USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 93-2201
DONNA HOEPPNER,
Plaintiff - Appellant,
v.
CROTCHED MOUNTAIN REHABILITATION CENTER, INC.,
Defendant - Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Martin F. Loughlin, Senior U.S. District Judge]
___________________
____________________
Before
Torruella, Cyr and Boudin,
Circuit Judges.
______________
_____________________

Vincent C. Martina for appellant.

__________________
James W. Donchess, with whom Wiggin & Nourie P.A., was on
__________________
_____________________
brief for appellee.

____________________
August 3, 1994
____________________

TORRUELLA,

Circuit Judge.
______________

retaliatory discharge claim

Act

of 1964, 42 U.S.C.

This

action

under Title VII of

2000(e)-2.

involves

the Civil Rights

Plaintiff-Appellant, Donna

Hoeppner, alleges that she was fired because she reported several
incidents

of sexual harassment

court granted

summary judgment

to her

employer.

in favor of

The district

Hoeppner's employer

and we affirm.
I.
I.
Defendant-Appellee,

BACKGROUND
BACKGROUND
Crotched

Mountain

Rehabilitation

Center, Inc. ("CMRC"), is a nonprofit school for the

and rehabilitation
adults.

of

multiply handicapped

instruction

children and

young

Hoeppner was employed as a special education teacher at

CMRC from September 1989 until November 9, 1990.

charge

of a

employment.

classroom

at the

school

Hoeppner was in

throughout her

term

of

She was aided by several teacher assistants ("TAs"),

who normally rotated through different classrooms over periods of

three to six months.
Beginning
to

CMRC

administrators

classroom and

about

supervision

of, the

genuineness

of

existence
were

in December of

some

about

poor

Hoeppner

of

contests the

does not dispute

her prior

to her

management

communication

these complaints,

of others, but

made about

Hoeppner's

Hoeppner's
TAs.

1989, several TAs complained

and

of

her

with,

and

validity and
questions

the

that some complaints

discharge and

prior

report of sexual harassment.

There is also

placed Hoeppner on probation

for ninety days in August

to her

no dispute that CMRC

of 1990.

-2-

Subsequently,

on November

1,

1990,

Hoeppner reported

incidents of sexual harassment by one of her TAs.

several

On November 9,

1990, three days after the expiration of her probationary period,

CMRC

discharged

Hoeppner

allegedly failed to make

on

the

ground

that

Hoeppner

had

suggested improvements in her classroom

during

the probationary

ground is merely
termination:

period.

a pretext

for the real

recount the

evidence

that this

reason underlying

Hoeppner's report of sexual harassment.

address whether this allegation

briefly

Hoeppner maintains

her

Before we

can survive summary judgment, we

concerning these

events in

more

detail.
CMRC's
Principal,

Principal,

Archibald

Barbara

Campbell, state

Cohen, and
in

its

Assistant

affidavits that

they

received complaints about Hoeppner's supervision of her classroom

on

several occasions.

Cohen

she met with Hoeppner's

and Hoeppner.
complained

attests that in

December of 1989,

TAs to discuss problems between

the TAs

Cohen claims that TAs Diana V lez and Jennifer Roy

to her in January about the way Hoeppner was treating

them in the classroom.

A meeting between

Hoeppner, Cohen, and

was held on January 20, 1990.

Hoeppner's TAs

Cohen maintains that the

meeting

was specifically scheduled for the purpose of discussing the TAs'

concerns about Hoeppner.
the

meeting was

a routine

matters at which Cohen

TAs.

Even

In her affidavit,

Hoeppner claims that

afterschool discussion

of classroom

solicited corrective suggestions from the

according to

Hoeppner's
-3-

account, however,

the TAs

"talked basically at me" and TA V lez stated at the meeting

that

Hoeppner was not providing V lez with sufficient feedback.

Hoeppner's first performance
of

September 11, 1989, through

on February

12, 1990.

problems

as

with

fully
her

category entitled
example,

the

Cohen.

satisfactory, although

classroom

evaluation

it

that

more

open to

however, that

Subordinates," for

"personal

been strained"
input from

the evaluation and remembers

She alleges,

Under

Hoeppner's

assistants have

to be

noted several

management abilities.

stated

teacher

Hoeppner needed

Hoeppner signed

The evaluation rated Hoeppner's overall

"Developing and Motivating

relationships with
that

December 11, 1989, was completed

Cohen met with Hoeppner on February 24 to

discuss the evaluation.

performance

evaluation for the period

and

the TAs.

discussing it with

the negative

comments were

untrue and fabricated.

Meanwhile, Assistant Principal Campbell claims that TAs

Heidi Beetcher and
1990

about the

James LaBelle complained sometime in

way Hoeppner

Cohen subsequently

scheduled a

discuss the problems.

was treating
meeting

Sometime prior to

them.

for July

July of

Campbell and
31, 1990,

to

this meeting, Hoeppner

alleges that she reported both Beetcher and LaBelle to CMRC for a
variety

of inappropriate

conduct, including

physical abuse

of

students, administering unauthorized medications, and tardiness.

The July

31 meeting

was attended by

Hoeppner, and TAs Beetcher and LaBelle.

Cohen, Campbell,

Cohen wrote an extensive

memorandum

documenting her

version

of the

various

complaints

-4-

about

Hoeppner that were raised at the meeting.

in the

memorandum that Hoeppner "had

repeated problems properly

supervising and communicating with her staff.

. .

. . .

As a result

. her performance as a teacher and as a classroom supervisor

is inadequate."
meeting,

Hoeppner

Hoeppner does not dispute Cohen's account of the

nor

complained

does

about
alleges

complaints in
the

Cohen concluded

two TAs

she

dispute

that

her supervision
that

of

Beetcher and

Beetcher
the

LaBelle

classroom.

LaBelle

Rather,

fabricated

retaliation for Hoeppner's prior

to CMRC administrators

and

their

act of reporting

for misconduct

and abusing

students.
CMRC placed
Cohen
the

Hoeppner on

probation on August

met with Hoeppner the next day

probation and the

Hoeppner
probation.

with the
The

to discuss the reasons for

applicable terms and

ninety-day probationary period.

consequences of the

At the meeting, Cohen presented

"Disciplinary
form states

8, 1990.

that

Action

Form" documenting

the probation

the

resulted from

Hoeppner's failure to properly supervise and communicate with her

TAs.

The form

also

listed five

changes involving

Hoeppner's

classroom management practices that "must be made" by Hoeppner to

improve her
"If

behavior.

behavior

does

may/will be taken:
signed
employee

the form

The

not

form concluded

improve,

with the

further

statement:

disciplinary

Up to and including termination."

but did

comments.

not write

Hoeppner

anything in

objects

to the

the

action

Hoeppner

space for

validity

of the

assertions contained in the form and alleges that CMRC placed her
-5-

on probation as a threat to stop Hoeppner from reporting abuse of

students and otherwise "making waves" at the school.
Cohen

states

performance did not

states

in

her

that

Hoeppner's

improve during the probationary period.

that another TA,

Pam Flannery,

Hoeppner's classroom management

1990.

affidavit

complained to

and supervision on

She

her about

October, 31,

Flannery signed a statement containing the details of her

complaints,

including

allegations

relationship

with another

espoused

Hoeppner, was

to

Cohen states

one

that

of her

causing

that Flannery indicated

Hoeppner's

TAs,

trouble

intimate

Glenn Loucks,
in the

now

classroom.

that the classroom

was in

chaos.

Hoeppner claims

Flannery's

that the CMRC

statement while

it was

administration solicited

pressuring Flannery

away from the union which Glenn Loucks and

organize at
statement to
validity.

CMRC.

Hoeppner alleges

save her job and

Mark Pierce,

that

to stay

others were trying to

Flannery signed

the statement is thus

a Residential Counselor

the

of dubious

at CMRC, makes

the same allegation as Hoeppner in his affidavit.1

Meanwhile,
Pamela

CMRC

Education

Staff

Development

Chair,

Shea, states in an affidavit that she spoke with Hoeppner

____________________

1
According to Hoeppner, Flannery's statement is allegedly
contradicted by a subsequent October 9, 1992 letter by Flannery
denying that the alleged incidents of sexual harassment had
occurred in Hoeppner's classroom.
In the October 9 letter,
Flannery does state that "we all worked very well together" in
the classroom, however, she also states in the same letter that
the relationship between Loucks and Hoeppner
"was causing
friction and tension in [Hoeppner's] staff."
We
see no
contradiction
between Flannery's signed
statement and her
subsequent letter.
-6-

in early November (Cohen indicates that Shea informed her of this

conversation on November 1) and

determined that the situation in

Hoeppner's classroom was chaotic and out of control.

On
incidents

November 1, 1990,

of

sexual

Hoeppner first

harassment

to CMRC.

Assistant Principal Campbell that

had

made several

three inches

her breasts

connotations.

not

anything

could

that

harassment.

denied that any

Campbell

harassment was

investigation of

Cohen

acceptable and
be

Waters
the

investigation,
her of

the

did

claims

that

between November 2

would

different account

sexual

that

Waters

that

Waters should
by

Hoeppner

not

as

do

sexual

took any administrative

they

conduct

any

further

their conversations

despite

CMRC administration

what they

Campbell and

told

interpreted

nor

his crotch

sexual

incident beyond

Hoeppner

informed

and

Waters,

of his actions had

Neither Cohen nor Campbell

against

Waters.

her back.

Waters gave a somewhat

of the incidents and

informed

toward her,

from behind, placing

with Waters on several occasions

and November 5, 1992.

action

overtures

from her face, and rubbing

Cohen spoke

Hoeppner

one of her TAs, Shane

sexually inappropriate

including touching

reported several

promising

did

do, or

nothing and

had

done, about

with

full

never

the

incidents.
CMRC

discharged Hoeppner

on November

9, 1990,

three

days after her probationary period ended and eight days after she
reported the incidents
final

of sexual harassment.

performance evaluation

written
-7-

by Cohen

According to

the

upon Hoeppner's

discharge, Hoeppner continued to have problems with her staff and

did not improve her supervision
as

required by the terms of Hoeppner's probation.

testimony,
in

and management of the classroom,

Hoeppner stated that she

response

to

Disciplinary

the

Action

because Hoeppner did

Hoeppner

does

did not change her behavior

criticisms
Form

that the

claim, however,

response to the particular

leveled

accompanying

not feel

In deposition

that

by

Cohen

Hoeppner's

in

probation

criticisms were

she

did

the

valid.

make changes

needs of individual TAs and

in

that, in

general, she did improve her performance.

Hoeppner
problems in

maintains

that

her classroom and

there

were

asserts that

no

the criticisms

complaints against her were untrue and fabricated.

affidavits

of several current

attest to Hoeppner's good

significant

and

She proffered

and former employees

of CMRC who

teaching and supervisory abilities and

who assert that Hoeppner did not have any problems with the staff
in

her classroom.

supervisors,
work

in

complaints
threaten

Hoeppner also

Cohen and

the

classroom.

against

her,

her job so that

CMRC by reporting

Campbell,

points out that neither of her

formally observed

CMRC's

motive

Hoeppner

for

claims,

Hoeppner would stop

incidents of abuse

misconduct of other employees, and

Hoeppner's

fabricating the

was

to

implicitly

"making waves" at

of students, by

reporting

by supporting the efforts

to

organize a union at
and

past

CMRC led by Glenn

employees assert

trying to

keep its

in

Loucks.

Several

current

that

CMRC was

their affidavits

employees quiet about

incidents of

student

-8-

abuse

so that

the

incidents could

regulators and from

CMRC's

CMRC's

school.

One

employees

was

hidden from

the public, thus avoiding

reputation.

regarding

be

Several
efforts

affiants make

to

discourage

affiant claims
to

falsify

that

state

the tarnishing of

similar accusations
unionization

CMRC's method

complaints

the

against

of
them

at

the

silencing
and

then

claim

and

threaten to fire them.

The
dismissed
triable

the
issue

district

court

case on
on

Hoeppner's

summary judgment.

the

question

discharged

Hoeppner

because

concluded

that there

was a

The court also

rejected

CMRC

of

whether

"reasonably

problem in

noted that the

The court
CMRC

found no

wrongfully

and justifiably

plaintiff's classroom."

complaints against Hoeppner

were

made well before she reported the incidents of sexual harassment,

so these complaints could
cover

not have been a fabricated

up a retaliatory motive.

pretext to

Consequently, the court found no

evidence of a causal

relationship between the protected activity

of reporting sexual harassment and Hoeppner's discharge.

II.
II.
To establish
Title

ANALYSIS
ANALYSIS

a claim

of

retaliatory discharge

under

VII, Hoeppner must show by a preponderance of the evidence

that:
(1) she engaged

in a protected activity as

was subsequently
causal

discharged from employment, and (3) there was a

connection

discharge.

an employee, (2) she

Ramos v.
_____

between

the

protected

activity

Roche Products, Inc., 936 F.2d

____________________

and

the

43, 48 (1st

-9-

Cir.), cert. denied, 112

____ ______

S. Ct. 379 (1991); Ju rez

______

Mobile Communications, Inc.,

___________________________

957 F.2d 317, 321

v. Ameritech
_________

(7th Cir. 1992).

Because reporting sexual harassment is a protected activity under

Title

VII, Morgan
______

186,

194 (1st Cir.

after she

v. Massachusetts General Hospital,

_______________________________
1990), and

because Hoeppner

901 F.2d

was discharged

reported the incidents of sexual harassment by Waters,

there is no dispute

that Hoeppner has established the

first two

elements of her retaliatory discharge claim.

The issue on appeal

is

Hoeppner failed

whether, as

the

present sufficient

district court

found,

evidence of a causal link

to

between her sexual

harassment report and the subsequent discharge to defeat a motion

for summary

judgment.

whether

the evidence

reason

or motive for

To

put

in the

it another

record can

firing Hoeppner

way,

the issue

show that

was Hoeppner's

is

CMRC's true

report of

sexual harassment.
Because we are reviewing
we must determine whether
interrogatories and
the light most
genuine

the pleadings, depositions, answers to

affidavits offered

favorable to the

issue of

an order of summary judgment,

material

in this case,

viewed in

nonmovant, Hoeppner, present

fact regarding

the

existence of

causal connection between Hoeppner's sexual harassment report and

her

subsequent discharge.

v. FMC Corp.,
_________

985 F.2d

Digital Equipment Corp.,

________________________

Fed.

R. Civ. P. 56(c); Serrano-P rez

_____________

625,

626 (1st

Cir.

846

F.2d 103,

105

1993); Oliver
______
(1st Cir.

v.

1988).

Under the summary judgment standard, an issue is genuine "'if the

evidence

is such that a

reasonable jury could

-10-

return a verdict

for

the nonmoving

party.'"

Oliver, 846
______

Anderson
________

v. Liberty Lobby, Inc., 477

_____________________

Although

the

party opposing

benefits from all reasonable

the

the

F.2d at

U.S.

motion

105 (quoting

242, 248

(1986)).

for summary

judgment

inferences favorable to that party,

nonmovant "may not rest upon mere allegations; [he] must set

forth specific
for trial."

facts demonstrating that there is a genuine issue

Id.
__

the plaintiff

Even in discriminatory discharge

can rarely present direct,

cases, where

subjective evidence of

an employer's actual motive, the plaintiff cannot survive summary

judgment

with

"unsupported allegations

rather must "point

depositions -testimony
animus."

--

and

speculations," but

to specific facts detailed

that is, names, dates,

giving

rise

to an

in affidavits and

incidents, and supporting

inference

of

discriminatory

Lipsett v. University of Puerto Rico, 864 F.2d 881, 895

_______
_________________________

(1st Cir. 1988).

Hoeppner claims on appeal that she presented sufficient

evidence to create a genuine issue of material fact as to whether

CMRC fabricated

the alleged complaints against

they could be used

which

as a pretext for Hoeppner's

was ultimately

Hoeppner

caused

acknowledges that

by the

CMRC.

She argues, however,

later discharge,

sexual harassment

the complaints

subsequent probation preceded her

Hoeppner so that

against her

report.

and her

report of sexual harassment to

that CMRC fabricated the

complaints

and

placed

reporting
efforts,

her on
staff

and

probation in

abuse

of

order

students,

otherwise "making

to discourage

her from

supporting Loucks'

waves"

at

CMRC.

union

Instead

of

-11-

remaining silent,

Hoeppner ignored the implicit

and reported her TA for sexual harassment.

concludes, her sexual harassment
sole

reason

for her

threats by CMRC

As a result, Hoeppner

complaint, though maybe not the

discharge,

was a

"significant

and final

reason" for her discharge.

Under

Hoeppner's

theory

of

the

causal

connection

required

under Title VII, Hoeppner would not have been fired but

for

sexual

harassment

threats

to remain

her

implicit

reported the incidents

report because

she

quiet only

the point

when she

Had she not

reported

at

involving Waters.

defied

CMRC's

the incidents of sexual harassment, Hoeppner maintains, she would

not have

been discharged because CMRC

administrators would have

concluded that Hoeppner had ceased to "make waves" in response to

their threats against her.

Our review of the record convinces us that Hoeppner has

failed to present

sufficient evidence to

support her theory

of

the

causal

connection between

discharge.
remains

Consequently, no

for trial.

unsupported

genuine

without any

incidents, and

895.

report

consists mainly
facts" such

supporting testimony."

Specific facts

fact

of

as

Lipsett,
_______

are absent to support

several

chain of causality:

(1)

had a practice of implicitly threatening teachers with

fabricated
abuse

subsequent

of material

"specific

crucial links along Hoeppner's alleged

that CMRC

and her

issue

Hoeppner's "evidence"

allegations

"names, dates,
864 F.2d at

her

negative teacher

of students

at the

evaluations
school; (2)

in order

to cover

that CMRC's

up

practice of

-12-

silencing teachers

to cover

up

general practice of threatening

by

taking

actions

harassment; and

such

fabricated

Hoeppner herself,

made the sexual harassment

action,

reporting

to

the

instituted

sexual

in Hoeppner's Title
one

against

discharge after

Because all these

establish any

of

practice of threatening

Hoeppner's

report.

third element

her failure

incidents

complaints was

resulting in

extended to

teachers who were "making waves"

(3) that CMRC's alleged

teachers through

crucial to the

as

student abuse

links are

VII cause

of them

she

dooms

of

her

objection to
Ramos,
_____

936

remain

CMRC's motion
F.2d at

largely

documentation

49

for

summary judgment.

(noting

conclusory

necessary to

See,
___

that plaintiff's

and
prove

lacking

in

the causal

e.g.,
____

"accusations
the

concrete

link between

her

protected activity and her retaliatory treatment").

1.

Regarding the first causal link, Hoeppner presented

evidence showing that CMRC had problems with the mistreatment and
abuse of students by staff members.

There is also some evidence,

although

a scintilla,

perhaps little

more than

that CMRC

trying to hide the

incidents of abuse and mistreatment

public,

maintain

either to

regulators.

Hoeppner's

further

complaints against teachers

effort

to silence them,

than unsubstantiated

its reputation
claim

or

that

from the

to avoid
CMRC

was

state

fabricated

who reported abuse of students in an

however, is

allegations.

supported by

nothing more

Hoeppner and Holly

Brown, a

staff psychologist at CMRC, both make assertions regarding CMRC's

alleged

silencing practice

without

noting any

specific names,

-13-

dates

or incidents.

Glenn

Loucks claims in

his affidavit that

sometime

in November

of 1990,

social worker from the

"after attempting

state of Mass. for student

Cohen told me that I would be fired for reporting

a state

agency.

meant not
[sic]"

to talk

That

I had

breaking client

to follow [CMRC]

to a

P.C., Barbara

child abuse to
policy and

confidentiality to any

that

state agency.

Loucks' statement might amount to some evidence of CMRC's

practice of silencing

employees except for the fact

that Loucks

states in the next paragraph of his affidavit that he did in fact

report a case of child abuse
Children and Youth
took

any actions

Loucks'

Service and yet he

against him

allegation

does

He makes

as a

not

administrators fabricated
them quiet.

to the New Hampshire Department

makes no claim that
result.

support

complaints

CMRC

More importantly,

the

claim

that

CMRC

to

keep

against teachers

no mention of

of

fabrication or threats

to

fabricate complaints in his affidavit.

Dr. Robert Grassi, CMRC's Clinical
deposition testimony

that

CMRC's past

Director, states in

Director of

Psychology,

Marilyn Russell, was discharged because she reported incidents of

child abuse
policy.

directly to state
Although this

normally

raise

practice

of

is the

a triable

CMRC,

the

authorities in violation
type

issue of
practice

of "incident"
fact

is

not

as to
one

of CMRC

that might

an established
which

involves

fabricating teacher complaints to implicitly threaten teachers to

keep

quiet.

No

allegations

complaints against Russell.

are made

that

CMRC

fabricated

The problem with the "evidence" from

-14-

Grassi's

testimony is that it provides no details of the alleged

retaliatory discharge of
evidence
Russell

from the
herself

Russell -- nor does

people
-- that

involved in
would

Hoeppner offer any

the incident,

enable

including

reasonable

jury

to

determine if it is the type of occurrence that is consistent with

the

alleged

against

practice

teachers

students.

to

by

CMRC to

prevent

them

from

false

complaints

reporting

abuse

of

Grassi himself does not explain how he discovered the

reasons for Russell's discharge and,

not

fabricate

remember

talking about

these

indeed, states that he does

reasons when

he

spoke with

Russell at the time of the alleged incident.

2.
to show

Even if Hoeppner had

that

CMRC

had a

practice

provided sufficient evidence

of

fabricating

complaints

against teachers to discourage them from reporting student abuse,

Hoeppner has still failed
the

chain

report:

connecting her

discharge

the sexual

harassment

parties extended to a concern with the types of staff

that

Hoeppner

engaged

in,

harassment report

and reporting two

In

Hoeppner

other

to

link in

that CMRC's concern with staff reports of student abuse

to outside
actions

to establish a second crucial

words,

has

not

such

as

filing

of her TAs
established

a sexual

for misconduct.
that she

did

anything that

would cause

CMRC to fabricate

complaints against

her.
Aside from
case,

the incidents reported by

there is nothing in

subsequent

complaints

Hoeppner in this

the record regarding

of

sexual

any previous or

harassment filed

by

CMRC

-15-

employee,

or

retaliate,
about

regarding

against other

sexual

CMRC's
employees

harassment.

evidence that an internal

Thus,

retaliation,
who

or

threat

might have

Hoeppner

has

to

complained

presented

no

sexual harassment report would qualify

as the type of conduct CMRC administrators would consider "making

waves" or the type of action that would induce CMRC to retaliate.

The closest thing to

"evidence" concerning this

is an affidavit by August Tardiff,

issue

a teacher at CMRC, who claims

that in March of 1993, he reported to CMRC administrators that he

felt physically threatened

by one of his

was temporarily removed from

TAs.

Although

the TA

Tardiff's room, Tardiff claims that

the administrators "refused to take my fears seriously [and] told

me I did not
leave.

have a choice that I

They also

gave me a

had to work with this

disciplinary action

man or

in which they

blamed

me for the problem.

to be effective on

So I gave my resignation on April 12

June 30th."

nearly

three years after

itself

allow a

This single

incident, occurring

Hoeppner was discharged,

reasonable

jury to

conclude

would not by

that CMRC

had

practice of fabricating complaints against teachers who

reported

sexual harassment at

defeat a

the time Hoeppner

was fired.

To

motion for summary judgment, "[t]he mere existence of a scintilla

of evidence

in

support

insufficient; there

must

reasonably find for the

Inc.,
____
at

of the

plaintiff's

be evidence
plaintiff."

position

on which

will

the jury

be

could

Anderson v. Liberty Lobby,

________
_______________

477 U.S. 242, 252 (1986); see also Serrano-P rez, 985 F.2d
________ _____________

627; Milton
______

v. Van Dorn Co.,

_____________

961 F.2d

965, 969

(1st Cir.

-16-

1992).
create

Tardiff's

incident is

a triable issue as

too remote

and too

to the fabrication

isolated to

of the complaints

against Hoeppner.
Hoeppner

has further failed

administrators would consider any of

to provide

evidence that

her other actions while

at

CMRC as "making waves,"

taken retaliatory
Hoeppner on

such that the administrators would

action by

probation.

fabricating complaints and

Hoeppner claims that

Beetcher and LaBelle

for misconduct

this

several

occurred after

Hoeppner,

after

CMRC

wrote

evaluation

which mentioned

classroom,

and possibly

led to

1990.

Because

already complained

Hoeppner's

first

TAs

about

performance

some of

the problems

in Hoeppner's

even after

Beetcher and

LaBelle first

complained about Hoeppner to

not have

placing

she reported

in July of

TAs had

have

Campbell, Hoeppner's actions

CMRC's fabrication

of

the initial

could

complaints

against Hoeppner.

Hoeppner also makes the unsupported assertion that CMRC

retaliated against
who

was attempting

Hoeppner's

her because of her

to organize

relationship with Loucks,

a union

at CMRC.

Several

of

supporting affidavits discuss incidents in which CMRC

administrators took actions to

activities.

However,

the

discourage unionization or
record contains

no

evidence

union

that

Hoeppner ever took part in union activities and nothing indicates

that CMRC thought she was involved with the union efforts.

Cohen

did know that

Glenn

Hoeppner had an

Loucks, but nothing

in the

intimate relationship with

record indicates that

-17-

Cohen or

any

other

CMRC

administrator

Hoeppner.

The record

imputed

is also

Loucks'

devoid

union

of any

activity

to

indication that

employees' union activities were occurring before August of 1990,

let alone that CMRC knew about any union activities before August
of 1990, when Hoeppner was put
no evidence

that Cohen or

on probation.

anyone else

relationship between Loucks and

well

after Hoeppner's

union

animus

motivated

at CMRC

knew about

Cohen until the "fall

probation.

competent evidence to raise

There is similarly

Thus, there

to fabricate

of 1990,"

is insufficient

a genuine issue as to

CMRC

the

whether anti-

complaints

against

evidence from

which a

Hoeppner.
In
reasonable

sum, there

is insufficient

jury could find that CMRC had a practice of silencing

employees by fabricating false negative evaluations against them,

that

CMRC had

like

Hoeppner,

harassment, or

a practice
made

of retaliating against

reports

that Hoeppner

of

TA

teachers who,

misconduct

herself engaged in

and

sexual

any activities

that would cause CMRC to fabricate the complaints against her and
her

subsequent

necessary

probation.

Thus,

two

important causal

links

for her Title VII action are missing from the evidence

in the record.
3.
crucial
sexual

Finally, Hoeppner has

link in the
harassment

causal chain
and

her

failed to establish a third

between Hoeppner's

discharge:

silencing practice was applied to Hoeppner

that

CMRC's

report of

alleged

in this specific case

through the fabrication of the complaints against her and through

-18-

the subsequent

discharge of Hoeppner when she

continued to make

waves by reporting incidents of sexual harassment.

Hoeppner's evidence on this issue consists primarily of

affidavits stating that Hoeppner was a good teacher, that she did
not have problems in

her classroom supervising, or communicating

with,

that the

her TAs,

troublemakers
evidence

and

in Hoeppner's

to show that the

TAs

classroom.

previous

occasions,

underpinnings

of

proffered

the employer

by

the

Look, 810
____
at

48.

also fabricated.

"evidence

reasons

present a jury question."

Hoeppner

complaints against her

untruthful and inaccurate but

on

themselves were

is

for

wants

this

were not only

the

[employment

insufficient,

the

As we

contesting
the

really

have held

factual

decision]

without more,

to

Morgan, 901 F.2d at 191 (citing Dea v.

______
___

F.2d 12, 15 (1st Cir. 1987)); see also Ramos, 936 F.2d
________ _____
Hoeppner

discharging

her

cannot
were

establish

merely

retaliation "solely by contesting

that

CMRC's

pretext

for

reasons

for

impermissible

the objective veracity of [the

employer's]
must

action."

provide

complaints

some

were

Morgan, 901 F.2d at 191.

______
additional

purposefully

threatening Hoeppner not

Ctr. v. Hicks, 113
____
_____

waves.

indicate
with

See
___

the

that

the

intent

of

St. Mary's Honor

_________________

S. Ct. 2742, 2751-52 (1993) (finding

be

unless

shown both

proved to

not permit courts

be 'a

that the

discrimination was the real

does

fabricated

to make

reason cannot
it is

evidence to

Rather, Hoeppner

pretext for

discrimination'

reason was

false,

reason"; and finding that

"to substitute for

that "a

and that

Title VII

the required finding

-19-

that

the

employer's

action

was

the

product

of

unlawful

discrimination, the much different (and much lesser) finding that

the employer's
Ramos, 936
_____

explanation of

F.2d

at

articulated reasons
not

suffice

48 (noting
for taking

to meet

the

discriminatory intent).
CMRC's motives, Hoeppner's

its action was

that

not believable");

refuting

the

action against a

plaintiff's

burden of

employer's

plaintiff does

demonstrating

Thus, given Hoeppner's theory regarding

evidence that she was a

good teacher

and

that her TAs were troublemakers does not by itself establish

the necessary element of

causality between the sexual harassment

report and the discharge to support her Title VII action.

Hoeppner presents no other evidence that would
this missing element.

As we already noted, Hoeppner

provide

has failed

to establish a pattern of fabrication by CMRC that would indicate

there was fabrication in this particular case.
no
make

affidavits from the complaining TAs stating that they did not
the alleged

lying by
fact

Hoeppner provides

that

complaints or

CMRC administrators.
neither

classroom to verify

Cohen

they were

the TAs'

pressured into

Instead, Hoeppner points

nor Campbell

something about the accuracy

but it implies

that

complaints.

formally
This

to the

observed
fact may

her

imply

of the complaints against Hoeppner,

nothing about the allegation that CMRC fabricated

the complaints.
observations more

CMRC

administrators could fabricate

easily than

who might later recant or

the complaints of

third parties,

deny making the complaints.

their own fabrications would

their own

be more reliable as they

In

fact,

could not

-20-

be subsequently contradicted by the source of the complaint.

Hoeppner

alleges

that

TAs

Beetcher

and

LaBelle

complained about her classroom supervision in retaliation for her

reports of the TAs' own misconduct.
refute Hoeppner's
her

own claim that

negative evaluations.

lied

to

Campbell

believed
least,

and Cohen

Hoeppner had
that

The

responsible for Hoeppner's

any

event,

Hoeppner's
report

several of
first

CMRC administrators fabricated

implies

TAs,

that

than

TAs'

CMRC

itself,
probation.

complaints, as

evaluation,

Cohen

classroom or,

allegedly undeserved

the other

and LaBelle

Campbell and

managing her
rather

performance

would tend to

fact that Beetcher

problems

Hoeppner's

If true, this

preceded

at

were

In

well as

Hoeppner's

of Beetcher and LaBelle so CMRC could not have fabricated

these complaints against Hoeppner

in retaliation for

Hoeppner's

report of Beetcher and LaBelle.

Hoeppner also

attempts to

cast doubt on

the negative

reports of Hoeppner's

classroom by Pam Flannery and

that were provided to

Cohen after Hoeppner's probationary period

had begun.
coerced

Hoeppner
Flannery's

Pamela Shea

points to an affidavit asserting

that CMRC

signed

affidavit

statement

and

another

alleging that, contrary to Shea's own affidavit, Shea never spoke

with Cohen about
mere

Hoeppner's classroom.

allegations are

statements

sufficient

by Flannery and Shea.

to

We do

not think

invalidate the

Even if

these

first-hand

they are sufficient,

the allegations do not raise a triable issue as to the claim that

CMRC

fabricated

the

prior

complaints
-21-

against

Hoeppner

and

Hoeppner's probation.
In

sum, even

if

validity of the complaints

a factual

issue

exists as

to

the

against Hoeppner, summary judgment in

favor of CMRC would still be appropriate because Hoeppner has not

established

that

her

discharge

was causally

related

to

protected activity of reporting sexual harassment.

The district court's judgment is therefore affirmed.
________

the

-22-