UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Lys Ann Weiss
v. Civil No. 13-cv-376-LM Opinion No. 2014 DNH 221 Dartmouth College
O R D E R
The Plaintiff, Lys Ann Weiss, was – and remains – employed
by the Defendant, Dartmouth College. In this lawsuit, Ms. Weiss
alleges that she was the victim of unlawful discrimination and
harassment on the basis of her age and gender, and that her
superiors retaliated against her for voicing her concerns. Now,
Dartmouth has filed a motion for summary judgment which, for the
reasons that follow, is GRANTED.
Factual Background1
Ms. Weiss was hired in 2009 (at the age of 56) as the
Managing Editor of the publishing department at Dartmouth, which
operates under the trade name University Press of New England
(“UPNE”). Compl. ¶ 4. As Managing Editor, Ms. Weiss was
principally responsible for ensuring that UPNE publications were
thoroughly checked for errors, that UPNE had all of the
1 The facts are summarized from the complaint (Document No. 1; cited as “Compl.”) and the briefs and exhibits filed in connection with the motion for summary judgment. Unless noted, the facts are not in dispute. necessary legal permissions to publish its materials, and that
all indexes and manuscripts were prepared accurately and in a
timely fashion. Dartmouth’s Mem. in Supp. of Mot. for Summ. J.
(“Dartmouth’s Mem.”) 2, Document No. 12-1.
Ms. Weiss reported directly to Eric Brooks, the Assistant
Director of Design and Production. Compl. ¶ 5. Mr. Brooks, in
turn, reported to Michael Burton, the Press Director. Id.
Another employee, Phyllis Deutsch, was UPNE’s Editor-in-Chief
and also reported to Mr. Burton, making her a peer of Mr.
Brooks. Id.
The allegations in this case largely involve the purported
favoritism of young, female employees by Mr. Brooks, and the
refusal by Ms. Deutsch and Mr. Burton to remedy the situation.
The complaint alleges many examples of this favoritism:
At a meeting in April 2011, Mr. Brooks so “lavishly praised” the work of a young, female production assistant that meeting attendees were made to feel “uncomfortable.” Id. ¶ 9. Mr. Brooks later expressed his “personal devastation” when this same production assistant announced her impending departure from UPNE. Id.
At another meeting attended by the same young, female production assistant, Mr. Brooks admonished Ms. Weiss and another attendee to “keep quiet” because the young production assistant “want[ed] to say something.” Id. ¶ 10.
Mr. Brooks “spent a considerable amount of time” with another young, female assistant. Id. ¶ 11.
2 In July 2011, Ms. Weiss asked Mr. Brooks if a young, female production assistant could mail an envelope, but Mr. Brooks said that Ms. Weiss should mail it herself because the young production assistant’s time was “more valuable.” Id. ¶ 14.
In March 2012, Mr. Brooks informed Ms. Weiss “testily” that a young, female designer would be allowed to temporarily store page proofs in her office, a departure from standard office procedure. Id. ¶ 19.
In April 2012, Mr. Brooks defended the work of a young, female production assistant when confronted by Ms. Weiss with perceived shortcomings in the work. Id. ¶ 23.
At approximately the same time, Mr. Brooks told Ms. Weiss to “butt out” when Ms. Weiss came to him with concerns about email correspondence between a young, female designer and a freelance editor. Id. ¶ 24.
At a meeting in July 2012, Mr. Brooks “doted on [a young, female production assistant’s] recent experience at volleyball camp.” Id. ¶ 31.
Mr. Brooks allegedly held doors for other employees, but not for Ms. Weiss. Dartmouth’s Mem. 4.
The complaint alleges that Ms. Weiss initially brought her
concerns regarding the perceived favoritism to the attention of
Ms. Deutsch, who indicated that she had observed the behavior
herself, and who promised that she would address the situation
with Mr. Burton. Compl. ¶ 12. Separately, Ms. Weiss raised the
issue directly with Mr. Burton at a meeting in May 2011; Mr.
3 Burton allegedly indicated that the favoritism was already on a
list of issues to discuss with Mr. Brooks.2 Id. ¶ 13.
Prior to the first of these events, Mr. Brooks had
expressed concern to Ms. Weiss regarding her unsatisfactory
attendance and failure to meet deadlines. In November 2010, Mr.
Brooks wrote an email to Ms. Weiss, stating “I’m just starting
to get a little bit concerned about people in the department not
being here by 9:00 at the latest on a more consistent basis and
wanted to share my general expectations with you.” See Exh. H
to Aff. of Eric Brooks, Document No. 12-16. Then, in May 2011,
Ms. Weiss received an annual review that noted that “[w]hereas,
in general, [Ms. Weiss] and her staff have done a very good job
adhering to schedules, there have been a few spells and a few
instances where books have fallen off schedule in ways not
entirely explicable by the complications inherent in the
projects themselves.” See id. at Exh. C, Document No. 12-11.
During approximately the same period of time, Mr. Brooks
and Mr. Burton began noting friction between Ms. Weiss and
others at UPNE. In March 2011, Mr. Burton contacted Dartmouth’s
Human Resources Department with concerns that Ms. Weiss had
reacted inappropriately to Mr. Brooks having made a managerial
2 Ms. Weiss recorded many of these events in a lengthy diary that she kept from July 2011 until her departure from UPNE in September 2012. See Def.’s First Req. for Admis. to Pl., Document No. 12-7. 4 decision without consulting her. Aff. of Michael Burton ¶ 8,
Document No. 12-17. According to Mr. Burton, Ms. Weiss “was
absent [from] work for two days [after the incident], and
refused to work on a project because she was upset at not being
consulted.” Id.
The record suggests that Mr. Brooks’s November 2010 email
did little to alter Ms. Weiss’s unsatisfactory pattern of
attendance. Between December 2011 and April 2012, Ms. Weiss was
absent from the office for eighteen days and missed at least a
portion of twenty-three additional days. Aff. of Eric Brooks ¶
15, Document No. 12-8. At the same time, many of the projects
for which Ms. Weiss had responsibility were significantly behind
schedule. See id. at Exh. D, Document No. 12-12.
And, Dartmouth suggests that Ms. Weiss continued to be a
source of interpersonal strife and office friction. For
example, in May 2012, Mr. Brooks gave Ms. Weiss her annual
employment evaluation. See Exh. C to Aff. of Michael Burton,
Document No. 12-20. In addition to noting her attendance
shortcomings, Mr. Brooks wrote that “[o]f the greatest concern
is that . . . [Ms. Weiss] has become increasingly uncooperative
and intransigent. Simultaneously, she has been . . .
inexplicably inhospitable toward two of the new members of the
department . . . . For example, her reaction to errors in
composition . . . made one colleague feel harassed.” Id.
5 After Ms. Weiss submitted a response to the evaluation,
Dartmouth arranged for mediation between Ms. Weiss and her
supervisors; this was unsuccessful.3 Compl. ¶¶ 26-27.
Thereafter, the complaint suggests that Ms. Weiss was prohibited
from speaking with coworkers about non-work-related issues and
was required to arrive at work by 9:00 a.m.4 Id. ¶¶ 27-28.
The parties offer competing interpretations of these
events. Ms. Weiss argues that her negative evaluation was
retaliation for her decision to report her beliefs regarding Mr.
Brooks’s favoritism of younger women to Mr. Burton and Ms.
Deutsch. Dartmouth takes the position that the evaluation
reflected long-standing and well-documented concerns regarding
Ms. Weiss’s performance and attendance.
On September 21, 2012, Ms. Weiss resigned from her position
with UPNE and took a position in Dartmouth’s Art History
Department. Id. ¶ 33. The complaint alleges that this new
position entailed a lower salary and reduced benefits.5 Id.
3 As part of her response to the evaluation, Ms. Weiss contended that a number of her absences were attributable to stress stemming from the workplace. 4 During the summer of 2012, Ms. Weiss filed an informal complaint with Dartmouth’s Institutional Diversity and Equity Department. Compl. ¶ 32. Ms. Weiss was later informed that, upon investigation, no pattern of age or gender discrimination had been discovered. Id. 5 Ms. Weiss appears to remain employed in this new position. See Dartmouth’s Mem. 2. 6 Ms. Weiss alleges that although she resigned voluntarily,
her departure from UPNE amounts to a constructive discharge.
Id. She has brought an array of claims sounding in age and
gender-based discrimination and harassment, and unlawful
retaliation, under the New Hampshire Law Against Discrimination,
N.H. Rev. Stat. Ann. § 354-A:1 et seq. (“NH LAD”); Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title
VII”); and the Age Discrimination in Employment Act, 29 U.S.C. §
621 et seq. (“ADEA”). Dartmouth now moves for summary judgment.
Legal Standard
“Summary judgment is appropriate when there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.” Ponte v. Steelcase Inc., 741 F.3d
310, 319 (1st Cir. 2014) (citations omitted); see also Fed. R.
Civ. P. 56(a). When ruling on a motion for summary judgment,
the court must “view[] the entire record in the light most
hospitable to the party opposing summary judgment, indulging all
reasonable inferences in that party’s favor.” Winslow v.
Aroostook Cnty., 736 F.3d 23, 29 (1st Cir. 2013) (citations
omitted) (internal quotation marks omitted).
“The object of summary judgment is to pierce the
boilerplate of the pleadings and assay the parties’ proof in
order to determine whether trial is actually required.” Dávila
7 v. Corporación de P.R. para la Difusión Pública, 498 F.3d 9, 12
(1st Cir. 2007) (citations omitted) (internal quotation marks
omitted). “[T]he court’s task is not ‘to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.’” Noonan v. Staples, Inc., 556
F.3d 20, 25 (1st Cir. 2009) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 250 (1986)).
Discussion
Ms. Weiss’s nine claims fall into three categories. Counts
I through III allege unlawful discrimination on the basis of age
and gender; Counts IV through VI allege gender and age-based
harassment resulting in a hostile work environment; and Counts
VII through IX allege unlawful retaliation. The court will
assess each category in turn.
I. Counts I-III - Discrimination Based on Age and Gender
In Counts I, II, and III, Ms. Weiss has brought claims for
age and gender discrimination under the NH LAD, Title VII, and
the ADEA, respectively. Though these claims are grounded in
separate statutory schemes, the court will address them together
because all three require the court to conduct its analysis in
an identical fashion under the so-called McDonnell Douglas
burden-shifting framework developed by the Supreme Court to
8 evaluate claims of employment discrimination.6 See Santiago-
Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 53-54 (1st
Cir. 2000) (applying McDonnell Douglas to a Title VII claim for
gender discrimination); Madeja v. MPB Corp., 821 A.2d 1034, 1042
(N.H. 2003) (noting that New Hampshire courts rely on Title VII
cases to analyze claims brought under the NH LAD); Adamson v.
Walgreens Co., 750 F.3d 73, 78-79 (1st Cir. 2014)) (applying
McDonnell Douglas to an ADEA claim).
Courts employ the McDonnell Douglas framework where, as
here, the plaintiff lacks direct evidence of discrimination.
Adamson, 750 F.3d at 78 (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-05 (1973)). This framework first calls
upon the employee to establish a prima facie case of
discrimination by producing evidence that shows: “(1) that [she]
was at least forty years old when [she] was fired;7 (2) that
[her] job performance met the employer’s legitimate
expectations; (3) that [she] suffered an adverse employment
action such as firing; and (4) that the employer filled the
6 See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 7 Of course, the first element in a claim for gender-based discrimination differs. Instead of proving that she was at least forty years of age, a plaintiff in a gender-based suit must prove that she is a member of a protected class. Santiago- Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000). Title VII prohibits discrimination on the basis of, among other traits, sex, and there is no dispute that Ms. Weiss is a member of a protected class. 42 U.S.C. § 2000e-2(a)(1). 9 position, thereby showing a continuing need for the services
that [she] had been rendering.” Melendez v. Autogermana, Inc.,
622 F.3d 46, 50 (1st Cir. 2010). Because the plaintiff bears
the burden of proving that unlawful discrimination was the but-
for cause of the adverse employment action, Adamson, 750 F.3d at
78, a failure to establish a prima facie case will necessitate
judgment for the employer.
If an employee establishes a prima facie case, it advances
the analysis to step two of the McDonnell Douglas framework and
“gives rise to a rebuttable presumption of discrimination and
shifts the burden of production – but not persuasion – ‘to the
employer to articulate a legitimate, non-discriminatory reason
for its decisions.’” Id. (quoting Velez v. Thermo King de P.R.,
Inc., 585 F.3d 441, 447 (1st Cir. 2009)).
In the third and final step, “[i]f the employer meets this
burden, ‘the focus shifts back to the plaintiff, who must then
show, by a preponderance of the evidence, that the employer’s
articulated reason for the adverse employment action is
pretextual and that the true reason for the adverse action is
discriminatory.’” Id. at 78-79 (quoting Gomez-Gonzalez v. Rural
Opportunities, Inc., 626 F.3d 654, 662 (1st Cir. 2010)). At the
summary judgment stage, a plaintiff need not prove her case, but
must “proffer sufficient evidence to raise a genuine issue of
10 material fact as to whether [she] was fired because of [age or
membership in a protected class].” Id. at 79.
A. The Prima Facie Case
Even when viewing the record in the light most hospitable
to Ms. Weiss and indulging all reasonable inferences in her
favor, as the court must, Winslow, 736 F.3d at 29, Ms. Weiss has
not met her burden to provide sufficient evidence establishing a
prima facie case of discrimination on the basis of age or
gender. The third element of a prima facie claim for
discrimination plainly requires that the plaintiff proffer
evidence that he or she suffered an adverse employment action.
Melendez, 622 F.3d at 50.
“An adverse employment action is one that affects
employment or alters the conditions of the workplace.” Morales-
Vallellanes v. Potter, 605 F.3d 27, 35 (1st Cir. 2010) (quoting
Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 61-62 (2006)
(internal quotation marks omitted)). Such an action “typically
involves discrete changes in the terms of employment, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing
significant change in benefits.” Id. (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (internal
quotation marks omitted)). To be adverse, an employment action
11 must “materially change the conditions of plaintiffs’ employ.”
Gu v. Bos. Police Dep’t, 312 F.3d 6, 14 (1st Cir. 2002). “A
materially adverse change . . . ‘must be more disruptive than a
mere inconvenience or an alteration of job responsibilities.’”
Morales-Vallellanes, 605 F.3d at 35 (quoting Marrero v. Goya of
P.R., Inc., 304 F.3d 7, 23 (1st Cir. 2002)).
Ms. Weiss concedes that Dartmouth did not terminate her
employment. See Compl. ¶ 33 (“[Ms. Weiss] resigned from her
position at UPNE and took a position in another department of
Dartmouth . . . .”). Instead, Ms. Weiss contends that she
suffered an adverse employment action because Dartmouth
constructively discharged her. Of course, “[a]n employer cannot
accomplish by indirection what the law prohibits it from doing
directly. Just as the ADEA bars an employer from dismissing an
employee because of his age, so too it bars an employer from
engaging in a calculated, age-inspired effort to force an
employee to quit.” Suárez v. Pueblo Int’l, Inc., 229 F.3d 49,
54 (1st Cir. 2000). If a plaintiff can demonstrate that such an
effort was undertaken, he or she may base a viable employment
discrimination claim on a theory of constructive discharge. Id.
“To take the measure of a claim of constructive discharge,
an inquiring court must gauge whether the working conditions
imposed by the employer had become so onerous, abusive, or
unpleasant that a reasonable person in the employee’s position
12 would have felt compelled to resign.” Id. While the plaintiff
may subjectively view the circumstances giving rise to the end
of the employment relationship as onerous, abusive and the like,
“the ultimate test is one of objective reasonableness.” Id.
(citing Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 26 (1st
Cir. 1997)). The First Circuit has colorfully noted that “[t]he
workplace is not a cocoon, and those who labor in it are
expected to have reasonably thick skins – thick enough, at
least, to survive the ordinary slings and arrows that workers
routinely encounter in a hard, cold world. Thus, the
constructive discharge standard, properly applied, does not
guarantee a workplace free from the usual ebb and flow of power
relations and inter-office politics.” Id.
To be sure, courts have credited claims of constructive
discharge, but these cases generally involve employees facing
truly egregious circumstances. See, e.g., Marrero, 304 F.3d at
28-29 (employee faced more than a year of verbal and physical
sexual harassment and assault from a colleague); EEOC v. Univ.
of Chi. Hosps., 276 F.3d 326, 332 (7th Cir. 2002) (employee
faced discrimination on the basis of her religion, then arrived
at work to find her belongings packed and her office being used
for storage); Acrey v. Am. Sheep Indus. Ass’n, 981 F.2d 1569,
1574 (10th Cir. 1992) (supervisor treated employee as “incapable
13 and uneducable” and asked employee to quit or be fired, citing
her age and “image”).
Ms. Weiss’s allegations are of an entirely different ilk.
Even if it is true that Mr. Brooks disproportionately praised
the work of younger females to the exclusion of Ms. Weiss, or
(consciously or not) held open doors for employees other than
Ms. Weiss, these perceived injustices (and others that are
similar) pale in comparison to the truly onerous circumstances
necessary to give rise to a claim for constructive discharge.
Ms. Weiss makes much of the fact that, following her annual
review in May 2012, she was apparently excluded from certain
staff meetings, was required to be at work by 9 a.m., and was
prohibited from having non-work-related discussions with
colleagues. See Pl.’s Mem. of Law in Supp. of Objection to
Def.’s Mot. for Summ. J. (“Pl.’s Mem.”) 15, Document 15-1. Even
putting aside Ms. Weiss’s attendance issues and fractious
relationships with her colleagues which might explain these
actions, the First Circuit has held that “a reduction in
responsibility or a change in the way that business is done,
unaccompanied by diminution of salary or some other marked
lessening of the quality of working conditions, does not
constitute a constructive discharge.” Suárez, 229 F.3d at 55.
Ms. Weiss has thus failed to establish a prima facie case of
discrimination because she cannot demonstrate facts suggesting
14 that she was constructively discharged or otherwise suffered an
adverse employment action.
B. Unlawful Pretext for Discrimination
Furthermore, even were the court to look beyond the
shortcomings in her prima facie case and proceed with the
McDonnell Douglas burden-shifting analysis, Ms. Weiss would be
unable to satisfy her obligation to demonstrate that any
perceived adverse employment action was merely a pretext for
unlawful discrimination. Adamson, 750 F.3d at 78-79. Ms. Weiss
concedes that by pointing to her attendance and performance
shortcomings, Dartmouth has satisfied the second prong of the
McDonnell Douglas analysis to provide a legitimate, non-
discriminatory reason for her May 2012 evaluation and subsequent
discipline. See Pl.’s Mem. 21. Ms. Weiss must then show, by a
preponderance of the evidence, that Dartmouth’s articulated
reasons are “pretextual and that the true reason for the adverse
action is discriminatory.” Adamson, 750 F.3d at 78-79 (quoting
Gomez-Gonzalez, 626 F.3d at 662). “Pretext can be shown by such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons
for its actions that a reasonable factfinder could rationally
find them unworthy of credence and hence infer that the employer
15 did not act for the asserted non-discriminatory reasons.”
Gomez-Gonzalez, 626 F.3d at 662-63 (citations omitted).
The record amply supports Dartmouth’s contention that Ms.
Weiss’s May 2012 evaluation and the resulting discipline were
reasonably tied to long-running and carefully chronicled
performance deficiencies. Mr. Brooks had discussed Ms. Weiss’s
late arrivals with her by email as early as November 2010, and
Ms. Weiss’s May 2011 annual review noted that several of her
projects were behind schedule. These same attendance and
productivity problems continued over the course of the next
year, and culminated in the May 2012 review. Given these facts,
Ms. Weiss simply cannot point to the type of weakness or
inconsistency in Dartmouth’s explanation that would allow her to
establish a pretextual motive. Cf. Billings v. Town of Grafton,
515 F.3d 39, 56 (1st Cir. 2008) (defendant employer offered
“different and arguably inconsistent” explanations for
transferring the plaintiff after she complained of harassment).
Thus, even had the court found that Ms. Weiss established a
prima facie case of discrimination, Ms. Weiss could not satisfy
the separate requirement of the McDonnell Douglas framework to
show unlawful pretext. As such, Dartmouth is entitled to
summary judgment on Counts I through III.
16 II. Counts IV-VI – Harassment and Hostile Work Environment
Counts IV, V, and VI allege harassment resulting in a
hostile work environment, and are brought under the NH LAD,
Title VII, and the ADEA, respectively. Each of these claims
requires Ms. Weiss to demonstrate that “she was subjected to
severe or pervasive harassment that materially altered the
conditions of her employment.” Noviello v. City of Bos., 398
F.3d 76, 92 (1st Cir. 2005) (Title VII); Collazo v. Nicholson,
Civil No. 05-1783 (GAG), 2006 U.S. Dist. LEXIS 67589, at *11-12
(D.P.R. Sept. 20, 2006), aff’d, 535 F.3d 41 (1st Cir. 2008)
(ADEA); Madeja, 821 A.2d at 1042 (NH LAD). “The harassment must
be ‘objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that
the victim in fact did perceive to be so.’” Noviello, 398 F.3d
at 92 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 787
(1998)). In determining whether a reasonable person would find
conduct hostile or abusive, courts must mull the totality of the
circumstances, including factors such as the “frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.” Harris v. Forklift Sys., 510 U.S. 17, 23 (1993).
17 Hostile work environment cases in which courts have found
actionable harassment demonstrate truly abhorrent behavior on
the part of the plaintiff’s colleagues or superiors. See, e.g.,
Billings, 515 F.3d at 48 (defendant supervisor repeatedly stared
at plaintiff’s breasts over an extended period of time and joked
that plaintiff was “under [his] desk” when asked of her
whereabouts); Crowley v. L.L. Bean, Inc., 303 F.3d 387, 397-98
(1st Cir. 2002) (defendant coworker stalked plaintiff for over a
year, massaged her without consent, and followed her home after
work); Kang v. U. Lim Am., Inc., 296 F.3d 810, 817 (9th Cir.
2002) (Korean plaintiff endured verbal and physical abuse based
on his national origin).
The circumstances that Ms. Weiss alleges resulted in a
hostile work environment at UPNE effectively fall into two
categories. On the one hand, there are the episodes where Ms.
Weiss perceived that Mr. Brooks favored or “doted on” young,
female employees. On the other hand, there are the alleged acts
of retaliation that followed Ms. Weiss reporting her concerns to
Mr. Burton and Ms. Deutsch, including the May 2012 evaluation
and the subsequent requirement that Ms. Weiss arrive at the
office by 9 a.m.
The First Circuit has warned that “[t]he highly fact-
specific nature of a hostile environment claim tends to make it
difficult to draw meaningful contrasts between one case and
18 another for purposes of distinguishing between sufficiently and
insufficiently abusive behavior.” Billings, 515 F.3d at 49.
Nevertheless, the plaintiff’s mere discomfort or a lack of
civility in the workplace are not enough to meet the standard of
actionable harassment. Ponte, 741 F.3d at 320. Whether one
views Ms. Weiss’s allegations individually or collectively, they
are simply not objectively offensive, hostile, or abusive such
that they permit a finding of actionable harassment. This is
particularly true when the allegations are viewed in light of
the factors set forth in Harris, and when they are compared to
the circumstances courts have previously found to give rise to
viable hostile work environment claims. The handful of alleged
acts of workplace favoritism took place sporadically over a
period of time spanning nearly eighteen months. What is more,
while Mr. Brooks’s excessive attention to young, female
employees may have been untoward and unprofessional, his
behavior, in contrast to those cases that have found actionable
conduct, was not severe, threatening, or humiliating to Ms.
Weiss. Nor are Mr. Brooks’s actions alleged to have interfered
with Ms. Weiss’s work performance.
Likewise, Ms. Weiss cannot establish that her evaluation or
the subsequent discipline constitute actionable harassment
because the record supports Dartmouth’s contention that they
were prompted by long-standing and legitimate concerns. For
19 these reasons, Dartmouth is entitled to summary judgment on
Counts IV through VI.
III. Counts VII-IX – Retaliation
In Counts VII, VIII, and IX, Ms. Weiss asserts claims for
unlawful retaliation under the NH LAD, Title VII, and the ADEA,
respectively. Where, as here, the allegations of retaliation
are based on circumstantial evidence (rather than direct proof
of retaliatory motive), courts employ the now-familiar McDonnell
Douglas framework to claims brought under all three statutory
schemes. Ponte, 741 F.3d at 321 (Title VII); Ramirez Rodriguez
v. Boehringer Ingleheim Pharms., Inc., 425 F.3d 67, 84 (1st Cir.
2005) (ADEA); Madeja, 821 A.2d at 1042 (NH LAD).
In the first stage of the burden-shifting framework for a
prima facie showing of retaliation, “the plaintiff must show
that she engaged in protected conduct, that she suffered an
adverse employment action, and that a causal nexus exists
between the protected activity and the adverse action.” Ponte,
741 F.3d at 321 (emphasis added); see also Ramirez Rodriguez,
425 F.3d at 84. On this issue, Ms. Weiss runs headlong into the
same obstacle that doomed her unlawful discrimination claims.
Supra § I, A. She is unable to demonstrate that she suffered an
adverse employment action and, thus, she cannot establish a
20 prima facie case of unlawful retaliation.8 This being the case,
Dartmouth is entitled to judgment on Counts VII through IX.
Conclusion
For all of the reasons discussed above, Dartmouth’s motion
for summary judgment (Document No. 12) is granted. The clerk of
court shall enter judgment accordingly and close the case.
SO ORDERED.
__________________________ Landya McCafferty United States District Judge
October 17, 2014
cc: Pierrre A. Chabot, Esq. Michael S. McGrath, Esq. Kathleen C, Peahl, Esq.
8 Even had Ms. Weiss established a prima facie case of retaliation, for the same reasons as those discussed above with respect to the discrimination claims, Ms. Weiss could not satisfy the third stage of the McDonnell Douglas framework to demonstrate unlawful pretext. Adamson, 750 F.3d at 78-79. 21