United States Court of Appeals
For the First Circuit
No. 20-1688
NADINE E. LIMA,
Plaintiff, Appellant,
v.
CITY OF EAST PROVIDENCE, by and through its Finance Director,
Malcolm Moore, CITY OF EAST PROVIDENCE SCHOOL DEPARTMENT, by and
through its Superintendent, individually and in her official
capacity, KATHRYN CROWLEY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Mary S. McElroy, U.S. District Judge]
Before
Kayatta, Barron, Circuit Judges,
And O’Toole, District Judge.
Sonja L. Deyoe for appellant.
Kathleen M. Daniels, with whom Marc DeSisto was on brief, for
appellees.
Of the District of Massachusetts, sitting by designation.
November 3, 2021
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O’TOOLE, District Judge. Dr. Nadine E. Lima, a school
principal formerly employed by the City of East Providence, Rhode
Island, sued the City, its School Department, and the School
Superintendent, Kathryn Crowley, asserting claims under various
legal theories arising from what she alleged were unlawful
discriminatory employment actions taken against her. After
discovery was taken, the defendants moved for summary judgment in
their favor on all counts.1 The assigned district judge referred
the motion to a magistrate judge for a report and recommendation
pursuant to Federal Rule of Civil Procedure 72(b). After a hearing,
the magistrate judge filed a report that recommended the entry of
summary judgment in favor of the defendants. In due course the
district judge concurred entirely with the analysis of the report
and ordered that one count, for breach of contract, be dismissed
for failure to state a plausible claim, and granted summary
judgment for the defendants on all remaining counts. The plaintiff
appealed so much of the judgment as addressed two of the counts:
unlawful racial discrimination under 42 U.S.C. § 1981 (Count II of
the complaint) and discriminatory retaliation under Rhode Island
1 The parties stipulated to the dismissal of one claim that
alleged disparate impact discrimination.
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General Laws § 42-112-2, which is a state cognate provision to
§ 1981 (Count VI). We affirm the judgment of the district court.
I. STANDARD OF REVIEW
"We review a district court’s grant of summary judgment
de novo." Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st
Cir. 2015). "Summary judgment is appropriate where 'the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.'" Audette v. Town of Plymouth, 858
F.3d 13, 19 (1st Cir. 2017) (quoting Mulloy v. Acushnet Co., 460
F.3d 141, 145 (1st Cir. 2006)). Although the record is construed
in a light most favorable to the non-moving party, the Court need
not consider "conclusory allegations, improbable inferences, [or]
unsupported speculation." Mulloy, 460 F.3d at 145 (quoting Carroll
v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002)).
II. BACKGROUND
Lima, an African-American woman, was employed by the
East Providence School Department as an elementary school
principal beginning in 2000. In 2013, she applied for three
different positions within the School Department, including
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Superintendent, but she was not hired for any of them. A white
woman, Kimberly Mercer, was chosen to be Superintendent.
Believing that the Department was reneging on a prior
commitment made directly to her that it would pursue affirmative
action hiring practices, in November 2014 Lima sued the School
Department and Mercer as Superintendent, claiming, among other
things, retaliation for her advocacy for better affirmative action
practices. A year later, the case was settled, and a written
settlement agreement was entered. Its provisions included the
Department's undertaking to create and fund an affirmative action
position within the Department and its promise that there would be
no retaliation against Lima for having sued. Lima executed a
release of "any current claims of retaliation." The settlement
agreement was executed in mid-November 2015 and the existing
complaint was dismissed with prejudice in December. See
Stipulation of Dismissal, Lima v. City of East Providence, No.
1:14-00513 (D.R.I. Nov. 5, 2015), ECF No. 12.
Also in December 2015, there were changes in the
leadership in the School Department. Superintendent Mercer
resigned and was succeeded in that position by Kathryn Crowley.
Two new Assistant Superintendents were also hired. Sandra Forand
was hired to that position in November 2015, and Celeste Bowler
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was hired in January 2016. None of the three had been involved in
the prior suit by Lima or its settlement.
Lima's relationship with Crowley began cordially.
Crowley asked her to serve on the Department's hiring committee,
solicited her input as to who might serve as her assistant
principal, and offered to refer a graduate student to her for
mentoring.
The era of good feelings did not last long. Lima was
offended when, in early January, Crowley wondered to her whether
the person serving as affirmative action officer for the City of
East Providence generally might not also handle affirmative action
responsibilities for the School Department. Lima apparently
thought Crowley’s statement to be backsliding on the Department's
undertaking in the 2015 settlement agreement to hire what she
understood to be a full-time affirmative action officer. In any
event, Bowler, an African-American woman like Lima, was chosen by
Crowley to serve as the Department's affirmative action officer.
She had held a similar position for several years in her prior
employment in another school district.
In the present action, Lima's overarching complaint is
that she had effectively been subjected to a hostile work
environment because of her advocacy for the School District
undertaking a strong affirmative action effort. She sets forth a
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series of incidents that she alleges taken together support that
claim.
Lima requested permission to purchase a room divider and
rug for her classroom. Crowley rejected the request for the room
divider as a matter of educational policy. She invited Lima to
make a convincing case for the rug, but Lima did not follow up on
the request.
On another occasion Lima complained that her school was
burdened with a higher percentage of pupils with special needs
than other principals had and consequently her workload was greater
than those of other principals. She requested from Crowley
appointment of a dean to help out. Crowley met the request by
assigning the person suggested by Lima to assist students with
special needs at Lima's school.
Lima expressed dissatisfaction with the performance of
a substitute teacher in her school, and the substitute was
eventually transferred to another school. Lima thought she should
have been included in the process by which the teacher was
dismissed.
Lima complained that her performance reviews were held
too close in time to each other and thus interfered with her
ability to respond to any criticism with improved performance, but
that compressed schedule, dictated as a practical matter by the
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major changes in top administration personnel halfway through the
school year, applied to all principals, not just to her.
Lima also alleges that the defendants unlawfully
retaliated against her because of her affirmative action advocacy.
In 2016, the Rhode Island Department of Education was encouraging
school departments to develop pre-kindergarten ("pre-K") programs,
and it offered grant support for departments that took up the
challenge. Bowler applied for such a grant on behalf of the East
Providence School Department. The application included the fact
that one of the Department's principals, Lima, was already
certified to be a pre-K principal, as well as an experienced
elementary school principal. The grant was awarded.
Crowley and Bowler asked Lima if she would agree to be
transferred from her existing assignment to serve as the first
principal for the new pre-K program at the same salary she earned
in her present position. She declined, seeing the offer as a
demotion because the pre-K program would have had significantly
fewer pupils enrolled than her existing elementary school
assignment. However, under Lima's written employment contract with
the Department, the Superintendent was given the express power to
make involuntary assignments to new positions under the same
conditions as were applicable to an employee's existing
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employment, including salary. Crowley exercised that power and
assigned Lima to the new pre-K program.
III. DISCUSSION
Claims invoked under federal 42 U.S.C. § 1981 and the
Rhode Island Civil Rights Act, R.I. Gen. Laws § 42-112-1, are
analyzed using standards applicable to suits brought under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. See
Pina v. Children's Place, 740 F.3d 785, 800 (1st Cir. 2014) (citing
Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008)); Rathbun v.
Autozone, Inc., 361 F.3d 62, 71 (1st Cir. 2004) (assuming that
framework applies under the Rhode Island Civil Rights Act).
Accordingly, the familiar McDonnell Douglas burden-
shifting framework is appropriate to analyze the viability of
Lima's claims. See McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). The "plaintiff bears the initial burden of proffering
evidence sufficient to establish a prima facie case of
discrimination." Cherkaoui v. City of Quincy, 877 F.3d 14, 24 (1st
Cir. 2017). If that is successfully done, the burden shifts to the
defendants to articulate a legitimate, nondiscriminatory reason
for the adverse employment action. Id. If the defendants
successfully proffer a plausible nondiscriminatory reason for the
action taken, the plaintiff then must show that the proffered
reason was pretextual and the true reason for the adverse
employment action was instead unlawful discrimination. See id.
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(quoting Garmon v. Nat'l R.R. Passenger Corp., 844 F.3d 307, 313
(1st Cir. 2016)).
In demonstrating that the defendant's proffered reason
for the adverse action was pretextual, "[i]t is not enough for a
plaintiff merely to impugn the veracity of the employer's
justification; [she] must 'elucidate specific facts which would
enable a jury to find that the reason given is not only a sham,
but a sham intended to cover up the employer's real motive
. . . .'" Meléndez v. Autogermana, Inc., 622 F.3d 46, 52 (1st Cir.
2010) (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st
Cir. 1991)).
A. Hostile Work Environment
"To establish a claim of 'hostile work environment
. . .' a plaintiff must demonstrate 'that the harassment was
sufficiently severe or pervasive so as to alter the conditions of
the plaintiff's employment and create an abusive work
environment.'" Lockridge v. Univ. of Me. Sys., 597 F.3d 464, 473
(1st Cir. 2010) (quoting Forrest v. Brinker Int'l Payroll Co., LP,
511 F.3d 225, 228 (1st Cir. 2007)).
The disparate grievances identified above that Lima
relies on self-evidently fall far short of meeting that criterion.
With respect to most of them, the defendants largely did what she
wanted them to do. She wanted a Department employee to be assigned
the affirmative action portfolio and not a person already employed
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by the City in a similar capacity. Bowler was given the assignment.
Although Crowley rejected one of her requests for equipping a
classroom, Crowley asked her to make a case for the proposed rug
purchase, but she never did. After she complained about the
performance of a substitute teacher, the teacher was let go. When
she asked for personnel assistance to help with her workload, she
received it in the person she had asked for. The compressed
schedule of her three annual evaluations was not unique to her but
applicable to all the other elementary school principals in the
Department. Taken individually or cumulatively, these events could
not be found by a rational jury to have created a hostile workplace
for Lima. As to these matters, she failed to plead even a prima
facie case of discrimination.
Lima was ultimately given an assignment she did not seek
or want, and it can be assumed in her favor that her transfer to
the pre-K assignment would be sufficiently "hostile" to get her
past the first step of the McDonnell-Douglas formula. 2 At the
second step, the defendants have articulated two non-
discriminatory reasons for the transfer: Lima had extensive
2 The exercise of a legitimate existing contract right does
not by itself necessarily refute a claim of unlawful employment
discrimination.
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experience as a school principal and was already credentialed for
the pre-K work. Lima does not contest those two facts.
Because the defendants have articulated two
nondiscriminatory reasons for the transfer, the burden shifts back
to Lima to show that those reasons were not the real reasons for
the transfer and the real reason was discriminatory. She lacks
evidence that could meet that criterion. The two proffered reasons
were objectively true. She had considerable work experience as an
elementary school principal, and she was officially credentialed
for the pre-K work. They were also reasons that tightly fit the
transfer assignment: the Department was looking for a person with
pre-K credentials to head the new program. Lima has offered no
evidence to permit a rational factfinder to believe those reasons
were pretextual.3
B. Retaliation
To prove a claim of wrongful retaliation, Lima must show
that (1) she had engaged in protected conduct (such as complaining
of unlawful discrimination); (2) she suffered an adverse
employment action (such as a material alteration of her conditions
3 As a separate matter, while "a single act of harassment may,
if egregious enough, suffice to evince a hostile work environment,"
it is doubtful that the single act of job reassignment is
sufficiently egregious to support a hostile work environment
claim. See Noviello v. City of Boston, 398 F.3d 78, 84 (1st Cir.
2005).
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of employment); and (3) there was a causal connection between the
protected conduct and the adverse employment action. See Tang v.
Citizens Bank, N.A., 821 F.3d 206, 218–19 (1st Cir. 2016) (citing
Noviello, 398 F.3d at 88).
Employer actions that could amount to unlawful
retaliation are those that are "harmful to the point that they
could well dissuade a reasonable worker from making or supporting
a charge of discrimination." Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 57 (2006). This is an objective standard. Id.
at 68. An employee's subjective reaction to the claimed act of
retaliation is not determinative. Id. at 68–69.
Like the district court, we assume arguendo that Lima
has sufficiently alleged a prima facie case of retaliation based
on her involuntary transfer to the pre-K program. The next step in
the McDonnell Douglas framework requires the defendants to
"articulat[e] a legitimate, nondiscriminatory reason for the
adverse employment decision[s]." Cherkaoui, 877 F.3d at 26
(alteration in original) (quoting Mesnick, 950 F.2d at 823).
As set forth above, the defendants have proffered two
related legitimate, nondiscriminatory reasons for the transfer.
The establishment of a pre-K program in the East Providence schools
was a step forward for the School Department, one urged by the
state Department of Education. Lima had the necessary pre-K
qualification credentials and the experience as a principal,
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apparently the only elementary principal in the East Providence
schools to have both. That she was appropriately credentialed was
cited in the School Department's application for the state grant,
and it may well have been an influential factor in the grant award.
Lima has failed to offer admissible evidence to permit
a jury to conclude that the articulated reasons were pretextual
and that the transfer was actually retaliatory. Other than her own
suspicions, she proffers no admissible evidence to impeach the
veracity of the School Department's very plausible explanation for
the transfer. Her claim of retaliatory employment discrimination
is not supported by admissible evidence that would warrant putting
the case to a jury. The defendants' motion for summary judgment
was properly granted.
IV. CONCLUSION
For the foregoing reasons, we affirm the district
court's grant of summary judgment.
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