
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.   This  action  involves  a                                ______________          retaliatory discharge claim  under Title VII of  the Civil Rights          Act  of 1964, 42 U.S.C.    2000(e)-2.  Plaintiff-Appellant, Donna          Hoeppner, alleges that she was fired because she reported several          incidents  of sexual harassment  to her  employer.   The district          court granted  summary judgment  in favor of  Hoeppner's employer          and we affirm.                                    I.  BACKGROUND                                    I.  BACKGROUND                    Defendant-Appellee,  Crotched  Mountain  Rehabilitation          Center, Inc. ("CMRC"), is a nonprofit school for the  instruction          and rehabilitation  of  multiply handicapped  children and  young          adults.   Hoeppner was employed as a special education teacher at          CMRC from September 1989 until November 9, 1990.  Hoeppner was in          charge  of a  classroom  at the  school  throughout her  term  of          employment.  She was aided by several teacher assistants ("TAs"),          who normally rotated through different classrooms over periods of          three to six months.                     Beginning  in December of  1989, several TAs complained          to  CMRC  administrators  about  Hoeppner's  management  of   her          classroom and  about  Hoeppner's  poor  communication  with,  and          supervision  of, the  TAs.   Hoeppner  contests the  validity and          genuineness  of  some  of  these complaints,  and  questions  the          existence  of others, but  does not dispute  that some complaints          were  made about  her prior  to her  discharge and  prior  to her          report of sexual harassment.  There is also  no dispute that CMRC          placed Hoeppner on probation  for ninety days in August  of 1990.                                         -2-          Subsequently,  on November  1,  1990,  Hoeppner reported  several          incidents of sexual harassment by one of her TAs.  On November 9,          1990, three days after the expiration of her probationary period,          CMRC  discharged  Hoeppner  on   the  ground  that  Hoeppner  had          allegedly failed to make  suggested improvements in her classroom          during  the probationary  period.   Hoeppner maintains  that this          ground is merely  a pretext  for the real  reason underlying  her          termination:  Hoeppner's report of sexual harassment.   Before we          address whether this allegation  can survive summary judgment, we          briefly  recount the  evidence  concerning these  events in  more          detail.                    CMRC's  Principal,  Barbara  Cohen, and  its  Assistant          Principal,  Archibald  Campbell, state  in  affidavits that  they          received complaints about Hoeppner's supervision of her classroom          on  several occasions.  Cohen  attests that in  December of 1989,          she met with Hoeppner's  TAs to discuss problems between  the TAs          and Hoeppner.  Cohen claims that TAs Diana V lez and Jennifer Roy          complained  to her in January about the way Hoeppner was treating          them in the classroom.                    A meeting between  Hoeppner, Cohen, and  Hoeppner's TAs          was held on January 20, 1990.   Cohen maintains that the  meeting          was specifically scheduled for the purpose of discussing the TAs'          concerns about Hoeppner.  In her affidavit,  Hoeppner claims that          the  meeting was  a routine  afterschool discussion  of classroom          matters at which Cohen  solicited corrective suggestions from the          TAs.   Even  according to  Hoeppner's  account, however,  the TAs                                         -3-          "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  evaluation for the period          of  September 11, 1989, through  December 11, 1989, was completed          on February  12, 1990.  Cohen met with Hoeppner on February 24 to          discuss the evaluation.   The evaluation rated Hoeppner's overall          performance  as  fully  satisfactory, although  it  noted several          problems  with  her  classroom  management abilities.    Under  a          category entitled  "Developing and Motivating  Subordinates," for          example,   the  evaluation   stated  that   Hoeppner's  "personal          relationships with  teacher  assistants have  been strained"  and          that  Hoeppner needed  to be  more  open to  input from  the TAs.          Hoeppner signed  the evaluation and remembers  discussing it with          Cohen.   She alleges,  however, that  the negative  comments were          untrue and fabricated.                    Meanwhile, Assistant Principal Campbell claims that TAs          Heidi Beetcher and  James LaBelle complained sometime in  July of          1990  about the  way Hoeppner  was treating  them.   Campbell and          Cohen subsequently  scheduled a  meeting  for July  31, 1990,  to          discuss the problems.   Sometime prior 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  Cohen, Campbell,          Hoeppner, and TAs Beetcher and LaBelle.  Cohen wrote an extensive          memorandum  documenting her  version  of the  various  complaints                                         -4-          about  Hoeppner that were raised at the meeting.  Cohen concluded          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."  Hoeppner does not dispute Cohen's account of the          meeting,  nor   does  she  dispute  that   Beetcher  and  LaBelle          complained  about  her supervision  of  the  classroom.   Rather,          Hoeppner  alleges  that  Beetcher and  LaBelle  fabricated  their          complaints in  retaliation for Hoeppner's prior  act of reporting          the  two TAs  to CMRC administrators  for misconduct  and abusing          students.                    CMRC placed  Hoeppner on  probation on August  8, 1990.          Cohen  met with Hoeppner the next day  to discuss the reasons for          the  probation and the  applicable terms and  consequences of the          ninety-day probationary period.   At the meeting, Cohen presented          Hoeppner  with the  "Disciplinary  Action  Form" documenting  the          probation.   The  form states  that  the probation  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  behavior.  The  form concluded  with the  statement:          "If  behavior  does  not  improve,  further  disciplinary  action          may/will be taken:   Up to and including termination."   Hoeppner          signed  the form  but did  not write  anything in  the  space for          employee  comments.   Hoeppner  objects  to the  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  in   her   affidavit  that   Hoeppner's          performance did not  improve during the probationary period.  She          states  that another TA,  Pam Flannery,  complained to  her about          Hoeppner's classroom management  and supervision on  October, 31,          1990.   Flannery signed a statement containing the details of her          complaints,  including  allegations   that  Hoeppner's   intimate          relationship  with another  one  of her  TAs,  Glenn Loucks,  now          espoused  to  Hoeppner, was  causing  trouble  in the  classroom.          Cohen states  that Flannery indicated  that the classroom  was in          chaos.   Hoeppner claims  that the CMRC  administration solicited          Flannery's  statement while  it was  pressuring Flannery  to stay          away from the union which Glenn Loucks and  others were trying to          organize at  CMRC.   Hoeppner alleges  that  Flannery signed  the          statement to  save her job and  the statement is thus  of dubious          validity.   Mark Pierce,  a Residential Counselor  at CMRC, makes          the same allegation as Hoeppner in his affidavit.1                    Meanwhile,  CMRC  Education  Staff  Development  Chair,          Pamela  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  November 1, 1990,  Hoeppner first  reported several          incidents  of  sexual  harassment  to CMRC.    Hoeppner  informed          Assistant Principal Campbell that  one of her TAs, Shane  Waters,          had  made several  sexually inappropriate  overtures  toward her,          including touching  her breasts  from behind, placing  his crotch          three inches  from her face, and rubbing  her back.  Campbell and          Cohen spoke  with Waters on several occasions  between November 2          and November 5, 1992.   Waters gave a somewhat  different account          of the incidents and  denied that any  of his actions had  sexual          connotations.    Campbell  and  Cohen  told  Waters  that  sexual          harassment was  not  acceptable and  that  Waters should  not  do          anything  that  could  be   interpreted  by  Hoeppner  as  sexual          harassment.   Neither Cohen nor Campbell  took any administrative          action  against   Waters  nor   did  they  conduct   any  further          investigation of  the  incident beyond  their conversations  with          Waters.     Hoeppner  claims   that  despite  promising   a  full          investigation,  the  CMRC administration  did  nothing and  never          informed  her of  what they  would  do, or  had  done, about  the          incidents.                    CMRC  discharged Hoeppner  on November  9, 1990,  three          days after her probationary period ended and eight days after she          reported the incidents  of sexual harassment.   According to  the          final  performance evaluation  written  by Cohen  upon Hoeppner's                                         -7-          discharge, Hoeppner continued to have problems with her staff and          did not improve her supervision  and management of the classroom,          as  required by the terms of Hoeppner's probation.  In deposition          testimony,  Hoeppner stated that she  did not change her behavior          in   response  to  the   criticisms  leveled  by   Cohen  in  the          Disciplinary  Action  Form   accompanying  Hoeppner's   probation          because Hoeppner did  not feel  that the  criticisms were  valid.          Hoeppner  does  claim, however,  that  she  did  make changes  in          response to the particular  needs of individual TAs and  that, in          general, she did improve her performance.                    Hoeppner  maintains  that  there  were  no  significant          problems in  her classroom and  asserts that  the criticisms  and          complaints against her were untrue and fabricated.  She proffered          affidavits  of several current  and former employees  of CMRC who          attest to Hoeppner's good  teaching and supervisory abilities and          who assert that Hoeppner did not have any problems with the staff          in  her classroom.  Hoeppner also  points out that neither of her          supervisors,  Cohen and  Campbell,  formally observed  Hoeppner's          work  in  the  classroom.    CMRC's  motive  for  fabricating the          complaints  against  her,  Hoeppner  claims,  was  to  implicitly          threaten  her job so that  Hoeppner would stop  "making waves" at          CMRC by reporting  incidents of abuse  of students, by  reporting          misconduct of other employees, and  by supporting the efforts  to          organize a union at  CMRC led by Glenn  Loucks.  Several  current          and  past  employees assert  in  their affidavits  that  CMRC was          trying to  keep its  employees quiet about  incidents of  student                                         -8-          abuse  so that  the  incidents could  be  hidden from  the  state          regulators and from  the public, thus avoiding  the tarnishing of          CMRC's  reputation.   Several  affiants make  similar accusations          regarding  CMRC's  efforts  to  discourage  unionization  at  the          school.   One  affiant claims  that  CMRC's method  of  silencing          employees  was  to  falsify  complaints  against  them  and  then          threaten to fire them.                    The  district  court  rejected  Hoeppner's   claim  and          dismissed  the  case on  summary judgment.    The court  found no          triable  issue  on  the   question  of  whether  CMRC  wrongfully          discharged  Hoeppner  because  CMRC  "reasonably  and justifiably          concluded  that there  was a  problem in  plaintiff's classroom."          The court also  noted that the  complaints against Hoeppner  were          made well before she reported the incidents of sexual harassment,          so these complaints could  not have been a fabricated  pretext to          cover  up a retaliatory motive.  Consequently, the court found no          evidence of a causal  relationship between the protected activity          of reporting sexual harassment and Hoeppner's discharge.                                    II.  ANALYSIS                                    II.  ANALYSIS                    To establish  a claim  of  retaliatory discharge  under          Title  VII, Hoeppner must show by a preponderance of the evidence          that:          (1) she engaged  in a protected activity as  an employee, (2) she          was subsequently  discharged from employment, and (3) there was a          causal   connection  between  the   protected  activity  and  the          discharge.  Ramos v.  Roche Products, Inc., 936 F.2d  43, 48 (1st                      _____     ____________________                                         -9-          Cir.), cert. denied, 112  S. Ct. 379 (1991); Ju rez  v. Ameritech                 ____  ______                          ______     _________          Mobile Communications, Inc.,  957 F.2d 317, 321  (7th Cir. 1992).          ___________________________          Because reporting sexual harassment is a protected activity under          Title  VII, Morgan  v. Massachusetts  General Hospital,  901 F.2d                      ______     _______________________________          186,  194 (1st Cir.  1990), and  because Hoeppner  was discharged          after she  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  whether, as  the  district court  found,  Hoeppner failed  to          present sufficient  evidence of a causal link  between her sexual          harassment report and the subsequent discharge to defeat a motion          for summary  judgment.   To  put  it another  way,  the issue  is          whether  the evidence  in the  record can  show that  CMRC's true          reason  or motive for  firing Hoeppner  was Hoeppner's  report of          sexual harassment.                    Because we are reviewing  an order of summary judgment,          we must determine whether  the pleadings, depositions, answers to          interrogatories and  affidavits offered  in this case,  viewed in          the light most  favorable to the  nonmovant, Hoeppner, present  a          genuine  issue of  material  fact regarding  the  existence of  a          causal connection between Hoeppner's sexual harassment report and          her  subsequent discharge.  Fed.  R. Civ. P. 56(c); Serrano-P rez                                                              _____________          v. FMC  Corp.,  985 F.2d  625,  626 (1st  Cir.  1993); Oliver  v.             _________                                           ______          Digital  Equipment Corp.,  846  F.2d 103,  105  (1st Cir.  1988).          ________________________          Under the summary judgment standard, an issue is genuine "'if the          evidence  is such that a  reasonable jury could  return a verdict                                         -10-          for  the nonmoving  party.'"   Oliver, 846  F.2d at  105 (quoting                                         ______          Anderson  v. Liberty  Lobby,  Inc., 477  U.S.  242, 248  (1986)).          ________     _____________________          Although  the  party opposing  the  motion  for summary  judgment          benefits from all reasonable  inferences favorable to that party,          the  nonmovant "may not rest upon mere allegations; [he] must set          forth specific  facts demonstrating that there is a genuine issue          for trial."  Id.   Even in discriminatory discharge  cases, where                       __          the plaintiff  can rarely present direct,  subjective evidence of          an employer's actual motive, the plaintiff cannot survive summary          judgment  with  "unsupported allegations  and  speculations," but          rather must "point  to specific facts detailed  in affidavits and          depositions --  that is, names, dates,  incidents, and supporting          testimony  --  giving  rise  to an  inference  of  discriminatory          animus."  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  Hoeppner so that          they could be used  as a pretext for Hoeppner's  later discharge,          which  was ultimately  caused  by the  sexual harassment  report.          Hoeppner  acknowledges that  the complaints  against her  and her          subsequent probation preceded her  report of sexual harassment to          CMRC.  She argues, however,  that CMRC fabricated the  complaints          and  placed  her on  probation in  order  to discourage  her from          reporting  staff  abuse  of  students,  supporting Loucks'  union          efforts,  and  otherwise "making  waves"  at  CMRC.   Instead  of                                         -11-          remaining silent,  Hoeppner ignored the implicit  threats by CMRC          and reported her TA for sexual harassment.  As a result, Hoeppner          concludes, her sexual harassment  complaint, though maybe not the          sole  reason  for her  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  her  sexual  harassment  report because  she  defied  CMRC's          implicit  threats  to remain  quiet only  at  the point  when she          reported the incidents  involving Waters.   Had she not  reported          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  her  report  and her  subsequent          discharge.    Consequently, no  genuine  issue  of material  fact          remains  for trial.    Hoeppner's "evidence"  consists mainly  of          unsupported  allegations  without any  "specific  facts" such  as          "names, dates,  incidents, and  supporting testimony."   Lipsett,                                                                   _______          864 F.2d at  895.  Specific facts  are absent to support  several          crucial links along Hoeppner's alleged  chain of causality:   (1)          that CMRC  had a practice of implicitly threatening teachers with          fabricated  negative teacher  evaluations  in order  to cover  up          abuse  of students  at the  school; (2)  that CMRC's  practice of                                         -12-          silencing teachers  to cover  up  student abuse  extended to  the          general practice of threatening  teachers who were "making waves"          by  taking   actions  such  as  reporting   incidents  of  sexual          harassment; and  (3) that CMRC's alleged  practice of threatening          teachers through  fabricated  complaints was  instituted  against          Hoeppner herself,  resulting in  Hoeppner's  discharge after  she          made the sexual harassment  report.  Because all these  links are          crucial to the  third element  in Hoeppner's Title  VII cause  of          action,  her failure  to  establish any  one  of them  dooms  her          objection to  CMRC's motion  for  summary judgment.   See,  e.g.,                                                                ___   ____          Ramos,  936  F.2d at  49  (noting  that plaintiff's  "accusations          _____          remain   largely  conclusory   and   lacking  in   the   concrete          documentation  necessary to  prove  the causal  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  perhaps little  more than  a scintilla,  that CMRC  was          trying to hide the  incidents of abuse and mistreatment  from the          public,  either to  maintain  its reputation  or  to avoid  state          regulators.    Hoeppner's  further  claim  that  CMRC  fabricated          complaints against teachers  who reported abuse of students in an          effort  to silence them,  however, is  supported by  nothing more          than unsubstantiated  allegations.   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,  "after attempting  to talk  to a          social worker from the  state of Mass. for student  P.C., Barbara          Cohen told me that I would be fired for reporting  child abuse to          a state  agency.  That  I had  to follow [CMRC]  policy and  that          meant not  breaking client  confidentiality to any  state agency.          [sic]"  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  to the New Hampshire Department  of          Children and Youth  Service and yet he  makes no claim that  CMRC          took  any actions  against him  as a  result.   More importantly,          Loucks'  allegation   does  not  support  the   claim  that  CMRC          administrators fabricated  complaints  against teachers  to  keep          them quiet.   He makes  no mention of  fabrication or threats  to          fabricate complaints in his affidavit.                    Dr. Robert Grassi, CMRC's Clinical  Director, states in          deposition testimony  that  CMRC's past  Director of  Psychology,          Marilyn Russell, was discharged because she reported incidents of          child abuse  directly to state  authorities in violation  of CMRC          policy.    Although this  is the  type  of "incident"  that might          normally  raise  a triable  issue of  fact  as to  an established          practice  of  CMRC,  the  practice  is  not  one  which  involves          fabricating teacher complaints to implicitly threaten teachers to          keep  quiet.    No  allegations  are made  that  CMRC  fabricated          complaints against Russell.  The problem with the "evidence" from                                         -14-          Grassi's  testimony is that it provides no details of the alleged          retaliatory discharge of  Russell -- nor does  Hoeppner offer any          evidence  from the  people  involved in  the incident,  including          Russell  herself  -- that  would  enable  a  reasonable  jury  to          determine if it is the type of occurrence that is consistent with          the  alleged  practice  by  CMRC to  fabricate  false  complaints          against  teachers  to  prevent   them  from  reporting  abuse  of          students.   Grassi himself does not explain how he discovered the          reasons for Russell's discharge and,  indeed, states that he does          not  remember  talking about  these  reasons when  he  spoke with          Russell at the time of the alleged incident.                    2.   Even if Hoeppner had  provided sufficient evidence          to show  that  CMRC  had a  practice  of  fabricating  complaints          against teachers to discourage them from reporting student abuse,          Hoeppner has still failed  to establish a second crucial  link in          the  chain  connecting her  discharge  to  the sexual  harassment          report:   that CMRC's concern with staff reports of student abuse          to outside  parties extended to a concern with the types of staff          actions  that  Hoeppner  engaged  in,  such  as  filing  a sexual          harassment report  and reporting two  of her TAs  for misconduct.          In  other  words,  Hoeppner  has  not  established  that she  did          anything that  would cause  CMRC to fabricate  complaints against          her.                    Aside from  the incidents reported by  Hoeppner in this          case,  there is nothing in  the record regarding  any previous or          subsequent  complaints  of  sexual  harassment filed  by  a  CMRC                                         -15-          employee,  or   regarding  CMRC's   retaliation,  or   threat  to          retaliate,  against other  employees  who  might have  complained          about  sexual  harassment.    Thus,  Hoeppner  has  presented  no          evidence that an internal  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  issue          is an affidavit by August Tardiff,  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  TAs.  Although  the TA          was temporarily removed from  Tardiff's room, Tardiff claims that          the administrators "refused to take my fears seriously [and] told          me I did not  have a choice that I  had to work with this  man or          leave.   They also  gave me a  disciplinary action  in which they          blamed  me for the problem.  So I gave my resignation on April 12          to be effective on  June 30th."  This single  incident, occurring          nearly  three years after  Hoeppner was discharged,  would not by          itself  allow a  reasonable  jury to  conclude  that CMRC  had  a          practice of fabricating complaints against teachers who  reported          sexual harassment at  the time Hoeppner  was fired.  To  defeat a          motion for summary judgment, "[t]he mere existence of a scintilla          of evidence  in  support  of the  plaintiff's  position  will  be          insufficient; there  must  be evidence  on which  the jury  could          reasonably find for the  plaintiff."  Anderson v. Liberty  Lobby,                                                ________    _______________          Inc.,  477 U.S. 242, 252 (1986); see also Serrano-P rez, 985 F.2d          ____                             ________ _____________          at  627; Milton  v. Van  Dorn Co.,  961 F.2d  965, 969  (1st Cir.                   ______     _____________                                         -16-          1992).   Tardiff's  incident is  too remote  and too  isolated to          create  a triable issue as  to the fabrication  of the complaints          against Hoeppner.                     Hoeppner  has further failed  to provide  evidence that          administrators would consider any of  her other actions while  at          CMRC as "making waves,"  such that the administrators would  have          taken retaliatory  action by  fabricating complaints and  placing          Hoeppner on  probation.   Hoeppner claims that  she reported  TAs          Beetcher and LaBelle  for misconduct  in July of  1990.   Because          this  occurred after  several  TAs had  already complained  about          Hoeppner,  after   CMRC   wrote  Hoeppner's   first   performance          evaluation  which mentioned  some of  the problems  in Hoeppner's          classroom,  and possibly  even after  Beetcher and  LaBelle first          complained about Hoeppner to  Campbell, Hoeppner's actions  could          not have  led to  CMRC's fabrication  of  the initial  complaints          against Hoeppner.                    Hoeppner also makes the unsupported assertion that CMRC          retaliated against  her because of her  relationship with Loucks,          who  was attempting  to organize  a union  at CMRC.   Several  of          Hoeppner's  supporting affidavits discuss incidents in which CMRC          administrators took actions to  discourage unionization or  union          activities.    However,  the  record contains  no  evidence  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  Hoeppner had an  intimate relationship with  Glenn          Loucks, but nothing  in the  record indicates that  Cohen or  any                                         -17-          other  CMRC  administrator  imputed  Loucks'  union  activity  to          Hoeppner.    The record  is also  devoid  of any  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  on probation.  There is similarly          no evidence  that Cohen or  anyone else  at CMRC  knew about  the          relationship between Loucks and  Cohen until the "fall  of 1990,"          well  after Hoeppner's  probation.   Thus, there  is insufficient          competent evidence to raise  a genuine issue as to  whether anti-          union  animus  motivated  CMRC  to fabricate  complaints  against          Hoeppner.                    In  sum, there  is insufficient  evidence from  which a          reasonable  jury could find that CMRC had a practice of silencing          employees by fabricating false negative evaluations against them,          that  CMRC had  a practice  of retaliating against  teachers who,          like  Hoeppner,   made  reports  of  TA   misconduct  and  sexual          harassment, or  that Hoeppner  herself engaged in  any activities          that would cause CMRC to fabricate the complaints against her and          her  subsequent  probation.   Thus,  two  important causal  links          necessary  for her Title VII action are missing from the evidence          in the record.                    3.   Finally, Hoeppner has  failed to establish a third          crucial  link in the  causal chain  between Hoeppner's  report of          sexual  harassment  and  her  discharge:    that  CMRC's  alleged          silencing practice was applied to Hoeppner  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,  her TAs,  and  that the  TAs  themselves were  really  the          troublemakers  in Hoeppner's  classroom.    Hoeppner  wants  this          evidence  to show that the  complaints against her  were not only          untruthful and inaccurate but  also fabricated.  As we  have held          on   previous   occasions,  "evidence   contesting   the  factual          underpinnings  of  the  reasons  for  the  [employment  decision]          proffered  by  the employer  is  insufficient,  without more,  to          present a jury question."  Morgan, 901 F.2d at 191 (citing Dea v.                                     ______                          ___          Look, 810  F.2d 12, 15 (1st Cir. 1987)); see also Ramos, 936 F.2d          ____                                     ________ _____          at  48.   Hoeppner  cannot  establish  that  CMRC's  reasons  for          discharging  her   were  merely   a  pretext   for  impermissible          retaliation "solely by contesting  the objective veracity of [the          employer's]  action."  Morgan, 901 F.2d at 191.  Rather, Hoeppner                                 ______          must  provide  some  additional  evidence to  indicate  that  the          complaints  were  purposefully  fabricated  with  the  intent  of          threatening Hoeppner not  to make  waves.  See  St. Mary's  Honor                                                     ___  _________________          Ctr. v. Hicks, 113  S. Ct. 2742, 2751-52 (1993) (finding  that "a          ____    _____          reason cannot  be  proved to  be 'a  pretext for  discrimination'          unless  it is  shown both  that the  reason was  false,  and that          discrimination was the real  reason"; and finding that  Title VII          does  not permit courts  "to substitute for  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  explanation of  its action was  not believable");          Ramos, 936  F.2d  at  48 (noting  that  refuting  the  employer's          _____          articulated reasons  for taking  action against a  plaintiff does          not  suffice  to meet  the  plaintiff's  burden of  demonstrating          discriminatory intent).   Thus, given Hoeppner's theory regarding          CMRC's motives, Hoeppner's  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  provide          this missing element.   As we already noted, Hoeppner  has failed          to establish a pattern of fabrication by CMRC that would indicate          there was fabrication in this particular case.  Hoeppner provides          no  affidavits from the complaining TAs stating that they did not          make  the alleged  complaints or  that  they were  pressured into          lying by  CMRC administrators.   Instead, Hoeppner points  to the          fact  that  neither  Cohen  nor Campbell  formally  observed  her          classroom to verify  the TAs'  complaints.  This  fact may  imply          something about the accuracy  of the complaints against Hoeppner,          but it implies  nothing about the allegation that CMRC fabricated          the complaints.   CMRC  administrators could fabricate  their own          observations more  easily than  the complaints of  third parties,          who might later recant or  deny making the complaints.  In  fact,          their own fabrications would  be more reliable as they  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.  If true, this  would tend to          refute Hoeppner's  own claim that  CMRC administrators fabricated          her  negative evaluations.   The  fact that Beetcher  and LaBelle          lied  to  Campbell  and Cohen  implies  that  Campbell and  Cohen          believed  Hoeppner had  problems  managing her  classroom or,  at          least,  that  Hoeppner's  TAs,  rather  than  CMRC  itself,  were          responsible for Hoeppner's  allegedly undeserved  probation.   In          any  event,  several of  the other  TAs'  complaints, as  well as          Hoeppner's  first  performance  evaluation,  preceded  Hoeppner's          report  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  Pamela Shea          that were provided to  Cohen after Hoeppner's probationary period          had begun.  Hoeppner  points to an affidavit asserting  that CMRC          coerced   Flannery's  signed  statement   and  another  affidavit          alleging that, contrary to Shea's own affidavit, Shea never spoke          with Cohen about  Hoeppner's classroom.   We do  not think  these          mere  allegations are  sufficient  to  invalidate the  first-hand          statements  by Flannery and Shea.   Even if  they are sufficient,          the allegations do not raise a triable issue as to the claim that          CMRC  fabricated  the  prior  complaints  against  Hoeppner   and                                         -21-          Hoeppner's probation.                    In  sum, even  if  a factual  issue  exists as  to  the          validity of the complaints  against Hoeppner, summary judgment in          favor of CMRC would still be appropriate because Hoeppner has not          established  that  her  discharge  was causally  related  to  the          protected activity of reporting sexual harassment.                    The district court's judgment is therefore affirmed.                                                               ________                                         -22-
