United States Court of Appeals
For the First Circuit
No. 10-2342
CLAUDINE BHATTI,
Plaintiff, Appellant,
v.
TRUSTEES OF BOSTON UNIVERSITY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Richard G. Stearns, U.S. District Judge]
Before
Howard, Selya, and Thompson,
Circuit Judges.
Richard A. Mulhearn, with whom the Law Office of Richard A.
Mulhearn, P.C. was on brief, for appellant.
Lawrence S. Elswit for appellees.
October 3, 2011
THOMPSON, Circuit Judge. For the better part of a
decade, Claudine Bhatti has been a dental hygienist at Boston
University's Dental Health Center. She claims that a series of
supervisors at the Center subjected her to unpaid work hours
because she is black and then to selective discipline and other
malfeasance in retaliation for questioning her unpaid hours. On
the University's1 motion for summary judgment, the district court
discerned only a series of essentially interpersonal grievances
insufficient to support Bhatti's claims. After careful review of
the record, we agree with the district court that the evidence does
not support Bhatti's claims. We affirm.
Because Bhatti's case is before us on her appeal from a
grant of summary judgment for the University, our framing of the
facts reflects the evidence in the light most favorable to her.
See Martínez-Rodríguez v. Guevara, 597 F.3d 414, 416 n.1 (1st Cir.
2010).
Bhatti — who, again, is black — began working at the
Center in January 2003, joining fellow dental hygienists Sally
Baldwin, Anne Jensen, and Julie Lidano, all of whom are white. Dr.
Eyad Haidar was Director of the Center from the time of Bhatti's
hire until July 2006. Reporting to Dr. Haidar was the Center's
Manager Jacqueline Needham, who directly supervised the hygienists.
1
Although the Trustees of Boston University are the named
defendants, for ease of reference we will treat the University as
if it were the defendant.
-2-
In 2004 the Center hired hygienist Stefanie Charity, who is black,
bringing the racial balance of the hygienists to three-to-two.
The Center's alleged discrimination against Bhatti began
right at the outset of her employment in 2003, as Needham told her
she had to perform a half-hour of unpaid setup time every morning
in addition to her basic forty-hour workweek. In contrast, Bhatti
says, the three white hygienists were credited for their setup time
as a part of their forty-hour weeks.2 Under Needham's supervision,
Bhatti maintains, she was thus subjected to a 45-hour3 workweek
while her white coworkers worked only the 40 hours they were paid
for.4 Making matters worse, she claims, a so-called unwritten rule
allowed her white counterparts to take extended lunch breaks and
leave up to 15 minutes5 early without having to place a written
2
Some of the other hygienists worked part-time for some
portion of the relevant time period, but there was always at least
one full-time hygienist besides Bhatti. For purposes of
comparison, we focus only on the full-time hygienists from here on
out.
3
Bhatti's claimed 45-hour workweek combines her scheduled
42.5 hours of work with her contested 2.5 hours of unpaid setup
time, and it ignores her not-at-issue daily hour-long lunch break.
We note that actually subtracting her five weekly hours of lunch
nets a 40-hour workweek.
4
Bhatti says that when confronted about these discrepancies,
Dr. Haidar claimed that they were a result of the hygienists'
having been hired under different administrations. This is
peculiar, but in the end it's neither here nor there because the
record does not reflect any actual scheduling discrepancies.
5
There is one instance in the record of a white hygienist
taking 30 minutes under the unwritten rule, but this appears to be
an anomaly.
-3-
request and without being charged sick or vacation time. But if
Bhatti wanted a similar deviation from her scheduled workday — an
extended lunch or early departure — she had to submit a written
request, and Needham would deduct the time from Bhatti's bank of
sick or vacation time. At least this is the picture Bhatti paints;
as we will discuss later, not all of Bhatti's claims have an
adequate evidentiary foundation in the record.
In 2005, Bhatti confronted Needham about the perceived
disparities based on an unwritten rule. Needham protested and
proclaimed offense, and Dr. Haidar was drawn into the dispute. He
clarified that the unwritten rule was just professional courtesy
that applied to Bhatti, too, while reserving the right to approve
or disapprove any scheduling deviations as might be necessary.6
Bhatti requested that Dr. Haidar restore to her a backlog of sick
and vacation time (or to compensate her for the time) in order to
honor the unwritten rule post hoc, but he declined to do so.
Bhatti's scheduling concerns ended in August 2005, when
the Center switched all the hygienists from salaried to hourly
status,7 ensuring that their pay would reflect the time they
6
Bhatti has suggested that Dr. Haidar only acknowledged
deviations of up to ten minutes. Again, this suggestion is neither
here nor there because the record does not reflect any actual
disparities.
7
Apparently this change was a response to new guidelines
issued by the United States Department of Labor interpreting the
Fair Labor Standards Act. As neither party discusses the change in
any depth and the issue is, in any event, tangential, we need not
-4-
actually worked and that they would be paid overtime for any hours
over their base forty. But just as one problem ended, another
began.
After her confrontation with Needham and her followup
with Dr. Haidar, Bhatti says, Center management began retaliating
against her. Specifically, she began receiving written reprimands
for infractions that she says either were minor or didn't occur at
all.
On September 7, 2005, Bhatti was called to a meeting with
Needham and Dr. Haidar; there, she was presented a memo discussing
"three performance issues that continue to be a problem despite our
many conversations": (1) an occasion where she had supposedly left
the Center during the workday without permission; (2) an occasion
where she had taken a sick day but failed to produce a doctor's
note; and (3) an occasion where she had used a cell phone at work.
Bhatti vigorously contested these purported performance issues,
explaining: (1) that she had arranged for a coworker to see her
patient while she rested in a vacant workstation because she felt
ill; (2) that the sick note policy was unevenly applied and,
furthermore, that far from abusing sick days, she had accrued an
entire month of unused leave; and (3) that she only used her cell
phone at work in emergency situations.
delve into it.
-5-
On September 12, 2005, Dr. Haidar issued a memo
chastising Bhatti for making a "derogatory remark" to Needham about
another Center manager, Yu-Wen Szeto. Specifically, after Szeto
had accused Bhatti of leaving two hours early without approval,
Bhatti said to Needham, "That is a lie!" Bhatti told Dr. Haidar
that she had not actually left the Center early and that her remark
was not actually derogatory.
On September 26, 2005, Bhatti met with Dr. Haidar and two
University officials and complained to the University that the
Center was subjecting her to racial discrimination. On September
30, Bhatti submitted a formal complaint to the University's Office
of Equal Opportunity and Affirmative Action.8 And finally on
November 1, Bhatti filed charges with the Massachusetts Commission
Against Discrimination (MCAD); the University responded in
December, denying any discrimination.9 Around this time, Bhatti
began seeing a therapist for treatment of job-related anxiety.
In the middle of this, on October 21, 2005, Needham and
Dr. Haidar again called a meeting with Bhatti to discuss alleged
performance issues. As usual, Bhatti disputed each of these
issues. And on June 22, 2006, Dr. Haidar issued yet another
8
The Equal Opportunity Office eventually found no evidence of
discrimination.
9
It is unclear from the record whether anything ever came of
the MCAD petition. For our purposes, though, all that matters is
that she filed it.
-6-
letter, this time reprimanding Bhatti for claimed insubordination
— faced with conflicting duties due to a scheduling snafu, Bhatti
had protested Dr. Haidar's request that she see a patient during a
meeting she was also supposed to attend. Once again, Bhatti
disputed the claim, noting that despite her initial protest she did
see the patient as Dr. Haidar had requested.
In July 2006, Dr. Haidar left the Center and Dr. Margaret
Errante took his place. Conditions markedly improved, although
Bhatti still complained about Needham's arbitrary supervision. In
March 2008, Dr. Errante forced Needham's resignation.
On August 6, 2008, Bhatti filed this action alleging
discrimination, retaliation, and a hostile work environment in
violation of various federal laws.10 The University answered and,
in April 2010, filed a motion for summary judgment denying any
discrimination but acknowledging that Bhatti had worked under less-
than-stellar management. Bhatti responded, pointing to scads of
evidence documenting grievances that she claimed could only be the
result of animus rather than reason.
On October 19, 2010, the district court granted the
motion, holding that none of Bhatti's grievances, individually or
in the aggregate, rose to the level of an adverse employment action
necessary for her to succeed in her suit. The district court
10
Bhatti amended the complaint two days later; this amended
complaint is the operative one.
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further held that the University had presented evidence
establishing that its bad management practices applied across the
board to employees of all races and that Bhatti had failed to
respond with adequate evidence of actual animus. Final judgment
entered on the same date. Bhatti timely appealed, and we have
jurisdiction under 28 U.S.C. § 1291.
We review the district court's summary judgment grant de
novo, assessing the arguments and the record ourselves and
affirming only if the record reveals undisputed facts that entitle
the University to judgment as a matter of law. See Baltodano v.
Merck, Sharp, and Dohme (I.A.) Corp., 637 F.3d 38, 41 (1st Cir.
2011).
Bhatti grounds her claims in both Title VII11 and 42
U.S.C. § 1981.12 The same legal framework applies to both statutory
bases. See Conward v. Cambridge Sch. Comm., 171 F.3d 12, 18-19
(1st Cir. 1999). This framework allows for distinct claims of
11
Title VII, at 42 U.S.C. § 2000e-2(a)(1), declares that "[i]t
shall be an unlawful employment practice for an employer . . . to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race."
12
42 U.S.C. § 1981(a) provides that "[a]ll persons . . . shall
have the same right . . . to make and enforce contracts . . . as is
enjoyed by white citizens." Section 1981(b) defines "make and
enforce contracts" as including "the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship."
Section 1981(c) extends these protections "against impairment by
nongovernmental discrimination."
-8-
disparate treatment, retaliation, and hostile work environment, all
of which Bhatti alleges, and all of which fit into the familiar
McDonnell Douglas burden-shifting scheme. See id. (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). We'll
spell out each claim in more detail below, but in general for a
claim to survive summary judgment under the burden-shifting scheme
Bhatti must first point to evidence making out a prima facie case.
Id. at 19. If she does so, this evidence creates a presumption of
discrimination that the University may rebut by pointing to
evidence of legitimate, non-discriminatory reasons for the
challenged conduct. Id. And if the University succeeds on this
showing then Bhatti may still prevail by pointing to evidence that
these reasons, though facially legitimate, are actually pretextual.
Id. Applying this framework, we begin by assessing Bhatti's
discrimination claim, then move on to retaliation, and finish with
hostile work environment.
Bhatti claims that the University discriminated against
her in several ways, first and most notably by requiring that she,
but not her white counterparts, perform unpaid setup time. A prima
facie case for discrimination based on disparate treatment presents
a four-part test: (1) the plaintiff must be a member of a protected
class; (2) she must be qualified for her job; (3) she must suffer
an adverse employment action at the hands of her employer; and (4)
there must be some evidence of a causal connection between her
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membership in a protected class and the adverse employment action,
e.g., in the case of a firing, that the position was filled by
someone with similar qualifications. St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506 (1993); Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000).
Essentially collapsing prongs three and four, Bhatti
contends that she had to work two-and-a-half more hours per week
than her white counterparts, without compensation. The University
responds that the record does not support Bhatti's claim of
scheduling disparities but instead shows that Bhatti and the white
hygienists worked and were paid for the same number of hours.
These positions are mutually exclusive, so it falls to us to
examine the record and see who is correct (or whether there is a
genuine dispute).
Bhatti's main evidence is her own interrogatory answers
and unsworn, out-of-court statements that she "learned" and "became
aware" of the alleged disparity because her coworkers "told" her
they were paid for setup time. But Bhatti's tenuous mentions of
her coworkers' out-of-court statements all constitute inadmissible
hearsay. See Dávila v. Corporación de Puerto Rico Para La
Difusión Pública, 498 F.3d 9, 17 (1st Cir. 2007). Bhatti has
pointed to no hearsay exception that might apply. And "[i]t is
black-letter law that hearsay evidence cannot be considered on
summary judgment for the truth of the matter asserted." Hannon v.
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Beard, 645 F.3d 45, 49 (1st Cir. 2011) (internal quotation marks
omitted). This makes sense. There is no way to test the
reliability of an amorphous, out-of-court statement or to gage the
intentions or credibility of the person who made the statement.
See United States v. Benitez-Avila, 570 F.3d 364, 367-68 (1st Cir.
2009). So, because they depend on hearsay, Bhatti's interrogatory
answers and other references to her coworkers' out-of-court
statements can have no bearing on our conclusion.
Other than that now-discounted evidence, Bhatti points to
the following spots in the record to support her claim of
scheduling disparities: (1) a schedule showing the white
hygienists' hours two years before Bhatti was hired, when the
Center operated under a different supervisor; (2) Needham's
testimony supporting the uncontroversial proposition that
"different employees work[ed] different hours"; and (3) her own
statement of undisputed facts from the district court record, which
has no independent evidentiary value but merely references sources
(1) and (2). None of these even remotely shows that "the schedules
of the three white hygienists made for a shorter workday than their
black counterparts" — the proposition they're cited to support.
Instead, the admissible evidence in the record — schedules showing
Bhatti's and the white hygienists' work hours and deposition
testimony from the other hygienists — indicates that unpaid setup
time was standard. The record reveals no scheduling disparity.
-11-
Bhatti also relies on other alleged disparities in the
University's treatment of the hygienists, particularly the
application of "workplace rules about the hygienists having to
request time off and be docked sick time when leaving early or
taking an extended lunch."13 More specifically, Bhatti alleges that
the other hygienists worked under an unwritten rule that a
deviation from the schedule of 15 minutes or less did not require
a supervisor's approval, but that she was unaware of this "rule"
for her first two years of employment. There are several problems
with this argument.
First, the rule was not a rule at all, but rather an
acknowledgment on the part of Center directors that their
hygienists were professionals who could be trusted to perform their
work duties without recourse to draconian schedule enforcement.
Dr. Haidar said allowing the hygienists to leave 10-15 minutes
early at the end of the day when they had no work duties left to
perform was simply a matter of trust that he extended to everyone.
Indeed, the evidence all suggests that the "rule" was nothing
insidious at all but rather simple professional courtesy.
13
Bhatti notes in a parenthetical sentence that "[o]ne, of
course, questions whether this practice was lawful under federal
and state wage laws where the hygienists were supposed to be
salaried, exempt workers." We need not consider this rhetorical
question, though, because it was not raised in the complaint,
developed below, or really addressed at all.
-12-
Additionally, there is no evidence that Bhatti was ever
actually denied this professional courtesy. For one, the other
hygienists testified that they only took advantage of it
occasionally, in particular when their last patient of the day
failed to show. But the evidence indicates that when Bhatti's last
patient of the day cancelled, she would generally take 45 minutes
to an hour off instead of staying at the Center until the workday
was almost complete. In fact, Bhatti never submitted a leave
request seeking fewer than 20 minutes off. There's simply no
indication in the record — and, most importantly, no testimony from
Bhatti — that she ever would have departed work 15 minutes early
but did not because she was unaware that leaving early was an
option. Instead, Bhatti's evidence reflects only vagaries and
generalities about how, e.g., she "had been required to submit a
form requesting time off when she left early." This statement, and
the rest of Bhatti's evidence on this point, does no more than
reflect the Center's formal policy of requiring leave request forms
but occasionally bypassing this requirement as a professional
courtesy if work wrapped up early at the end of the day. In the
end, the evidence shows that all hygienists had to submit a leave
request if they left more than 15 minutes early and that no
hygienists, including Bhatti, had to submit a leave request if they
left fewer than 15 minutes early, so we can discern no disparate
treatment.
-13-
Finally, even if we assume — despite the above discussion
— that Bhatti has made out a prima facie case of discrimination,
the claim fails under the burden-shifting regime that governs
employment discrimination cases. See Conward, 171 F.3d at 19. The
University has pointed to non-discriminatory reasons as to why
Bhatti may not have been aware of the Center's extension of
professional courtesy to the hygienists, and Bhatti has pointed to
no evidence of actual bias or pretext. Specifically, the other
hygienists learned of the Center's workplace policies from their
supervisors when they were hired — well before Needham and Bhatti
arrived. Bhatti learned of workplace policies and practices from
Needham, who according to her deposition testimony knew nothing of
the Center's practices regarding de minimis scheduling deviations.
In fact, Needham says she was unaware of any hygienist leaving
early without submitting a leave request. Once Bhatti learned of
the courtesy extended to others, she raised the issue with Dr.
Haidar, who immediately clarified that she, too, was entitled to
this courtesy. Again, this uneven communication between
administration personnel and between administration and staff
certainly suggests some dysfunction in the Center's management, but
it does not show bias.14
14
Also notable on the issue of bias is the lack of testimony
from Stefanie Charity, the other black hygienist. An employer's
treatment of similarly situated workers can be evidence of bias,
see Brown v. Trustees of Boston University, 891 F.2d 337, 349 (1st
-14-
These problems are dispositive: because there is no
evidence in the record that Bhatti was ever actually denied a 10-
to 15-minute early departure, such a nonexistent denial cannot
support her discrimination claim. And beyond that, because she
cannot show bias, the claim must fail anyway.
Bhatti's last discrimination claim stems from the
Center's alleged failure to provide her with annual performance
reviews before 2007. This claim falters because the record
contains her annual performance reviews for the years 2004-2005,
2005-2006, 2006-2007, and 2007-2008.15 Thus, there is only one
missing performance review (2003-2004), and its absence is not
materially adverse because Bhatti received a merit raise in 2004.
Because the factual predicate for Bhatti's missing-performance-
review claim turns out to be false, the claim fails.
On to retaliation. Bhatti claims that the University
retaliated against her, primarily by issuing written warnings, in
response to her complaints of race discrimination. To succeed on
a retaliation claim, a plaintiff must show that her employer took
some objectively and materially adverse action against her because
she opposed a practice forbidden by Title VII, such as race
discrimination. Burlington Northern & Santa Fe Ry. Co. v. White,
Cir. 1989), and the absence of any such evidence here is telling.
15
Bhatti's reviews' date-ranges reflect academic rather than
calendar years.
-15-
548 U.S. 53, 59, 68 (2006). Bhatti claims that the reprimands she
suffered at the hands of Needham and Dr. Haidar were materially
adverse employment actions.
We have found before that a reprimand may constitute an
adverse action, Billings v. Town of Grafton, 515 F.3d 39, 54-55
(1st Cir. 2008), but the reprimands at issue here are tamer beasts
than the one in Billings. Specifically, none of the reprimands
here can be said to be material because none carried with it any
tangible consequences. Rather, each was merely directed at
correcting some workplace behavior that management perceived as
needing correction; her working conditions were never altered
except in the positive direction.16 Bhatti may well be right that
these reprimands were undeserved — indeed, she presents enough
evidence that we may safely presume her to be blameless (or nearly
so) in each instance for summary judgment purposes — but a
criticism that carries with it no consequences is not materially
adverse and therefore not actionable. In the end, this means her
retaliation claim fails as a matter of law.
Finally, Bhatti claims the University subjected her to a
racially-motivated hostile work environment where (as outlined
16
Far from suffering any actual adversity, Bhatti has received
regular raises and a permanent workstation, and the most recent
evidence shows that she receives generally positive comments on her
performance reviews. Moreover, when she raised a valid issue
regarding the Center's sick leave policy, the University responded
by crediting each hygienist with an additional 22 hours of leave.
-16-
above) she was subject to reprimand for the slightest misstep and
regularly belittled and mistreated by her supervisors. To make out
a prima facie case of a hostile work environment, Bhatti must point
to evidence showing, inter alia, that facts and circumstances of
her employment viewed objectively were so "severe," "pervasive,"
and "abusive" as to "alter the conditions" of her job. Vega-Colón
v. Wyeth Pharmaceuticals, 625 F.3d 22, 32 (1st Cir. 2010) (internal
quotation marks omitted). On this point, we must consider several
factors, none of which is individually determinative: "the
frequency of the discriminatory conduct; its severity; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee's work performance." Id. (internal quotation marks
omitted).
Bhatti cites several grounds for her hostile work
environment claim: the requirement (belied by the record) that she
work longer hours than her white counterparts, the unwritten rule
about time off that applied to her coworkers but not to her, and
Center management's selective enforcement of workplace rules
against her in the form of critical memoranda. We have already
held that, taken individually, none of these grounds amounts to an
adverse employment action. Nevertheless, we must consider whether
they amount to a hostile work environment in the aggregate.
-17-
The answer is no. The Center's conduct toward Bhatti was
far from severe, never physically threatening, generally conducted
in private so as not to be humiliating, and never overtly
offensive; moreover, Bhatti has pointed to no effect whatsoever on
her work performance. True, she sought psychological counseling,
but this is evidence of subjective offense at best. Objectively,
the Center's conduct here might have crossed the boundary from
professional to unprofessional, but it never reached the level of
abuse. And where a workplace objectively falls short of that
"abusive" high-water-mark, it cannot sustain a hostile-work-
environment claim.
The district court got this one right as a matter of both
disposition and description: Bhatti has succeeded only in showing
"a litany of petty insults, vindictive behavior, and angry
recriminations." As these are not actionable, we uphold the
district court's grant of summary judgment for the University on
all claims.
AFFIRMED.
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