Ahern v. Shinseki

• Citation: 629 F.3d 49
• Decision Date: 13 December 2010
• Docket Number: No. 09-1985,09-1985
• Parties: Eileen AHERN et al., Plaintiffs, Appellants, v. Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

629 F.3d 49

Eileen AHERN et al., Plaintiffs, Appellants,

v.Eric K. SHINSEKI, Secretary, Department of Veterans Affairs, Defendant, Appellee.

No. 09-1985.

United States Court of Appeals, First Circuit.

Heard Oct. 6, 2010.

Decided Dec. 13, 2010.

Thomas E. Folcarelli for appellants.

Richard B. Myrus, Assistant United States Attorney, with whom Peter F. Neronha, United States Attorney, was on brief, for appellee.

Before LYNCH, Chief Judge, SELYA and THOMPSON, Circuit Judges.

SELYA, Circuit Judge.

In the last half-century, Congress has enacted a safety net of antidiscrimination laws designed to protect workers' rights. These laws serve salutary purposes, but they are not intended to function as a collective panacea for every work-related experience that is in some respect unjust, unfair, or unpleasant. This case, which involves the introduction of an abrasive supervisor into a workplace accustomed to a kinder, gentler way of doing business, illustrates the point.

The underlying dispute takes the form of an action brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2(a) and 2000e-3(a). The plaintiffs proffer claims of gender-based discrimination, retaliation, and constructive discharge. The district court rejected these claims and entered summary judgment for the employer. The plaintiffs now appeal.

We conclude, as did the court below, that the evidence is insufficient to permit a reasonable factfinder to resolve any of the claims in the plaintiffs' favor. Accordingly, we affirm.

I. BACKGROUND

We rehearse the facts in the light most agreeable to the nonmoving parties (here, the plaintiffs), consistent with record support. Cox v. Hainey, 391 F.3d 25, 27 (1st Cir.2004); Garside v. Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir.1990). Under that paradigm, the nonmovants are entitled to the benefit of all reasonable inferences that the facts will bear. Noviello v. City of Boston, 398 F.3d 76, 81-82 (1st Cir.2005). We recount here only a synopsis, reserving further facts for inclusion in our discussion of particular claims.

We start with the cast of characters. The plaintiffs, Eileen Ahern, Debra Auger, Maureen Mastalerz, and Lynda Parker, are women who, at the times material hereto, were employed as radiology technologists in the diagnostic imaging service (DIS) at a Department of Veterans Affairs medical center in Providence, Rhode Island (the VA Hospital). Ahern and Mastalerz worked primarily as computed tomography (CT) technologists, Auger split her time between CT and angiography, and Parker functioned as a "backup angiography technologist/clinical coordinator." The plaintiffs' immediate superior was the chief technologist, Joan Beaudoin, who inturn reported to the administrative officer, Mehrdad Khatib. Khatib—the alleged villain of the piece—reported in turn to the chief of the DIS, Dr. Casimira Sta Ines. The defendant Eric K. Shinseki is the Secretary of Veterans Affairs; he is sued in his official capacity.

To understand the plaintiffs' allegations, it is necessary to understand the way in which the DIS operated. As administrative officer, Khatib was responsible for personnel management. When Khatib took over, the DIS employed sixteen staff technologists, fourteen of whom were female. At Khatib's instigation, a number of contract technologists were brought aboard. These contract technologists were independent contractors rather than employees and, as such, were not entitled to receive the usual perquisites of federal employee status. The new recruits, eleven of whom were male and seven of whom were female, nevertheless performed the same duties as the staff technologists.

Khatib's portfolio also included responsibility for the day-to-day operations of the DIS. Beginning in September of 2003, the plaintiffs and their coworkers made numerous complaints to Beaudoin and Dr. Sta Ines about Khatib's performance of these duties. In meetings held in October 2003 and January 2004, they protested that Khatib's management style was creating "stressful working conditions and [a] hostile work environment in DIS."

In response, Dr. Sta Ines sent Khatib two memoranda (dated February 2 and 9, 2004, respectively), bringing these charges to his attention and offering to "work together to resolve any issues and continue the numerous improvements that have occurred since your arrival."

Another relevant series of events transpired in the same time frame. Early in 2004, Khatib advised Beaudoin that he believed the CT department was functioning inefficiently and causing delays in service. He attributed this malfunctioning in part to the fact that the technologists in the CT department operated on a compressed weekly schedule. Under that schedule, each of them worked four ten-hour days per week.

On March 31, 2004, Khatib recommended to Dr. Sta Ines that the CT technologists, like all other technologists in the DIS, should work five eight-hour shifts per week. Dr. Sta Ines endorsed a modified version of this proposal and announced the plan in April. The CT technologists opposed the change on a number of grounds, claiming that it would make their work schedules uncertain, limit their overtime opportunities, and curtail their freedom to conduct personal business during the week.

On April 22, 2004, the plaintiffs and five coworkers (two male and three female) submitted a lengthy memorandum to Dr. Sta Ines, which they identified as a "formal complaint of harassment, sexual discrimination and creation of a hostile work environment." In this diatribe, they suggested that Khatib had instigated the scheduling change as a retaliatory measure "after complaints were made about him at the meeting with Dr. Sta Ines"; that he had treated a particular male contract technologist "with more respect"; that he was "bullying" the staff; and that he harbored "unreasonable and unrealistic expectations" about them, thus setting them up "to look and feel like failures."

Despite the charge of "sexual discrimination," the plaintiffs' complaints were not restricted to Khatib's treatment of female employees. Some complaints were gender-neutral; others groused that he had disrespected a male doctor and treated certain male file clerks "horribly."

The memorandum prompted the Department of Veterans Affairs (DVA) to commission a probe of this compendium of complaints. Upon completion of its investigation, the DVA review team issued a report of its findings under date of September 30, 2004. It concluded that Khatib had not engaged in discriminatory practices but that his abrasive management style had contributed to a serious morale problem among a majority of the staff.

Khatib retained his post. His proposal for conversion of the CT department to a five-day workweek did not fare as well. The plan was never implemented.

Although the record is short on particulars, the plaintiffs allege that internal strife continued even after the review team's investigation. Citing anxiety and stress ostensibly induced by Khatib's antics, each of them looked for greener pastures. Ahern took an extended medical leave, later returned to work, and eventually resigned. Mastalerz took a medical leave, returned to work briefly, and then found employment elsewhere. Parker quit to take a job with another employer; Auger took annual leave and never came back. By 2005, all of the plaintiffs had left their positions at the VA Hospital.

The plaintiffs did not go quietly but, rather, filed charges of gender-based discrimination, retaliation, and harassment with the Equal Employment Opportunity Commission. After obtaining right-to-sue letters, they brought suit in the United States District Court for the District of Rhode Island.

The operative pleading for present purposes is the plaintiffs' second amended complaint. In it, they alleged disparate treatment with respect to hiring, compensation, and promotion; retaliation; and constructive discharge. Following the completion of pretrial discovery, the defendant moved for summary judgment. The plaintiffs opposed the motion. The district court referred the matter to a magistrate judge.

After a hearing, the magistrate judge recommended that the motion be granted in its entirety. Ahern v. Shinseki, No. 05-cv-117, 2009 WL 1615402, at *22 (D.R.I. June 9, 2009).¹ He concluded that the plaintiffs had failed to adduce any probative evidence in support of many of their allegations, id. at *18-19; that they had failed to identify any adverse employment actions, id. at *13; and that they had failed to show that similarly situated male employees had been treated more favorably, id. The plaintiffs objected. See Fed.R.Civ.P. 72(b)(2). The district court adopted the magistrate judge's recommendation. Ahern, 2009 WL 1615402, at *9. This timely appeal followed.

II. ANALYSIS

We review a district court's grant of summary judgment de novo. Noviello, 398 F.3d at 84. "We will affirm only if the record reveals 'no genuine issue as to any material fact' and 'the movant is entitled to judgment as a matter of law.' " Vineberg v. Bissonnette, 548 F.3d 50, 55 (1st Cir.2008) (quoting Fed.R.Civ.P. 56(c)).² In carrying out that tamisage, we must scrutinize the evidence in the light most agreeable to the nonmovants, who are entitled to the benefitof all reasonable inferences therefrom. Cox, 391 F.3d at 29. Where, as here, the nonmovants have the burden of proof on the dispositive issue, they must point to "specific facts sufficient to deflect the swing of the summary judgment scythe." Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir.2003). A properly supported summary judgment motion cannot be defeated by relying upon conclusory allegations, improbable inferences, acrimonious invective, or rank speculation. Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993); Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir.1991); cf. G.F. Northall, Folk-Phrases of Four Counties 23 (1894) (memorializing the venerable adage that "[s]ticks and stones will break my bones,...