Stewart v. Dartmouth Hitchcock Mary Hitchcock Memorial Hospital

Filing 27

///ORDER granting 19 DHMC's Motion for Summary Judgment. So Ordered by Judge Steven J. McAuliffe.(lat)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE

Tasheena V. Stewart,
Plaintiff
v.

Case No. 16-cv-341-SM
Opinion No. 2018 DNH 064

Dartmouth Hitchcock Mary Hitchcock
Memorial Hospital,
Defendant

O R D E R

Tasheena Stewart brings this action against her former
employer, Dartmouth-Hitchcock Medical Center (Mary Hitchcock
Memorial Hospital) (“DHMC”), claiming she was subjected to
unlawful workplace sexual and racial discrimination, in
violation of federal law. 1

DHMC now moves for summary judgment

on each of Stewart’s federal discrimination claims.

Stewart

objects.

For the reasons discussed, DHMC’s motion for summary
judgment is granted.

1

Stewart’s Amended Complaint (documents no. 1 and 10) also
asserted a state common law claim for wrongful termination.
But, by order dated May 31, 2017, the court granted DHMC’s
motion to dismiss that claim as barred by the relevant statute
of limitations.

Standard of Review
When ruling on a motion for summary judgment, the court is
“obliged to review the record in the light most favorable to the
nonmoving party, and to draw all reasonable inferences in the
nonmoving party’s favor.”

Block Island Fishing, Inc. v. Rogers,

844 F.3d 358, 360 (1st Cir. 2016) (citation omitted).

Summary

judgment is appropriate when the record reveals “no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

In this

context, a factual dispute “is ‘genuine’ if the evidence of
record permits a rational factfinder to resolve it in favor of
either party, and ‘material’ if its existence or nonexistence
has the potential to change the outcome of the suit.”

Rando v.

Leonard, 826 F.3d 553, 556 (1st Cir. 2016) (citation omitted).
Consequently, “[a]s to issues on which the party opposing
summary judgment would bear the burden of proof at trial, that
party may not simply rely on the absence of evidence but,
rather, must point to definite and competent evidence showing
the existence of a genuine issue of material fact.”
Lorraine Enters., 769 F.3d 23, 29–30 (1st Cir. 2014).

Perez v.
In other

words, “a laundry list of possibilities and hypotheticals” and
“[s]peculation about mere possibilities, without more, is not
enough to stave off summary judgment.”

2

Tobin v. Fed. Express

Corp., 775 F.3d 448, 451–52 (1st Cir. 2014).

See generally

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

Background
At the outset, it is probably worth noting that Stewart has
decided to represent herself in this action.

Recognizing that

the Federal Rules of Civil Procedure can be complex and - at
least for those not trained in the law - difficult to
understand, the court provided Stewart with a “Notice Regarding
Summary Judgment” (document no. 20).

That notice included

copies of Rule 56, as well as the court’s local rule governing
summary judgment.

The court highlighted for Stewart her

obligation to respond to DHMC’s motion for summary judgment with
competent evidence, in the form of admissible affidavits,
deposition testimony, and documents.

Stewart was also reminded

of her obligation to set forth “a short and concise statement of
material facts, supported by record citations,” as to which she
contends there is a genuine dispute so as to require a trial.
Local Rule 56.1 (emphasis supplied).

Stewart has, for the most

part, failed to comply with those requirements.

While she has submitted a “Performance Evaluation Report”
dated August 31, 2011 (document no. 21-2), and a few emails she
says support her position, the majority of “facts” upon which

3

Stewart relies are unsupported by competent, admissible
evidence.

She has not, for example, submitted any affidavits.

Nor has she referenced any of the deposition testimony or
hearing testimony submitted by DHMC.

Instead, her narrative of

the relevant background is characterized by her feelings, her
beliefs, and her subjective interpretations of various events
she describes.

See, e.g., Plaintiff’s Memorandum (document no.

21) at 2 (“Plaintiff Tasheena V. Stewart started working for
[DHMC] in June of 2011, and was treated unfairly,
disrespectfully, and made to feel uncomfortable on almost a
daily basis.”); id. at 4 (“Andrea Rhodes enjoyed making
Plaintiff Tasheena V. Stewart uncomfortable.”); id. at 5
(“Andrea Rhodes’ corrective actions were not true accounts of
the events that took place.”); id. at 8 (“[U]ntruths were
gathered to unjustly terminate Plaintiff Tasheena V. Stewart.”);
id. at 9 (“It is my belief that because I, Plaintiff Tasheena V.
Stewart, am a Black woman whom was mistreated and discriminated
[against], and spoke up about it, was wrongfully terminated on a
first warning and fake correctives from a racist and
disrespectful supervisor.”).

See also Plaintiff’s Sur-Reply

(document no. 25) at 2 (“When I found out from the EEOC that the
hospital hired the Black woman, I was not surprised.

If you are

accused of being racist and fostering a racist environment it
would make sense because you can now say look we hired a Black

4

woman.”); id. (“This seems to be the climate of our nation at
this time, where you see major institutions hiding, covering up,
or protecting management, supervisors, and/or people in
leadership roles that are outright mistreating employees and
abusing their power.”).

Putting aside, for the moment, Stewart’s subjective beliefs
and interpretations, the facts pertinent to summary judgment (as
supported by competent evidence of record) are as follows.

In

2011, Andrea Rhodes was (and had been for approximately four
years) the Supervisor of DHMC’s Cytogenetics Laboratory, where
she oversaw the work of several clinical lab scientists and lab
aides.

In May of that year, she interviewed and hired Stewart

as clinical lab scientist.

Stewart began working in the lab in

June of 2011, and her initial performance was quite good
(indeed, her skills as a lab scientist never seem to have been
in question).

In August, Rhodes gave Stewart a very favorable

“Performance Evaluation - 90 Day Introductory Review” (document
no. 19-2).

The following month, Rhodes had an “awareness conversation”
(DHMC’s lowest level of counseling/discipline) with Stewart
after Stewart “responded negatively” to having her work reviewed
by a colleague whom Stewart believed had less experience than

5

she.

See Affidavit of Andrea Rhodes (document no. 19-16) at

para. 14.

Nevertheless, on December 1, 2011, Rhodes again gave

Stewart a very positive performance review (document no. 19-3).

Shortly thereafter, however, Rhodes reports that Stewart’s
attitude deteriorated and her interactions with colleagues and
superiors became more volatile, hostile, and insubordinate.
Stewart was, for example, openly rude to Rhodes at a staff
meeting, she often complained about her co-workers, she was not
bashful about telling Rhodes (her supervisor) that Rhodes was
not doing her job properly, and she acted inappropriately toward
one of the lab aides who required minor accommodations due to a
medical issue.

The latter prompted another “awareness

conversation” with Rhodes in April of 2012.
para. 18.

Rhodes Affidavit at

A few months later, Stewart had “a loud, angry

outburst at a staff meeting,” id. at para. 20, which prompted
Rhodes to contact Human Resources seeking assistance with
shaping Stewart’s style of communication.

On September 25,

2012, Rhodes, Stewart, and Stephen Woods (Senior Employee
Relations Advisor) met and discussed Stewart’s “unprofessional
manner of communication” and what she might do to correct it.
According to Rhodes, Stewart “repeatedly interrupted us and
would not allow us to finish speaking, which demonstrated the
very conduct we were coaching her about.”

6

Rhodes Affidavit at

para. 23.

See also Affidavit of Stephen Woods (document no. 19-

17) at para. 5 (“Ms. Rhodes explained that we were meeting to
discuss Ms. Stewart’s communication manner and style at work.
Ms. Stewart immediately interrupted Ms. Rhodes.

When I tried to

answer Ms. Stewart’s questions, she also kept interrupting me.
I finally told her that she needed to give us a minute to
explain what the documented coaching was about.

Ms. Stewart’s

behavior during the coaching meeting was consistent with the
problems Ms. Rhodes had described.”).

The following day, Stewart, Rhodes, and Woods met again.
According to Woods, “when Ms. Rhodes tried to explain the
reasons for the coaching, Ms. Stewart angrily pointed her finger
in Ms. Rhodes’ face and called her a liar.

I told Ms. Stewart

her behavior during the meeting was not acceptable.”
Affidavit at para. 6.

Woods

See also Rhodes Affidavit at para. 25.

Stewart was then presented with a “written coaching,” which had
been prepared by Rhodes and reviewed by Woods.

It provided the

following:

In [our] conversation, we talked about how the manner
(tone, volume, body language, persistence/interrupting)
in which you communicate sometimes distracts from the
message you are trying to deliver and can be disruptive
and unprofessional. Though you may not intend it, you
often communicate with myself and others in a manner
that is perceived as loud, angry, and disruptive. Your
manner of communication has disrupted team meetings and

7

has been perceived by your co-workers as unprofessional.
Unfortunately, in addition to being unprofessional,
your manner of communication often does not have the
desired effect of convincing others of your point of
view. I know that you strive to act in a professional,
collaborative, and respectful manner. I expressed to
you my respect for your technical skills. However,
this unprofessional manner of communicating is not
acceptable, is contrary to D-H policy, and must stop.
I am committed to helping you achieve that goal.

Documentation of Coaching Session (document no. 19-4).

Despite

the measured tone of that document, Stewart’s response to it was
plainly not professional (and certainly tone-deaf).

In the

“Employee Comments” section, Stewart wrote:

I will not sign this document because what Rhodes is
saying are lies! I intend on taking this matter as
far as it needs to go until the truth comes out.
[Andrea] Rho[d]es is a compulsive liar and extremely
manipulative. I intend to have her and her behavior
exposed in the coming days. I will not have my
character marred by someone who is not truthful and
cannot be trusted.

Id.

Stewart’s response illustrated the very workplace behavior

with which Rhodes and Woods were concerned.

But,

notwithstanding the disrespectful and insubordinate comments
Stewart had directed at her, Rhodes chose not to pursue the
matter any further.

Rhodes Affidavit at para. 27.

After a brief interlude of calm, Stewart resumed her
disrespectful, coarse, and/or inappropriate behavior.

8

In

November, Rhodes had another “awareness conversation” with
Stewart about a disrespectful email she sent to Rhodes (see
document no. 19-5).

In early February of the following year,

Rhodes had yet another “awareness conversation” with Stewart
after Stewart refused to take a mandatory competency assessment
that Rhodes had asked her to complete.

Stewart acquiesced only

after being informed that she would be subject to disciplinary
action if she remained steadfast in her obstinance.

Two weeks

later, Rhodes was made aware of at least two occasions on which
Stewart had adopted an “unprofessional tone and manner” toward a
subordinate.

One of those interactions had been witnessed by

two other lab technologists, who confirmed to Rhodes that
Stewart’s behavior toward the co-worker was inappropriate.
According to Rhodes, because she was already aware of other
occasions on which Stewart had acted inappropriately toward that
individual, and because she “felt that Ms. Stewart was creating
a hostile work environment by bullying a subordinate,” Rhodes
Affidavit at para. 36, she decided she needed to discuss the
situation with Stewart.

But, in light of the “poor interactions

in the past with Ms. Stewart when discussing her communication
issues and recognizing this as a potentially volatile
conversation,” Rhodes asked Dr. Mohandas (Clinical Director of
the Cytogenetics Lab) to be part of the conversation.

Although

Rhodes originally planned to give Stewart a “written warning”

9

for her conduct, she ultimately decided to downgrade the
discipline and give her a “written coaching.”

Id. at para. 38.

That written coaching provided:

I would like to document the conversation we had on
2/20/2013 with Dr. T. K. Mohandas about your
communication style, specifically when talking to [a
Lab Aide]. In that conversation we heard your version
of the events that [the Lab Aide] had reported. We
talked about how certain things that [the Lab Aide]
does aggravates/frustrates the situation. We also
talked about how communications can be misinterpreted,
even with the best of intentions. We agreed that the
workplace should be free from communications that
could be interpreted as demeaning or disrespectful.
To address this issue, you agreed to do the following:
Add work related tasks to [the Lab Aide’s] clipboard.
Minimize conversation with [the Lab Aide] for a few
weeks. If there are items or situations that you
would like addressed, you will relay them to Andrea
Rhodes and in Andrea’s absence, to Dr. Mohandas. We
will meet again in mid-March to reassess the
situation.
If your performance in this area does not improve
within the stated period, I will have to initiate
formal corrective action. As I said in our meeting,
you are welcome to any and all resources available to
you through this or any other department. However,
I’m counting on you to take responsibility for the
improvement as we discussed, and I know that you can.

Documentation of a Coaching Session (document no. 19-8).
According to Rhodes, when she presented that document to
Stewart, “she handled the conversation well and did not have an
explosive diatribe, as had happened in the past.

I wanted to

encourage this communication style and complimented her on it.”

10

Rhodes Affidavit at para. 40.

Stewart did, however, refuse to

sign the document.

Rhodes’s patience in dealing with Stewart’s workplace
insubordination and hostility was not unbounded, however.
seems it eventually ran out.

It

On June 25, 2013, Rhodes says a

“case-related task” had not been properly completed when the
case files were presented to her.

In her affidavit, she

recounts the relevant events as follows:

Because Ms. Stewart was the assigned CLS, I brought
the folders back to her at her desk in the Analysis
Room and asked that she please complete them. The
tasks that I was asking her to do are activities that
are expected of her position as a CLS III, she was
trained to perform them, and she had previously
performed them. Ms. Stewart told me that she would
not do so because it was not her responsibility, but
rather it was the responsibility of the Lab Aide (who
had left for the day). Lab Aides often would assist
technologists with these tasks, but responsibility for
completion belonged to the CLS assigned to the
rotation. They are not difficult to do but sometimes
staff forget to complete them. I assured Ms. Stewart
that it was her responsibility and asked her again to
complete the tasks. She refused. I said, “Are you
really doing this?” I was astonished that Ms. Stewart
was being insubordinate over a really minor request.

Rhodes Affidavit at para. 41.

Rhodes then asked Stewart to

accompany her to Dr. Mohandas’ office, so they might discuss the
issue further.

Stewart continued to argue her point with Rhodes

in a loud and unprofessional tone.

11

She refused to complete the

work Rhodes requested of her, insulted Rhodes, and said
something to the effect that she hates working with Rhodes and
that Rhodes is a “terrible person.”

Id. at para. 44.

That

prompted Rhodes to issue a “written warning” for
“insubordination and disruptive and unprofessional
communications” (document no. 19-9).

Eventually, at Dr.

Mohandas’ urging, Stewart acquiesced and agreed to perform the
requested tasks and she sent Dr. Mohandas an email upon their
completion.

Stewart’s (unsworn) version of those events is slightly
different.

She says she “was written up for not completing a

task that was completed and confirmed within eight minutes.”
Plaintiff’s Memorandum at 8.

She goes on to assert that because

the task was completed, she “should not have been written up to
begin with.

Then, [she] was terminated for the reaction

expressed in a meeting that should not have even occurred.”

Id.

In support of that view, she has submitted a copy of the e-mail
she sent to Dr. Mohandas, notifying him that she had completed
the requested tasks.

See E-mail dated June 25, 2015 (document

no. 21-10) (“Dr. Mohandas, I filled out these forms.

I

apologize that your time was wasted with ongoing nonsense.”).
But, of course, that Stewart eventually (and begrudgingly)
agreed to comply with the clear directive of her supervisor and

12

do her job is beside the point.

The reason Dr. Mohandas was

brought into the situation in the first place was because
Stewart refused to comply with her supervisor’s directive.

The following day, Stewart met with Rhodes and Woods (the
Senior Employee Relations Advisor) to discuss the events of the
prior evening.

Rhodes recounted the salient points of that

meeting as follows: “[Ms. Stewart] was not receptive to the
feedback I was trying to give her and became verbally aggressive
with me and Mr. Woods.
psychotic.

She called me a liar and said I was

At one point, she threatened me by saying that I was

going to ‘get what I deserved’ and she was going to ‘take me
down.’”

Rhodes Affidavit at para. 47.

Mr. Woods’ account of

the interaction is substantially similar:

On June 26, 2013, I met with Ms. Rhodes and Ms.
Stewart to discuss the warning. During the meeting,
Ms. Stewart threatened Ms. Rhodes, stating that she
would “take her down.” She also said that Ms. Rhodes
was psychotic. As before, she repeatedly interrupted
us during the meeting. At one point, she told me to
“write that down in your little book” and made other
belittling comments about my note-taking. Ms. Stewart
also said that I was unprofessional and needed more
training. I told her that her behavior during the
meeting was unprofessional and could subject her to
further disciplinary action, including termination. I
had never witnessed an employee behave in such an
unprofessional manner in such a meeting.

13

Woods Affidavit at para. 10.

See also Stewart Deposition at 163

(“Q: It says, ‘She called Andrea a liar and said she was
psychotic.’

Did you say that?

A: I did.”).

That outburst, it would seem, was the proverbial last
straw.

On June 27, 2013, Rhodes and Woods met with Dr. Jonathan

Park (Clinical Pathology Manager) and Michael Harhen
(Administrative Director of the Pathology Department) to discuss
whether Stewart’s behavior warranted a “final warning” or
termination.

Woods told the group that Stewart’s behavior was

“the most unprofessional [he] had ever seen.”
at para. 11.

Woods Affidavit

After discussing the matter, all four participants

in the meeting unanimously decided that Stewart’s behavior had
“crossed the line” and all agreed that her employment with DHMC
should be terminated.

Woods Affidavit at para. 11.

Rhodes Affidavit at para. 49.

See also

Rhodes then prepared a

“Corrective Action Form” (document no. 19-10) outlining the
reasons for Stewart’s termination.

On June 29, 2013, Rhodes and Woods met with Stewart to
inform her that her employment was being terminated.

Stewart

was given a copy of the “Corrective Action Form,” as well as her
“Final Performance Appraisal” (document no. 19-11), which states
that “Tasheena has excellent technical skills, unparalleled

14

initiative and true dedication to providing quality care for
patients.

While at D-H, Tasheena has gained technical

experience in solid tissue culture and analysis of hematologic
malignancies.

Her interpersonal skills and communication skills

do not meet D-H standards.”

Stewart subsequently grieved her discharge, seeking removal
of two corrective actions from her employee record and
reinstatement to her position as a clinical lab scientist.
During that process, she never asserted that any action was
taken against her because of her race or gender.
Affidavit at para. 14.

Woods

Instead, she claimed she lost her job

because she was a “whistleblower” - that is, in retaliation for
a complaint she made about a lab aid whom Stewart believed was
not following proper procedures.

Rhodes Affidavit at para. 59.

The grievance panel upheld Stewart’s discharge.
- Grievance Hearing (document no. 19-12).

See Step Three

Stewart then filed a

complaint with the New Hampshire Commission for Human Rights,
alleging that she was the victim of both gender-based and racial
discrimination.

In support of her claims of unlawful discrimination,
Stewart recounted several examples of what she viewed as genderbased and/or race-based discriminatory animus on the part of

15

Rhodes.

First, she says that when purchasing new office chairs

for employees in the lab, Rhodes ordered Stewart a chair
designed for “an extremely overweight” person - something that
Stewart says caused her to be embarrassed and subjected her to
ridicule from co-workers.

According to Stewart, she weighs 200

pounds and was the “only plus-sized person working in the
cytogenetics laboratory at the time.”
4.

Plaintiff’s Memorandum at

But, according to Rhodes’ unrebutted testimony, her conduct

was not motivated by discriminatory animus, nor was any offense
intended.

When a chair was ordered, employees, including Ms.
Stewart, were merely asked to choose a chair color
from a catalog of the Hospital’s chair supplier, and
also asked whether they wanted a chair with arms or no
arms. I did order a chair rated for 230 pounds and up
for Ms. Stewart when she started because I did not
want to ask her how much she weighed during her first
week on the job. . . I apparently estimated
incorrectly concerning her weight and promptly had a
new chair ordered for her. My actions were not
intended to “intimidate, insult, disrespect [or]
harass” or “humiliate” Ms. Stewart.

Second Rhodes Affidavit (document no. 23-2) at para. 5.

Next, Stewart says Rhodes referred to her as “city people.”
Stewart testified that, based on Rhodes’ use of the phrase, she
inferred that Rhodes “perceived [Stewart’s] communication style
to be loud and scary.”

Transcript of N.H. Employment Security

16

Appeal Tribunal Hearing (October 23, 2013 (document no. 19-15)
at 34.

See also Id. at 37.

It is, however, entirely unclear

whether Stewart perceived the phrase “city people” as some sort
of oblique racial slur.

For example, at her deposition, Stewart

was asked how the “city people” comment related to the loss of
her job.

A.

I think she [Rhodes] felt -- she in her mind felt
like I didn’t fit in because I was a city person.

Q.

And are you saying you didn’t fit in because you
were Black?

A.

She said a city person.

Q.

No.

A.

I didn’t say I equated it. I said city people
are loud. City people behave in a certain way.
There’s a lot to it. I feel like you’re trying
to go towards this [like] I’m making it a Black
thing. This woman was a headache in so many
other things aside from me being Black that
that’s a small piece of it.

I understand that.

Stewart Deposition at 73.

But you equated --

For her part, Rhodes testified that:

I understand Ms. Stewart now claims that I used the
term “city people” as a euphemism for “black people.”
This is not true. In fact, when I moved to the Upper
Valley from Connecticut, my lab friends nicknamed me
“city girl.” In trying to help Ms. Stewart with her
colleagues, I did try to explain how I had come to
learn that people in the Upper Valley communicated
somewhat differently than “city people” like us, but
the comment had nothing to do with Ms. Stewart’s race
or gender.

17

Rhodes Affidavit at paras. 58.

Indeed, having been in the same position herself, it would
seem that Rhodes understood the difficulty “city people” might
have in transitioning to life in the Upper Valley.

And, to her

credit, she seems to have made substantial efforts to assist
Stewart in making that transition.

When Stewart first arrived

in the area, she was unable to locate housing and was living in
a hotel.

After she complained to Rhodes that the hotel had

increased the cost of her room, Rhodes told Stewart that she and
her husband had an empty bedroom in their home and offered to
let Stewart stay with them until she found long-term housing.
Additionally, when Stewart began working at DHMC, she did not
have a car or driver’s license.

So, Rhodes would, on occasion,

take her shopping - particularly on the weekends, when the local
busses were not running.

Rhodes also gave a bicycle to

Stewart’s boyfriend, to help him get around town.

She also took

Stewart to different towns to look at various apartments.

And,

once Stewart found an apartment, Rhodes gave her a sewing
machine and fabric when she learned that Stewart wanted to make
curtains for her living room.
9.

See Rhodes Affidavit at paras. 8-

Of course, at least that early conduct toward Stewart

(including the fact that Rhodes actually hired Stewart) suggests
that Rhodes did not bear any racial or gender-based animus

18

toward Stewart.

See, e.g., Proud v. Stone, 945 F.2d 796, 797–98

(4th Cir. 1991) (“[I]n cases where the hirer and the firer are
the same individual and the termination of employment occurs
within a relatively short time span following the hiring, a
strong inference exists that discrimination was not a
determining factor for the adverse action taken by the
employer.”).

Finally, in relation to her claims of gender-based
discrimination, Stewart says Rhodes engaged in unwelcome talk
about sexual topics, attempted to hug Stewart and/or rub her
back when she knew (or should have known) that Stewart didn’t
like to be touched, and made an odd comment about horses she
owned.

At her deposition, Stewart testified about that alleged

incident as follows (since it is one of the few instances of
alleged sexual harassment, it is important to note):

A.

Let me say this to you. I considered most of the
things she said to me inappropriate. And felt
like she harassed me. I did not label it sexual.
EEOC said those things are sexual harassment.

Q.

What things?

A.

Like she had horses.

Q.

Right.

A.

And one day she says to me, would I go with her
to her house after work and help her jerk off her
horses because they get backed up.

19

Stewart Deposition at 97-98.

Rhodes’ response to that

allegation is concise, but direct: “I never spoke with Ms.
Stewart about sex, sex acts, or anything of the sort.
are/were geldings.”

My horses

Second Rhodes Affidavit at para. 6.

After completing its investigation into each of Stewart’s
allegations of racial and/or sexual discrimination (all of which
are discussed in detail in its report), the New Hampshire
Commission for Human Rights concluded that there was “no
probable cause” to credit any of them.

Report of New Hampshire

Commission on Human Rights (document no. 19-13) at 1-7.

The

United States Equal Employment Opportunity Commission adopted
the investigative findings of the New Hampshire Commission.
at 8.

Id.

This litigation ensued.

Discussion
As construed by the magistrate judge, Stewart’s amended pro
se complaint advances three federal claims: (1) workplace sexual
harassment in violation of Title VII of the Civil Rights Act;
(2) workplace racial harassment, also in violation of Title VII;
and (3) workplace racial harassment, in violation of 42 U.S.C. §
1981.

See Order on Preliminary Review (document no. 11).

of those claims has merit.

20

None

Title VII of the Civil Rights Act of 1964 makes it unlawful
for an employer “to discharge any individual, or otherwise to
discriminate against any individual . . . because of such
individual’s race, color, religion, sex, or national origin.”
42 U.S.C.A. § 2000e-2.

Similarly, Section 1981 of Title 42

makes it unlawful for employers to discriminate on the basis of
an employee’s race.

When, as here, the plaintiff has not (or cannot) point to
any overt evidence of gender-based or racial discrimination,
courts typically employ the burden-shifting framework
articulated by the Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).

See also Ayala–Gerena v. Bristol

Myers–Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996) (observing that
the familiar burden-shifting framework articulated in McDonnell
Douglas also applies to racial discrimination claims arising
under § 1981).

The Court of Appeals for the First Circuit has

summarized that analytical framework as follows:

Under this formulation, a plaintiff opens with a prima
facie showing of certain standardized elements
suggestive of possible discrimination. . . .
Establishment of the prescribed prima facie case
creates a presumption that the employer engaged in
impermissible age discrimination. However, to rebut
this presumption, the employer need only articulate a

21

legitimate nondiscriminatory reason for the employee’s
termination. The employer’s obligation is simply one
of production. The burden of persuasion remains the
employee’s at all times.

LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir.
1993) (citations and internal punctuation omitted).

And, the

Supreme Court has instructed that,

[Provided] the defendant has succeeded in carrying its
burden of production, the McDonnell Douglas framework
- with its presumptions and burdens - is no longer
relevant. . . . The presumption having fulfilled its
role of forcing the defendant to come forward with
some response, simply drops out of the picture.

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 510–11 (1993).
At that point, the burden reverts to the employee, who must
demonstrate that the reason articulated by the employer for the
adverse employment action was a mere pretext for unlawful racial
or gender-based discrimination.

See LeBlanc, 6 F.3d at 842.

And, as the court of appeals has instructed, the employee must
produce “not only minimally sufficient evidence of pretext, but
evidence that overall reasonably supports a finding of
discriminatory animus.”

Id. at 843 (citation and internal

quotations omitted).

So, to avoid summary judgment in this case, Stewart must
come forward with some admissible evidence, either direct or

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circumstantial, of DHMC’s discriminatory animus.

She “may not

simply refute or question the employer’s reasons” but, instead,
she “must produce evidence that the real reason for the
employer’s actions was discrimination.”

Gadson v. Concord

Hospital, 966 F.2d 32, 34 (1st Cir. 1992) (emphasis supplied).

Given the undisputed evidence of record, as set forth
above, it is plain that Stewart has failed to meet her
obligation to set forth a prima facie case of unlawful genderbased or racial discrimination.

For example, she has not shown

that she was “performing [her] job at a level that rules out the
possibility that [she] was fired for job performance,” nor has
she shown that DHMC “sought a replacement for [her] with roughly
equivalent qualifications.”

Benoit v. Tech. Mfg. Corp., 331

F.3d 166, 173 (1st Cir. 2003).

But, even if she had carried

that modest initial burden, DHMC has responded with a patently
legitimate, nondiscriminatory basis for Stewart’s discharge:
“During that meeting [on June 26, 2013], Tasheena behaved in an
unprofessional, hostile, threatening, and aggressive manner,
contrary to [DHMC’s] Code of Ethical Conduct and Rules of
Conduct.”

Notice of Termination (“Corrective Action Form”)

(document no. 19-10), at 1.

See also Stewart Deposition at 163

(admitting that she called Rhodes, her supervisor, “psychotic”
and a “liar”).

See generally Pearson v. Massachusetts Bay

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Transp. Auth., 723 F.3d 36, 41 (1st Cir. 2013) (“As we have
often found, insubordination is obviously sufficient to support
an adverse employment action.”).

In response, Stewart has failed to identify any evidence
suggesting that the true reason for her discharge was unlawful
discrimination (either racial or gender-based).

Stated slightly

differently, there is no competent evidence in the record “from
which to conclude that the proffered reason for [Stewart’s]
termination was not in fact the real reason.”

Fontanez-Nunez v.

Janssen Ortho LLC, 447 F.3d 50, 56 (1st Cir. 2006).

Nor has

Stewart pointed to any evidence suggesting that she was
subjected to gender-based or racial harassment in the workplace
during the course of her employment - certainly not to the point
that it was so severe or so pervasive as to materially alter the
conditions of her employment and create an abusive work
environment.

See generally Maldonado-Catala v. Municipality of

Naranjito, 876 F.3d 1, 10 (1st Cir. 2017); Garmon v. Nat’l R.R.
Passenger Corp., 844 F.3d 307, 317 (1st Cir. 2016).

See also

Faragher v. City of Boca Raton, 524 U.S. 775, 787–88, 118 S. Ct.
2275, 2283, 141 L. Ed. 2d 662 (1998) (“[W]e explained that in
order to be actionable under the statute, a sexually
objectionable environment must be both objectively and
subjectively offensive, one that a reasonable person would find

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hostile or abusive, and one that the victim in fact did perceive
to be so.

We directed courts to determine whether an

environment is sufficiently hostile or abusive by ‘looking at
all the circumstances,’ including the ‘frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.’”) (citations omitted); Stewart Affidavit at 108
(“So, like I said, [Rhodes] was always overly friendly and
inappropriate, but she wasn’t - it didn’t get to a point where
it affected my work or affected my comfort level at the job.”).

Here, as in Tobin, supra, “the plaintiff has not pointed to
a shred of competent evidence adequate to elevate her surmise
from the realm of the possible to the realm of the probable.
Speculation about mere possibilities, without more, is not
enough to stave off summary judgment.”

775 F.3d at 452.

None

of Stewart’s papers makes reference to an affidavit, deposition,
or hearing transcript in support of her factual allegations or
her assertion that she was treated unlawfully.

And, her

beliefs, feelings, impressions, and interpretations of various
alleged events are simply insufficient.

It bears repeating that genuine issues of material
fact are not the stuff of an opposing party’s dreams,

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and a party cannot successfully oppose a motion for
summary judgment by resting upon mere allegations or
denials of his pleading. If a nonmovant bears the
ultimate burden of proof on a given issue, she must
present definite, competent evidence sufficient to
establish the elements of her claim in order to
survive a motion for summary judgment. This is no
less true in discrimination and retaliation cases
where motive is at issue; a nonmovant cannot rely
merely upon conclusory allegations, improbable
inferences, and unsupported speculation.

Pina v. Children’s Place, 740 F.3d 785, 795–96 (1st Cir. 2014)
(citations and internal punctuation omitted).

Moreover,

Stewart’s pro se status does not absolve her of the obligation
to identify some (any) trial-worthy questions of material fact.
See, e.g., Eagle Eye Fishing Corp. v. United States Dep’t of
Commerce, 20 F.3d 503, 506 (1st Cir. 1994) (“A pro se litigant,
like any litigant, is guaranteed a meaningful opportunity to be
heard.

While courts have historically loosened the reins for

pro se parties, the right of self-representation is not a
license not to comply with relevant rules of procedural and
substantive law.”) (citations and internal punctuation omitted).

Conclusion
Stewart’s failure to support her discrimination/harassment
claims with adequate competent evidence compels the court to
conclude that there are no trial-worthy, genuinely disputed
issues of material fact.

See generally Perez v. Lorraine

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Enters., 769 F.3d at 30.

And, given the undisputed facts of

record, it is plain that DHMC is entitled to judgment as a
matter of law with respect to each of Stewart’s federal
employment-related discrimination claims.

Accordingly, for the foregoing reasons, as well as those
set forth in DHMC’s legal memoranda, DHMC’s motion for summary
judgment (document no. 19) is granted.

The Clerk of Court shall

enter judgment in accordance with this order and close the case.

SO ORDERED.

____________________________
Steven J. McAuliffe
United States District Judge
March 26, 2018
cc:

Tasheena V. Stewart, pro se
William D. Pandolph, Esq.

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