Chisholm v. City of Warwick, et al

Filing 37

REPORT AND RECOMMENDATIONS recommending that Defendant's Motion for Summary Judgment (ECF No. 22) be DENIED. 22 MOTION for Summary Judgment filed by Warwick Public Schools, City of Warwick. Objections to R&R due by 2/9/2022. So Ordered by Magistrate Judge Lincoln D. Almond on 1/26/2022. (Noel, Jeannine)

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UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
MARY CHISHOLM

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v.
CITY OF WARWICK

C.A. No. 19-00206-WES

REPORT AND RECOMMENDATION
Lincoln D. Almond, United States Magistrate Judge
Pending before me for a report and recommendation (28 U.S.C. § 636(b)(1)(B)) is Defendant’s
Motion for Summary Judgment. (ECF No. 22). Plaintiff objects. (ECF No. 26). A hearing was held
on December 21, 2021. For the following reasons, I recommend that Defendant’s Motion be DENIED.
Discussion
A.

Standard of Review

Under Fed. R. Civ. P. 56, summary judgment is appropriate if the pleadings, the discovery,
disclosure materials and any affidavits show that there is “no genuine issue as to any material fact and
that the movant is entitled to judgment as a matter of law.” Taylor v. Am. Chemistry Council, 576 F.3d
16, 24 (1st Cir. 2009); Commercial Union Ins. Co. v. Pesante, 459 F.3d 34, 37 (1st Cir. 2006) (quoting
Fed. R. Civ. P. 56(c)). A fact is material only if it possesses the capacity to sway the outcome of the
litigation; a dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve
the point in the favor of the non-moving party. Estrada v. Rhode Island, 594 F.3d 56, 62 (1st Cir. 2010).
The evidence must be in a form that permits the court to conclude that it will be admissible at trial. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323-324 (1986). “[E]vidence illustrating the factual controversy
cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions
of the truth which a factfinder must resolve.” Vasconcellos v. Pier 1 Imps. (U.S.) Inc., C.A. No. 06 

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484T, 2008 WL 4601036, at *3 (D.R.I. Apr. 28, 2008). The “fact that there are conceivable inferences
that could be drawn in Plaintiff’s favor does not mean that those inferences are ‘reasonable’ enough to
justify sending the case to the jury.” Tavares v. Enter. Rent-A-Car Co. of R.I., No. CV 13-521 S, 2016
WL 6988812, at *2-3 (D.R.I. Nov. 29, 2016).
In ruling on a motion for summary judgment, the court must examine the record evidence in the
light most favorable to the nonmoving party; the court must not weigh the evidence or reach factual
inferences contrary to the opposing party’s competent evidence. Tolan v. Cotton, 572 U.S. 650, 660
(2014). In employment cases, summary judgment is appropriate when the party opposing the motion
“rests merely upon conclusory allegations, improbable inferences, and unsupported speculation.”
Feliciano de la Cruz v. El Conquistador Resort & Cty Club, 218 F.3d 1, 5 (1st Cir. 2000); Bonilla v.
Electrolizing, Inc., 607 F. Supp. 2d 307, 314 (D.R.I. 2009). The motion must be denied if there is
sufficient evidence from which a reasonable jury could infer that the adverse employment action was
based on discriminatory animus or that the employer’s articulated reason is a sham and the true reason
is discriminatory. Trainor v. HEI Hosp., LLC, 699 F.3d 19, 28 (1st Cir. 2012); Smith v. F.W. Morse &
Co., 76 F.3d 413, 421 (1st Cir. 1996).
B.

Facts

Plaintiff is a veteran elementary school teacher who has been employed by the City of Warwick
since 1990. (ECF No. 1 p. 2). She originally sued both the City of Warwick and the Warwick Public
Schools in this workplace discrimination/retaliation suit. However, in response to Defendant’s argument
that the Warwick Public Schools is not a proper party to this suit, Plaintiff has voluntarily dismissed all
claims as to that entity, so the City of Warwick, her employer, is the only remaining Defendant. (ECF
No. 26-1 at p. 1). Her claims against the City relate to events that occurred during the 2018-2019 school
year. During that school year, Plaintiff and a special education teacher were co-teaching a first-grade,

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collaborative classroom. A collaborative class is one co-taught by a “regular education content area
teacher and a special education teacher.” (ECF No. 23 ¶ 6).
In February 2019, Plaintiff raised concerns with three administrators about her co-teacher’s
frequent absences and that most of the substitute teachers assigned to her collaborative classroom to fill
in were not certified in special education as required. Id. ¶ 8.1 In response, two of those administrators
conducted a classroom observation on March 6, 2019. Id. ¶ 9. That same day, the school psychologist
observed an interaction between Plaintiff and a student that “caused her concern.” Id. ¶ 10. The school
psychologist reported the observation to one of the administrators who had conducted the classroom
observation, and she was instructed by the administrator to report the interaction to DCYF. Plaintiff was
immediately placed on paid administrative leave. Id. ¶¶ 11-13. When her administrative leave ended in
May 2019, she was involuntarily transferred to a non-collaborative first grade class. Id. ¶ 15; ECF No.
22-6 at p. 2. Plaintiff did not return to work in the new assignment and instead commenced a sick leave
in May 2019 which extended through the end of that school year. (ECF No. 27 at p. 1). When she
returned for the 2019-2020 school year, Plaintiff was permitted to either return to a collaborative
classroom, or to participate in the contractual job selection process. (ECF No. 22-6 at p. 2). She
ultimately returned to a non-collaborative classroom for the next school year.
C.

Analysis and Recommendation

Plaintiff alleges that she suffered retaliation for raising the above-described concerns about her
collaborative classroom to school administrators in February 2019. She claims a violation of both the
Rhode Island Whistleblower’s Protection Act (“RIWPA”) (R.I. Gen. Laws § 28-50-1, et seq.) and the
Federal Rehabilitation Act of 1973 (29 U.S.C. § 794).
The RIWPA states, in pertinent part:

1

Plaintiff alleges she had raised similar concerns about her co-teacher’s absences during the 2017-2018 school year.
(ECF No. 28 at ¶ 24).

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An employer shall not discharge, threaten, or otherwise discriminate
against an employee regarding the employee’s compensation, terms,
conditions, location, or privileges of employment…
***
[b]ecause the employee reports verbally or in writing to the employer or
to the employee’s supervisor a violation, which the employee knows or
reasonably believes has occurred or is about to occur, of a law or
regulation or rule promulgated under the laws of this state, a political
subdivision of this state, or the United States, unless the employee knows
or has reason to know that the report is false. Provided, that if the report
is verbally made, the employee must establish by clear and convincing
evidence that the report was made.
R.I.G.L. § 28-50-3(4).
The Rehabilitation Act provides that “[n]o otherwise qualified individual with a disability in the
United States...shall, solely by reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal
financial assistance….” 29 U.S.C. § 794(a). Furthermore, the Rehabilitation Act incorporates the antiretaliation provision of Title VI of the Civil Rights Act of 1964: “The remedies, procedures, and rights
set forth in title VI of the Civil Rights Act of 1964...shall be available to any person aggrieved by any
act or failure to act by any recipient of Federal assistance....” 29 U.S.C. § 794a(2). Thus, the
Rehabilitation Act’s protections apply to “‘any individual’ who has been intimidated, threatened,
coerced, or discriminated against ‘for the purpose of interfering with [protected rights]’ under Title VI
of the Civil Rights Act or the Rehabilitation Act.” The First Circuit has consistently held that the
Rehabilitation Act prohibits retaliation against any person, whether disabled or not, for opposing
disability-based discrimination made unlawful by the statute. D.B. ex rel. Elizabeth B. v. Esposito, 675
F.3d 26, 40-41 (1st Cir. 2012); Weber v. Cranston Sch. Comm., 212 F.3d 41, 48 (1st Cir. 2000).
Establishing a prima facie case is effectively the same under both the RIWPA and the
Rehabilitation Act. In order to set forth a prima facie whistleblower/retaliation claim under the RIWPA
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and the Rehabilitation Act, a plaintiff-employee must establish (1) that he/she engaged in protected
conduct; (2) that he/she experienced an adverse employment action; and (3) that a causal connection
existed between the protected conduct and the adverse employment action. See Palmquist v. Shinseki,
689 F.3d 66, 70 (1st Cir. 2012); Marques v. Fitzgerald, 99 F.3d 1, 4 (1st Cir. 1996); see Chagnon v.
Lifespan Corp., 2017 WL 3278952 *6 (D.R.I. June 19, 2017).
Defendant’s Motion for Summary Judgment narrowly challenges Plaintiff’s ability to satisfy the
second element of her prima facie case – whether she suffered any adverse employment action. The
First Circuit has explained that “[t]o be adverse, an action must materially change the conditions of
plaintiff's employ.” Gu, et al. v. Boston Police Dep’t, 312 F.3d 6, 14 (1st Cir. 2002) (citation omitted).
Typically, such actions “involve[ ] discrete changes..., such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing significant change in
benefits.” Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st Cir. 2012) (quoting Morales-Vallellanes
v. Potter, 605 F.3d 27, 35 (1st Cir. 2010)). Whether an employment action is “adverse,” and therefore
actionable, is gauged by an objective standard. See Blackie v. Maine, 75 F.3d 716, 725-726 (1st Cir.
1996).
As noted, Defendant’s Motion is narrow in scope. It asserts that Plaintiff was not subject to any
adverse employment action that could, as a matter of law, form the basis of the unlawful
discrimination/retaliation claims she asserts in this action. Specifically, it argues that “[t]he actions of
the defendants placing the plaintiff on paid administrative leave and transferring her to a different first
grade classroom when that leave concluded, were not materially adverse to [Plaintiff].” (ECF No. 22-1
at p. 8). Plaintiff disputes that assertion and argues that she suffered multiple adverse employment
actions as a result of her complaints which each are sufficient to establish prima facie whistleblower and
retaliation claims against Defendant. For the following reasons and viewing the evidence in the light

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most favorable to Plaintiff as required by Rule 56, I agree in part with Plaintiff and thus recommend
denial of Defendant’s Motion.
Defendant relies heavily on the Rhode Island Supreme Court’s decision in Russo v. State of
Rhode Island, Dep’t of MHRH, 87 A.3d 399 (R.I. 2014). In Russo, the Supreme Court reversed a bench
trial decision that the defendant violated the RIWPA - holding, as a matter of law, that placing an
employee on paid administrative leave with the requirement that he undergo a fitness-for-duty,
independent medical examination before returning to work was not an adverse employment action. The
Russo Court reasoned that since the plaintiff was not subject to an adverse employment action, his
employer did not “discharge, threaten, or otherwise discriminate against” him in violation of the RIWPA.
Id. at 411. The Court found it “noteworthy” that the plaintiff did not suffer any diminution in
compensation during the leave and returned to work in the same position he previously held with “no
evidence that he suffered any change in his salary, benefits, or job responsibilities.” Id. at 409. It also
described a paid administrative leave as a “reasonable means” to neutralize a problematic workplace
situation while only “minimally affecting the employee.” Id. at 407-408. Plaintiff persuasively argues
that Russo is not controlling for two reasons. First, Russo was decided after a full trial and not applying
the summary judgment standard of review requiring that the evidence be construed in Plaintiff’s favor.
Second, and more to the point, Plaintiff here presents evidence from which a reasonable juror could
conclude that she suffered more than just a short-term paid leave to “neutralize” a workplace situation.
While it is true that Plaintiff here was initially placed on a paid administrative leave as was the plaintiff
in Russo, the similarities effectively end there.
Plaintiff points to four separate adverse employment actions that she claims distinguish her case
from Russo. According to Plaintiff, each of the four actions were the result of unlawful retaliation by
her supervisors. She claims that after complaining about unlawful workplace conduct to her supervisors,
a classroom observation was conducted, and the same day a complaint was filed with DCYF alleging
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that Plaintiff improperly escorted a student by holding his wrist and pulling him. (ECF No. 28 at ¶ 56,
57). Plaintiff was placed on paid administrative leave as a result and subsequently involuntarily
transferred to a different classroom within the same school. (ECF Nos. 22-5 and 22-6). Plaintiff disputes
that she improperly escorted the student.
The first adverse action alleged by Plaintiff is her involuntary transfer to a new first grade
classroom following her leave. Plaintiff contends that her transfer to a new classroom is factually distinct
from Russo because, unlike the plaintiff in that case, Plaintiff was involuntarily returned to a position
that entailed both additional job responsibilities and negative stigma. As the District of Puerto Rico has
noted, “[a]n adverse employment action need not rise to the level of a discharge to be actionable and
encompasses demotions, disadvantageous transfers or assignments, refusals to promote….” Acevedo
Martinez v. Coatings Inc. & Co., 251 F. Supp. 2d 1058, 1068 (D.P.R. 2003). Plaintiff persuasively
argues that her involuntary transfer/reassignment was disadvantageous.
Defendant disagrees. First, Defendant claims that Plaintiff was never actually subjected to the
involuntary transfer because she did not return to school during the 2018-2019 school year and went on
a medical leave. Defendant claims that because Plaintiff was on paid leave, the involuntary transfer
never resulted in any negative economic impact to Plaintiff. Second, Defendant argues that because the
transfer/placement was temporary, it cannot be an adverse action as a matter of law. I find that neither
of these arguments is sufficient to overcome the evidence proffered by Plaintiff concerning the
circumstances and impact of the involuntary transfer/reassignment, as discussed below.
Plaintiff contends that the transfer was adverse because the classroom she was transferred to was
next door to her former classroom, and she would have seen and interacted with her former students on
a daily basis. She notes that these students (and their parents) would have necessarily been curious and
posed questions to her about why she left their class and joined a new class. Further, she points out that
she would have been required to adjust to new students and develop new teaching and classroom
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management routines with less than two months left in the school year. (ECF No. 26-1 at p. 5). These
are both valid points that could be credited by a reasonable juror, and thus differentiate her transfer from
the one at issue in Russo because of the nature of her work with young students, the stigma amongst
peers, students and parents attached to an involuntary transfer, and the new workload that would have
been created by entering a new classroom so late in the school year. In the context of a summary
judgment motion, the Middle District of Tennessee reasonably acknowledged that the involuntary
transfer of a teacher “carried with it a professional stigma, unique to the particular circumstances of this
action, sufficient to constitute a qualitative change in the conditions of employment, rendering the
involuntary transfer objectively intolerable to a reasonable person.” Hawkins v. Maury Cty. Bd. of
Educ., No. 1:12-CV-00184, 2015 WL 4546783, at *12 (M.D. Tenn. July 27, 2015). The Hawkins
Court’s reasoning is sound and applies to this case as well, and I find that a reasonable juror could find
on this record that Plaintiff’s involuntary transfer was an adverse employment action sufficient to satisfy
the second element of her prima facie case.
While I find that the involuntary transfer is itself sufficient to push this case past the summary
judgment challenge, I will briefly discuss the remaining three alleged adverse actions that Plaintiff claims
support her Objection. First, Plaintiff notes that she took sick leave at the end of her paid administrative
leave. Her sick leave was from May 20, 2019 through June 14, 2019. She took this leave because of
“work-related stress from being wrongfully accused of improperly interacting with a student, the DCYF
Complaint, the School Department’s investigation and false findings, and being concerned about
returning to work in the same building as her former students.” (ECF No. 26-1 at p. 6). A portion of
her sick leave caused a small reduction in pay based on a formulaic chargeback under the School
District’s Collective Bargaining Agreement based on District-wide utilization of sick leave and
substitute teacher expense. Defendant persuasively argues that the chargeback could not constitute a
retaliatory adverse action because Plaintiff elected to take the sick leave, the chargeback amount was de
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minimis, and was equally applicable across the board to all employees. I concur. Because the formulaic
reduction in pay was de minimis and equally applicable to all employees, it cannot constitute an adverse
action under these circumstances as a matter of law.
Next, Plaintiff notes that as a result of the DCYF Complaint, her teaching certificate was “flagged
for legal review” by RIDE’s online system, which was available for review by other school districts in
Rhode Island. Id. Other than being flagged for a period, Plaintiff does not identify any resulting adverse
consequence to her. The flagging of her teaching certificate was automatically undertaken by RIDE as
a result of the DCYF Complaint and was not an action commenced or requested by the City of Warwick
or any of its school administrators. I find that the temporary flagging of her teaching certificate under
these circumstances cannot constitute an adverse action by her employer as a matter of law.
Finally, Plaintiff claims that because she complained to her supervisors about the special
educator’s absences, the following school year she was not provided a regular or special education
substitute teacher on 90% of the days that the special educator was absent, leaving her alone in the
classroom. She asserts that, as a result, she was forced to take on the additional job responsibilities of
the special educator which included (1) modifying lesson plans for disabled students; (2) conducting
group lessons for disabled students; and (3) researching, creating, and implementing individualized
learning strategies and behavioral strategies for disabled students and working with the teacher’s aide to
assist with the disabled students. This presents a close call. As to timing, Plaintiff claims she first lodged
her complaints during the 2017-2018 school year, but Defendant notes her formal written complaint was
not filed until March 2019 which was after she was already performing the additional duties that she
alleges were imposed in retaliation for her complaint. Defendant further argues that it was always
Plaintiff’s job responsibility to teach all the students in her co-taught classroom. Ultimately, while
Plaintiff’s argument in this regard is somewhat circular and the timing favors Defendant’s position, I do
not find that Defendant has met its Rule 56 burden as to this alleged adverse action. Defendant has not
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moved for summary judgment on the issue of retaliatory motivation and has only challenged whether
the alleged adverse actions are sufficient to support a retaliation claim as a matter of law. Further, I must
view the facts in Plaintiff’s favor in this summary judgment context, and, in doing so, I find that a
reasonable juror could find an adverse employment action in this regard if Plaintiff presents competent
and persuasive evidence at trial that she was adversely targeted in the substitute teacher assignment
process.
Conclusion
For the foregoing reasons, I recommend that Defendant’s Motion for Summary Judgment (ECF
No. 22) be DENIED.
Any objection to this Report and Recommendation must be specific and must be filed with the
Clerk of the Court within fourteen days of its receipt. See Fed. R. Civ. P. 72(b); LR Cv 72. Failure to
file specific objections in a timely manner constitutes waiver of the right to review by the District Court
and the right to appeal the District Court’s decision. See United States v. Valencia-Copete, 792 F.2d 4,
6 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603, 605 (1st Cir. 1980).

/s/ Lincoln D. Almond
LINCOLN D. ALMOND
United States Magistrate Judge
January 26, 2022

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