Lima v. City of East Providence

17 F.4th 202

• Court: Court of Appeals for the First Circuit
• Decided: November 3, 2021
• Docket: 20-1688P
• Status: Published

Opinion

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

- 2 - 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.

- 3 - 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

- 4 - 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

- 5 - 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

- 6 - 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

- 7 - 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

- 8 - 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.

- 9 - (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

- 10 - 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.

- 11 - 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).

- 12 - 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,

- 13 - 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.

- 14 -