835 F.3d 35 (1st Cir. 2016), 14-2092, Tyree v. Foxx

Docket Nº:14-2092
Citation:835 F.3d 35
Opinion Judge:TORRUELLA, Circuit Judge.
Party Name:Elizabeth Tyree, Plaintiff, Appellant, v. Anthony Foxx, Secretary, U.S. Department of Transportation, Defendant, Appellee.
Attorney:James A.W. Shaw, with whom Segal Roitman, LLP, Boston, MA, was on brief, for appellant. Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
Judge Panel:Before Torruella, Thompson, and Kayatta, Circuit Judges.
Case Date:August 22, 2016
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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835 F.3d 35 (1st Cir. 2016)

Elizabeth Tyree, Plaintiff, Appellant,


Anthony Foxx, Secretary, U.S. Department of Transportation, Defendant, Appellee.

No. 14-2092

United States Court of Appeals, First Circuit

August 22, 2016

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[Copyrighted Material Omitted]

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James A.W. Shaw, with whom Segal Roitman, LLP, Boston, MA, was on brief, for appellant.

Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before Torruella, Thompson, and Kayatta, Circuit Judges.


TORRUELLA, Circuit Judge.

Elizabeth Tyree was a paid graduate student intern at the John A. Volpe National Transportation System Center 1 (“ Volpe Center” ). During her internship, Tyree began conducting research for her master’s thesis. After her internship ended, she sought access to the Volpe Center’s proprietary data through a Cooperative Research and Development Agreement (“ CRADA” )— an agreement between a federal laboratory and a nonfederal entity to share resources and conduct research as defined in 15 U.S.C. § 3710a(d)(1) 2 — to continue her thesis,

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but the CRADA was never executed. Tyree brought this employment discrimination suit against the Secretary of Transportation alleging that the Volpe Center did not execute the CRADA because of her sex, race, or national origin. The district court granted the Secretary’s motion for summary judgment finding that Tyree failed to show the challenged acts were motived by discriminatory animus. We affirm.


The facts underlying this case are largely undisputed. “ To the extent that the parties disagree about what occurred, we adhere to the plaintiff’s version in keeping with our role in reviewing a grant of summary judgment.” Ahmed v. Johnson, 752 F.3d 490, 492 (1st Cir. 2014).

During the relevant time period, Tyree, a black Hispanic woman, was a student at Worcester Polytechnic Institute (“ WPI” ), pursuing her master’s degree in physics. In February 2009, Tyree began a two-year paid internship with the Volpe Center. Before accepting her offer and again after starting, Tyree told the Volpe Center she hoped to conduct research for her master’s thesis. That spring, after viewing a list of research topics generated by the Volpe Center, Tyree decided to write her thesis on the differences between aircraft wake behavior over land and water. While working on her research, Tyree worked closely with Dr. Michael Geyer and Dr. Frank Wang at the Volpe Center as well as her thesis advisor at WPI. Wang was the team lead for the aircraft wake turbulence program and one of the people involved in Tyree’s interview process. He worked closely with her for two years. Tyree points to no evidence that he ever manifested, or even hinted at, any bias against her.

In January 2011, two weeks before her internship ended, the Volpe Center told Tyree that they would not extend her internship to full-time employment. Tyree asked Geyer if she would lose her thesis research. Geyer told Tyree that she could potentially continue her research (and have access to the Volpe Center’s nonpublic wake data) through a CRADA between WPI and the Volpe Center.

The day before her internship ended, Tyree met with Geyer, Wang, and Felicia McBride, a Volpe Center attorney, to discuss the possibility of executing a CRADA. McBride, an African-American woman, explained to Tyree the CRADA process, including that Tyree needed to provide a statement of work (“ SOW” ) describing her research before McBride could start writing a draft CRADA. McBride also explained that a CRADA is a mutually beneficial arrangement between a federal laboratory and a nonfederal entity that must be approved by different departments within the agency, and would ultimately need approval from the Director of the Volpe Center and the administrator of the Research Innovation Technology Administration (“ RITA” ) of the U.S. Department of Transportation. To do all of this, Tyree needed to have someone at Volpe work with her. There is no evidence that Wang had any duty to help her at all. Nevertheless, he agreed to do so. After the meeting, Geyer instructed Tyree to write a first draft of the SOW and email it to Wang. Six

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days later, on February 16, Tyree emailed her draft SOW to Geyer and Wang.

The SOW, however, was never completed. In March, Wang emailed Tyree to let her know that she had received approval for one of the steps in setting up the CRADA but that he wanted to speak with her about “ analysis ideas” he wanted to propose. At the beginning of April, Tyree went to the Volpe Center and Wang elaborated that he wanted Tyree to create a synthetic dataset to test a statistical method that would be subsequently used to analyze the wake data. In an email sent on April 28, Wang further explained that he believed the development of this “ statistical tool” could be written into the SOW and he was concerned that the current SOW did not “ have enough technology flowing back from WPI to [the] Volpe [Center].” Tyree, however, viewed Wang’s suggestion as beyond the scope of her original thesis and a topic that would have merited a separate thesis in its own right.

Little work was done on the SOW between May and July of 2011. Starting in July, Tyree sent the Volpe Center several emails asking about the status of the SOW. Wang responded by telling Tyree that she should incorporate his suggestions about the statistical tool into the draft SOW in order to make the CRADA more beneficial to the Volpe Center. McBride echoed this concern and stated that the SOW needed “ to be ‘ sellable’ in that it will align with a [Department of Transportation] goal.” Tyree, however, wanted Wang to type his changes into the draft SOW himself and found it “ suspicious” that, if he viewed the statistical tool as important, he had not proposed them when she started her research two years earlier. On July 17, Wang sent Tyree an edited SOW with his changes (including the statistical tool and synthetic dataset) incorporated.

Four days after receiving the edited SOW, Tyree spoke with her thesis advisor. Tyree’s thesis advisor told her that, in his experience, SOWs (not necessarily for CRADAs) between two institutions took a few days to complete and up to a month if there were complications. That conversation cemented Tyree’s belief that the Volpe Center had no intention of completing the SOW or executing the CRADA.

On August 10, 2011, Tyree sought equal employment opportunity (“ EEO” ) counseling, alleging that the Volpe Center’s delays in executing the CRADA were motivated by gender discrimination. Tyree requested $300,000 from the Volpe Center and someone other than Wang as her point of contact for the SOW and CRADA. The EEO counselor was unable to resolve Tyree’s complaint and Tyree subsequently filed a complaint with the Department of Transportation alleging sex, race, and national origin discrimination. Upon receiving a right to sue letter, Tyree initiated this suit in the United States District Court for the District of Massachusetts.

In her first complaint, Tyree alleged that by failing to execute the CRADA, the Secretary discriminated against her on the basis of her sex, race, or national origin in violation of Title VII, 42 U.S.C. § 2000e-16(a). 3 Tyree subsequently amended her complaint to include a claim that the Volpe

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Center’s advice on her thesis following her internship constituted a post-employment training program at the Volpe Center from which she was wrongfully terminated due to her sex, race, or national origin when the CRADA negotiations fell through. Following discovery, the district court granted summary judgment on the CRADA and training program claims. 4 This timely appeal followed.


“ We review a district court’s grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party.” Román v. Potter, 604 F.3d 34, 38 (1st Cir. 2010). “ Summary judgment is appropriate only if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.” Hicks v. Johnson, 755 F.3d 738, 743 (1st Cir. 2014).

When a Title VII discrimination claim rests on circumstantial evidence, we apply the three-step burden-shifting framework outlined by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Ahmed, 752 F.3d at 495. Under step one of that framework, the plaintiff must establish a prima facie case of discrimination. Id. at 495-96. Once the plaintiff establishes a prima facie case, “ an inference of discrimination arises, and the burden of production shifts to the defendant to produce evidence that the challenged employment action was taken for a legitimate, non-discriminatory reason.” Hicks, 755 F.3d at 744. “ If the employer supplies such evidence, the plaintiff is left with the burden to prove ‘ by a preponderance of the evidence that the employer’s proffered reason is pretextual and that the actual reason for the adverse employment action is discriminatory.” ’ Id. (quoting Johnson v. Univ. of P.R., 714 F.3d 48, 53 (1st Cir. 2013)).

A. Prima facie case

At step one, the district court assumed that Tyree met her burden of proving a prima facie case of discrimination in connection with the Volpe Center’s failure to execute the CRADA. We do the same. 5

B. Non-discriminatory reason

Proceeding to step two, the district court concluded that the Secretary had articulated a legitimate non-discriminatory reason for failing to execute the CRADA— namely, that Volpe Center personnel needed...

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