Lockridge v. the University of Maine System

United States Court of Appeals
For the First Circuit

No. 09-1895

REBECCA LOCKRIDGE,

Plaintiff, Appellant,

v.

THE UNIVERSITY OF MAINE SYSTEM,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]

Before

Torruella, Boudin and Howard,
Circuit Judges.

Eric M. Mehnert, with whom Hawkes & Mehnert, LLP, was on
brief, for appellant.
Kai W. McGintee, with whom Patricia A. Peard and Bernstein
Shur, were on brief, for appellee.

March 10, 2010
 HOWARD, Circuit Judge. In 2008, Professor Rebecca

Lockridge sued her employer, the University of Southern Maine,

claiming, among other things, three violations of Title VII (42

U.S.C. § 2000e et seq.): (1) gender discrimination (relating to

the denial of a pay raise); (2) retaliation (relating to the denial

of her request to move to another office); and (3) hostile work

environment (relating to various incidents that occurred during her

tenure at the University). The district court, adopting a

magistrate judge's recommendation, granted summary judgment to the

University on all three claims. Lockridge appeals. After review,

we affirm.

I.

The facts, discussed at length in the magistrate judge's

decision, Lockridge v. Univ. of Me. Sys., No. 08-146-P-S, 2009 U.S.

Dist. LEXIS 38544, at *4-30 (D. Me. Apr. 23, 2009), can be briefly

summarized. Because summary judgment was granted against

Lockridge, we state these facts in the light most favorable to her,

drawing all reasonable inferences in her favor. Rathbun v.

Autozone, Inc., 361 F.3d 62, 64 (1st Cir. 2004).

In 1984, Lockridge began work at the University as an

Assistant Professor of Communication. Her position was tenure-

track and part of the University's Department of Communications.1

1
Sometime in 2003 or 2004, the University decided to combine
the Department of Communications and its Media Studies program to
create a new department, the aptly named "Department of

-2-
 From 1985 to 2008, Lockridge suffered through a number of

incidents at work. In addition to incidents we will discuss

separately and in greater detail, the record contains evidence of

the following:

In 1985, a fellow professor, Leonard
Shedletsky, made what Lockridge considered to
be sexually inappropriate overtures toward her
on two separate occasions. When Lockridge
rejected these overtures, Shedletsky began to
appear difficult and angry with her. In 1989,
in his capacity as a member of a tenure
evaluation committee assigned to review
Lockridge, Shedletsky recommended that
Lockridge not be granted tenure. Despite his
recommendation, Lockridge was ultimately given
tenure.

In 1992, Lockridge became Chair of the
Department of Communications. Shedletsky
chafed under Lockridge's authority,
frustrating her ability to carry out her
responsibilities as Chair. Eventually,
Shedletsky requested that the Dean remove
Lockridge from her position. During a meeting
in 1993, faculty members voted to remove
Lockridge as Chair. Immediately after this
meeting, an article entitled "Accused of
Sexual Harassment," which had been written by
Shedletsky, was placed in Lockridge's on-
campus mailbox.

From 1991 to 2006, Lockridge, during various
work-related activities, heard a fellow
professor, Richard West, make at least seven
sexually charged "jokes" or comments, most
concerning either his status/lifestyle as a
gay male or his sexual organs.

Communications and Media Studies." For ease of exposition, and
because it makes no difference in our analysis, we will refer to
Lockridge's department as the Department of Communications
throughout this opinion.

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 In 2006, Lockridge came up for "post-tenure" review.

This review consisted of professors being evaluated over a four

year period in three areas: teaching, service, and scholarship.

Professors who received a satisfactory rating in all three areas

were eligible for a pay raise.

The peer review committee assigned to review Lockridge

rated her scholarship "unsatisfactory." Not pleased by this,

Lockridge wrote a letter to Devinder Malhotra, the Dean of the

College of Arts and Sciences, questioning whether there was "gender

bias at work." Malhotra thereafter conducted an independent review

of Lockridge's scholarship and also rated it "unsatisfactory."

Malhotra noted that at the time of Lockridge's review, she had not

published a book or juried/peer reviewed article in approximately

fourteen years, and that during the four-year review period, she

had produced only "four conference presentations and a chapter in

a book." Because of this unsatisfactory scholarship rating,

Lockridge was denied a pay raise. Convinced that she was denied a

pay raise because she was a woman, Lockridge filed a complaint with

the Maine Human Rights Commission (MHRC) in December 2006.

Not long after this, in May 2007, the University reviewed

a tenured male professor in the Department of Communications,

Russell Kivatisky. The peer review committee assigned to review

Kivatisky, which included Lockridge, rated his scholarship

"satisfactory" despite the fact that he had published less than

-4-
Lockridge during the four-year review period. In reviewing his

scholarship, however, the committee noted that Kivatisky was on a

"non-scholarly track for evaluation." Non-scholarly track

professors are not expected to produce scholarship at the same rate

as scholarly track professors.

During this time period, Lockridge, like many faculty

members in the Department of Communications, worked out of a

satellite office on the University's campus. These satellite

offices were necessary due to the limited space in the Department's

hub, the Chamberlain Street building. Sometime in late 2007 or

early 2008, however, an office in the Chamberlain Street building

became available. Because these offices were desirable -- they

were located at the Department's center and had direct access to

the Department's administrative support staff -- they were

typically assigned based partially on seniority. Lockridge

requested that she be given the vacant office. The University

denied her request. When explaining the denial to Lockridge in a

letter, Kivatisky, who had become the Department Chair, wrote,

"given the continuing legal issues2, I want to be particularly

sensitive to the climate in the office and the working environment

of the staff." Kivatisky also told Lockridge that, "Some find your

attitude toward them to be demeaning. They find this ironic given

2
The parties appear to agree that Kivatisky was referring to
the 2006 administrative complaint filed by Lockridge.

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your feminist stance . . . ." The University later assigned the

office to a female faculty member less senior than Lockridge.

In February 2008, Lockridge sued the University in Maine

state court, claiming, inter alia, gender discrimination (based on

the denial of a pay raise) and retaliation (based on the denial of

her office request). Lockridge also brought a hostile work

environment claim, relying on all of the acts discussed above. The

University removed the case to federal court and, in due time,

moved for summary judgment, which was granted. This appeal ensued.

II.

We review a district court's grant of summary judgment de

novo. Rodi v. S. New Eng. Sch. of Law, 532 F.3d 11, 15 (1st Cir.

2009). Summary judgment is appropriate "if the pleadings, the

discovery and disclosure materials on file, and any affidavits show

that there is no genuine issue as to any material fact and the

movant is entitled to judgment as a matter of law." Fed. R. Civ.

P. 56(c).3

A. Gender discrimination

Title VII prohibits employers from discriminating against

an employee with respect to her compensation on the basis of

3
A "material" fact is one "that might affect the outcome of
the suit under the governing law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is
"genuine" only "if a reasonable jury could resolve it in favor of
either party." Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.
2004) (quoting Basic Controlex Corp., Inc. v. Klockner Moeller
Corp., 202 F.3d 450, 453 (1st Cir. 2000)).

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gender. 42 U.S.C. § 2000e-2(a)(1). Here, Lockridge claims that

the University denied her a pay raise because she was a woman.

Because Lockridge failed to proffer any direct evidence

of gender discrimination, her claim is generally governed by the

burden shifting scheme set out by the Supreme Court in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Garcia v.

Bristol-Myers Squibb Co., 535 F.3d 23, 31 n.2 (1st Cir. 2008).

Under this scheme, a plaintiff-employee must first establish a

prima facie case of gender discrimination. Kosereis v. Rhode

Island, 331 F.3d 207, 212 (1st Cir. 2003). The elements of the

prima facie case vary according to the nature of the plaintiff's

claim, but the plaintiff must show, among other things, that she

suffered an adverse employment action. Garcia, 535 F.3d 31 n.2.

If the plaintiff establishes this prima facie case, the burden of

production -- but not the burden of persuasion -- shifts to the

employer, who must articulate a legitimate, non-discriminatory

reason for the adverse employment action. See id. If the employer

does so, the focus shifts back to the plaintiff, who must then

show, by a preponderance of the evidence, that the employer's

articulated reason for the adverse employment action is pretextual

and that the true reason for the adverse action is discriminatory.

Smith v. Stratus Computer, 40 F.3d 11, 16 (1st Cir. 1994).

We will assume for the sake of analysis that Lockridge

has met her modest burden of establishing a prima facie case. See

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Garcia, 535 F.3d at 30-31. The University, in turn, has met its

burden of production, as it has identified a legitimate, non-

discriminatory reason for denying Locrkidge a pay raise: her

unsatisfactory scholarship. For purposes of the summary judgment

analysis, then, the question reduces to whether Lockridge has

identified evidence that would enable a reasonable jury to find

that the University's proffered reason is pretextual and that

Lockridge was in fact denied the pay raise because she was a woman.

Id. at 31.

Lockridge focuses most of her efforts on exposing the

University's proffered reason as pretextual. See St. Mary's Honor

Ctr. v. Hicks, 509 U.S. 502, 517 (explaining that "proving the

employer's [articulated] reason false becomes part of (and often

considerably assists) the greater enterprise of proving that the

real reason was intentional discrimination")4. She proceeds on a

differential treatment theory, reasoning that the University's

"unsatisfactory scholarship" explanation must be pretextual because

the University gave a similarly situated male professor, Russell

Kivatisky, a satisfactory scholarship rating despite the fact that

he published less than she. See Garcia, 535 F.3d at 31

(recognizing that "[a] plaintiff can demonstrate that an employer's

4
Indeed, "[t]he factfinder's disbelief of the reasons put
forward by the defendant (particularly if disbelief is accompanied
by a suspicion of mendacity) may, together with the elements of the
prima facie case, suffice to show intentional discrimination." Id.
at 511.

-8-
stated reasons are pretextual . . . by producing evidence that

[the] plaintiff was treated differently from similarly situated

employees").

But to prove differential treatment at trial, Lockridge

would need to show that Kivatisky was similarly situated to her "in

all relevant respects." Id. (quoting Kosereis, 331 F.3d at 214);

Conward v. Cambridge Sch. Comm., 171 F.3d 12, 20 (1st Cir. 1999)

(noting that the comparison cases "must closely resemble one

another in respect to relevant facts and circumstances"). She

cannot hope to do so. At the time of his review, Kivatisky, unlike

Lockridge, was on a "non-scholarly" track. Lockridge acknowledged

as much when she, as a member of the peer review committee

evaluating Kivatisky, signed a letter to the Dean which read, "When

considering scholarship, the committee noted that Russ [Kivatisky]

has been on a 4-4 teaching load for the past two academic years

and, therefore, sets up a non-scholarly track for evaluation."

(emphasis added). The difference between scholarly track

professors and non-scholarly track professors is material in this

case. Non-scholarly track professors are not expected to produce

scholarship at the same rate as scholarly track professors.5

Lockridge attempts to draw the sting of this letter by

calling into question the peer review committee's statement that

5
At no point has Lockridge claimed that non-scholarly track
professors are situated similarly to scholarly track professors.

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Kivatisky's "4-4 teaching load" put him on a non-scholarly track.

She notes that, when deposed, the current Department Chair, Dan

Panici, testified that a professor who carries a 4-4 teaching load

is not exempt from scholarship obligations.

This testimony, however, is not necessarily inconsistent

with the statement made in the letter. A professor carrying a 4-4

teaching load may well have minor scholarship obligations that do

not disqualify the professor from being on a non-scholarly track.

In any event, even if Panici's testimony does cast some doubt on

the statement made in the letter, the fact remains that Lockridge

herself endorsed this statement and explicitly acknowledged

Kivatisky's different scholarship obligations. Though given an

opportunity, she has yet to adequately explain why she did so.6

Ultimately, given the material difference between

Kivatisky and Lockridge, and the lack of any other evidence

suggesting that the University's proffered reason was pretextual,

Lockridge's gender discrimination claim (to the extent it is

premised on differential treatment) fails as a matter of law. See

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149 (2000)

(explaining that judgment as a matter of law is appropriate where

6
At oral argument, when asked why Lockridge signed the
letter, Lockridge's counsel theorized that Lockridge signed it
because of hostile pressures in her work environment. But, because
he could not provide any record support for this theory, this
amounts to "unsupported speculation" which is insufficient to
forestall summary judgment. See Feliciano de la Cruz v. El
Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).

-10-
"there is no legally sufficient evidentiary basis for a reasonable

jury to find for [a] party on [a particular] issue").

In a last gasp effort, Lockridge claims that, at the very

least, the University had "mixed motives" when denying her the pay

raise. To prevail on a mixed-motive theory of discrimination,

Lockridge would need to establish that the decision to deny her a

pay raise was at least partially motivated by her status as a

woman. Sher v. U.S. Dep't of Veterans Affairs, 488 F.3d 489, 508

n.22 (1st Cir. 2007). She cannot do so as a matter of law.

Although Lockridge claims that the various incidents that occurred

at the University between 1985 and 2006 serve as circumstantial

evidence that the decision to deny her a pay raise was motivated by

her gender, the incidents she identifies have no discernible

connection to that decision.

B. Retaliation

Title VII's anti-retaliation provision, 42 U.S.C.

§ 2000e-3(a), seeks to prevent employers from retaliating against

an employee for attempting to enforce rights under Title VII.

DeCaire v. Mukasey, 530 F.3d 1, 19 (1st Cir. 2008). In relevant

part, the retaliation provision makes it illegal "for an employer

to discriminate against any of his employees . . . because he has

opposed any practice made [] unlawful by [this subchapter] . . . or

because he has made a charge, testified, assisted, or participated

in any manner in an investigation, proceeding, or hearing" under

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this subchapter. 42 U.S.C. § 2000e-3(a). Lockridge claims that

after she filed a discrimination complaint with the MHRC, the

University retaliated against her by denying her request for an

office in the Chamberlain Street building.

Lockridge's retaliation claim, like her gender

discrimination claim, is generally governed by McDonnell Douglas'

burden shifting scheme. Calero-Cerezo v. U.S. Dep't of Justice,

355 F.3d 6, 25-26 (1st Cir. 2004). Accordingly, Lockridge must

first establish a prima facie case of retaliation by showing that

(1) she engaged in a statutorily protected activity; (2) she

suffered a materially adverse employment action; and (3) the

protected activity and the adverse employment action were causally

connected. Marrero v. Goya of P.R., Inc., 304 F.3d 7, 22 (1st Cir.

2002). The primary dispute in this case is over the second factor,

whether Lockridge suffered a materially adverse employment action.

To be materially adverse, the challenged employment

action must be one that could "'dissuade a reasonable worker from

making or supporting a charge of discrimination.'" Dixon v. Int'l

Bhd. of Police Officers, 504 F.3d 73, 81 (1st Cir. 2007) quoting

Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 57 (2006)).

This is an objective test and "'should be judged from the

perspective of a reasonable person in the plaintiff's position,

considering all the circumstances.'" Burlington N. & Santa Fe Ry.

-12-
Co., 548 U.S. at 71 (quoting Oncale v. Sundowner Offshore Services,

Inc., 523 U.S. 75, 81 (1998)).

In its decision recommending summary judgment for the

University, the magistrate judge ruled that the denial of an

employee's request for office space cannot, as a categorical

matter, be a materially adverse employment action. We disagree.

After Burlington Northern, employment actions are less susceptible

to categorical treatment when it comes to the question of whether

they are or are not materially adverse. We think that, under

certain circumstances, the denial of an employee's request for

office space could dissuade a reasonable person from making or

supporting a charge of discrimination. Indeed, we have previously

concluded that "disadvantageous transfers or assignments" can be

materially adverse, although in the context of conditions more

severe than those attending the usual employee office space

request. See Valentin-Almeyda v. Municipality of Aguadilla, 447

F.3d 85, 95 (1st Cir. 2006) (finding a totality of assignments,

which included a police officer's transfer for an "unusually long"

duration to a "remote and solitary" duty site that was "regarded as

punishment" by officers, to constitute adverse employment action).

Moving from the general to the specific, the question

becomes whether the University's denial of Lockridge's particular

request for office space amounted to a materially adverse

employment action. In arguing that it did, Lockridge says that the

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Chamberlain Street office that she desired had distinct advantages

over the satellite office she occupied, namely, administrative

support, more opportunities for professional interaction and

development, and better access to information about Department

goings-ons. These allegations find some support in the record,

although neither very particular nor strong. Lockridge testified

during discovery that the lack of administrative support took time

away from her research and writing and that being separated from

faculty members in the Department hub made her feel "excluded and

ostracized." She also entered into evidence an email exchange with

Kivatisky in which she complained that her location in the

satellite office "excluded [her] from the informal exchanges of

information that occur on an impromptu basis with the result that

I often feel uninformed about the structure, curriculum, and

direction of the Department."

Regardless, on the undisputed record, Lockridge's

continued location in a satellite office was not unique. The

attendant inconveniences may not have been optimal, but neither did

they affect Lockridge more adversely than they did some of her

colleagues. Lockridge herself observes that other faculty members

within the Department, including those senior to her such as

Shedletsky, were similarly located in satellite offices. So,

although Lockridge's request for a better office may have been a

reasonable one, the fact remains that the denial left her in no

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worse a position than that held by similarly situated faculty

members. Under these circumstances, we cannot see how one could

find that the denial of Lockridge's request could "dissuade a

reasonable worker from making or supporting a charge of

discrimination." Burlington Northern, 548 U.S. at 57.

C. Hostile work environment

"Title VII's ban on employment practices . . . extends to

sex-based discrimination that creates a hostile or abusive work

environment." Billings v. Town of Grafton, 515 F.3d 39, 47 (1st

Cir. 2008). This type of hostile or abusive work environment is

generally referred to as "sexual harassment." Id. Lockridge

claims that, beginning in 1989, she was subjected to a hostile work

environment within the Department of Communications.

To establish a claim of "hostile work environment sexual

harassment," 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."

Forrest v. Brinker Int'l Payroll Co., LP, 511 F.3d 225, 228 (1st

Cir. 2007). In support of her claim, Lockridge identifies a number

of incidents that occurred between 1989 and 2008. These incidents

include: (1) Shedletsky's 1989 recommendation denying her tenure

after Lockridge's rejection of his alleged sexual overtures; (2)

the placement of a sexual harassment article in her work inbox in

1993 after she was removed as Department Chair; (3) West's various

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jokes and comments about sex and sexuality that occurred between

1991 and 2006; (4) the University's decision to deny her a pay

raise in 2006; and (5) the University's decision to deny her

request for office space in 2008.

In its defense, the University argues that Lockridge's

claim fails as a matter of law because it relies predominantly on

untimely acts, specifically, acts that occurred before February 22,

2006 (which is as far back as the statute of limitations reaches).

Lockridge, although conceding that most of the aforementioned acts

fall outside the limitations period and are integral to her claim,

argues that the "continuing violation doctrine" permits her to rely

on the untimely acts. This doctrine, an equitable exception to

Title VII's statute of limitations, "allows an employee to seek

damages for otherwise time-barred allegations if they are deemed

part of an ongoing series of discriminatory acts and there is 'some

violation within the statute of limitations period that anchors the

earlier claims.'" O'Rourke v. City of Providence, 235 F.3d 713,

730 (1st Cir. 2001) (quoting Provencher v. CVS Pharmacy, 145 F.3d

5, 14 (1st Cir. 1998)).

For the continuing violation doctrine to apply, Lockridge

needs to establish that a discriminatory "anchoring act" occurred

within the limitations period. Noviello v. City of Boston, 398

F.3d 76, 86 (1st Cir. 2005). To qualify as an anchoring act, the

discriminatory act must "substantially relate[] to [the] earlier

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incidents of abuse." Id.; Sabree v. United Bhd. of Carpenters &

Joiners Local No. 33, 921 F.2d 396, 401 (1st Cir. 1990).7

Lockridge purports to identify two anchoring acts: the 2006 pay

raise denial and the 2008 office space denial.

Neither qualifies as an anchoring act. For reasons

already discussed, the identified acts are not actionable as a

matter of law. Lawton v. State Mut. Life Assur. Co. of Am., 101

F.3d 218, 222 (1st Cir. 1996) ("Common sense teaches that a

plaintiff cannot resuscitate time-barred acts, said to be

discriminatory, by the simple expedient of linking them to a non-

identical, non-discriminatory, non-time barred act.") (emphasis

added).

Our conclusion that Lockridge cannot avail herself of the

continuing violation doctrine sounds the death knell for her

hostile work environment claim. Without reliance on the untimely

events, the claim fails as a matter of law.

III.

For the reasons provided above, we affirm the entry of

summary judgment for the University on all claims.

Affirmed.

7
In O'Rourke, we explained that a court, when ascertaining
whether an anchoring act is "substantially related" to an untimely
act, should ask if the subject matter of the anchoring act is
"sufficiently similar" to that of the untimely act. 235 F.3d at
731.

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