United States Court of Appeals For the First Circuit
No. 18-2115
JOYCE PAUL,
Plaintiff, Appellant,
v.
EMILY W. MURPHY, Administrator, General Services Administration,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O'Toole, Jr., U.S. District Judge]
Before
Lynch, Selya, and Barron, Circuit Judges.
Ana Muñoz, with whom Zalkind Duncan & Bernstein LLP was on brief, for appellant. Erin Brizius, Assistant United States Attorney, with whom Andrew E. Lelling, United States Attorney, was on brief, for appellee.
January 24, 2020 BARRON, Circuit Judge. This appeal concerns a federal
sex and age discrimination suit against the Administrator of the
United States General Services Administration ("GSA") by a former
employee of that agency. The District Court granted summary
judgment to the defendant on each of the former employee's claims.
We affirm.
I.
The former employee is Joyce Paul. She was employed as
a Contract Specialist with the GSA from 2000 until she retired in
February of 2009 at the age of sixty-five.1 Her suit against the
Administrator may be traced to actions that were taken by Ivan
Lopez, who, in April of 2006, became her supervisor at the GSA and
began overseeing her work and conducting her performance reviews.2
1 "We recite the relevant facts in the light most favorable to [Paul], the non-moving party." Santangelo v. N.Y. Life Ins. Co., 785 F.3d 65, 67 n.1 (1st Cir. 2015). 2 On appeal, Paul asserts that Lopez became her supervisor in April of 2007, but she points to no evidence in the record to support this contention. The District Court found that Lopez became Paul's supervisor in April of 2006, and the record evidence shows that Lopez began conducting Paul's performance reviews as her supervisor in 2006. Under the Local Rules of the United States District Court for the District of Massachusetts, Paul was deemed to have admitted any material facts on which the defendant said there was no genuine issue to be tried if she did not set them forth in her own motion in opposition to summary judgment. See D. Mass. R. 56.1. The defendant's Rule 56.1 motion included the April 2006 date as an undisputed fact, and the plaintiff wrote that she "agree[d]" with the defendant on this point. See Cochran v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003) (explaining that a plaintiff's failure to contest a fact in the Rule 56.1 statement caused that fact to be admitted).
- 2 - GSA supervisors are required to conduct, at a minimum,
a midyear and an annual performance review. Performance reviews
are based on a ranking between Level 1 and Level 5 (with 5 being
the highest) for individual critical elements, such as
communication, teamwork, and customer relationship management.
Those rankings are used to determine the employee's summary ranking
(also between Level 1 and 5).
A Level 3 summary ranking is the expected level of
performance. An employee cannot receive a summary ranking above
Level 2 if the employee receives a Level 2 ranking or lower for
any individual critical element.
If an employee receives a summary ranking of Level 2,
GSA policies strongly suggest that the employee's supervisor
should develop a corrective action plan. Further, under GSA
policies, employees who receive a Level 2 summary ranking are no
longer eligible for telework arrangements, within-grade pay
increases, promotions, or organizational performance awards.
Before Lopez began conducting Paul's performance
reviews, she received a Level 3 summary ranking on her midyear
2005 performance review. Once Lopez began conducting Paul's
performance reviews, she received a Level 3 summary ranking for
- 3 - her 2006 and 2007 annual performance reviews.3 Subsequently,
however, Lopez gave her a Level 2 summary ranking on her 2008
midyear review.
Following that ranking, Lopez developed a Performance
Assistance Plan ("PAP") for Paul in August of that year. The PAP
required Paul to meet weekly with Lopez to discuss her work and
prohibited Paul from teleworking until her performance improved.4
Two months later, in October of 2008, Paul received an
Official Warning Notice from Lopez after she raised her voice
during one of her weekly PAP meetings with him. Paul thereafter
received a Level 2 summary ranking for her 2008 annual performance
review. Lopez developed another PAP for Paul in January of 2009.
That PAP also required her to meet with him weekly and prohibited
her from teleworking. Paul retired about one month later, in
February of 2009.
On January 15, 2009, Paul filed a formal complaint with
the United States Equal Employment Opportunity Commission
("EEOC"). She alleged discrimination by Lopez and the GSA based
on sex, age, and religion. She also alleged that she had been
retaliated against for earlier EEOC activity.
3The record shows that Lopez also conducted Paul's midyear performance review in May of 2007. The copy of the review in the record does not include a numerical ranking of Paul's performance. 4Lopez had previously reduced the number of Paul's telework days from four per two-week period to three.
- 4 - Following the administrative complaint process, Paul
filed a pro se complaint in the United States District Court for
the District of Massachusetts in September of 2011 against GSA
Administrator Martha Johnson.5 The complaint alleged a number of
claims for sex and age discrimination, including for constructive
discharge. The complaint also alleged claims for retaliation based
on attempts to redress such discrimination. The claims were,
presumably, based on, respectively, Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII"), which bars
sex discrimination in employment and retaliation by an employer
for an employee's attempt to redress it, and the Age Discrimination
in Employment Act of 1967, 29 U.S.C. § 621 et seq., ("ADEA"), which
bars age discrimination in employment and an employer's
retaliation for an employee's attempt to redress it. Paul's
complaint did not, however, expressly refer to either of those
statutes.
The District Court referred the case to a Magistrate
Judge. The defendant followed with a motion for summary judgment
on all claims, and the Magistrate Judge issued a Report and
Recommendation ("R&R") that recommended granting that motion.
Paul filed no objections to the R&R, and the District Court adopted
5 Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Administrator Emily W. Murphy has been substituted for former Administrator Martha Johnson as respondent.
- 5 - it. The District Court then granted summary judgment for the
defendant as to all claims in September of 2013.
At that point, however, Paul moved for relief from the
judgment. She did so on the ground that she had not received the
R&R and so had no opportunity to respond to it. The District Court
granted Paul's request. Paul then filed objections to the R&R.
On September 11, 2018, the District Court once again adopted the
R&R and granted the defendant's motion for summary judgment as to
all her claims, including those in which she alleged that she had
been constructively discharged. This appeal followed.6
II.
We start with Paul's sex discrimination claims under
Title VII. We then consider her age discrimination claims under
the ADEA. Finally, we consider the retaliation claims that she
brings under both statutes. We review the District Court's grant
of summary judgment de novo. Santangelo v. N.Y. Life Ins. Co.,
785 F.3d 65, 68 (1st Cir. 2015). We may affirm a grant of summary
judgment "on any ground revealed by the record." Id. (quoting
Houlton Citizens' Coal. v. Town of Houlton, 175 F.3d 178, 184 (1st
6Paul does not challenge on appeal the District Court's grant of summary judgment to the defendant on either her hostile work environment claim of sex discrimination under Title VII or her religious discrimination claims under that statute. Nor does she challenge on appeal the District Court's grant of summary judgment to the defendant on her hostile work environment claim under the ADEA.
- 6 - Cir. 1999)). The moving party is entitled to summary judgment
when the record, viewed in the light most favorable to the non-
moving party, "discloses 'no genuine issue of material fact' and
[thus] demonstrates that 'the moving party is entitled to a
judgment as a matter of law.'" Iverson v. City of Bos., 452 F.3d
94, 98 (1st Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). The non-
moving party may "defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that a
trialworthy issue persists." Id.
A.
The District Court treated Paul's claims for sex
discrimination as arising under Title VII, and we follow the
District Court in analyzing them under the burden-shifting
framework that the United States Supreme Court set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).7 Under that
framework, the plaintiff, to survive summary judgment, must put
forth evidence from which a reasonable juror could find that she
had established a prima facie case of discrimination under Title
VII -- namely, "that: (1) she belonged to a protected class,
7 The District Court also followed the Magistrate Judge in treating Paul's Title VII claims as if they had been brought under 42 U.S.C. § 2000e-2(a) in particular, and neither Paul nor the defendant challenges that treatment of her claims on appeal, although we note that Title VII includes a separate provision that applies to claims against federal government employers. See 42 U.S.C. § 2000e-16. We thus do not address this issue further.
- 7 - (2) she performed her job satisfactorily, (3) her employer took an
adverse employment decision against her, and (4) her employer
continued to have her duties performed by a comparably qualified
person." Bonilla-Ramirez v. MVM, Inc., 904 F.3d 88, 94 (1st Cir.
2018) (quoting Burns v. Johnson, 829 F.3d 1, 9 n.8 (1st Cir.
2016)). If the plaintiff succeeds in doing so, "[t]he burden of
production then 'shifts to the employer to state a legitimate,
nondiscriminatory reason for the adverse employment action.'"
Burns, 829 F.3d at 9 n.8 (quoting Santiago-Ramos v. Centennial
P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000)).
If the defendant articulates such a reason, "then the
plaintiff bears the ultimate burden of proof to show that the
employer's proffered nondiscriminatory reason for the adverse
employment action was a pretext and that the employer did
intentionally discriminate against her because of her sex."
Bonilla-Ramirez, 904 F.3d at 94. Accordingly, to survive summary
judgment in the face of a defendant having articulated a
legitimate, nondiscriminatory reason for its alleged adverse
employment action, the plaintiff 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
and unlawful motive of discrimination." Ray v. Ropes & Gray LLP,
799 F.3d 99, 113 (1st Cir. 2015) (quoting Azimi v. Jordan's Meats,
Inc., 456 F.3d 228, 246 (1st Cir. 2006)). That is, she "must
- 8 - produce sufficient evidence to create a genuine issue of fact as
to two points: 1) the employer's articulated reasons for its
adverse actions were pretextual, and 2) the real reason for the
employer's actions was discriminatory animus." Id. (quoting
Mariani–Colón v. Dep't of Homeland Sec. ex rel. Chertoff, 511 F.3d
216, 223 (1st Cir. 2007)). "[M]erely . . . impugn[ing] the
veracity of the employer's justification" is insufficient. Id.
(quoting Azimi, 456 F.3d at 246).
The District Court found, and the parties agree, that
Paul has established a prima facie case of sex discrimination. In
addition, the District Court determined that the defendant had set
forth a legitimate, nondiscriminatory reason for the adverse
employment actions that Paul alleges that it took against her --
namely, that her supervisor had determined that her performance
merited them. The District Court further found that Paul had
failed to identify evidence in the record from which a reasonable
juror could find that she had shown that reason to have been a
pretext for sex discrimination.
Because Paul has failed to show that a jury could make
such a finding as to pretext, we begin and end our analysis by
focusing on that issue. In doing so, we consider each of the
grounds that Paul asserts require us to reach a different
conclusion.
- 9 - Paul argues first that an unexplained "sharp drop" in a
plaintiff's performance review scores can give rise to the
inference that an employer's reliance on them to take an adverse
employment action was a pretext for discrimination, Thomas v.
Eastman Kodak Co., 183 F.3d 38, 42-45, 62-63 (1st Cir. 1999), and
that the evidence supportably shows that there was such a sharp
drop in her performance review rankings once Lopez became her
supervisor. We do not agree.
The undisputed record shows that, for one critical
element (data integrity), Paul actually received a higher ranking
from Lopez than she had from her former supervisor. And while
that critical element was later removed from Paul's performance
review, at which point her ranking dropped on the critical element
that replaced it, the fact remains that the replacement element
was new and thus the ranking that she received on it did not
represent a "drop" -- let alone a "sharp" one -- from any prior
ranking that she had received on it.
Paul is right that her ranking fell from a Level 4 on
her midyear 2005 review for one critical element -- customer
relationship management8 -- to a Level 3 on her 2006 and 2007
annual reviews, to a Level 2 on her midyear 2008 review. But,
8 The 2005 review identifies the critical element as customer relations. We assume, to Paul's benefit, that customer relations and customer relationship management are the same or similar critical elements.
- 10 - evidence of that stepwise decline in her rankings on that element
over some of the years during which Lopez supervised her supplies
no basis for a finding that there had been a "sharp drop" from the
rankings that she had received from her prior supervisor. Nor was
the Level 2 ranking that Lopez gave her on customer relationship
management in 2008 unexplained. Among other comments, Lopez wrote
that Paul "[did] not consistently respond to customer inquiries in
a timely fashion and [did] not always follow-up with customers to
ensure their needs are met," and Paul does not point to any
evidence in the record that supportably casts doubt on that
explanation.
Paul next focuses on the written performance reviews
that she received from Lopez. She is right that a "stark" change
in assessments of a plaintiff by a new supervisor, who provides a
negative assessment of the plaintiff that the prior supervisor
"categorized as an 'excellent employee' and 'extraordinary,'" and
from whom the plaintiff had "received exemplary performance
evaluations" and "numerous accolades," can ground a finding of
pretext. Burns, 829 F.3d at 15.
Keying off that precedent, Paul points to comments from
her former supervisor that noted her work on the "contract
documentation for the most innovative, and difficult . . .
contract" and commented on her "willingness to be a team player
and perform[] her work with enthusiasm and dedication to the
- 11 - mission." She argues that Lopez's written assessment that Paul
lacked "journeyman level knowledge" -- a phrase that he used in
her performance review in reference to her not demonstrating
knowledge "of the documentation needed for new contracts or for
the modifications to existing contracts" and "of appropriate
technical tools such as Excel, PowerPoint, etc." -- directly
contradicts this prior assessment. She thus contends that the
difference supports the inference that the claimed performance-
based reason for subjecting her to adverse employment actions was
pretextual.
But, the undisputed record shows that GSA employees are
assessed, in part, for "keep[ing] current on procurement
regulations." In light of that context, the claimed discrepancy
between the written assessments from Lopez and the supervisor that
he succeeded does not amount to the kind of "stark" difference in
assessments by old and new supervisors that would support an
inference that Lopez's more critical assessment of her work was a
pretext for discrimination based on her sex.
Paul next invokes precedent that indicates that a
"sudden emergence" of problems with her performance under a new
supervisor may ground a finding of pretext. See Zapata-Matos v.
Reckitt & Colman, Inc., 277 F.3d 40, 47 (1st Cir. 2002). She
contends that the record reveals that, before Lopez became her
- 12 - supervisor, there was a lack of documented problems in her work
performance.
The record clearly shows, however, that, once Lopez
became Paul's supervisor, there was only a modest decline in Paul's
reviews and rankings over a period of three years between her last
performance review with her former supervisor that is included in
the record from May of 2005, on which she received a Level 3
summary ranking, and her first Level 2 summary ranking from Lopez
in October of 2008.9 Thus, we are not persuaded by this aspect of
her challenge to the grant of summary judgment.
We come, then, to Paul's assertion that the record
supportably shows that the lower rankings that Lopez gave to her
were based on the mistakes of others. But, this contention lacks
merit because there is no indication in the record that Lopez did
not believe that Paul was responsible for the mistakes at issue.
See Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823-24 (1st Cir. 1991)
(explaining that the question is "whether the employer believed
its stated reason to be credible" (quoting Gray v. New England
Tel. & Tel. Co., 792 F.2d 251, 256 (1st Cir. 1986))); Ronda-Perez
v. Banco Bilbao Vizcaya Argentaria-P.R., 404 F.3d 42, 45 (1st Cir.
2005) (stating that the plaintiff must show that her termination
9 The record indicates that Paul's former supervisor also conducted Paul's midyear 2006 performance review in May of that year, but that review is not included in the record.
- 13 - was something more than an "unusual act" or a "business error,"
and that "pretext means deceit used to cover one's tracks"
(internal quotations omitted)).
Paul also argues that the record supports a finding that
Lopez told her to "toughen up" one time after she cried during one
of her weekly meetings with him and that, subsequently, when she
was assertive, she received an Official Warning Notice for raising
her voice in a meeting. She points out that evidence that an
employee was subjected to a double standard on the basis of sex-
based stereotypes can supply evidence of pretext. See Burns, 829
F.3d at 13 ("As this circuit has repeatedly held, stereotyping,
cognitive bias, and certain other 'more subtle cognitive phenomena
which can skew perceptions and judgments' also fall within the
ambit of Title VII's prohibition on sex discrimination." (quoting
Thomas, 183 F.3d at 61)). But, an employer who requires an employee
to engage with others in the workplace in a professional manner
does not, in doing so, engage in conduct that supports an inference
of discrimination. See Hux v. City of Newport News, 451 F.3d 311,
318 (4th Cir. 2006) (finding no pretext when the "plaintiff . . .
experienced problems acting professionally at work" because there
is "nothing in Title VII to indicate that Congress wished to
require companies to disregard the successful personal
interactions that make for a productive workplace"). Paul fails
to identify evidence in the record that would support a finding of
- 14 - the former sort, as she does not dispute that she regularly cried
in meetings or that she received the Official Warning Notice after
shouting so loudly in a meeting that employees sitting two cubicle
rows away outside the closed door could hear her clearly and that
she declined to lower her voice after being asked.
Finally, Paul argues that the record suffices to permit
a reasonable juror to find that others in the office lacked
knowledge of contracting procedures but did not receive similarly
low marks on performance reviews and that men were not punished
for unprofessional behavior and were chosen for promotions to
"acting" positions even though she had more seniority. There is
no evidence in the record, however, to support a finding that her
co-workers made similar mistakes to those that the undisputed
record reveals that Lopez believed that Paul made.
Nor is there any evidence to support a finding that those
co-workers, or the men who allegedly received different treatment,
were "similarly situated 'in all relevant aspects,'" e.g., "in
terms of performance, qualifications and conduct, 'without []
differentiating or mitigating circumstances that would
distinguish' their situations." Byrd v. Ronayne, 61 F.3d 1026,
1033 (1st Cir. 1995) (emphasis omitted) (quoting Smith v. Stratus
Comput., Inc., 40 F.3d 11, 17 (1st Cir. 1994)) (affirming summary
judgment). For example, the record does not show that Lopez
supervised and evaluated these co-workers. In fact, the record
- 15 - shows that other female employees that he supervised received Level
4 and Level 5 ratings in 2008, which is the same year that Paul
received a Level 2 rating, and that another female employee did
receive permission to telework.10
For these reasons, Paul has failed to meet her burden to
show that there is a genuine issue of material disputed fact as to
whether the defendant's asserted nondiscriminatory reason for
taking the adverse actions that it did was pretextual. In
consequence, the District Court did not err in granting summary
judgment to the defendant on Paul's Title VII claims for sex
discrimination.
B.
We turn, then, to Paul's challenge to the District
Court's grant of summary judgment on her claims of age
discrimination under the ADEA.11 Here, too, we follow the District
10 Paul also asserts that she "worked in an office dominated by men" and that only three of the twelve employees Lopez supervised were women. But, as Paul has otherwise failed to present evidence of a "discriminatory motive lurk[ing] beneath the surface" of the alleged adverse employment actions visited upon her, this imbalance, standing alone, is "inadequate" to show that the grant of summary judgment to the defendant was in error "absent some further indication of [its] relevance." Villanueva v. Wellesley Coll., 930 F.2d 124, 131 (1st Cir. 1991). 11 The District Court followed the Magistrate Judge in treating Paul's ADEA claims as if they had been brought under 29 U.S.C. §§ 623(a)(1), 631(a), and Paul does not challenge that treatment on appeal, although the defendant's brief initially describes her complaint as alleging claims under 29 U.S.C. § 633a of the ADEA, which applies to claims against federal government employers, including executive agencies as defined in section 105
- 16 - Court in applying the McDonnell Douglas burden-shifting framework,
and here, too, the issue on appeal is whether the record contains
evidence from which a jury could infer that the defendant's
explanation for Lopez's actions was a mere pretext for
discrimination, this time based on her age. We conclude that it
does not.12
Paul once again highlights the decline in her
performance assessments to show pretext. But, for the reasons
that we have just explained, the evidence concerning those reviews
-- both in terms of the rankings that she received and her written
evaluations -- does not suffice to create a genuine issue of
disputed fact on that issue.
Paul does note that the record shows that she was the
oldest employee that Lopez supervised and that Lopez let a younger
of Title 5. The defendant's brief goes on, however, to describe Paul's claims as if they had been brought under § 623(a)(1). As neither party argues that the issues presented to us turn on which of these provisions of the ADEA grounds Paul's ADEA claims, we do not consider this point further. 12 While the Supreme Court "has not definitively decided whether the evidentiary framework of [McDonnell Douglas] utilized in Title VII cases is appropriate in the ADEA context," Soto- Feliciano v. Villa Cofresí Hotels, Inc., 779 F.3d 19, 23 (1st Cir. 2015) (citing Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 175 n.2 (2009)), this Circuit "has long applied the McDonnell Douglas framework to ADEA cases," id. (citing Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447 n.2 (1st Cir. 2009)); see also Gómez–Pérez v. Potter, 452 F. App'x 3 (1st Cir. 2011) (analyzing a claim of retaliation, brought under § 633a, under the McDonnell Douglas framework).
- 17 - employee telecommute when Paul could not. But, given that Paul's
performance review ranking made her ineligible for telecommuting
and the record includes no evidence that the younger employee was
similarly ineligible, this evidence cannot suffice to create a
trialworthy issue as to pretext. See Byrd, 61 F.3d at 1033
(requiring a plaintiff to show at summary judgment that she was
"subjected to different treatment than persons similarly situated
'in all relevant aspects'" (emphasis omitted) (quoting Stratus
Comput., Inc., 40 F.3d at 17)).13
Paul separately argues that the record supportably shows
that Lopez remarked to her at one point that "You are 64 no 65"
and that this remark provides a basis from which a reasonable juror
could find that she was discriminated against based on her age.
But, "[i]solated, ambiguous remarks are insufficient, by
themselves, to prove discriminatory intent," Lehman v. Prudential
Ins. Co. of Am., 74 F.3d 323, 329 (1st Cir. 1996), even if made by
a supervisor, see Speen v. Crown Clothing Corp., 102 F.3d 625, 636
(1st Cir. 1996) (finding a supervisor's comment about age to be a
stray remark). And here, beyond asserting that the remark was
mentioned during one of Paul and Lopez's "last meetings," Paul
13 Paul does claim that the younger employee was ineligible for telecommuting based on her tenure but does not provide record support for this assertion. The telecommuting policy in the record does not indicate that the younger employee was ineligible for telecommuting based on tenure.
- 18 - identifies nothing in the record that indicates what conversation
was occurring when the comment was made or whether the comment was
tied to any feedback or decision. See Gonzalez v. El Dia, Inc.,
304 F.3d 63, 69-70 (1st Cir. 2002) (finding that a comment was a
stray remark, in part because the record did not identify the
context or time of the remark).
The result is that Paul has failed to meet her burden
with respect to pretext on the age discrimination claims as well.
Accordingly, we agree with the District Court that summary judgment
for the defendant was warranted on Paul's age discrimination claims
under the ADEA.
C.
Paul's claims for retaliation under Title VII and the
ADEA also lack merit.14 She bases these claims on her allegation
that Lopez wrote "EEO activity" on the office notice board when
she went to the EEO office to be interviewed about her claims.
She argues that a jury supportably could find that this conduct
constituted retaliation for her protected activity in filing a
complaint with the EEOC, at least when that action is considered
in light of the years of alleged comments and teasing that she had
14 The Magistrate Judge analyzed Paul's retaliation claims as if they were brought only under Title VII. Because Paul contends that she faced retaliation for reporting sex and age discrimination, we analyze her claims under both Title VII and the ADEA.
- 19 - endured from GSA co-workers about protected conduct that she had
engaged in during the 1990s.15
With respect to her retaliation claims under each of
these federal statutes, we, like the District Court, once again
follow the familiar McDonnell Douglas framework, "albeit with
slight modifications" to account for the retaliation claim's
distinct focus. Soto-Feliciano v. Villa Cofresí Hotels, Inc., 779
F.3d 19, 30 (1st Cir. 2015) (quoting Mesnick, 950 F.2d at 827).
The first stage of the framework requires the plaintiff to "make
a prima facie showing that (i) [s]he engaged in []protected
conduct, (ii) [s]he was thereafter subjected to an adverse
employment action, and (iii) a causal connection existed between
the protected conduct and the adverse action." Id. (quoting
Mesnick, 950 F.2d at 827) (ADEA); see also Velazquez-Ortiz v.
Vilsack, 657 F.3d 64, 72 (1st Cir. 2011) (Title VII).
Paul does not challenge the District Court's finding --
via its adoption of the R&R -- that Paul had failed to show a
causal connection between her 1998 employment discrimination
lawsuit that Paul filed when working for the United States
Department of Defense and the allegedly adverse employment actions
that she faced when employed at the GSA. Nor does she dispute the
15 On appeal, she also claims that Lopez "snickered" to a union official in the office when discussing that Paul had talked to a union representative about her performance review. The record contains no evidence that Lopez snickered.
- 20 - District Court's finding -- again, via its adoption of the R&R --
that most of the allegedly adverse employment actions to which
Paul had been subjected when working at the GSA were taken before
she filed her formal complaint with the EEOC in January of 2009.
The writing of "EEO activity" on the notice board in
describing Paul's whereabouts, however, occurred after that
complaint had been filed. Thus, the District Court based its
determination that this conduct did not provide a basis for Paul's
retaliation claims to survive summary judgment on a different
determination -- namely, that it did not constitute an adverse
action because it was not the kind of conduct that could have
chilled any protected conduct. Paul thus rightly focuses her
challenge to the District Court's grant of summary judgment to the
defendant on her retaliation claims on that aspect of the District
Court's ruling.
In certain circumstances, it may constitute an adverse
employment action for an employer to make an employee's EEO-related
activity known to others in the workplace. The communication of
such information -- depending on the context -- might well "chill
a reasonable employee from further protected activity." Mogenhan
v. Napolitano, 613 F.3d 1162, 1166 (D.C. Cir. 2010) (concluding
that record evidence that a supervisor posted an employee's full
complaint on a work intranet page "perhaps alone" provided
- 21 - sufficient evidence for a plaintiff's case to survive summary
judgment on her retaliation claim under Rehabilitation Act).
That is so, we may assume, even in a case like this one,
in which all that has been communicated to others is that the
employee was engaged in "EEO activity" and thus no further details
have been conveyed to others that would permit them to conclude
that the nature of that activity was such that it constituted
"protected conduct." After all, depending on the context, it may
be that the mere use of those words could, in and of itself,
suffice to make clear to others that the "EEO activity" in which
the employee was engaged was the kind of "protected conduct" that
the retaliation bar imposed by Title VII and the ADEA prohibits an
employer from chilling.
Nevertheless, to survive a motion for summary judgment
by the defendant on retaliation claims under either Title VII or
the ADEA, a plaintiff must show that there is a genuine issue of
disputed fact as to whether the posting of information that could
chill the plaintiff's protected conduct was in fact causally
connected to that protected conduct. See Soto-Feliciano, 779 F.3d
at 30 (requiring, under the ADEA, that the plaintiff show that "a
causal connection existed between the protected conduct and the
adverse action" (quoting Mesnick, 950 F.2d at 827)); Velazquez-
Ortiz, 657 F.3d at 72 (requiring, under Title VII, that the
plaintiff show "that the [adverse employment] action was causally
- 22 - linked to her involvement in the protected activity"). Thus, even
assuming the words on the notice board are of a kind that could
constitute an adverse employment action, Paul must show that the
evidence sufficed to permit a reasonable juror to find that the
person who conveyed the information regarding the employee's "EEO
activity" to others knew what the employee was doing in relation
to the EEO not only in a general sense but in the sense of knowing
that the employee's EEO activity involved protected conduct. For,
absent evidence that would permit that finding, a juror would have
no basis for finding that the communication of the fact that the
plaintiff was engaged in "EEO activity" was caused by her
engagement in protected conduct, notwithstanding that it might be
possible to find that the communication of that fact was chilling
in an objective sense. See Medina-Rivera v. MVM, Inc., 713 F.3d
132, 139 (1st Cir. 2013) (explaining that "the employee must show
that the retaliator knew about her protected activity" because
"one cannot have been motivated to retaliate by something he was
unaware of").
Against that legal backdrop, it would not have been
enough even if Paul had shown that the words written on the notice
board were of a type that could chill protected conduct. Rather,
there must be evidence in the record from which a reasonable juror
could find that the causal requirement has been satisfied. But,
as we will now explain, we conclude that the record reveals that
- 23 - there is no such evidence here. Thus, we affirm the District
Court's grant of summary judgment on this basis, even though the
District Court did not itself rely on it. See Santangelo, 785
F.3d at 68.
The words "EEO activity" are amorphous. The consequence
is that their mere appearance on the office notice board fails to
reveal that whoever wrote them must have known that Paul, by
engaging in unspecified "EEO activity," was engaged in protected
conduct. For that reason, their appearance does not in and of
itself permit the inference that whoever wrote them was prompted
to do so because of Paul's engagement in such conduct.
To make the required showing with respect to the causal
element, therefore, Paul must show who wrote those words. Paul
does not appear to dispute this point. Instead, she asserts in
her brief to us that the record is such that it would permit a
reasonable juror to find that Lopez wrote "EEO activity" on the
board.
We may assume that, as Paul contends, if a juror
supportably could find that Lopez was the one who wrote that she
was engaged in "EEO activity," then a juror could supportably find
that he was prompted to write those words on the notice board
because of her engagement in such protected conduct due to what
she contends the record shows about Lopez's knowledge of Paul's
EEO-related activity. But, even with that favorable assumption in
- 24 - place, Paul still must show that the record permits a reasonable
juror to find that Lopez did write those words on the notice board
if she is to meet her burden with respect to the causal element
for purposes of surviving summary judgment.
Paul points to no evidence in the record, however, that
supports that conclusion. For example, Paul does not point to any
evidence that reveals that Lopez ever or even regularly -- let
alone in this particular instance -- wrote employees' locations on
the notice board. In fact, the undisputed record indicates that
he did not, as the record describes the normal practice, to the
extent that employees followed it, as one in which employees wrote
their own time and absences on the board.
Thus, because Paul fails to identify any basis in the
record from which a reasonable juror could find that the words
describing Paul's location were, in this instance, written by
someone other than herself and who knew that she was engaged in
protected activity, she fails to identify any basis in the record
from which a reasonable juror could find the requisite causal
connection under either the ADEA or Title VII between the claimed
adverse action by her employer and the protected conduct that she
contends was chilled. See Medina-Munoz v. R.J. Reynolds Tobacco
Co., 896 F.2d 5, 8 (1st Cir. 1990) (explaining that where "the
nonmoving party rests merely upon conclusory allegations,
improbable inferences, and unsupported speculation," summary
- 25 - judgment is appropriate). Accordingly, we reject Paul's challenge
to the grant of summary judgment to the defendant on her
retaliation claims under those statutes.
III.
For these reasons, we affirm the judgment of the District
Court.
- 26 -