hoeppner v. crotched mountain, 1st cir. (1994)

7/26/2019 Hoeppner v. Crotched Mountain, 1st Cir. (1994)

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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., wa

__________________ _____________________ brief for appellee.


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____________________

August 3, 1994 ____________________

TORRUELLA, Circuit Judge. This action involve______________

retaliatory discharge claim under Title VII of the Civil Ri

Act of 1964, 42 U.S.C. 2000(e)-2. Plaintiff-Appellant,

Hoeppner, alleges that she was fired because she reported se

incidents of sexual harassment to her employer. The dist

court granted summary judgment in favor of Hoeppner's empl

and we affirm.

I. BACKGROUND I. BACKGROUND

Defendant-Appellee, Crotched Mountain Rehabilita

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

and rehabilitation of multiply handicapped children and y

adults. Hoeppner was employed as a special education teache


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CMRC from September 1989 until November 9, 1990. Hoeppner wa

charge of a classroom at the school throughout her ter

employment. She was aided by several teacher assistants ("T

who normally rotated through different classrooms over perio

three to six months.

Beginning in December of 1989, several TAs compla

to CMRC administrators about Hoeppner's management of

classroom and about Hoeppner's poor communication with,

supervision of, the TAs. Hoeppner contests the validity

genuineness of some of these complaints, and questions

existence of others, but does not dispute that some compla

were made about her prior to her discharge and prior to

report of sexual harassment. There is also no dispute that

placed Hoeppner on probation for ninety days in August of 1

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Subsequently, on November 1, 1990, Hoeppner reported se

incidents of sexual harassment by one of her TAs. On Novembe

1990, three days after the expiration of her probationary per

CMRC discharged Hoeppner on the ground that Hoeppner

allegedly failed to make suggested improvements in her class


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during the probationary period. Hoeppner maintains that

ground is merely a pretext for the real reason underlying

termination: Hoeppner's report of sexual harassment. Befor

address whether this allegation can survive summary judgment

briefly recount the evidence concerning these events in

detail.

CMRC's Principal, Barbara Cohen, and its Assis

Principal, Archibald Campbell, state in affidavits that

received complaints about Hoeppner's supervision of her class

on several occasions. Cohen attests that in December of 1

she met with Hoeppner's TAs to discuss problems between the

and Hoeppner. Cohen claims that TAs Diana V lez and Jennifer

complained to her in January about the way Hoeppner was trea

them in the classroom.

A meeting between Hoeppner, Cohen, and Hoeppner's

was held on January 20, 1990. Cohen maintains that the mee

was specifically scheduled for the purpose of discussing the

concerns about Hoeppner. In her affidavit, Hoeppner claims

the meeting was a routine afterschool discussion of class

matters at which Cohen solicited corrective suggestions fro

TAs. Even according to Hoeppner's account, however, the

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

Hoeppner was not providing V lez with sufficient feedback.

Hoeppner's first performance evaluation for the pe

of September 11, 1989, through December 11, 1989, was compl

on February 12, 1990. Cohen met with Hoeppner on February 2

discuss the evaluation. The evaluation rated Hoeppner's ove

performance as fully satisfactory, although it noted se

problems with her classroom management abilities. Unde

category entitled "Developing and Motivating Subordinates,"

example, the evaluation stated that Hoeppner's "pers

relationships with teacher assistants have been strained"

that Hoeppner needed to be more open to input from the

Hoeppner signed the evaluation and remembers discussing it

Cohen. She alleges, however, that the negative comments

untrue and fabricated.

Meanwhile, Assistant Principal Campbell claims that

Heidi Beetcher and James LaBelle complained sometime in Jul

1990 about the way Hoeppner was treating them. Campbell

Cohen subsequently scheduled a meeting for July 31, 1990,

discuss the problems. Sometime prior to this meeting, Hoep

alleges that she reported both Beetcher and LaBelle to CMRC f

variety of inappropriate conduct, including physical abuse

students, administering unauthorized medications, and tardine

The July 31 meeting was attended by Cohen, Campb

Hoeppner, and TAs Beetcher and LaBelle. Cohen wrote an exten


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memorandum documenting her version of the various compla

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about Hoeppner that were raised at the meeting. Cohen concl

in the memorandum that Hoeppner "had repeated problems prop

supervising and communicating with her staff. . . . As a re

. . . her performance as a teacher and as a classroom super

is inadequate." Hoeppner does not dispute Cohen's account of

meeting, nor does she dispute that Beetcher and LaB

complained about her supervision of the classroom. Rat

Hoeppner alleges that Beetcher and LaBelle fabricated t

complaints in retaliation for Hoeppner's prior act of repor

the two TAs to CMRC administrators for misconduct and abu

students.

CMRC placed Hoeppner on probation on August 8, 1

Cohen met with Hoeppner the next day to discuss the reasons

the probation and the applicable terms and consequences of

ninety-day probationary period. At the meeting, Cohen prese

Hoeppner with the "Disciplinary Action Form" documenting

probation. The form states that the probation resulted

Hoeppner's failure to properly supervise and communicate wit


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TAs. The form also listed five changes involving Hoeppn

classroom management practices that "must be made" by Hoeppne

improve her behavior. The form concluded with the state

"If behavior does not improve, further disciplinary ac

may/will be taken: Up to and including termination." Hoep

signed the form but did not write anything in the space

employee comments. Hoeppner objects to the validity of

assertions contained in the form and alleges that CMRC place

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on probation as a threat to stop Hoeppner from reporting abus

students and otherwise "making waves" at the school.

Cohen states in her affidavit that Hoeppn

performance did not improve during the probationary period.

states that another TA, Pam Flannery, complained to her a

Hoeppner's classroom management and supervision on October,

1990. Flannery signed a statement containing the details of

complaints, including allegations that Hoeppner's inti

relationship with another one of her TAs, Glenn Loucks,

espoused to Hoeppner, was causing trouble in the classr

Cohen states that Flannery indicated that the classroom wa


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chaos. Hoeppner claims that the CMRC administration solic

Flannery's statement while it was pressuring Flannery to

away from the union which Glenn Loucks and others were tryin

organize at CMRC. Hoeppner alleges that Flannery signed

statement to save her job and the statement is thus of dub

validity. Mark Pierce, a Residential Counselor at CMRC,

the same allegation as Hoeppner in his affidavit.1

Meanwhile, CMRC Education Staff Development C

Pamela Shea, states in an affidavit that she spoke with Hoep

____________________

1 According to Hoeppner, Flannery's statement is alle contradicted by a subsequent October 9, 1992 letter by Flan denying that the alleged incidents of sexual harassment

occurred in Hoeppner's classroom. In the October 9 let Flannery does state that "we all worked very well together

the classroom, however, she also states in the same letterthe relationship between Loucks and Hoeppner "was cau

friction and tension in [Hoeppner's] staff." We seecontradiction between Flannery's signed statement andsubsequent letter.

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in early November (Cohen indicates that Shea informed her of

conversation on November 1) and determined that the situatio

Hoeppner's classroom was chaotic and out of control.


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On November 1, 1990, Hoeppner first reported se

incidents of sexual harassment to CMRC. Hoeppner info

Assistant Principal Campbell that one of her TAs, Shane Wat

had made several sexually inappropriate overtures toward

including touching her breasts from behind, placing his cr

three inches from her face, and rubbing her back. Campbell

Cohen spoke with Waters on several occasions between Novemb

and November 5, 1992. Waters gave a somewhat different acc

of the incidents and denied that any of his actions had se

connotations. Campbell and Cohen told Waters that se

harassment was not acceptable and that Waters should not

anything that could be interpreted by Hoeppner as se

harassment. Neither Cohen nor Campbell took any administra

action against Waters nor did they conduct any fur

investigation of the incident beyond their conversations

Waters. Hoeppner claims that despite promising a

investigation, the CMRC administration did nothing and n

informed her of what they would do, or had done, about

incidents.

CMRC discharged Hoeppner on November 9, 1990, t

days after her probationary period ended and eight days after

reported the incidents of sexual harassment. According to

final performance evaluation written by Cohen upon Hoeppn

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discharge, Hoeppner continued to have problems with her staff

did not improve her supervision and management of the classr

as required by the terms of Hoeppner's probation. In deposi

testimony, Hoeppner stated that she did not change her beha

in response to the criticisms leveled by Cohen in

Disciplinary Action Form accompanying Hoeppner's proba

because Hoeppner did not feel that the criticisms were va

Hoeppner does claim, however, that she did make changes

response to the particular needs of individual TAs and that

general, she did improve her performance.

Hoeppner maintains that there were no signifi

problems in her classroom and asserts that the criticisms

complaints against her were untrue and fabricated. She proff

affidavits of several current and former employees of CMRC

attest to Hoeppner's good teaching and supervisory abilities

who assert that Hoeppner did not have any problems with the s

in her classroom. Hoeppner also points out that neither of

supervisors, Cohen and Campbell, formally observed Hoeppn

work in the classroom. CMRC's motive for fabricatin

complaints against her, Hoeppner claims, was to implic

threaten her job so that Hoeppner would stop "making waves

CMRC by reporting incidents of abuse of students, by repor

misconduct of other employees, and by supporting the efforts


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organize a union at CMRC led by Glenn Loucks. Several cur

and past employees assert in their affidavits that CMRC

trying to keep its employees quiet about incidents of stu

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abuse so that the incidents could be hidden from the s

regulators and from the public, thus avoiding the tarnishin

CMRC's reputation. Several affiants make similar accusat

regarding CMRC's efforts to discourage unionization at

school. One affiant claims that CMRC's method of silen

employees was to falsify complaints against them and

threaten to fire them.

The district court rejected Hoeppner's claim

dismissed the case on summary judgment. The court foun

triable issue on the question of whether CMRC wrongf

discharged Hoeppner because CMRC "reasonably and justifi

concluded that there was a problem in plaintiff's classro

The court also noted that the complaints against Hoeppner

made well before she reported the incidents of sexual harass

so these complaints could not have been a fabricated pretex

cover up a retaliatory motive. Consequently, the court foun


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evidence of a causal relationship between the protected acti

of reporting sexual harassment and Hoeppner's discharge.

II. ANALYSIS II. ANALYSIS

To establish a claim of retaliatory discharge u

Title VII, Hoeppner must show by a preponderance of the evi

that:

(1) she engaged in a protected activity as an employee, (2)

was subsequently discharged from employment, and (3) there

causal connection between the protected activity and

discharge. Ramos v. Roche Products, Inc., 936 F.2d 43, 48_____ ____________________

-9-

Cir.), cert. denied, 112 S. Ct. 379 (1991); Ju rez v. Ameri

____ ______ ______ ____

Mobile Communications, Inc., 957 F.2d 317, 321 (7th Cir. 19 ___________________________

Because reporting sexual harassment is a protected activity u

Title VII, Morgan v. Massachusetts General Hospital, 901______ _______________________________

186, 194 (1st Cir. 1990), and because Hoeppner was discha

after she reported the incidents of sexual harassment by Wat

there is no dispute that Hoeppner has established the first


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elements of her retaliatory discharge claim. The issue on ap

is whether, as the district court found, Hoeppner faile

present sufficient evidence of a causal link between her se

harassment report and the subsequent discharge to defeat a mo

for summary judgment. To put it another way, the issue

whether the evidence in the record can show that CMRC's

reason or motive for firing Hoeppner was Hoeppner's repor

sexual harassment.

Because we are reviewing an order of summary judg

we must determine whether the pleadings, depositions, answer

interrogatories and affidavits offered in this case, viewe

the light most favorable to the nonmovant, Hoeppner, presen

genuine issue of material fact regarding the existence o

causal connection between Hoeppner's sexual harassment report

her subsequent discharge. Fed. R. Civ. P. 56(c); Serrano-P________

v. FMC Corp., 985 F.2d 625, 626 (1st Cir. 1993); Oliver_________ _____

Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir. 19 ________________________

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

evidence is such that a reasonable jury could return a ver

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for the nonmoving party.'" Oliver, 846 F.2d at 105 (quo ______

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (198

________ _____________________

Although the party opposing the motion for summary jud

benefits from all reasonable inferences favorable to that pa

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

forth specific facts demonstrating that there is a genuine i

for trial." Id. Even in discriminatory discharge cases,__

the plaintiff can rarely present direct, subjective evidenc

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

judgment with "unsupported allegations and speculations,"

rather must "point to specific facts detailed in affidavits

depositions -- that is, names, dates, incidents, and suppor

testimony -- giving rise to an inference of discrimina

animus." Lipsett v. University of Puerto Rico, 864 F.2d 881,_______ _________________________

(1st Cir. 1988).

Hoeppner claims on appeal that she presented suffic

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

CMRC fabricated the alleged complaints against Hoeppner so

they could be used as a pretext for Hoeppner's later discha

which was ultimately caused by the sexual harassment rep

Hoeppner acknowledges that the complaints against her an

subsequent probation preceded her report of sexual harassmen

CMRC. She argues, however, that CMRC fabricated the compla


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the causal connection between her report and her subse

discharge. Consequently, no genuine issue of material

remains for trial. Hoeppner's "evidence" consists mainly

unsupported allegations without any "specific facts" suc

"names, dates, incidents, and supporting testimony." Lips ___

864 F.2d at 895. Specific facts are absent to support se

crucial links along Hoeppner's alleged chain of causality:

that CMRC had a practice of implicitly threatening teachers

fabricated negative teacher evaluations in order to cover

abuse of students at the school; (2) that CMRC's practic

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silencing teachers to cover up student abuse extended to

general practice of threatening teachers who were "making wa

by taking actions such as reporting incidents of se

harassment; and (3) that CMRC's alleged practice of threate

teachers through fabricated complaints was instituted aga

Hoeppner herself, resulting in Hoeppner's discharge after

made the sexual harassment report. Because all these links

crucial to the third element in Hoeppner's Title VII cause

action, her failure to establish any one of them dooms


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objection to CMRC's motion for summary judgment. See, e ___

Ramos, 936 F.2d at 49 (noting that plaintiff's "accusat _____

remain largely conclusory and lacking in the conc

documentation necessary to prove the causal link between

protected activity and her retaliatory treatment").

1. Regarding the first causal link, Hoeppner prese

evidence showing that CMRC had problems with the mistreatment

abuse of students by staff members. There is also some evide

although perhaps little more than a scintilla, that CMRC

trying to hide the incidents of abuse and mistreatment fro

public, either to maintain its reputation or to avoid s

regulators. Hoeppner's further claim that CMRC fabric

complaints against teachers who reported abuse of students i

effort to silence them, however, is supported by nothing

than unsubstantiated allegations. Hoeppner and Holly Bro

staff psychologist at CMRC, both make assertions regarding C

alleged silencing practice without noting any specific na

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dates or incidents. Glenn Loucks claims in his affidavit


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sometime in November of 1990, "after attempting to talk

social worker from the state of Mass. for student P.C., Bar

Cohen told me that I would be fired for reporting child abus

a state agency. That I had to follow [CMRC] policy and

meant not breaking client confidentiality to any state age

[sic]" Loucks' statement might amount to some evidence of C

practice of silencing employees except for the fact that Lo

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

report a case of child abuse to the New Hampshire Department

Children and Youth Service and yet he makes no claim that

took any actions against him as a result. More importan

Loucks' allegation does not support the claim that

administrators fabricated complaints against teachers to

them quiet. He makes no mention of fabrication or threats

fabricate complaints in his affidavit.

Dr. Robert Grassi, CMRC's Clinical Director, state

deposition testimony that CMRC's past Director of Psychol

Marilyn Russell, was discharged because she reported incident

child abuse directly to state authorities in violation of

policy. Although this is the type of "incident" that

normally raise a triable issue of fact as to an establi

practice of CMRC, the practice is not one which invo

fabricating teacher complaints to implicitly threaten teacher

keep quiet. No allegations are made that CMRC fabric

complaints against Russell. The problem with the "evidence"

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Grassi's testimony is that it provides no details of the all

retaliatory discharge of Russell -- nor does Hoeppner offer

evidence from the people involved in the incident, inclu

Russell herself -- that would enable a reasonable jury

determine if it is the type of occurrence that is consistent

the alleged practice by CMRC to fabricate false compla

against teachers to prevent them from reporting abuse

students. Grassi himself does not explain how he discovere

reasons for Russell's discharge and, indeed, states that he

not remember talking about these reasons when he spoke

Russell at the time of the alleged incident.

2. Even if Hoeppner had provided sufficient evi

to show that CMRC had a practice of fabricating compla

against teachers to discourage them from reporting student ab

Hoeppner has still failed to establish a second crucial lin

the chain connecting her discharge to the sexual harass

report: that CMRC's concern with staff reports of student a

to outside parties extended to a concern with the types of s

actions that Hoeppner engaged in, such as filing a se

harassment report and reporting two of her TAs for miscon

In other words, Hoeppner has not established that she


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anything that would cause CMRC to fabricate complaints aga

her.

Aside from the incidents reported by Hoeppner in

case, there is nothing in the record regarding any previou

subsequent complaints of sexual harassment filed by a

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employee, or regarding CMRC's retaliation, or threat

retaliate, against other employees who might have compla

about sexual harassment. Thus, Hoeppner has presente

evidence that an internal sexual harassment report would qua

as the type of conduct CMRC administrators would consider "ma

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

The closest thing to "evidence" concerning this i

is an affidavit by August Tardiff, a teacher at CMRC, who cl

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

felt physically threatened by one of his TAs. Although t

was temporarily removed from Tardiff's room, Tardiff claims

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

me I did not have a choice that I had to work with this ma

leave. They also gave me a disciplinary action in which


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blamed me for the problem. So I gave my resignation on Apri

to be effective on June 30th." This single incident, occur

nearly three years after Hoeppner was discharged, would no

itself allow a reasonable jury to conclude that CMRC ha

practice of fabricating complaints against teachers who repo

sexual harassment at the time Hoeppner was fired. To defe

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

of evidence in support of the plaintiff's position will

insufficient; there must be evidence on which the jury c

reasonably find for the plaintiff." Anderson v. Liberty Lo ________ __________

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

at 627; Milton v. Van Dorn Co., 961 F.2d 965, 969 (1st______ _____________

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1992). Tardiff's incident is too remote and too isolate

create a triable issue as to the fabrication of the compla

against Hoeppner.

Hoeppner has further failed to provide evidence

administrators would consider any of her other actions while


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CMRC as "making waves," such that the administrators would

taken retaliatory action by fabricating complaints and pla

Hoeppner on probation. Hoeppner claims that she reported

Beetcher and LaBelle for misconduct in July of 1990. Bec

this occurred after several TAs had already complained a

Hoeppner, after CMRC wrote Hoeppner's first perfor

evaluation which mentioned some of the problems in Hoeppn

classroom, and possibly even after Beetcher and LaBelle f

complained about Hoeppner to Campbell, Hoeppner's actions c

not have led to CMRC's fabrication of the initial compla

against Hoeppner.

Hoeppner also makes the unsupported assertion that

retaliated against her because of her relationship with Lou

who was attempting to organize a union at CMRC. Several

Hoeppner's supporting affidavits discuss incidents in which

administrators took actions to discourage unionization or u

activities. However, the record contains no evidence

Hoeppner ever took part in union activities and nothing indic

that CMRC thought she was involved with the union efforts. C

did know that Hoeppner had an intimate relationship with

Loucks, but nothing in the record indicates that Cohen or

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other CMRC administrator imputed Loucks' union activity

Hoeppner. The record is also devoid of any indication

employees' union activities were occurring before August of 1

let alone that CMRC knew about any union activities before Au

of 1990, when Hoeppner was put on probation. There is simil

no evidence that Cohen or anyone else at CMRC knew about

relationship between Loucks and Cohen until the "fall of 19

well after Hoeppner's probation. Thus, there is insuffic

competent evidence to raise a genuine issue as to whether a

union animus motivated CMRC to fabricate complaints aga

Hoeppner.

In sum, there is insufficient evidence from whi

reasonable jury could find that CMRC had a practice of silen

employees by fabricating false negative evaluations against t

that CMRC had a practice of retaliating against teachers

like Hoeppner, made reports of TA misconduct and se

harassment, or that Hoeppner herself engaged in any activi

that would cause CMRC to fabricate the complaints against her

her subsequent probation. Thus, two important causal l

necessary for her Title VII action are missing from the evi

in the record.

3. Finally, Hoeppner has failed to establish a t

crucial link in the causal chain between Hoeppner's repor

sexual harassment and her discharge: that CMRC's all

silencing practice was applied to Hoeppner in this specific


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through the fabrication of the complaints against her and thr

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the subsequent discharge of Hoeppner when she continued to

waves by reporting incidents of sexual harassment.

Hoeppner's evidence on this issue consists primaril

affidavits stating that Hoeppner was a good teacher, that she

not have problems in her classroom supervising, or communica

with, her TAs, and that the TAs themselves were really

troublemakers in Hoeppner's classroom. Hoeppner wants

evidence to show that the complaints against her were not

untruthful and inaccurate but also fabricated. As we have

on previous occasions, "evidence contesting the fac

underpinnings of the reasons for the [employment decis

proffered by the employer is insufficient, without more,

present a jury question." Morgan, 901 F.2d at 191 (citing De______ _

Look, 810 F.2d 12, 15 (1st Cir. 1987)); see also Ramos, 936____ ________ _____

at 48. Hoeppner cannot establish that CMRC's reasons

discharging her were merely a pretext for impermiss

retaliation "solely by contesting the objective veracity of


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employer's] action." Morgan, 901 F.2d at 191. Rather, Hoep ______

must provide some additional evidence to indicate that

complaints were purposefully fabricated with the intent

threatening Hoeppner not to make waves. See St. Mary's H

___ ____________

Ctr. v. Hicks, 113 S. Ct. 2742, 2751-52 (1993) (finding tha____ _____

reason cannot be proved to be 'a pretext for discriminat

unless it is shown both that the reason was false, and

discrimination was the real reason"; and finding that Title

does not permit courts "to substitute for the required fin

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that the employer's action was the product of unla

discrimination, the much different (and much lesser) finding

the employer's explanation of its action was not believabl

Ramos, 936 F.2d at 48 (noting that refuting the employ _____

articulated reasons for taking action against a plaintiff

not suffice to meet the plaintiff's burden of demonstra

discriminatory intent). Thus, given Hoeppner's theory regar

CMRC's motives, Hoeppner's evidence that she was a good tea


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and that her TAs were troublemakers does not by itself estab

the necessary element of causality between the sexual harass

report and the discharge to support her Title VII action.

Hoeppner presents no other evidence that would pro

this missing element. As we already noted, Hoeppner has fa

to establish a pattern of fabrication by CMRC that would indi

there was fabrication in this particular case. Hoeppner pro

no affidavits from the complaining TAs stating that they di

make the alleged complaints or that they were pressured

lying by CMRC administrators. Instead, Hoeppner points to

fact that neither Cohen nor Campbell formally observed

classroom to verify the TAs' complaints. This fact may i

something about the accuracy of the complaints against Hoepp

but it implies nothing about the allegation that CMRC fabric

the complaints. CMRC administrators could fabricate their

observations more easily than the complaints of third part

who might later recant or deny making the complaints. In f

their own fabrications would be more reliable as they coul

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be subsequently contradicted by the source of the complaint.


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Hoeppner alleges that TAs Beetcher and LaB

complained about her classroom supervision in retaliation for

reports of the TAs' own misconduct. If true, this would ten

refute Hoeppner's own claim that CMRC administrators fabric

her negative evaluations. The fact that Beetcher and LaB

lied to Campbell and Cohen implies that Campbell and C

believed Hoeppner had problems managing her classroom or,

least, that Hoeppner's TAs, rather than CMRC itself,

responsible for Hoeppner's allegedly undeserved probation.

any event, several of the other TAs' complaints, as wel

Hoeppner's first performance evaluation, preceded Hoeppn

report of Beetcher and LaBelle so CMRC could not have fabric

these complaints against Hoeppner in retaliation for Hoeppn

report of Beetcher and LaBelle.

Hoeppner also attempts to cast doubt on the nega

reports of Hoeppner's classroom by Pam Flannery and Pamela

that were provided to Cohen after Hoeppner's probationary pe

had begun. Hoeppner points to an affidavit asserting that

coerced Flannery's signed statement and another affi

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

with Cohen about Hoeppner's classroom. We do not think t

mere allegations are sufficient to invalidate the first-

statements by Flannery and Shea. Even if they are suffici

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

CMRC fabricated the prior complaints against Hoeppner

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Hoeppner's probation.

In sum, even if a factual issue exists as to

validity of the complaints against Hoeppner, summary judgmen

favor of CMRC would still be appropriate because Hoeppner has

established that her discharge was causally related to

protected activity of reporting sexual harassment.

The district court's judgment is therefore affirme _______


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hoeppner v. crotched mountain, 1st cir. (1994)

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