 216, 224 (1st Cir.

2007)). Nevertheless, "while temporal proximity is one factor

from which an employer's bad motive can be inferred, by itself, it

is not enough--especially if the surrounding circumstances

undermine any claim of causation." Carrero-Ojeda v. Autoridad de

Energía Eléctrica, 755 F.3d 711, 720 (1st Cir. 2014).

Plaintiff does not point to any specific facts or

evidence in the record that would demonstrate pretext. At most,

her case rests on unsupported speculation and conclusory

allegations that Defendant purposely created a "hostile

environment" by changing her assignments and denying her transfer

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requests. She is unable to show that Defendant's proffered

reasons were pretextual, and therefore does not raise a triable

issue of fact. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,

507-08 (1993).6

Accordingly, because Cherkaoui was unable to rebut the

City's proffered legitimate, nondiscriminatory basis for its

actions with evidence of pretext and discriminatory motive, the

district court properly granted summary judgment in favor of the

City as to Plaintiff's discrimination claims.

2. Retaliation

Plaintiff's retaliation claims, both state and federal,

are also governed by the McDonnell Douglas three-stage burden-

shifting framework. Pina, 740 F.3d at 800; see also Prescott v.

Higgins, 538 F.3d 32, 40 (1st Cir. 2008). To establish a prima

facie case of retaliation, Plaintiff must "show that (1) she

undertook protected conduct; (2) she suffered an adverse

employment action, and (3) the two were causally linked."

Noviello v. City of Bos., 398 F.3d 76, 88, (1st Cir. 2005); Calero-

Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st Cir. 2004).

6 While Cherkaoui cites case law supporting the proposition that
discriminatory enforcement of the City's IME policy is illegal,
see Flynn v. Raytheon Co., 868 F. Supp. 383, 387-88 (D. Mass.
1994), she fails to provide any evidence that the City has
implemented or enforced the IME policy differently against persons
outside of her protected class.

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Once Plaintiff has made a prima facie showing of retaliation,

"[D]efendant must articulate a legitimate, non-retaliatory reason

for its employment decision." Id. at 26. "If the [D]efendant

meets this burden, then [P]laintiff must show that the proffered

legitimate reason is pretextual and that 'the job action was the

result of the [D]efendant's retaliatory animus.'" Kelley v. Corr.

Med. Servs., Inc., 707 F.3d 108, 115 (1st Cir. 2013) (quoting St.

Mary's Honor Ctr., 509 U.S. at 510-11).

It is beyond dispute that Plaintiff engaged in protected

conduct when she filed her first EEOC charges on January 9, 2010,

and again when she filed her second charge, as a continuing action,

on August 7, 2013. 7 Only some of the adverse actions that

Cherkaoui alleges came after the protected conduct. These are:

(1) the City's requirement that Plaintiff undergo an IME to

substantiate her application for extended sick leave benefits; (2)

the change in Cherkaoui's teaching assignment which included

7 Plaintiff alleges that she "engaged in explicit protected
activity when she asked Barrett if she was being treated in a
hostile manner because of her headscarf" during the meeting on
November 17, 2009. However, Plaintiff does not develop the
argument as to why her comment during a meeting to discuss a
written warning constitutes a protected opposition activity under
Title VII. Plaintiff's "skeletal" allegation is not enough for
this Court to rightfully consider her comment during the
November 17, 2009 meeting as a protected opposition activity. See
United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990) ("[I]ssues
adverted to in a perfunctory manner, unaccompanied by some effort
at developed argumentation, are deemed waived.").

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abnormally large class sizes, a mixture of students of different

grade-levels, and the requirement that she include a science

component in her ELL classes; (3) the City's denial of Plaintiff's

transfer requests; and (4) the City's alleged failure to

investigate the claims in Plaintiff's June 29, 2013 letter.

For purposes of our analysis, we will assume without

deciding that these were all "adverse employment actions" against

Plaintiff. A review of the records reveals that Plaintiff fails

to provide any evidence that the City took any of these actions

against her because of her protected activity. Instead, Plaintiff

relies solely on temporal proximity to establish causation. "The

cases that accept mere temporal proximity between an employer's

knowledge of protected activity and an adverse employment action

as sufficient evidence of causality to establish a prima facie

case uniformly hold that the temporal proximity must be 'very

close.'" Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273

(2001) (quoting O'Neil v. Ferguson Constr. Co., 237 F.3d 1248,

1253 (10th Cir. 2001)). Most of the alleged "adverse employment

actions" here occurred years after Plaintiff filed her first EEOC

charge. We have recognized that "[t]hree and four month periods

have been held insufficient to establish a causal connection based

on temporal proximity." Calero-Cerezo, 355 F.3d at 25. In

addition, as previously discussed, Defendant produced legitimate

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and non-retaliatory reasons for Cherkaoui's teaching assignment,

large class sizes, and mixture of students of different grade-

levels. At the time, these decisions were made based on student

needs and ELL faculty availability. The City's denial of

Plaintiff's transfer requests was not related to her protected

conduct, but to the fact that Cherkaoui withdrew her first transfer

request and her second transfer request was submitted outside of

the Union's contract window.

As to Plaintiff's allegation that the City failed to

investigate the claims raised in her June 29, 2013 letter, the

record shows that Defendant did conduct an investigation and

sought, to no avail, to include Plaintiff's participation.

The only alleged "adverse employment action" against

Plaintiff with a close temporal proximity to her first EEOC charge

was the City's requirement that Plaintiff undergo an IME to

substantiate her application for extended sick leave benefits.

But, the City produced evidence that, under the Union contract,

the City "may request any form of evidence of the [employee's]

disability, to wit: a report from the [City's] own doctor," and

that it had required the same from other teachers in similar

circumstances. The City informed Plaintiff that it was exercising

its right under the Union contract's provision, and Plaintiff

indicated her willingness to comply as long as she was

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"reasonabl[y] accommodat[ed] for [her] religious faith." The City

conformed to her request and, once it received the IME report,

approved Plaintiff's request for extended sick leave. The City

proffered enough evidence to show it required the IME for

legitimate non-retaliatory reasons. Plaintiff has failed to

provide any evidence to the contrary.

In conclusion, the record lacks evidence that shows that

the City retaliated against Cherkaoui because she filed EEOC

charges of religious and disability discrimination against

Defendant. Therefore, the district court properly granted

Defendant's motion for summary judgment on Plaintiff's retaliation

claims.

3. Constructive Discharge

Finally, Cherkaoui claims that Defendant constructively

discharged her, in violation of Mass. Gen. Laws ch. 151B and Title

VII. In order to prevail on a constructive discharge claim, a

plaintiff "must show that (1) 'a reasonable person in [her]

position would have felt compelled to resign' and (2) '[she]

actually resigned.'" Vélez–Ramírez v. P.R. through Sec'y of

Justice, 827 F.3d 154, 158 (1st Cir. 2016) (quoting Green v.

Brennan, 136 S. Ct. 1769, 1777, (2016)).

When we assess a constructive discharge claim, we "must

gauge whether the working conditions imposed by the employer had

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become so onerous, abusive, or unpleasant that a reasonable person

in the employee's position would have felt compelled to resign."

Suárez v. Pueblo Int'l, Inc., 229 F.3d 49, 54 (1st Cir. 2000).

Our assessment cannot rest solely on Plaintiff's subjective views

of her work situation. See id. As we have explained, "[t]he

ultimate test is one of objective reasonableness." Id.

After a review of the record, and viewing the facts in

a manner most favorable to the Plaintiff, we cannot conclude that

Plaintiff's working conditions had reached a level of

unbearableness where a reasonable person would have resigned.

Even though Plaintiff did encounter several uncomfortable

situations within her work place, none of these show a pattern of

unusually aggravating working conditions. GTE Prod. Corp. v.

Stewart, 653 N.E.2d 161, 169 (Mass. 1995) ("In order to amount to

a constructive discharge, adverse working conditions must be

unusually aggravated or amount to a continuous pattern before the

situation will be deemed intolerable." (internal quotation marks

and citations omitted)). In fact, the City had taken steps to

investigate her allegations of discriminatory treatment and

accommodated many of her requests.

Midway through the 2013-2014 academic year, Plaintiff

was working full-time at Atlantic, she no longer worked with any

of her alleged harassers, her school Principal had agreed to make

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every effort to reduce her class sizes and mixed-grade students,

and Defendant had inquired into her allegations made in the

June 29, 2013 letter. As to her transfer request as a reasonable

accommodation, the City did not deny her request outright, but

rather requested further information in order to properly review

her request. The City's request was nothing more than the

fulfillment of its duty "to engage in an interactive process"

regarding Plaintiff's accommodation request. See Ortiz-Martínez

v. Fresenius Health Partners, PR, LLC, 853 F.3d 599, 605 (1st Cir.

2017) (quoting EEOC v. Kohl's Dep't Stores, Inc., 774 F.3d 127,

132 (1st Cir. 2014)).

"The workplace is not a cocoon, and those who labor in

it are expected to have reasonably thick skins--thick enough, at

least, to survive the ordinary slings and arrows that workers

routinely encounter in a hard, cold world." Suárez, 229 F.3d at

54 (1st Cir. 2000). Plaintiff did not meet her burden to show she

was constructively discharged. Accordingly, the district court

properly granted summary judgment to Defendant on Plaintiff's

constructive discharge claims.

III. Conclusion

For the foregoing reasons, the district court judgment

is affirmed.

Affirmed.

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