Rae v. Woburn Public Schools

113 F.4th 86

• Court: Court of Appeals for the First Circuit
• Decided: August 22, 2024
• Docket: 23-1432
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 23-1432

AMY RAE,

Plaintiff, Appellant,

v.

WOBURN PUBLIC SCHOOLS; CITY OF WOBURN; MATTHEW CROWLEY, individually; CARL NELSON, individually,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Allison D. Burroughs, U.S. District Judge]

Before

Montecalvo, Lynch, and Rikelman, Circuit Judges.

Laurel J. Francoeur, with whom Francoeur Law Office was on brief, for appellant. Alexandra Milan Gill, with whom Douglas I. Louison and Louison, Costello, Condon & Pfaff, LLP were on brief, for appellees.

August 22, 2024 MONTECALVO, Circuit Judge. Plaintiff-appellant Amy Rae

is a school nurse who alleged that she was subject to retaliatory

harassment while employed by defendant-appellee Woburn Public

Schools ("WPS"). Rae specifically maintained that WPS's

retaliation stemmed from her advocacy on behalf of students with

disabilities and complaints she made to WPS regarding her own

mistreatment. Although the alleged retaliation had been ongoing

for over a decade, Rae first filed suit against WPS in November

2022 and raised four claims: (1) retaliatory harassment under

Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section

504"); (2) retaliatory harassment under Title II of the Americans

with Disabilities Act, 42 U.S.C. § 12132 ("ADA"); (3) employment

discrimination in violation of Massachusetts's antidiscrimination

statute, Mass. Gen. Laws ch. 151B, § 4 ("Chapter 151B"); and (4)

intentional infliction of emotional distress.

On May 5, 2023, the district court dismissed the entirety

of Rae's complaint, agreeing with WPS that Rae had failed to state

any claims for which relief could be granted. For the reasons

explained below, we agree with the district court that Rae cannot

rely on the continuing violations doctrine to save her untimely

discrimination claims, albeit on different grounds. We also affirm

the district court's dismissal of Rae's timely state and federal

discrimination claims, but we reach this conclusion for other

reasons.

- 2 - I. Background

For purposes of summarizing the background underlying

Rae's lawsuit against WPS, "we accept the well-pleaded facts as

true, viewing factual allegations in the light most favorable" to

Rae.1 Rederford v. U.S. Airways, Inc., 589 F.3d 30, 35 (1st Cir.

2009).

Since 2005, Rae has been a school nurse with WPS and was

most recently employed at Kennedy Middle School ("Kennedy"). Rae

alleges that defendant-appellee Carl Nelson, the Kennedy

Principal, "has a disdain for students with disabilities[,] whom

he considers weak and not deserving of special attention or

funding." As such, when Rae requested additional resources to

assist students with disabilities, she contends that "Nelson began

to intimidate her, insisting students with disabilities 'should

not be treated any differently than other students' and should not

receive accommodations or services related to their conditions."

Beginning in October 2011, Rae expressed concerns that

WPS lacked policies for treating students with diabetes and "began

advocating for a diabetes policy to be implemented." Meanwhile,

Nelson described students with diabetes as "lazy" and denied

1 Rae's complaint organizes her allegations into certain categories of conduct, but it does not include specific dates for many instances of the hostile treatment she allegedly experienced. We make reasonable inferences to discuss the allegations as chronologically as possible, while construing ambiguities in Rae's favor.

- 3 - accommodations for these students to receive necessary services.

Nelson's lack of responsiveness led Rae to elevate her concerns to

other WPS administrators; and, in turn, Nelson "started harassing

[Rae] in an attempt to discourage her advocacy" by "yell[ing] and

demean[ing] her" at work.

Rae also accused Nelson of "conspir[ing] with" her Nurse

Leader supervisor, Marcia Skeffington, to "engage[] in a

coordinated effort to harass" her. In 2011, when Rae approached

Skeffington about WPS's failure to implement policies for students

with diabetes and the need for additional support given WPS's

"unusually large number of students with diabetes," Skeffington

"mocked []Rae and scolded her for 'rocking the boat' by asking for

more money." Around the same time, Skeffington informed Nelson

that Rae had made a minor "scrivener's error" in a report Rae had

prepared. Rae alleges that Skeffington made this frivolous

complaint with the ulterior motive of providing Nelson an

opportunity to unfairly discipline her. In December 2011, Rae

complained about this discipline to her union but did not receive

redress.

In 2012, Rae took further action against Nelson and

Skeffington's "bullying," including contacting WPS Superintendent

Mark Donovan and Rae's union for assistance. In May 2012, Rae's

union reached an agreement with WPS administration "to put an end

to the bullying" and "avoid litigation," but Donovan did not

- 4 - execute the agreement. By August 2012, Rae had hired an attorney

to aid in resolving these issues, but Donovan avoided meeting with

Rae's attorney "and made promises that were never fulfilled."

Rae alleges that in late 2012 and into 2013, "the

bullying got worse," citing an incident where Nelson "thwarted"

Rae's attempts to assist a student with diabetes who was refusing

to engage in self-care treatment. Specifically, Nelson filed a

child welfare complaint against the student's parents, leading the

parents to "verbally attack[]" Rae because they mistakenly

believed that she had filed the complaint. Rather than defending

Rae or accepting responsibility, Nelson allowed Rae to be the

"'fall guy' for the district's misdeeds."

Similarly, in February 2013, Rae contacted the chair of

the special education department at Kennedy to accuse Nelson of

violating Section 504 by neglecting to accommodate a student with

diabetes. Nelson was "angered . . . and his harassment

intensified" because of Rae's report, and Rae alleges that he took

steps to ensure the paraprofessionals with whom she interacted

would also "resent[]" and "harass[]" her.

In April 2013, Donovan called a meeting with Rae, Nelson,

and Rae's union president after Rae requested that WPS hire a

part-time nurse to assist in caring for students with special

medical needs. At that meeting, Donovan "berated and dismissed"

- 5 - her, and later sent a "reprimanding email . . . in an attempt to

silence her from speaking out in the future."

Following this meeting, Rae sought help from her primary

care physician, explaining that she was experiencing anxiety,

sleeplessness, and depression caused by her work situation. Rae's

physician wrote a letter to WPS administration regarding Rae's

health issues, but WPS did not take any corrective action.

At some point in 2014, Nelson "purposefully

mischaracterized two school-sponsored field trips" as not

affiliated with the school to deny accommodations for students

with disabilities and to avoid bringing school nurses like Rae on

these trips. Nelson also purportedly made "harmful jokes about

[]Rae, insinuating [that] she was excessively vigilant and rigid

about student safety."

In March 2015, Rae documented Nelson's actions on this

field trip and other harassment she experienced in a formal

complaint filed with her new Nurse Leader supervisor and the union.

Despite this complaint, the harassment persisted. Rae continued

to raise grievances through her union, and her union representative

eventually advised her to transfer out of Kennedy, as "Nelson was

engaging in behavior that was designed to rattle her and to make

her quit." In October 2015, Rae wrote a letter to her union

outlining the harassment she had experienced and requesting a

transfer from Kennedy. WPS denied Rae's transfer request.

- 6 - On July 26, 2016, Rae wrote an email to

defendant-appellee Matthew Crowley, the new WPS Superintendent,

regarding Kennedy's continued failure to implement a diabetes

protocol. Shortly before sending this email, Rae had interviewed

for a Nurse Leader promotion for which she was qualified and had

seniority, but she was later denied the position.

One month later, on August 25, 2016, Nelson emailed Rae

instructing her to report to his office on the first day of school

in September 2016 for a disciplinary meeting. Nelson's email did

not reference Rae's July 26 email to Crowley or her attempts to

transfer, but he instead stated that the meeting was "to discuss

a letter that [Rae] sent out to parents using [Nelson's] name."

Rae acknowledged sending a letter to fifty-four parents regarding

vaccination requirements after Nelson refused to do so, but she

insisted that she notified Nelson before sending the letter.

Before the September 2016 disciplinary meeting, Rae

corresponded with her union and filed a grievance to note that

this discipline was retaliation for her email to Crowley on July

26. On October 7, 2016, Nelson formally disciplined Rae by

suspending her without pay for one day of work because she had

sent the letter without his permission. Rae contends that Nelson

used the letter as a pretext to discipline her for her July 26

email to Crowley, a theory supported by union representatives who

called her suspension "not a fair decision" and suggested that

- 7 - Nelson used "incredibly slimy" tactics to discipline Rae without

providing her the opportunity for counsel. A few weeks after her

suspension, on October 29, 2016, Rae wrote to Nelson to formally

contest the discipline, but Nelson did not respond.

In April 2017, while accompanied by union

representatives, Rae met with Crowley to discuss her concerns

related to students with diabetes raised in her July 26, 2016

email. Crowley rejected Rae's contentions that WPS had violated

Section 504 by failing to accommodate these students and walked

out of the meeting. That same month, Rae was involved in

developing an individualized education plan ("IEP") for a student

with chronic health issues that required Rae to meet with Nelson.

During these IEP meetings, Nelson "belittled []Rae in front of the

special education staff" when she asked that the IEP incorporate

issues related to the student's medical condition. Nelson also

"verbally dismissed and berated" Rae when she advocated on behalf

of the student who was being bullied because of his condition.

On June 2, 2017, Rae filed a sixteen-page grievance with

her union, but the union did not pursue the grievance out of worry

that Rae would experience further retaliation from Nelson. Two

days after she filed the grievance, "Nelson belittled and berated

[]Rae in front of a student."

On September 8, 2018, Rae wrote two letters to Joe

Demers, a WPS School Committee member, "describing the hostile

- 8 - work environment" she was experiencing at Kennedy. In December

2018, Demers informed Rae that WPS had newly hired a human

resources ("HR") director who would handle Rae's complaints. Rae

was skeptical of the new HR director's ability to remedy her

situation, so she hired a lawyer in July 2019 to correspond with

the school district. But in September 2019, Nelson "continued to

attack []Rae" when she was involved in an incident with a sick

student and an angry woman who did not have authority to pick up

the student from school. A few weeks later, Nelson falsely accused

Rae of stealing a sweatshirt she had given to a student.

On November 20, 2019, Rae filed a formal complaint with

WPS's new HR department. On the same day, Nelson emailed Rae to

meet with her regarding "an alleged parent complaint." Nelson

later cancelled the meeting without explanation, but Rae was

distressed by the prospect of being disciplined unfairly again.

Soon after, rather than hiring an independent

investigator, the HR department appointed WPS's legal counsel to

investigate Rae's complaint and permitted Crowley to "tailor[]"

the investigation "in [WPS's] favor." WPS also did not allow Rae

to testify or present witnesses. And, after several months,

Crowley informed Rae that her allegations were unsubstantiated in

March 2020. When her complaint was deemed unsubstantiated, Rae

and her union requested to meet with the HR department and Crowley

regarding the investigation, but WPS declined the meeting.

- 9 - In June 2021, Rae's union presented Crowley with a

"partial resolution" of Rae's complaint that would allow her to

avoid reporting to Nelson. Crowley refused to sign the resolution

but agreed that Nelson would no longer conduct Rae's annual

reviews. Despite this, Nelson was listed as Rae's performance

reviewer in October 2021.

On April 10, 2022, Rae filed a formal complaint with the

Massachusetts Commission Against Discrimination ("MCAD"). One

month later, on May 11, 2022, Nelson instructed Rae to report for

a disciplinary meeting regarding "a shirt [Rae] let a student

borrow." Nelson provided only vague details about the meeting and

did not confirm whether Rae should secure union representation.

During the meeting, Nelson accused Rae of giving a student a shirt

that "contained a reference to alcohol," which led a teacher to

report the issue to Nelson. By Rae's account, the student

independently took the shirt from the "donation pile" in the

nurse's office and Rae did not know that the shirt had

inappropriate content. Rae further explained that other students

had worn shirts with alcohol references without incident. While

Rae was not disciplined, Rae's "union president believed the

meeting was unnecessary and called it retaliatory," and Rae felt

that Nelson intended to "further upset [her] fragile state of

mind."

- 10 - On August 1, 2022, Rae's union president sent a letter

to the WPS School Committee on Rae's behalf to point out WPS's

failure to "stop the known harassment and retaliation against

employees." The WPS School Committee did not respond to the letter

and referred the issue to WPS's legal counsel. Approximately two

months later, on September 28, 2022, another incident occurred

when Rae left her office to use her inhaler in her car while a

student was waiting to check his blood sugar levels. The student

was not experiencing a medical emergency, and another

administrator was able to fully assist him while Rae was away.

Although Rae left notes on her office door and desk to indicate

that she would return shortly, Nelson "paged []Rae seven times

using the school's internal public address system, which []Rae

could not hear because she was locked outside the building."

When Rae returned, Nelson immediately "berated" her for

missing the pages, and Rae construed Nelson's excessive paging as

an attempt to publicly embarrass her. One hour later, Nelson

notified Rae that he was initiating disciplinary proceedings and

advised her to obtain union representation. During the

disciplinary meeting on October 5, 2022, Nelson "scolded" Rae for

briefly leaving school, repeatedly demanded that she justify her

absence, and interrupted her as she tried to explain the

circumstances. Nelson also read aloud a "confidential email" Rae

- 11 - sent to him disclosing "her medical issue and the severe emotional

distress his actions had caused her."

On November 17, 2022, Rae filed suit against WPS,

claiming that WPS employees had engaged in retaliatory harassment

in violation of state and federal law, and that WPS's conduct

constituted intentional infliction of emotional distress. WPS

moved to dismiss the entirety of Rae's complaint for failure to

state a claim under Federal Rule of Civil Procedure 12(b)(6) on

December 12, 2022. The district court granted WPS's motion to

dismiss on May 5, 2023, agreeing with WPS that Rae had failed to

plausibly demonstrate her entitlement to relief on any claim. Rae

then filed this timely appeal challenging the dismissal of only

her ADA, Section 504, and Chapter 151B claims.

II. Discussion

This court reviews de novo a district court's dismissal

of a plaintiff's complaint under Rule 12(b)(6). Rodríguez-Vives

v. P.R. Firefighters Corps of P.R., 743 F.3d 278, 283 (1st Cir.

2014).

To assess whether a complaint can withstand a Rule

12(b)(6) motion, we "must accept as true all well-pleaded facts

'indulging all reasonable inferences in [Appellant's] favor.'"

Fantini v. Salem State Coll., 557 F.3d 22, 26 (1st Cir. 2009)

(alteration in original) (quoting Nisselson v. Lernout, 469 F.3d

143, 150 (1st Cir. 2006)). Our federal pleading standard "requires

- 12 - more than labels and conclusions, and a formulaic recitation of

the elements of a cause of action will not do." Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). Accordingly, we "will not

accept a complainant's unsupported conclusions or interpretations

of law." Wash. Legal Found. v. Mass. Bar Found., 993 F.2d 962,

971 (1st Cir. 1993). But "[b]ecause a dismissal terminates an

action at the earliest stages of litigation without a developed

factual basis for decision, we must carefully balance the rule of

simplified civil pleading against our need for more than conclusory

allegations." Id.

Rae points to three main errors in the district court's

decision dismissing her complaint. First, Rae contends that the

district court wrongly held that the continuing violations

doctrine did not apply to her retaliatory harassment claims.

Second, she insists that the district court made factual

determinations that are inappropriate at the motion to dismiss

phase. Third, and relatedly, Rae argues that the district court

improperly required her to satisfy the more stringent requirements

of a prima facie case of retaliatory harassment instead of the

relaxed plausibility pleading standard.

We begin by laying some foundation on the timeliness of

Rae's claims, the elements of a retaliation claim, and the

intertwined issues of accrual of employment discrimination claims

and the continuing violations doctrine. We then take Rae's

- 13 - arguments in turn and explain why Rae cannot rely on the continuing

violations doctrine to save her untimely accrued claims. Lastly,

we conclude that the district court correctly dismissed Rae's

timely ADA, Section 504, and Chapter 151B claims.

A. Timeliness of Rae's Claims

Rae alleges that, over an eleven-year span, she engaged

in multiple protected activities and, as a direct result of her

protected activities, she suffered various forms of retaliation.

But she did not begin the process of filing suit by initiating

MCAD proceedings until April 10, 2022. We briefly highlight the

administrative filing requirements as they relate to the

timeliness of Rae's claims and clarify the operative statutes of

limitations.

For employment discrimination claims arising under

Chapter 151B, plaintiffs must file administrative charges before

going to court.2 Dunn v. Langevin, 211 N.E.3d 1059, 1062 (Mass.

2023). In particular, Chapter 151B requires plaintiffs to file

charges with MCAD within 300 days of experiencing the adverse

action alleged. Mass. Gen. Laws ch. 151B, § 5.

2 Section 504 "does not require [administrative] exhaustion" because the Rehabilitation Act "derives its procedural requirements from Title VI, which does not have an exhaustion requirement." Brennan v. King, 139 F.3d 258, 268 n.12 (1st Cir. 1998). Title II of the ADA incorporates by reference the procedural provisions of Section 504, meaning it likewise does not include an administrative exhaustion requirement. See 42 U.S.C. § 12133.

- 14 - Chapter 151B does not mandate that a plaintiff await

receipt of a right-to-sue letter from MCAD or completion of the

MCAD investigation before they file suit. A plaintiff may proceed

to court if they have not received a response from MCAD after

ninety days of filing their MCAD charge. Id. §§ 5, 9. In all

events, a Chapter 151B claim must be filed in court within three

years of the adverse employment action. Id. § 9.

Here, it is unclear whether Rae obtained a right-to-sue

letter from MCAD before initiating the present case, what claims

she included in her administrative charge before MCAD, and whether

she amended her MCAD charge to include conduct that occurred after

she initially filed her charge in April 2022. Because WPS has not

challenged Rae's compliance with any administrative exhaustion

requirements and we may consider events that "occurred after the

plaintiff's filing of her MCAD complaint" in the interest of

judicial efficiency, Cuddyer v. Stop & Shop Supermarket Co., 750

N.E.2d 928, 935 n.8 (Mass. 2001), any potential administrative

exhaustion arguments that WPS could have raised are waived.

As to the time periods for potentially actionable

conduct, the district court applied a three-year limitations

period to Rae's ADA and Section 504 claims. Accordingly, it

assessed whether events that occurred after November 17,

2019 -- three years prior to the filing of Rae's civil suit on

November 17, 2022 -- could be actionable for Rae's federal claims.

- 15 - In determining that Rae's federal claims were subject to a

three-year statute of limitations period, the district court

impliedly made two key assumptions. First, the district court

seemed to assume that Title II of the ADA was applicable to Rae's

ADA claim. Cf. Barker v. Riverside Cnty. Off. of Educ., 584 F.3d

821, 827-28 (9th Cir. 2009) (holding that the plaintiff had

standing to sue under Title II of the ADA for the retaliation she

experienced after "opposing her school's special education

policies that allegedly violated the ADA"). Second, because Title

II of the ADA and Section 504 do not incorporate their own statutes

of limitations,3 the district court defaulted to a three-year

limitations period borrowed from the forum state's statute of

limitations for Chapter 151B claims. See Nieves-Márquez v. Puerto

Rico, 353 F.3d 108, 118 (1st Cir. 2003).

For Rae's Chapter 151B claim, the district court relied

on the 300-day limitations period contained in Chapter 151B, § 5.

As such, the district court evaluated whether events after June

14, 2021 -- 300 days before Rae filed her MCAD charge on April 10,

2022 -- constituted actionable conduct under Chapter 151B. Neither

party challenges the district court's reliance on a three-year

statute of limitations for Rae's federal claims and the 300-day

3 Both statutes were also enacted before 28 U.S.C. § 1658 -- the statute providing a catch-all four-year statute of limitations for federal laws enacted after December 1, 1990. See Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371 (2004).

- 16 - period for Rae's Chapter 151B claim. We agree that the district

court's underlying assumptions were reasonable and adopt the same

limitations periods for our review. Having confirmed the pertinent

time frames for assessing actionable conduct under these statutes,

we proceed to outlining the elements of a retaliatory harassment

claim.

B. Elements of Retaliatory Harassment

Retaliation claims under the ADA, Section 504, and

Chapter 151B are analyzed under the same three-element framework:

(1) the plaintiff engaged in protected conduct; (2) the plaintiff

experienced an adverse employment action; and (3) there was a

causal connection between the protected conduct and the adverse

employment action. See Quiles-Quiles v. Henderson, 439 F.3d 1, 8

(1st Cir. 2006) (elements of retaliation under Section 504);

Colón-Fontánez v. Mun. of San Juan, 660 F.3d 17, 36 (1st Cir. 2011)

(elements of retaliation under the ADA); Sullivan v. Raytheon Co.,

262 F.3d 41, 48 (1st Cir. 2001) (elements of retaliation under

Chapter 151B). With these basic elements in mind, we walk through

the particulars of each one.

First, beginning with the protected activity element,

advocating on behalf of people with disabilities -- including

protecting students' right "to be free from disability-based

discrimination" -- "plainly constitutes protected conduct" under

the ADA and Section 504. D.B. ex rel. Elizabeth B. v. Esposito,

- 17 - 675 F.3d 26, 41 (1st Cir. 2012) (collecting cases). While it does

not appear that the Massachusetts Supreme Judicial Court ("SJC")

has addressed advocacy on behalf of people with disabilities as

protected conduct under Chapter 151B, the statute contains a broad

anti-retaliation clause that generally parallels federal

protections. See Mass. Gen. Laws ch. 151B, § 4(4); see also Murray

v. Warren Pumps, LLC, 821 F.3d 77, 87 (1st Cir. 2016) (treating

Chapter 151B's anti-retaliation provision as an "analog" to the

ADA's anti-retaliation provision and analyzing identical elements

under both laws).

In addition, reporting discriminatory conduct to the

employer's HR department or an administrative agency like MCAD

constitutes protected activity. See Mariani-Colón v. Dep't of

Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 223 (1st Cir. 2007);

Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 220 (1st Cir.

2016); Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo,

P.C., 50 N.E.3d 778, 802 (Mass. 2016). Short of raising formal

complaints, "informally opposing an employment activity that might

violate" antidiscrimination statutes "broadly" captures other

types of protected activity. Ray v. Ropes & Gray LLP, 799 F.3d

99, 108 (1st Cir. 2015) ("Protected opposition activity includes

responding to an employer's inquiries about inappropriate

behavior, writing letters protesting an employer's allegedly

unlawful actions, or picketing and boycotting an employer.").

- 18 - WPS does not contest that Rae's advocacy on behalf of

students with disabilities constitutes protected activity under

all three statutes, and the district court "assum[ed] without

deciding that advocacy on behalf of such students is protected

conduct." On the other hand, WPS insists that Rae's complaints

regarding the alleged hostile work environment were made "on her

own behalf," and thus do not constitute protected conduct. In

WPS's view, because Rae relies on her student-oriented advocacy as

the primary form of protected activity, her retaliation claims

must solely center around adverse action stemming from such

advocacy. But this argument ignores the obvious fact that

retaliation is a forbidden practice under all three statutes, and

thus, complaining about retaliation is itself protected conduct.

Cf. Alvarado v. Donahoe, 687 F.3d 453, 463 (1st Cir. 2012)

("[F]ederal anti-retaliation provisions generally prohibit conduct

taken in retaliation for any protected activity, not just a

plaintiff's initial protected action."). As will become clear, we

assume that Rae's complaint plausibly alleged that she engaged in

several protected activities between 2011 and 2022 -- not limited

to her advocacy on behalf of students with disabilities.

Second, "[a]n adverse action is one that might well

dissuade a reasonable person from making or supporting a charge of

discrimination." D.B., 675 F.3d at 41; see also Burlington N. &

Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). In general,

- 19 - "'demotions, disadvantageous transfers or assignments, refusals to

promote, unwarranted negative job evaluations, and toleration of

harassment by other employees' may constitute adverse employment

action, subject to the facts of a particular case."

Colón-Fontánez, 660 F.3d at 37 (quoting Hernández–Torres v.

Intercont'l Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)). Of

particular relevance here, "a hostile work environment, tolerated

by the employer, is cognizable as a retaliatory adverse employment

action" if the harassment is "sufficiently severe or pervasive."

Noviello v. City of Boston, 398 F.3d 76, 89 (1st Cir. 2005).

Although Rae's complaint alleges multiple adverse

actions -- including unwarranted discipline, refusal to transfer,

denial of promotion, and a hostile work environment -- the district

court largely focused on whether Rae plausibly alleged that the

harassment she suffered constituted a hostile work environment.

Moreover, the district court held that Rae could not invoke the

continuing violations doctrine to rely on allegations of conduct

outside of the 300-day period for her Chapter 151B claim or the

three-year window for her federal claims to plausibly establish a

hostile work environment. And it noted that it was "skeptical"

that Rae's timely allegations from within these respective time

frames could constitute severe or pervasive harassment.

Lastly, a retaliation claim under all three statutes

requires a plaintiff to demonstrate that their protected activity

- 20 - was the but-for cause of the adverse action they suffered.

Palmquist v. Shinseki, 689 F.3d 66, 74 (1st Cir. 2012); Edwards v.

Commonwealth, 174 N.E.3d 1153, 1168 (Mass. 2021). "One way of

showing causation is by establishing that the employer's knowledge

of the protected activity was close in time to the employer's

adverse action." Wyatt v. City of Boston, 35 F.3d 13, 16 (1st

Cir. 1994). Moreover, "harassment itself" may "offer[]

circumstantial evidence of causation." Noviello, 398 F.3d at 86.

Relying solely on conduct from within the 300-day and three-year

time frames, the district court held that Rae's complaint failed

to plausibly demonstrate that her protected activity was the

but-for cause of the adverse action.

Here, the appropriate time period for actionable conduct

is closely linked to the adverse action and causation elements of

Rae's retaliatory harassment claim. But before returning to the

complications surrounding these two elements, we detour to discuss

two key issues underlying Rae's appeal: the accrual of employment

discrimination claims and the continuing violations doctrine.

C. Accrual of Employment Discrimination Claims and the Continuing Violations Doctrine

The date on which an employment discrimination claim

accrues dictates the start of the limitations period for filing an

administrative charge. Thomas v. Eastman Kodak Co., 183 F.3d 38,

48 (1st Cir. 1999). In simplest terms, "an employer action only

- 21 - triggers the running of the statute of limitations" -- indicating

that an employment discrimination claim has accrued -- "if that

action has concrete, negative consequences for an employee, and

the employee is aware or should have been aware of those

consequences." Id. at 49.

The continuing violations doctrine intersects with the

accrual of employment discrimination claims, but it presents

somewhat different inquiries. In National Railroad Passenger

Corp. v. Morgan, 536 U.S. 101 (2002), the Supreme Court addressed

the questions of "[w]hat constitutes an 'unlawful employment

practice' and when . . . that practice [has] 'occurred'" under

Title VII "for both discrete discriminatory acts and hostile work

environment claims." Id. at 110. As examples of discrete acts,

the Court listed adverse employment actions "such as termination,

failure to promote, denial of transfer, or refusal to hire." Id.

at 114. The Court then emphasized that "[e]ach incident of

discrimination and each retaliatory adverse employment decision

constitutes a separate actionable 'unlawful employment practice.'"

Id. Moreover, "discrete discriminatory acts are not actionable if

time barred, even when they are related to acts alleged in timely

filed charges," and "[e]ach discrete discriminatory act starts a

new clock for filing charges alleging that act." Id. at 113.

But the Court made clear that "[h]ostile environment

claims are different in kind from discrete acts" because "[t]heir

- 22 - very nature involves repeated conduct." Id. at 115. Consequently,

the existence of a hostile work environment -- as a unique type of

adverse employment action -- "cannot be said to occur on any

particular day." Id. Instead, a hostile work environment "occurs

over a series of days or perhaps years and, in direct contrast to

discrete acts, a single act of harassment may not be actionable on

its own." Id. The Court thus held that, under the continuing

violations doctrine, "[a] charge alleging a hostile work

environment claim . . . will not be time barred so long as all

acts which constitute the claim are part of the same unlawful

employment practice and at least one act falls within the time

period." Id. at 122. Importantly, the Court rejected the practice

of some circuits, including ours, that limited application of the

continuing violations doctrine to circumstances where "it would

have been unreasonable to expect the plaintiff to sue before the

statute ran on such conduct." Id. at 117–18.

But the Morgan Court ultimately "left open" the question

of "identifying the date on which a Title VII claim accrues."

Miller v. N.H. Dep't of Corr., 296 F.3d 18, 22 (1st Cir. 2002).

Our case law, however, provides that a retaliation claim accrues

as a discrete act of discrimination "when it has a crystallized

and tangible effect on the employee and the employee has notice of

both the act and its invidious etiology." Shervin v. Partners

Healthcare Sys., Inc., 804 F.3d 23, 34 (1st Cir. 2015).

- 23 - D. Time-Barred Discrete Acts of Retaliation

1. Rae's Invocation of the Continuing Violations Doctrine

Here, Rae attempts to amalgamate a series of discrete

acts of retaliation into one sweeping retaliatory harassment claim

to invoke the continuing violations doctrine. But the continuing

violations analysis requires disaggregating each discrete act of

alleged retaliation before assessing whether the continuing

violations doctrine is applicable. After engaging in this

disaggregation (and for different reasons than the district

court), we hold that Rae cannot rely on the continuing violations

doctrine to rescue her time-barred claims.4

4 In addition, as Rae points out, in determining that the continuing violations doctrine could not be applied to Rae's retaliatory harassment claims under both state and federal law, the district court relied solely on cases interpreting the continuing violations doctrine under Massachusetts law. This was incorrect, as the Massachusetts standard is meaningfully different from the federal standard on continuing violations. The SJC has adopted the pre-Morgan standard for the continuing violations doctrine for Chapter 151B claims. Under Massachusetts law, "a continuing violation claim will fail if the plaintiff was, or should have been, aware that she was being unlawfully discriminated against while the earlier acts, now untimely, were taking place." Cuddyer, 750 N.E.2d at 938. The Morgan Court, however, declined to impose a lack-of-knowledge or reasonableness requirement for the federal continuing violations doctrine. 536 U.S. at 117–18 ("It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not [rely on the continuing violations doctrine] unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct."); see also Marrero v.

- 24 - Where "discre[te] acts of alleged retaliation fall

outside the filing period," such "acts are time[-]barred."

Dressler v. Daniel, 315 F.3d 75, 79 (1st Cir. 2003). The Morgan

Court made clear that "each retaliatory adverse employment

decision constitutes a separate actionable 'unlawful employment

practice.'" 536 U.S. at 114. And if "prior discrete

discriminatory acts are untimely filed," they are "no longer

actionable." Id. at 115. The continuing violations doctrine does

not alter this rule. Nor does framing discrete claims as

non-discrete components of a single retaliatory harassment

claim -- especially where, as in Rae's case, such a "claim" spans

eleven years -- entitle the plaintiff to invoke the continuing

violations doctrine.

Put differently, the continuing violations doctrine

indisputably serves as "an equitable means of ensuring that

meritorious discrimination claims are not pretermitted because the

Goya of P.R., Inc., 304 F.3d 7, 18 (1st Cir. 2002) (recognizing that "the Supreme Court [in Morgan] explicitly rejected the view -- advanced by [the employer] here -- that 'the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct'" (quoting Morgan, 536 U.S. at 117–18)). Moreover, post-Morgan, the SJC has commented that the Massachusetts standard is "phrased differently" than the version approved in Morgan, and as is permissible, it has continued applying the lack-of-knowledge requirement for continuing violations alleged under Chapter 151B. Clifton v. Mass. Bay Transp. Auth., 839 N.E.2d 314, 320 n.8 (Mass. 2005).

- 25 - claimant needed to experience a pattern of repeated acts before

[they] could be expected to realize that the individual acts were

discriminatory in nature." Loubriel v. Fondo del Seguro del

Estado, 694 F.3d 139, 144 (1st Cir. 2012). But "related discrete

acts" cannot be combined "into a single unlawful practice for the

purposes of timely filing." Morgan, 536 U.S. at 111. In fact,

the Morgan Court reversed the Ninth Circuit's approach to

"appl[ying] the continuing violations doctrine to what it termed

'serial violations.'" Id. at 114. Even where "one [discrete] act

falls within the charge filing period," the Court held that the

continuing violations doctrine could not be applied to allow

"discriminatory and retaliatory acts that are plausibly or

sufficiently related to that [timely] act [to] also be considered

for the purposes of liability." Id.; see also Thornton v. United

Parcel Serv., Inc., 587 F.3d 27, 33 (1st Cir. 2009) ("As to serial

violations, the Supreme Court has reiterated that 'discrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges.'"

(quoting Morgan, 536 U.S. at 113)).

In her reply, Rae is adamant that she "is not suing for

discrete acts of retaliation" because she has brought "a hostile

work environment claim that is comprised of a long pattern of

retaliatory behavior stemming from the same animus." Rae's

argument elides two important issues. First, we have never held

- 26 - that a plaintiff's allegations of retaliatory harassment eliminate

our obligation to evaluate whether the allegations include

discrete discriminatory acts that are time barred. Retaliation

can take many forms and harassment is just one type of retaliation.

See Marrero, 304 F.3d at 26; Noviello, 398 F.3d at 87

("[R]etaliation is a distinct and independent act of

discrimination, motivated by a discrete intention to punish a

person who has rocked the boat by complaining about an unlawful

employment practice.").

As already noted, the Morgan Court contemplated that

"each retaliatory adverse employment decision constitutes a

separate actionable 'unlawful employment practice'" with its own

statute of limitations period. 536 U.S. at 114. Accordingly, we

have held that "[u]nder both federal and state law, a cause of

action for discrimination or retaliation accrues when it has a

crystallized and tangible effect on the employee and the employee

has notice of both the act and its invidious etiology." Shervin,

804 F.3d at 33 (emphasis added). So, even where a plaintiff

alleges a pattern of retaliatory conduct (here, in the form of a

hostile work environment), discrete retaliation claims can still

accrue and may become time barred.

Second, while Rae views the harassment she suffered as

being driven by generalized retaliatory motives, the continuing

violations doctrine requires more. "[I]n order to invoke [the

- 27 - continuing violations] doctrine, a claimant must show at a bare

minimum a series of discriminatory acts that emanate from the same

discriminatory animus." Noviello, 398 F.3d at 87 (emphasis added).

Here, Rae's complaint reflects that she engaged in several types

of protected activities for different purposes over an eleven-year

period. And at a high level, Rae's advocacy on behalf of students

with disabilities beginning in 2011 can be construed as the

catalyst for this extensive series of retaliation-related events.

But the disparate forms of Rae's protected activities, which were

taken for varying purposes for over a decade, make it necessary to

determine whether WPS's numerous adverse actions stemmed from the

same animus.5

Consequently, raising a retaliatory harassment claim

alone does not automatically entitle a plaintiff to rely on the

continuing violations doctrine. In particular, a plaintiff may

not disguise discrete acts of retaliation as a single retaliatory

harassment claim comprised of temporally distant conduct, multiple

5 Of course, where a plaintiff alleges that they suffered harassment because of a protected trait such as race or sex, establishing that the employer's conduct was motivated by the same discriminatory animus -- even if the harassment occurred over a very long timespan -- can be a more feasible task. Cf. Morgan, 536 U.S. at 120 (applying continuing violations doctrine where "managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of [Black employees] to be supervisors, and used various racial epithets" and holding that this misconduct was clearly driven by the same discriminatory animus).

- 28 - forms of protected activity undertaken for various purposes, and

several discrete adverse actions. Under other circumstances,

however, a plaintiff alleging retaliatory harassment may be able

to rely on the continuing violations doctrine. Likewise, we do

not foreclose applying the continuing violations doctrine to "a

claim involv[ing] a pattern of conduct which includes a discrete

act that may itself be actionable," with the caveat that "the

continuing violation doctrine is arguably more accommodating under

Massachusetts law than under federal law" in such cases. Shervin,

804 F.3d at 37 n.7. But as cataloged in detail below, Rae's

complaint alleges a series of discrete retaliation claims that

cannot be saved by the continuing violations doctrine.

2. Serial Discrete Acts of Retaliation Are Time Barred

Rae alleges that she first engaged in protected activity

by advocating for students with disabilities in October 2011. And

soon thereafter, Nelson "began to intimidate her" through

harassing behavior. Furthermore, Nelson "conspired" with Rae's

co-worker to punish Rae for her advocacy and tolerated this

co-worker harassment. By December 2011, Rae had suffered

"unfounded discipline" that she maintains was a result of Nelson's

"coordinated effort to harass [her]." "[A] reprimand may

constitute an adverse action," Bhatti v. Trs. of Bos. Univ., 659

F.3d 64, 73 (1st Cir. 2011), and severe or pervasive harassment

"by co-workers or supervisors" is also adverse action, Marrero,

- 29 - 304 F.3d at 26. But somewhat paradoxically, in the light most

favorable to Rae, we assume she did not intend to plead that these

acts were sufficient to satisfy the adverse action element of her

retaliation claim, which would have triggered the earliest

possible statute of limitations on a retaliation claim.

Even so, by approximately December 2012, Rae alleges

that she "feared further retaliation" after she hired an attorney

to negotiate with WPS, was unsuccessful in resolving the alleged

harassment through her attorney, and experienced "extreme

distress" when she was "used as a 'fall guy'" for Nelson's

misconduct. At this point, by Rae's own acknowledgement, Rae's

retaliation claim stemming from her October 2011 advocacy6 had

accrued. See Miller, 296 F.3d at 22 (holding that the plaintiff's

retaliation claim accrued where he explicitly noted that he felt

"abused and retaliated against"); Shervin, 804 F.3d at 33

(explaining that the plaintiff's "knowledge of the probation and

its immediate, tangible effects, together with her loudly bruited

belief that the probation decision was a form of disparate

discipline motivated by gender discrimination, is all that was

6 We note without deciding that, in this same time period, Rae engaged in other activities that could constitute protected conduct, such as hiring a lawyer to challenge the retaliatory harassment she perceived. See Kinzer v. Whole Foods Mkt., Inc., 99 F.4th 105, 115 (1st Cir. 2024) (emphasizing that protected conduct is construed "broadly" and can include a wide array of activities).

- 30 - needed for her cause of action to accrue and the limitations clock

to begin to tick"). Under Morgan, by failing to file

administrative charges and a lawsuit to recover on this completed,

discrete act of retaliation, Rae has forfeited her right to recover

on it. See 536 U.S. at 113.

Likewise, Rae engaged in multiple forms of protected

activity between February 2013 and October 2015, including

advocating for students with disabilities and filing at least two

formal complaints that raised concerns about WPS's treatment of

students with disabilities and the harassment she was suffering.

Rae documented numerous ways in which Nelson's harassment

negatively "interfer[ed]" with her job duties and work

environment, caused her emotional distress, and left her feeling

compelled to request a transfer to escape Nelson's supervision.

At some point after October 2015, WPS denied Rae's request to

transfer. And WPS later refused to promote Rae to a Nurse Leader

position for which she had seniority and was qualified in the

summer of 2016.

After being denied the transfer and promotion -- which

plainly constituted adverse employment actions -- Rae continued to

engage in protected activities and WPS repeatedly took adverse

action against her. And by our count, Rae's complaint alleges at

least two additional completed, discrete acts of retaliation

between mid-2016 and late-2019.

- 31 - For instance, on July 26, 2016, Rae "filed an official

complaint" with Crowley, her Nurse Leader supervisor, and other

WPS staff regarding WPS's failure to implement an appropriate

diabetes protocol. One month later, under what Rae perceived to

be improper pretenses, Nelson initiated disciplinary proceedings

against her. As a result, Rae was formally suspended without pay,

which she explicitly described as "an act of retaliation against

[her]" for sending her July 26 email calling out WPS's failure "to

comply with state and federal laws that protect the civil rights

of students with disabilities, and [Nelson's] ongoing attempts to

intimidate [her] in order to silence [her] from coming forward."

Most generously to Rae, WPS's latest (and indisputably adverse)

act of imposing a pretextual suspension -- based on what Rae

herself believed were retaliatory motives -- triggered the running

of a statute of limitations on a second retaliation claim in

October 2016. Again, Rae did not file timely charges or a civil

suit to recover on this discrete retaliation claim.

Next, between April and June 2017, Rae engaged in several

forms of protected conduct. In April 2017, Rae complained to

Crowley regarding WPS's "failure to fund nursing services for

diabetic students" and insisted that "these students were being

denied a free and appropriate public education" in violation of

federal law. Around the same time, Rae participated in drafting

an IEP on behalf of a student with disabilities and urged Nelson

- 32 - to adopt specific accommodations to prevent the student from being

bullied. And in June 2017, Rae filed a grievance with her union

to complain about her mistreatment.

All the while, and well into 2018, Nelson continued to

"belittle[] and berate[]" Rae at work, causing Rae even greater

"emotional distress." For example, during meetings regarding the

student's IEP, Nelson "belittled []Rae in front of the special

education staff" and "verbally dismissed and berated" her when she

brought up concerns about the student being bullied.

On September 8, 2018, Rae wrote to a WPS School Committee

member "describing the hostile work environment" she perceived.

By this point in 2018, another retaliation claim accrued, but Rae

did not act on it. See Dressler, 315 F.3d at 79 (describing a

discrete retaliation claim as time barred where the plaintiff

"perceived a hostile work environment" but did not file timely

administrative charges).

In July 2019, Rae reengaged counsel to address her

concerns with WPS. Approximately two months later, in September

2019, Nelson allowed a woman who was not authorized to pick up a

sick student to verbally abuse Rae, and he also "[b]erat[ed] and

embarrass[ed]" Rae. Then, a few weeks later, Nelson "falsely

accused" Rae of stealing a sweatshirt that she had given to a

student, again causing Rae "great distress." Rae took this

- 33 - incident to be "another attempt [by Nelson] to embarrass and

harass" her.

the WPS HR department, citing several examples of "bullying and

retaliation" that she classified as "retaliation for [her] recent

reports of unfair and unlawful conduct" that "substantially

disrupt[ed] [her] work as a school nurse and ma[d]e [her] feel

afraid and unsafe." From Rae's own account, Nelson's retaliatory

behavior in response to her protected activity led her to believe

that she was suffering from a hostile work environment. While

Rae's November 2019 HR complaint was based on Nelson's more

"recent" conduct, Rae explicitly noted that she was suffering from

a hostile work environment since at least fall 2018. Consequently,

as previously discussed, Rae cannot avoid the conclusion that a

time-barred retaliatory harassment claim accrued by late 2018.

For largely the same reasons discussed above, the

continuing violations doctrine cannot be applied to Rae's Chapter

151B claims. Under Massachusetts law, a plaintiff cannot invoke

the continuing violations doctrine where "the employer's actions

(or inactions) were sufficient either to make the [plaintiff] aware

of the discrimination, or to enable [them] to form a reasonable

belief thereof." Ocean Spray Cranberries, Inc. v. Mass. Comm'n

Against Discrimination, 808 N.E.2d 257, 269 (Mass. 2004).

- 34 - Rae contends that the district court wrongly

"speculate[d]" about her "state of mind" when it concluded that

she "knew or reasonably should have known that her work situation

was pervasively hostile and unlikely to improve." But Rae's

pleadings repeatedly highlight her belief that she was the victim

of retaliatory harassment. Rae explicitly described her

suspension without pay in October 2016 as "an act of retaliation

against [her]." And in September 2018, citing the unlawfulness of

retaliatory harassment under Massachusetts law, Rae wrote that she

wanted to present "evidence . . . to address the wide spread [sic]

retaliation that occurred against [her] that warranted legal

action." Consequently, the district court did not need to

"speculate" about Rae's mindset when Rae, in her own words, made

clear that she believed she was suffering from discrimination.

And the district court correctly concluded that Rae could not

invoke the continuing violations doctrine under Massachusetts law.

E. Actionable Conduct for Rae's ADA, Section 504, and Chapter 151B Claims

This brings us to the window for actionable conduct under

Title II of the ADA and Section 504's three-year statute of

limitations, beginning on November 17, 2019.

The district court considered Rae's advocacy on behalf

of students with disabilities as the sole protected activity for

any timely retaliation claim. It then "assume[d] without deciding"

- 35 - that Rae had suffered adverse action within the three-year time

frame. But the district court dismissed Rae's retaliation claim

after concluding there was no causal connection between the adverse

action and Rae's advocacy on behalf of students with disabilities.

Likewise, for Rae's Chapter 151B claim, the district court held

that Rae had failed to demonstrate "a causal connection between

the timely allegations of adverse action and any protected

activity."7

At times, Rae's complaint alleges that her advocacy on

behalf of students with disabilities was the sole cause of

appellees' retaliatory conduct. But at other points, Rae suggests

that other forms of protected activity motivated appellees'

retaliation. Taking the allegations of the complaint in the light

most favorable to Rae, as we must, and in line with our prior

discussion, we conclude that her complaint alleges several

distinct forms of protected activity within an eleven-year span.

For instance, Rae alleges that on or about November 20,

2019, she engaged in protected activity by filing a complaint with

the WPS HR department regarding Nelson's retaliatory harassment.

7 The district court appears to have construed Rae's complaint as alleging a separate hostile work environment claim under Chapter 151B. Regardless of whether Rae intended to raise a standalone hostile work environment claim, the district court correctly relied on the same "severe or pervasive" harassment standard applicable to the adverse employment action element of a retaliatory harassment claim. See Noviello, 398 F.3d at 89.

- 36 - Rae alleges that, on the same day, Nelson "retaliated and

intimidated her" by ordering her to report for a disciplinary

hearing that he later cancelled without reason.

Although this incident may have been quite close in time

to Rae's protected activity, it is not clear from Rae's complaint

or supporting documentation when she filed her HR complaint or

whether Nelson was actually seeking to discipline her.8 Relatedly,

Rae does not allege whether or how Nelson would have known about

her HR complaint before he sent the email; she merely noted, in a

separate email sent on November 20, 2019, to a third party that

"perhaps [Nelson] heard [she was] going to a scheduled Human

Resources meeting today." Moreover, Nelson's email does not appear

to reference disciplinary proceedings at all -- it simply requests

that Rae "stop by at the beginning of 6th period to discuss an

email [he] received from a parent." Rae apparently took this to

mean that she was being disciplined, and she noted in her response

to Nelson that she would be requesting union representation.

Rae maintains that Nelson's unexplained cancellation

evinces his malintent. But her failure to plausibly allege the

exact timing of events and Nelson's purported knowledge of her

8 Rae alleges that she filed her HR complaint "[o]n or about November 20, 2019." The corresponding exhibit is addressed to the HR department and dated November 20, 2019, but it is not an email or other document with an automatic timestamp. Meanwhile, Rae attached Nelson's email from November 20, 2019, showing 9:42am as the sent time.

- 37 - protected activity make it impossible to evaluate this conclusory

allegation. So, while we make all reasonable inferences in Rae's

favor, we cannot do so on this key causation issue, and must

conclude that Nelson's email alone does not constitute retaliatory

conduct.

Rae then appears to allege that WPS conducted a "sham

investigation" of her HR complaint and the investigator later

"demean[ed]" her when she "requested a meeting about the shoddy

and biased investigation" in June 2020. We agree with the district

court that these allegations do not plausibly establish that Rae

suffered an adverse employment action. Similarly, Rae alleges

that in October 2021, Nelson purportedly violated an agreement

with Rae's union prohibiting him from conducting her annual

performance reviews. But she does not suggest that these reviews

were unwarrantedly negative or otherwise affected her working

conditions. Nonetheless, as events that underly her timely

retaliatory harassment claim, we do not wholly cast them aside

yet.

Problematically, however, Rae does not allege that WPS

engaged in any other misconduct in the two-year span following her

protected activity in November 2019. Indeed, even by the start of

the time frame for her Chapter 151B claims beginning on June 14,

2021, Rae does not allege that she engaged in any protected

activity or suffered any adverse action. Although we can infer

- 38 - that Rae's work at WPS was substantially altered due to COVID-19,

these sparse allegations do not make out a retaliatory harassment

claim based on her protected activity of filing the HR complaint

in November 2019.

Regardless, Rae engaged in additional protected activity

on April 10, 2022 by filing her MCAD complaint, naming Crowley and

Nelson "as the persons responsible for the retaliation" she

experienced. One month later, on May 11, 2022, Rae alleged that

Nelson "summoned [her] to a disciplinary hearing" regarding a

t-shirt containing a reference to alcohol that a student had taken

from a donation pile without Rae's knowledge. Although Rae was

not formally disciplined, she maintained that the meeting was

unjustified and retaliatory.

The next retaliatory event that Rae alleges occurred on

September 28, 2022, where Nelson repeatedly paged her over the

public announcement system while she was locked out of the building

after leaving briefly to use her inhaler. One week later, Nelson

held a disciplinary hearing to address Rae's unauthorized absence.

While Rae does not indicate whether WPS took disciplinary action,

she claims that Nelson's pretextual discipline caused her "severe

emotional distress" and "humiliation."

The district court suggested that, based on the limited

number of timely retaliatory acts alleged, the harassment was

likely not severe or pervasive enough to constitute retaliatory

- 39 - harassment. Alternatively, it held that Rae's allegations of

timely events "do not establish a causal link between her protected

activity on behalf of [students with disabilities] and the claimed

harassment."

Even if, as Rae contends, the district court erred in

holding that she failed to sufficiently plead causation, we

nonetheless affirm on grounds that Rae has not plausibly alleged

that she suffered severe or pervasive harassment. As already

noted, Rae engaged in protected activity other than her advocacy

on behalf of students with disabilities, including filing her MCAD

complaint in April 2022. So, construing the allegations in the

light most favorable to Rae, the district court should have

assessed whether she had plausibly alleged that her more recent

protected activity of filing her MCAD complaint was the but-for

cause of the retaliatory conduct she suffered.

In this vein, we have cautioned district courts against

"treat[ing] the prima facie case, 'a flexible evidentiary

standard,' as a 'rigid pleading standard,' requiring [the

plaintiff] to establish each prong of the prima facie case to

survive a motion to dismiss." Garayalde-Rijos v. Mun. of Carolina,

747 F.3d 15, 24 (1st Cir. 2014) (citation omitted) (quoting

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)). Rather,

"[t]he question at this stage of the case is not 'the likelihood

that a causal connection will prove out as fact.'" Román-Oliveras

- 40 - v. P.R. Elec. Power Auth., 655 F.3d 43, 50 (1st Cir. 2011) (quoting

Sepúlveda–Villarini v. Dep't of Educ. of P.R., 628 F.3d 25, 30

(1st Cir. 2010)). And of course, "[n]one of this is to deny the

wisdom of the old maxim that after the fact does not necessarily

mean caused by the fact." Sepúlveda–Villarini, 628 F.3d at 30.

But even though "it is possible that other, undisclosed facts may

explain the sequence better[,] [s]uch a possibility does not negate

plausibility, however; it is simply a reminder that plausibility

of allegations may not be matched by adequacy of evidence." Id.

Moreover, despite Rae's inability to rely on the

continuing violations doctrine to rescue her time-barred claims,

"evidence of events that fall outside the statute of limitations

may still be admitted as relevant background evidence to show that

discriminatory animus motivated the acts that occurred within the

statute of limitations." Malone v. Lockheed Martin Corp., 610

F.3d 16, 22 (1st Cir. 2010); see also Morgan, 536 U.S. at 113

(explaining that, even where discrete acts are time barred, a

plaintiff may still "us[e] the prior acts as background evidence

in support of a timely claim"); Pelletier v. Town of Somerset, 939

N.E.2d 717, 731 n.33 (Mass. 2010) ("If the plaintiff does not meet

the continuing violation standard, the plaintiff may still use

events that occurred prior to the [Chapter 151B] limitation period

as background evidence of [a] hostile work environment, but may

not recover damages for time-barred events.").

- 41 - A district court errs where it "fail[s] to evaluate the

cumulative effect of the factual allegations." Ocasio-Hernández

v. Fortuño-Burset, 640 F.3d 1, 14 (1st Cir. 2011). Here, accepting

all of the allegations as true, Rae's complaint plausibly spelled

out an acrimonious history of retaliatory conduct based on her

advocacy on behalf of students with disabilities and her opposition

to the retaliation she perceived. In particular, Rae's complaint

suggests that her protests centering around Nelson's inappropriate

behavior -- whether towards her or students with

disabilities -- led Nelson to target her for retaliatory treatment.

While additional evidence may undermine Rae's ability to succeed

on the merits, the district court erred by "demand[ing] more than

plausibility" at the pleadings phase. Sepúlveda–Villarini, 628

F.3d at 29. Taken as a whole, Rae's complaint sufficiently

suggested that the timely adverse actions alleged were undertaken

with retaliatory motives, such that her retaliatory harassment

claims should not have been dismissed for failure to sufficiently

plead causation.

But Rae falters when it comes to alleging that the

harassment she experienced after filing her MCAD complaint

plausibly rose to the level of severe or pervasive harassment

necessary to sustain a claim of retaliatory harassment. One month

after filing her MCAD complaint, Rae attended a disciplinary

hearing when Nelson learned that a student obtained a t-shirt

- 42 - containing an alcohol reference from Rae's office, but she was not

subject to any formal reprimand. And six months after filing her

MCAD complaint, Nelson "created a false emergency" and subjected

Rae to another disciplinary hearing when she left the building to

use her inhaler. While we accept Rae's allegations that these

events were personally humiliating and she subjectively

experienced emotional distress, Rae has not pointed to any case

law suggesting that these two incidents alone plausibly

constituted objectively severe or pervasive harassment.9

At the motion to dismiss phase in particular, "[s]ubject

to some policing at the outer bounds," the issue of whether

9 We have affirmed dismissal at the summary judgment phase where the harassment was more severe or pervasive than the misconduct that Rae alleges here. See, e.g., Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34, 37-43, 46-47 (1st Cir. 2003) (holding that the incidents alleged were not severe or pervasive enough to constitute a hostile work environment where the plaintiff's manager warned the plaintiff not to bring any "problems" to the manager's boss, repeatedly made inappropriate remarks about the plaintiff's appearance, accused the plaintiff of having a negative attitude and threatened to reassign her to a new sales territory, and imposed requirements on the plaintiff for taking sick leave from work that went against company policy); Alvarado v. Donahoe, 687 F.3d 453, 462 (1st Cir. 2012) (holding on summary judgment that the plaintiff failed to establish a hostile work environment claim because the employer's actions did not constitute "severe or pervasive adverse conduct" where supervisors repeatedly made "taunting and mocking comments [that] were both callous and objectionable" about the plaintiff's psychiatric condition); Ponte v. Steelcase Inc., 741 F.3d 310, 314, 320-21 (1st Cir. 2014) (affirming entry of summary judgment against the plaintiff's hostile work environment claims that involved her supervisor's "unwelcome arm around her shoulder as he insisted on driving her alone back to her hotel after work" on two occasions and insinuating that the plaintiff "owed" him for hiring her).

- 43 - harassment was severe or pervasive "is commonly one of

degree -- both as to severity and pervasiveness -- to be resolved

by the trier of fact." Gorski v. N.H. Dep't of Corr., 290 F.3d

466, 474 (1st Cir. 2002); see also Noviello, 398 F.3d at 94

(explaining that "no pat formula exists for determining with

certainty whether the sum of harassing workplace incidents rises

to the level of an actionable hostile work environment," and

"[s]uch a determination requires the trier of fact to assess the

matter on a case-by-case basis, weighing the totality of the

circumstances"); cf. Billings v. Town of Grafton, 515 F.3d 39, 49

(1st Cir. 2008) (explaining that, even at summary judgment, cases

providing "instructive examples of actionable sexual harassment,

. . . do not suggest that harassing conduct of a different kind or

lesser degree will necessarily fall short of that standard").

But the Supreme Court has made clear that "a wholly

conclusory statement of claim" cannot "survive a motion to dismiss

whenever the pleadings left open the possibility that a plaintiff

might later establish some 'set of [undisclosed] facts' to support

recovery." Twombly, 550 U.S. at 561 (alteration in original)

(citation omitted). Moreover, "[t]o clear the plausibility

hurdle, a complaint must contain 'enough fact[s] to raise a

reasonable expectation that discovery will reveal evidence'

sufficient to flesh out a viable claim." Butler v. Balolia, 736

- 44 - F.3d 609, 617–18 (1st Cir. 2013) (second alteration in original)

(quoting Twombly, 550 U.S. at 556).

Taking Rae's allegations of these two incidents as true,

and even assuming that discovery would yield sufficient evidence

to prove those allegations, what Rae lacks here is a "viable

claim." In the context of severe or pervasive harassment,

"isolated incidents (unless extremely serious) will not amount to

discriminatory changes in the 'terms and conditions of

employment'" to support a retaliatory harassment claim. Faragher

v. City of Boca Raton, 524 U.S. 775, 788 (1998). Furthermore, Rae

has not sufficiently alleged how the t-shirt and inhaler incidents

affected her work performance. See Ayala-Sepúlveda v. Mun. of San

Germán, 671 F.3d 24, 31 (1st Cir. 2012) (upholding grant of summary

judgment against the plaintiff on a hostile work environment claim

where "there is no evidence on the record that [the plaintiff's]

work performance suffered as a result of his anxiety" stemming

from his employer's adverse actions); Bhatti, 659 F.3d at 74

(affirming grant of summary judgment against the plaintiff on a

hostile work environment claim in part because she "pointed to no

effect whatsoever on her work performance").

And while Rae contends that her complaint alleges "a

litany of harassing conduct over a long period of time," for

reasons discussed above, only two timely incidents of retaliatory

harassment stemming from filing her MCAD complaint remain. Rae

- 45 - has not pointed us to any case law -- nor have we independently

identified any substantive support -- suggesting that these two

incidents alone can plausibly satisfy the severe or pervasive

harassment standard. Therefore, Rae's timely retaliatory

harassment claims must be dismissed on this ground.

III. Conclusion

For the foregoing reasons, the district court's decision

dismissing Rae's complaint is affirmed.

- 46 -