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                   THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Strafford
No. 2018-0624


                                   AMY M. BURNAP

                                            v.

                       SOMERSWORTH SCHOOL DISTRICT

                           Argued: September 18, 2019
                         Opinion Issued: October 25, 2019

      Haughey, Philpot & Laurent, P.A., of Laconia (Samantha M. Jewett on
the brief and orally), for the plaintiff.


      CullenCollimore, PLLC, of Nashua (Brian J. S. Cullen on the brief and
orally), for the defendant.

      DONOVAN, J. The plaintiff, Amy M. Burnap, appeals an order of the
Superior Court (Howard, J.) granting summary judgment to the Somersworth
School District (District) on her claim of employment discrimination based
upon her sexual orientation. She argues that the trial court erred because
there are disputed material facts that could allow a jury to determine that the
District’s stated reason for firing her — sexual harassment — was a pretext for
unlawful sexual orientation discrimination because: (1) her colleagues’ alleged
discriminatory animus infected the District’s decision to fire her; and (2) a
preliminary investigation conducted prior to the District’s decision was a
“sham.” We affirm because there are insufficient facts in the record from which
a jury could find, under either argument, that the District fired the plaintiff
because of her sexual orientation and used sexual harassment as a pretext.

                                      I. Facts

      The following facts are drawn from the evidence presented to the trial
court. The District hired the plaintiff as the Dean of Students at Somersworth
High School for a one-year period beginning in July 2015. It is undisputed
that the plaintiff “is a member of a protected class of Lesbian, Gay, Bisexual,
and Transgender individuals.” In January 2016, several instances of purported
misconduct involving the plaintiff came to light, setting in motion a sequence of
events that culminated in her termination.

      On January 15, 2016, a school secretary reported to her supervisor,
another dean at the school, that the secretary gestured to the plaintiff with her
middle finger, commonly referred to as “flipping someone off.” The plaintiff
reportedly responded to this gesture by saying “I’m going to say something
inappropriate. I probably shouldn’t, but I will anyway. I prefer two or three.”
The secretary interpreted this comment as having a sexual connotation.

       Later that day, two other staff members reported to the dean two other
incidents involving the plaintiff. In one incident, the plaintiff reportedly stated
“that’s so hot” when she observed two female staff members hug. In the other
incident, the plaintiff reportedly commented “I don’t do straight” in response to
a student calling her attention to a wall decoration that was hanging off-kilter.

      On January 19, 2016, the dean reported these allegations to the District
superintendent, who decided to inform the school principal when the principal
returned to the school later that week. On January 22, 2016, another staff
member reported to the dean that, on the preceding day, the plaintiff made a
sexual comment when a school resource officer, during a discussion about
handcuff use on students, placed handcuffs on a staff member to see if she
could slip out of them. The dean reported this allegation to the principal, and
together they presented the superintendent a written summary of the four
incidents described above.

       Later that day, the superintendent informed the plaintiff that she was
being placed on leave until the allegations had been investigated. The
superintendent assigned the school principal and the Title IX coordinator to
investigate. They interviewed at least nine staff members, and interviewed the
plaintiff twice. Their interviews confirmed the allegations and unearthed other
instances of purported misconduct. During one such instance, the school
secretary described how, when she was dressed in a Batman costume as part
of a theme day, the plaintiff looked her up and down and made a sound of
approval, which the secretary interpreted as having a sexual connotation.


                                         2
Another staff member reported that on another occasion the plaintiff stated, “it
turns me on” when the plaintiff sat in a certain chair, and on yet another
occasion the plaintiff commented that the staff member was “smart for a
blonde.”

       During her first interview, the plaintiff acknowledged making the
statements “I prefer two or three” and “I don’t do straight,” but denied making a
sexual comment during the handcuff incident, and stated that she did not
remember the other incidents. During their second interview with the plaintiff,
the investigators believed that the plaintiff intended to intimidate them when
she kicked a door stop to close the door to the interview room, and as a result
included in their report an allegation of retaliation and intimidation against the
plaintiff.1

      The investigators prepared a twelve-page report that described and found
credible the allegations of misconduct and retaliation, and recommended that
the plaintiff be terminated for violating the District’s sexual harassment and
ethics policies. On January 29, 2016, the report was submitted to the
superintendent, who agreed with its conclusions and recommendation. The
superintendent then submitted a recommendation that the plaintiff be
terminated to the District School Board for a final decision.

       In March 2016, the Board held a hearing over the course of three nights,
during which it heard sworn testimony from thirteen witnesses, closing
arguments from both parties, and considered exhibits submitted by the parties.
Prior to the hearing, the school investigators’ report was disseminated to the
District’s witnesses. The witnesses’ testimony recapitulated the instances of
alleged misconduct described above. The plaintiff testified and was
represented by counsel, who cross-examined the witnesses at length. The
Board concluded, in a ten-page decision, that six of the alleged incidents of
misconduct were substantiated and violated both the District’s sexual
harassment and ethics policies. It also found that one allegation, the “I don’t
do straight” comment, did not violate either of those policies, and that the
allegation of retaliation by the plaintiff was unfounded. The Board decided that
the plaintiff’s actions merited termination.

       The plaintiff then brought a breach of contract claim against the District
in the superior court, and concurrently pursued a discrimination claim with
the New Hampshire Commission for Human Rights and the United States
Equal Employment Opportunity Commission. After receiving a notice of the
right to sue, the plaintiff filed a discrimination claim and various tort claims in
the superior court, which were consolidated with her breach of contract claim.
The District then moved for summary judgment on the discrimination and tort

1 The District’s sexual harassment policy includes a provision barring retaliation against
individuals who participate in a sexual harassment investigation.


                                                 3
claims. In support of its motion, the District submitted affidavits from the nine
Board members involved in the determination to terminate the plaintiff,
averring that they did not consider the plaintiff’s sexual orientation in reaching
their decision. In support of her motion opposing summary judgment, the
plaintiff submitted an affidavit denying that she did or said any of the acts
which the school investigators found constituted sexual harassment.

       The trial court concluded that “the evidence does not support a finding
that [the District] or its employees were motivated by a discriminatory animus,”
noting that there was no evidence that the Board members considered the
plaintiff’s sexual orientation in reaching their decision. Accordingly, the trial
court granted the District’s motion.2 The plaintiff appeals that order, but only
with respect to the discrimination claim.

                                    II. Standard of Review

       We review the trial court’s grant of summary judgment de novo. Clark v.
N.H. Dep’t of Emp’t Sec., 171 N.H. 639, 650 (2019). Summary judgment is
appropriate when the evidence is devoid of genuine issues of material fact and
the moving party is entitled to judgment as a matter of law. Id. We consider
the affidavits and other evidence, and all inferences properly drawn from them,
in the light most favorable to the non-moving party. Id. Nonetheless, the party
opposing summary judgment must do more than merely deny the facts in the
moving party’s affidavits. Omiya v. Castor, 130 N.H. 234, 237 (1987). Rather,
she must set forth “specific facts showing the existence of a genuine issue for
trial.” Lake v. Sullivan, 145 N.H. 713, 715 (2001) (quotation omitted).

      In employment discrimination cases, courts must exercise caution when
evaluating “elusive concepts such as motive or intent” or whether an
employer’s stated reason for an employment decision is a pretext. Hodgens v.
General Dynamics Corp., 144 F.3d 151, 167 (1st Cir. 1998). However,
summary judgment is appropriate if the plaintiff “rests merely upon conclusory
allegations, improbable inferences, and unsupported speculation.” Ameen v.
Amphenol Printed Circuits, Inc., 777 F.3d 63, 68 (1st Cir. 2015) (quotation
omitted).

                                          III. Analysis

      The New Hampshire Law Against Discrimination prohibits an employer
from discriminating against an individual on the basis of sexual orientation.
RSA 354-A:7, I (Supp. 2018). In interpreting RSA chapter 354-A, we are aided
by the experience of the federal courts in construing the similar provisions of


2Following the trial court’s ruling on partial summary judgment, the plaintiff voluntarily non-
suited her breach of contract claim.


                                                 4
Title VII of the 1964 Civil Rights Act. See Scarborough v. Arnold, 117 N.H. 803,
807 (1977).

       Federal courts have described two ways a plaintiff can survive summary
judgment in employment discrimination cases. See Nichols v. Southern Illinois
Univer.-Edwardsville, 510 F.3d 772, 779 (7th Cir. 2007); Griffith v. City of Des
Moines, 387 F.3d 733, 736 (8th Cir. 2004). First, a plaintiff can demonstrate
“direct evidence” of discrimination. Griffith, 387 F.3d at 736. Direct evidence
— which does not, in this context, mean the converse of circumstantial
evidence — suggests a strong causal link between the alleged discriminatory
animus and the challenged employment decision “sufficient to support a
finding by a reasonable fact finder that an illegitimate criterion actually
motivated the adverse employment action.” Id. (quotation omitted).

       Second, if a plaintiff’s evidence of the link between the discriminatory
animus and employment decision is indirect, in that it does not “clearly point[]
to the presence of an illegal motive,” the plaintiff must resort to the burden-
shifting paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802-04 (1973). Griffith, 387 F.3d at 736; see Burns v. Town of Gorham,
122 N.H. 401, 406-07 (1982) (applying the McDonnell Douglas burden-shifting
framework in evaluating a claim brought under RSA chapter 354-A). Under the
McDonnell Douglas framework, the plaintiff must first establish a prima facie
case of discrimination. Burns, 122 N.H. at 406. Then, the defendant is
required to put forth some legitimate, nondiscriminatory basis for its action.3
Id. at 408; Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254
(1981). Once the defendant makes this showing, the burden shifts back to the
plaintiff to offer sufficient evidence of a genuine issue of material fact that the
proffered reason is a pretext for unlawful discrimination. See Medina-Munoz v.
R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990). Of course, the
plaintiff must do more than dispute the employer’s stated justification; she
must “elucidate specific facts which would enable a jury to find that the reason
given was not only a sham, but a sham intended to cover up the employer’s
real motive”: here, sexual orientation discrimination. Id.

       Lacking any evidence to suggest a strong link between discriminatory
animus and her termination, the plaintiff must rely on the McDonnell Douglas
burden-shifting framework for her claims to survive summary judgment, and
we now turn to the application of that framework. Like the trial court, we
assume, without deciding, that the plaintiff has made the threshold showing of
a prima facie case of sexual orientation discrimination. The District has, in
turn, met its burden of putting forth a legitimate, nondiscriminatory basis for
its decision by asserting, and providing evidence to support its assertion, that

3 This requirement is merely a burden of production; the burden of proving discrimination rests at
all times with the plaintiff. Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991); see
Burns, 122 N.H. at 408.


                                                5
it terminated the plaintiff based upon several instances of sexual harassment.
The plaintiff, however, has failed to identify sufficient evidence in the record
from which a jury could conclude that sexual harassment was a pretext for
sexual orientation discrimination.

       As an initial matter, there is no evidence that the Board itself harbored
any discriminatory animus, or that it did not believe that several of the
misconduct allegations described in the testimony before it rose to the level of
sexual harassment as described in the District’s policy. See Mulero-Rodríguez
v. Ponte, Inc., 98 F.3d 670, 674 (1st Cir. 1996) (noting that in weighing
whether there is sufficient evidence for a jury to find pretext, the issue is
whether the decision-maker believed the stated justification to be authentic).
The policy defines sexual harassment, in part, as “conduct of a sexual nature
when . . . [t]he unwelcome conduct has the purpose or effect of unreasonably
interfering with a person’s work performance or creating an intimidating,
hostile, or offensive working environment.” Termination is a possible
consequence of violating this policy.

       The Board found that on six occasions the plaintiff violated this policy by
engaging in unwelcome conduct, inappropriate behavior, and communications
of a sexual nature. Nothing in the record suggests that the Board’s sexual
harassment finding was not genuine and thus pretextual.4 Cf. Burns, 122
N.H. at 408 (upholding the trial court’s finding that an employer’s
nondiscriminatory rationale — that it did not hire a female because she lacked
a high school diploma — was pretextual based upon evidence that it later hired
a male who did not have a high school diploma). The plaintiff has also failed to
identify any evidence suggesting that the Board harbored a discriminatory
animus towards her based upon her sexual orientation. To the contrary, every
Board member averred that he or she did not consider the plaintiff’s sexual
orientation in reaching a decision, and the plaintiff has not offered
contradictory evidence. There is thus insufficient evidence from which a jury
could conclude that the Board itself used sexual harassment as a pretext for
sexual orientation discrimination. See Omiya, 130 N.H. at 237 (explaining that
the party opposing summary judgment must do more than merely deny the
facts set forth in the moving party’s affidavit).

      Without evidence that the Board was motivated by a discriminatory
animus, the plaintiff primarily argues that school staff members harbored a
discriminatory animus towards her. She attempts to connect their perceived

4The Board concluded that each instance of misconduct which violated the District’s sexual
harassment policy also violated the District’s ethics policy. The ethics policy contains a non-
exhaustive list of standards, which require that employees, among other things, “[m]aintain just,
courteous, and proper relationships with . . . staff” and “[e]xhibit professional conduct both on
and off duty.” Termination is also a possible consequence for failing to follow the ethics policy.
The plaintiff fails to argue or explain how a jury could conclude that this justification was also a
pretext.


                                                  6
animus to the Board’s decision, first, through the “cat’s paw” theory of
imputing discriminatory intent to the final decision-maker and, second, by
arguing that the school-level investigation was a “sham.” We discuss each
argument in turn.

                                A. The “Cat’s Paw” Argument

       The plaintiff argues that a jury could find that a discriminatory animus
tainted the District’s decision through the “cat’s paw” theory.5 This theory
applies when the final employment decision-maker, who possesses no
discriminatory animus, is influenced by a co-worker or supervisor of the
plaintiff who maintains a discriminatory animus. See Staub v. Proctor
Hospital, 562 U.S. 411, 417, 419 (2011). We have never considered, and need
not decide here, whether a plaintiff could survive summary judgment on a
discrimination claim brought under RSA chapter 354-A relying on the cat’s
paw theory because, even if the theory applies to this case, the plaintiff’s claims
are unavailing.

      To prevail under the cat’s paw theory, the plaintiff acknowledges that she
must show that an individual harboring a discriminatory animus influenced
the adverse employment action, “regardless of which individual actually
sign[ed] [her] walking papers.” Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d
1236, 1249 (11th Cir. 1998). The plaintiff maintains that a jury could
conclude that multiple staff members who were involved in the school
investigation and who testified against her harbored a discriminatory animus
towards her, and that they influenced the Board’s decision. We disagree for
three reasons.

       First, several of the inferences that the plaintiff argues a jury could draw
to find that staff members harbored a discriminatory animus are unsupported
by the record. The plaintiff claims that a jury could infer that the school
investigators harbored a discriminatory animus because they added in their
report sexual language to two of the statements attributed to her. She asserts
that the investigators added the word “kissing” to the comment she allegedly
made in reaction to seeing two female staff members hug. This contention is
unsupported by the record. The investigators’ notes recorded that the two staff
members who reported this comment stated that the plaintiff used the words
“hugging and kissing.” Before the Board, these same staff members testified
that the plaintiff used the words “hugging and kissing.” Thus, there is no
evidence in the record to support the plaintiff’s claim that the investigators
embellished this report by adding language to the plaintiff’s comment.


5 The etymological roots of this theory’s name lie in a fable in which a monkey tricks a cat into
reaching its paw into a fire to retrieve roasting chestnuts. Staub v. Proctor Hospital, 562 U.S.
411, 415 n.1 (2011).


                                                 7
       Similarly, the plaintiff claims that the investigators added the word
“fingers” to her comment, “I prefer two or three,” stated in response to a
secretary flipping the plaintiff off with her middle finger. This contention is
also unsupported by the record. The investigators’ report refers to the “finger
comment,” but it states that both the secretary and the plaintiff reported the
plaintiff stating, “I prefer two or three.” Furthermore, at the Board hearing, one
of the investigators referred to the “two and three fingers” comment, and then
immediately corrected herself, testifying that the plaintiff reportedly said “two
or three.” There is thus no evidence in the record to support the plaintiff’s
contention that the investigators added language to the comment, “I prefer two
or three.”

      The plaintiff also posits that a jury could infer that the investigators’
conclusions demonstrated their discriminatory animus because none of the
school staff members claimed to be sexually harassed. But an explicit
assertion of sexual harassment is not required by the District’s policy. As we
explained above, the District’s policy defines sexual harassment, in part, as
“conduct of a sexual nature when . . . [t]he unwelcome conduct has the
purpose or effect of unreasonably interfering with a person’s work performance
or creating an intimidating, hostile, or offensive working environment.” It does
not mandate that a complainant make an explicit accusation of sexual
harassment or a hostile work environment.

      Multiple staff members told the investigators and testified to the Board
about the unwelcome nature of the plaintiff’s comments, facts from which the
investigators and the Board concluded that the comments created an offensive
environment. There is thus no evidence in the record to support an inference
that the investigators harbored a discriminatory animus because the staff
members did not explicitly say they were sexually harassed. See Ameen, 777
F.3d at 68 (noting that summary judgment is appropriate in employment
discrimination cases where the plaintiff rests upon “unsupported speculation”
(quotation omitted)).

       The plaintiff also argues that a jury could infer that a discriminatory
animus motivated her termination because her sexual comment during the
handcuff incident was reported while no heterosexual female staff member was
reported for being “inappropriate.” The record shows that one staff member
perceived that the group present at the handcuff incident could be
“inappropriate” when “blowing off steam” and “joking around.” However, the
plaintiff does not point to any evidence in the record which suggests that a
heterosexual female employee present during this incident made comments of
a sexual nature but was not disciplined. See Ray v. Ropes & Gray LLP, 799
F.3d 99, 114 (1st Cir. 2015) (noting that while a plaintiff may make a showing
of discrimination by pointing to similarly situated employees who were treated
differently, the compared employees must “closely resemble one another in
respect to relevant facts and circumstances” (quotation omitted)).


                                        8
       Second, in reaching its decision, the Board did not rely upon the
testimony of certain staff members the plaintiff identifies as allegedly harboring
a discriminatory animus. As other courts have reasoned, when a neutral
decision-maker makes an adverse employment decision independent of, and
without relying solely on the report of, a supervisor or co-worker with an
alleged discriminatory animus, the nexus between the alleged animus and the
adverse employment action may be broken. See, e.g., Woods v. City of Berwyn,
803 F.3d 865, 870-71 (7th Cir. 2015) (concluding that the “chain of causation”
between a supervisor’s purported discriminatory animus and an employee’s
termination was broken because, in part, a review board held a hearing in
which it did not rely solely on the purportedly discriminatory supervisor’s
report); Mole v. University of Massachusetts, 814 N.E.2d 329, 345 (Mass. 2004)
(noting that no evidence showed that the final decision-maker was the conduit
for two supervisors’ alleged retaliatory animus when the final decision-maker
conducted an independent proceeding at which he heard testimony from the
adversely affected employee and from staff members who had no allegedly
retaliatory animus).

       The plaintiff submits that a jury could infer that the Board’s decision was
infected by several witnesses’ alleged discriminatory animus because they
spoke with one another before the hearing and subsequently tailored their
testimony or testified inaccurately based upon these conversations. To the
contrary, the record reflects that the witnesses’ testimony to the Board aligned
with their descriptions of the incidents to the investigators. The record
contains a single instance where an inference could be drawn that a witness
was influenced by conversations prior to the Board hearing. One staff member
told the investigators that, during the handcuff incident, she had heard the
plaintiff make a sexual comment. Yet she testified before the Board that the
plaintiff had made a sexual noise. The record shows that another staff member
told the investigators that the plaintiff made a sexual noise during the handcuff
incident. The Board, however, credited other witnesses who substantiated this
allegation. According to the Board’s written decision, the plaintiff herself
acknowledged making a comment with a sexual connotation. There is thus
insufficient evidence from which a jury could conclude that the Board was
influenced by the witness who may have changed her testimony as a result of
conversations that took place prior to the Board hearing.

       The plaintiff also posits that a jury could conclude that a staff member’s
interpretation of the comment, “I don’t do straight,” was intended to cover up
that staff member’s discriminatory bias. That staff member testified to the
Board that she found this comment inappropriate for a school front office that
is open to the public. Similarly, the plaintiff claims a jury could find that a
discriminatory animus caused one of the investigators to testify that the
plaintiff was “grooming” staff members. However, even assuming that this
testimony implies a discriminatory animus, the record reflects that the Board
did not credit either witness to substantiate the allegations of sexual


                                        9
harassment against the plaintiff. In fact, the Board credited the plaintiff over
the other witnesses in finding that the “I don’t do straight” comment did not
violate the District’s policies. There is thus insufficient evidence from which a
jury could conclude that the assumed animus of these witnesses influenced
the Board’s decision. See Woods, 803 F.3d at 871.

       Viewing the evidence in the light most favorable to the plaintiff, an
inference can be drawn that two school staff members, whom the plaintiff
charges with harboring a discriminatory animus towards her, disliked her and
expressed their dislike through unprofessional behavior. At the Board hearing,
the plaintiff’s secretary testified that she believed that the plaintiff was
“incompetent” just two weeks into the school year. The dean to whom the
allegations of sexual harassment were first reported also testified that her
working relationship with the plaintiff was “disconnected” and that it is
possible she gave the plaintiff a “stink face.” The record, however, shows that
the Board did not credit either witness’s testimony in making its findings in
support of the plaintiff’s termination. Therefore, even assuming that a jury
could infer that these two staff members harbored a discriminatory animus,
there is insufficient evidence from which a jury could find that their animus
affected the Board’s decision. See Vasquez v. Empress Ambulance Service,
Inc., 835 F.3d 267, 275 (2d Cir. 2016) (explaining that, under the cat’s paw
theory, “a biased non-decisionmaker” is required to “play a ‘meaningful role’ in
an adverse employment decision for the unbiased decisionmaker to be
culpable”).

       Third, our conclusion that the Board’s decision was not infected by any
assumed animus of certain staff members is buttressed by the thoroughness of
the Board’s hearing. See Woods, 803 F.3d at 870 (concluding that a board’s
hearing broke the chain of causation, in part, because the hearing included
“attorneys, . . . closing arguments, direct and cross-examination of witnesses,
including [the terminated employee], objections and the introduction of
evidence”). The Board held a three-night hearing, at which it heard testimony
from thirteen witnesses and received evidence from both sides. Counsel for the
Board considered and ruled on objections raised by the attorneys for both
sides. At the hearing, the plaintiff was represented by counsel, who cross-
examined the District’s witnesses and presented the Board with a closing
argument. Furthermore, the plaintiff had the opportunity to testify and to
explain her version of events. The Board credited, in part, the testimony of the
staff members who accused the plaintiff, including the plaintiff’s own witness,
in substantiating six of the allegations. But it also credited the plaintiff’s
testimony in deciding that two of the allegations lodged against her were
unfounded, demonstrating its independence from the conclusions drawn in the
school-level report and from the testimony of the staff members. Based upon
the record before us, there is insufficient evidence from which a jury could find
that certain witnesses harbored a discriminatory animus towards the plaintiff,



                                        10
or that other witnesses with an assumed animus sufficiently influenced the
Board’s decision such that their assumed animus can be imputed to the Board.

                     B. The “Sham” Investigation Argument

      The plaintiff next argues that a jury could conclude that sexual
harassment was a pretext for sexual orientation discrimination because the
school investigators conducted a “sham” investigation and failed to apply the
District’s sexual harassment policy to the evidence. A stated reason for an
adverse employment decision may be revealed to be a pretext through an
improper investigation, by showing that those conducting the investigation
fabricated, ignored, or misrepresented the evidence, or that the outcome was
predetermined. Harden v. Marion County Sheriff’s Dept., 799 F.3d 857, 864
(7th Cir. 2015).

       In support of her argument that the investigation was a sham, the
plaintiff claims that the staff members did not adhere to the required process
for reporting claims of sexual harassment. The record reflects that the
reporting process was not precisely followed because the school’s principal was
unavailable or on vacation when the allegations first came to light. Any
deviation in the reporting process, however, does not support an inference that
the District’s sexual harassment finding was pretextual. The plaintiff also
claims that the dean to whom the allegations were first made conducted her
own investigation before informing her superiors or writing a formal summary.
But the record reflects that staff members simply approached the dean to
report their concerns, not that the dean conducted her own investigation.

       The plaintiff also asserts that the investigation was a sham because the
determination that she had engaged in sexual harassment was predetermined
by the dean before she spoke with the plaintiff or before an investigation was
initiated. This assertion is unsupported by the record. The initial summary of
the allegations that the dean and principal gave to the superintendent merely
recounted several comments that the plaintiff allegedly made to staff members
during the school day. Additionally, the dean testified before the Board that
she had “a duty to report any allegations of sexual harassment.” (Emphasis
added.) There is thus no evidence to support the inference that the outcome of
the investigation was predetermined by the dean.

       The plaintiff also claims that the investigators made an unfounded claim
of retaliation against her in order to “bolster” their case because of her sexual
orientation. Even assuming that the investigators sought to use the plaintiff’s
alleged retaliation as a pretext for discrimination, however, the Board
independently rejected the investigators’ conclusion by crediting the plaintiff’s
testimony over the testimony of other witnesses, and found that the plaintiff
did not act in a retaliatory manner. Furthermore, the Board did not credit the
testimony of the investigators in substantiating any of the allegations.


                                       11
       The plaintiff also submits that the investigation was a sham because the
staff members spoke with each other before making statements to the
investigators, the investigators credited staff members who were their friends,
the investigators did not assess the staff members’ credibility, and the
investigators failed to ask the plaintiff about some of the allegations. In an
effort to connect these perceived illegitimacies with the Board’s decision, the
plaintiff points to the fact that the investigators’ report was disseminated to all
of the District’s witnesses prior to the Board’s hearing. Yet the plaintiff
identifies no evidence that this procedural irregularity influenced the witnesses’
testimony before the Board. As we discussed above, the record reflects that the
staff members’ descriptions of the allegations to the investigators were
essentially the same as their testimony to the Board. Also, the plaintiff testified
to the Board, affording her an opportunity to explain her version of events, and
her counsel questioned the investigators about their procedures in an effort to
impugn their credibility. The plaintiff’s counsel also challenged, through cross-
examination, the credibility of the witnesses who made allegations against her.
There is thus insufficient evidence from which a jury could conclude that the
advance dissemination of the school investigators’ report influenced the
Board’s decision.

       The plaintiff cites Mastro v. Potomac Electric Power Co., 447 F.3d 843
(D.C. Cir. 2006), as support for her argument that the perceived problems with
the investigation could allow a jury to find in her favor. The court in Mastro
noted an “inexplicably unfair” investigation as one factor from which a jury
could conclude that the employer’s stated reason for firing the employee was a
pretext. Id. at 855. The final decision-makers in that case relied “solely” on
the “one-sided investigation.” Id. at 856. The investigator in Mastro did not
interview the adversely affected employee, was one of three individuals who
comprised the group that rendered the adverse employment decision, and
neither he nor the other decision-makers assessed the credibility of the
employee whose accusation was central to the adverse employment decision.
Id. at 849, 855-56.

       Here, by contrast, the investigators interviewed the plaintiff, affording her
a chance to explain her version of the events. Although the investigators did
not ask her about certain allegations, the plaintiff testified about each
allegation before the Board. Additionally, the investigators were not members
of the Board, which was the final decision-maker. Although the Board acted on
the recommendation of the superintendent, who relied on the investigators’
report, the Board did not rely solely on that report, but instead conducted a
three-night hearing before reaching its decision. Cf. id. at 856. There is thus
insufficient evidence from which a jury could infer that the District’s finding of
sexual harassment was a pretext.




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                                IV. Conclusion

    For the reasons stated above, we affirm the trial court’s order granting
summary judgment to the District on the plaintiff’s discrimination claim.

                                                 Affirmed.

      HICKS, BASSETT, and HANTZ MARCONI, JJ., concurred.




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