Truax v. City of Portsmouth CV-00-63-B 06/18/01 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Nancy Truax and Karen Johnson

v. Civil No. 00-63-B

City of Portsmouth, et al.

MEMORANDUM AND ORDER

Nancy Truax and Karen Johnson, former members of the

Portsmouth, New Hampshire Police Department, have filed a

complaint against the City of Portsmouth, Police Chief Bradley

Russ, and three members of the Portsmouth Police Commission,

Theodore Mahoney, William Mortimer, and William Devine. Truax

and Johnson claim that defendants intentionally discriminated

against them because they are women, sexually harassed them, and

retaliated against them when they complained of the

discrimination and harassment. They base their claims on Title

VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the Fourteenth Amendment’s Equal Protection

Clause, and the First Amendment. Defendants challenge the

complaint in a motion for summary judgment.

In this Memorandum and Order, I determine that: (1)

plaintiffs’ Title VII claims are barred to the extent that they

are based on conduct that occurred more than three hundred days

before plaintiffs filed their administrative complaints with the

Equal Employment Opportunity Commission (“EEOC”) and the New

Hampshire Commission for Human Rights (“NHCHR”); (2) plaintiffs’

constitutional claims are barred to the extent that they are

based on conduct that occurred more than three years before

plaintiffs filed their complaint in this court; (3) defendants

are entitled to summary judgment with respect to all of Johnson’s

claims; (4) defendants are entitled to summary judgment with

respect to Truax’s Title VII and First Amendment retaliation

claims; and (5) a jury must resolve Truax’s intentional

discrimination and sexual harassment claims.1

1 After defendants filed their summary judgment motion, Truax and Johnson filed a second amended complaint alleging new claims on behalf of Truax. These new claims assert that Truax was constructively discharged as a result of defendants’ continuing pattern of unlawful discrimination and retaliation. I

-2- I. BACKGROUND2

The Police Department (the “Department”) for the City of

Portsmouth, New Hampshire (the “City”) hired Nancy Truax and

Karen Johnson to be police officers in 1981 and 1985,

respectively. They were the Department’s first female police

officers.

Their first few years in the Department were difficult for

many reasons. During the 1980's, many of Truax’s fellow police

officers refused to speak to her at all, even when they were

assigned to work with her. At the same time, many officers made

repeated, unwanted sexual advances towards both Truax and Johnson

on the job; some officers even went to Johnson’s apartment to

proposition her. Officers often made vulgar jokes and comments

about women, referring to them a s , among other expletives,

“fucking cunts.” Others suggested that women wanted to be police

officers only because it gave them an opportunity to sleep with

men. In addition, Johnson and Truax found pornographic magazines

do not determine the sufficiency of these claims because defendants do not challenge them in their motion. 2 I describe the background facts in the light most favorable to Truax and Johnson, the nonmoving parties.

-3- and pictures of naked women in police cruisers and in the police

station, including in the Department’s official files.

A. Truax’s Career

While both Johnson and Truax experienced hostility from

their male colleagues, Truax slowly began to rise through the

ranks. She was promoted to detective in 1986 and to sergeant in

1990. Shortly after her promotion to sergeant, Truax was

selected, based upon the recommendation of then-Captain Russ, to

serve as an instructor in the Department of the Treasury’s Office

of Juvenile Justice and Delinquency Prevention (“OJJDP”) Training

Program. As an instructor, Truax traveled around the country

presenting training programs o n , among other topics, interviewing

abused children and investigating cases involving missing

children. She viewed her selection as “a reward for a job well

done” and received an extra stipend for accepting this

assignment. Her career advancement was not without difficulty,

however.

In the early 1990's, while they were in the same city as

part of their OJJDP duties, Russ propositioned Truax. Although

they had previously had a brief romantic affair, she declined to

-4- rekindle their relationship. Shortly thereafter, the OJJDP

stopped assigning Truax to present training programs.

In the summer of 1998, Truax applied for a newly-announced

Captain’s position. The City’s Police Commission (the

“Commission”), an elected body, makes all significant personnel

decisions, although it generally accepts the Department’s

recommendations.

In the weeks leading up to Truax’s interview with the

Commission, Russ, then Deputy Chief of Police, and a leading

candidate to become Chief, stopped by Truax’s office almost every

day. During these visits, after making sure that no one was

looking, Russ kissed her on the neck. When Truax shoved him

away, he replied that he just couldn’t help himself.

Prior to Truax’s interview, Mahoney, Chairman of the

Commission, recused himself from the process.3 Despite words of

encouragement from some of the interviewers, and the fact that

Truax was at least as senior as either of the other two

3 In 1995, when Mahoney was a candidate for Commissioner, Truax filed a complaint against him because he allegedly said that, although the FBI had high standards when he was an agent, “that all ended when they hired broads.” The Commission investigated the matter and subsequently censored Mahoney.

-5- candidates, Sergeant William Irving received the promotion

instead of Truax. Russ later told Truax that he had recommended

Irving for the position.

Subsequently, Truax’s union, the International Brotherhood

of Police Officers (“IBOP”), initiated a grievance on her behalf,

asserting that Truax had been passed over for promotion because

of her sex. In response, the Department argued that Irving had

been promoted because of his superior computer skills. The

Department acknowledged, however, that it had not given the

applicants prior notice that computer skills would play a role in

the decision. In October 1999, while her grievance was still

pending, Truax was promoted to fill another Captain’s position.

On March 2 6 , 1999, Truax dual-filed a charge of

discrimination with the NHCHR and the EEOC, in which she asserted

claims of sexual harassment and sex-based discrimination.

Shortly thereafter, her counsel sent a letter to the Department

asking that it take steps to ensure her safety. The Department

nevertheless placed a copy of her initial complaint in a public

area of the Department. Subsequently, many officers have avoided

her and she was not invited to attend meetings of the command

-6- staff.

Thereafter, at a time not specified in the record, Truax

became the subject of an investigation. According to Truax, a

member of the Kittery, Maine Police Department pursued a suspect

over the state line into Portsmouth. Truax, concerned that the

chase unnecessarily endangered lives, ordered the Kittery officer

to stop. He did not stop, and the chase ended in a crash. Truax

told the media that she had ordered the officer to stop.

The Kittery Police Department maintained that Truax had

never told the officer to stop. After an investigation by the

New Hampshire State Police, the Department issued a press release

which stated that the Kittery police never received Truax’s order

because she had misused the communications equipment. It is

unclear from the record whether any disciplinary action ensued.

Truax resigned from the Department, effective January 1 ,

2001.

B. Johnson’s Career

Johnson first filed a charge of discrimination against the

Department with the NHCHR in 1991. In her charge, Johnson

alleged that she had been treated differently because of her sex

-7- and that she had been subjected to “a continuing pattern of

sexual harassment.” The Department investigated her allegations

but took no action. Johnson decided not to actively pursue her

charge of discrimination and the NHCHR dismissed i t .

In June, 1999, Johnson told Captain Irving that she was

concerned about some remarks that Russ Russo, a junior officer,

had made to her during the course of an arrest. Captain Irving

asked Johnson to speak with Russo directly to try and resolve the

matter.

Johnson met with Russo in the presence of a few other

officers in the Market Square section of Portsmouth on June 1 8 ,

1999. When Johnson asked Russo about his prior remarks, he

allegedly replied “I don’t have to listen to this shit” and

started to move away from her. As Johnson moved towards him,

Detective Michael Schwartz pinned Johnson’s hands behind her and

prevented her from following Russo. Johnson, upset, cursed her

fellow officers loudly and in front of a number of citizens who

were watching this incident. Johnson left and reported the

incident to her superiors immediately.

The Department commenced an inquiry into Johnson’s conduct

-8- and placed her on administrative leave while the investigation

was underway. Ultimately, the Department concluded that Johnson

should be discharged because her conduct during the Market Square

incident violated Department regulations and “would have resulted

in a summons or arrest for disorderly conduct if it had been

committed by a member of the public.” Moreover, the Department

found her actions to be “indicative of a negative pattern of

behavior” which had previously resulted in prior administrative

sanctions against Johnson.4 After a public hearing, the

Commission voted to discharge her, effective September 2 3 , 1999.

The IBOP later initiated a grievance on Johnson’s behalf,

asserting that she had been discharged in violation of the “just

cause” provision of the collective bargaining agreement entered

into between the IBOP and the City. On August 1 8 , 2000, an

arbitrator concluded that the Commission had violated the “just

cause” provision when it discharged Johnson. Accordingly, he

4 The record shows that during the course of Johnson’s career, she was the subject of over twenty citizen complaints and/or disciplinary investigations. Although Johnson was cleared of wrongdoing in some of these matters, she also received a number of warnings and letters of reprimand about her behavior, and was suspended from duty on multiple occasions.

-9- ordered the Commission to reinstate Johnson immediately. The

Commission has appealed this decision in state court and has not

reinstated Johnson.

C. Litigation

Truax and Johnson dual-filed charges of discrimination with

the NHCHR and the EEOC on March 2 6 , 1999 and June 3 0 , 1999,

respectively. They commenced this action on February 1 0 , 2000.

II. STANDARD OF REVIEW

Summary judgment is appropriate if the record, viewed in the

light most favorable to the non-moving party, shows that no

genuine issues of material fact exist and that the moving party

is entitled to judgment as a matter of law. See Fed. R. Civ. P.

56(c); Ayala-Gerena v . Bristol Myers-Squibb Co.,

6 , 94-

95 (1st Cir. 1996). A material fact is one “that might affect

the outcome of the suit under the governing law.” Anderson v .

Liberty Lobby, Inc.,

(1986). A genuine factual

issue exists if “the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.”

The party moving for summary judgment “bears the initial

-10- responsibility of informing the district court of the basis for

its motion, and identifying those portions of [the record] . . .

which it believes demonstrate the absence of a genuine issue of

material fact.” Celotex Corp. v . Catrett,

(1986). Once the moving party has properly supported its motion,

the burden shifts to the nonmoving party to “produce evidence on

which a reasonable finder of fact, under the appropriate proof

burden, could base a verdict for i t ; if that party cannot produce

such evidence, the motion must be granted.” Ayala-Gerena,

(citing Celotex,

; Anderson,

4 9 ) .

While courts must exercise restraint in granting summary

judgment in cases where the nonmoving party must prove “elusive

concepts such as motive or intent . . . summary judgement may be

appropriate if the nonmoving party rests merely upon conclusory

allegations, improbable inferences, and unsupported speculation.”

Smith v . Stratus Computer, Inc.,

1 , 13 (1st Cir. 1994)

(internal quotation marks and citations omitted); see DeNovellis

v . Shalala,

(1st Cir. 1997).

I apply this standard in ruling on defendants’ motion for

-11- summary judgment.

III. DISCUSSION5

A. The Title VII Claims

Truax and Johnson allege that the City violated Title VII

by: (1) initially refusing to promote Truax to Captain because

she is a woman; (2) discharging Johnson because she is a woman;

(3) sexually harassing both Truax and Johnson; and (4)

retaliating against both women because they complained about the

sexual discrimination and harassment.6 The City challenges

5 Truax and Johnson filed their objection to defendants’ motion for summary judgment on February 5 , 2001. Their objection contained a request to supplement the record in accordance with Federal Rule of Civil Procedure 56(f). They filed their supplemental materials on May 1 6 , 2001, after the close of discovery. See Pls.’ Supplement to Summ. J. Objection, (Doc. N o . 3 2 ) . After reviewing these supplemental materials, I conclude that they do not alter my analysis of defendants’ motion for summary judgment. Accordingly, I need not rule on Truax and Johnson’s Rule 56(f) request. 6 Plaintiffs also attempt to base Title VII and equal protection claims on a disparate impact theory of sex discrimination. Disparate impact claims are based on “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.” Hazen Paper C o . v . Biggins,

(1993) (internal citation and quotation marks omitted). Unlike disparate

-12- plaintiffs’ Title VII claims by first arguing that Title VII’s

300-day statute of limitations bars most of the claims. They

then challenge the sufficiency of those claims that are not

barred by the statute of limitations. I address each argument in

turn.

1. The Timely Filing Requirement

Defendants contend that Truax and Johnson are barred from

recovering for any acts of discrimination that accrued more than

300 days before they filed their respective administrative

charges of discrimination.7 For the reasons discussed below, I

treatment claims, disparate impact claims do not require proof of discriminatory intent. See

Neither plaintiff has a triable dispute impact claim under either Title VII or the Fourteenth Amendment because they base their claims on distinct instances of disparate treatment rather than on facially neutral practices that adversely impact women. See EEOC v . Steamship Clerks Union Local 1066,

(1st Cir. 1995). Plaintiffs’ Fourteenth Amendment disparate impact claims also fail because the Equal Protection Clause does not reach such claims. See Bd. of Trustees of Univ. of Alabama v . Garrett, 121 S . C t . 955, 967 (2001). 7 The First Circuit has adopted a “notice standard” for determining when an employment discrimination claim accrues for limitations purposes. See Thomas v . Eastman Kodak Co.,

8 , 50 (1st Cir. 1999), cert. denied,

(2000). This standard is satisfied, and the statute of limitations is triggered, only when “some tangible effects of the discrimination [become] apparent to the plaintiff,” i.e., at the point when the

-13- agree.

Title VII requires an aggrieved person to exhaust his or her

administrative remedies as a prerequisite to filing suit in

federal court. See Lawton v . State Mut. Life Assurance C o . of

Am.,

(1st Cir. 1996); Jensen v . Frank,

(1st Cir. 1990). To comply with this requirement, an

individual must file a charge with the EEOC “within one hundred

and eighty days after the alleged unlawful employment practice

occurred.” 42 U.S.C. § 2000e-5(e)(1) (2000). In a “deferral”

state such as New Hampshire, this filing period is extended to

three hundred days.8 See id.;

(2000)

plaintiff becomes “aware that he will in fact be injured by the challenged practice.”

(internal quotation marks and citation omitted). 8 In certain circumstances, the filing requirements for complainants in deferral states may be more complicated. Title VII provides that a person in a deferral state must file a charge with the appropriate state agency within 240 days of the alleged discriminatory act and with the EEOC within 300 days of that act. See Sabree v . United Bhd. of Carpenters and Joiners,

(1st Cir. 1990). However, some state civil rights agencies have entered into “worksharing agreements” with the EEOC under which the two agencies are agents of one another for purposes of receiving charges and the state agency waives its sixty-day exclusive jurisdiction over such charges. See, e.g., Madison v . S t . Joseph Hosp.,

(D.N.H. 1996) (interpreting the 1994 EEOC-NHCHR worksharing agreement).

-14- (listing the NHCHR as a designated agency).

The requirement that Title VII plaintiffs make a timely

administrative filing to preserve their right to sue in federal

court reflects a balance, struck by Congress, between the

interests of employees and those of employers. See Thomas,

7 . On the one hand, the filing period “guarantee[s] the

protection of the civil rights laws to those who promptly assert

their rights.” Delaware State College v . Ricks,

(1980). On the other hand, it “also protect[s] employers

from the burden of defending claims arising from employment

decisions that are long past.”

.

The filing period operates as a statute of limitations, not

as a rule of evidence. See DeNovellis,

n.5.

Unless an exception applies, a discriminatory act that occurred

outside of the limitations period cannot create liability. See

United Air Lines, Inc. v . Evans,

, 555 n.4, 558

(1977); DeNovellis,

n.5. Evidence of time-barred

Because Truax and Johnson dual-filed their charges with the NHCHR and the EEOC, I need not address these complexities, and may calculate the proper limitations period simply by counting back 300 days from March 2 6 , 1999 and June 3 0 , 1999, the dual filing dates for Truax and Johnson, respectively.

-15- acts of discrimination may, however, be admitted against a

defendant to prove timely claims. See Evans,

;

DeNovellis,

n.5.

Title VII’s requirement that complainants file a timely

charge with the EEOC and/or the appropriate state agency does not

create a jurisdictional bar to filing a suit in federal court.

See Zipes v . Trans World Airlines, Inc.,

(1982); Bonilla v . Muebles J.J. Alvarez, Inc.,

(1st Cir. 1999). Consequently, the period for filing an

administrative charge, like a statute of limitations, is subject

to equitable modification when necessary to protect fundamental

fairness. See Zipes,

; Bonilla,

; Morris v . Gov’t Dev. Bank of Puerto Rico,

(1st Cir. 1994).

The 300-day limitations period extends back to May 3 0 , 1998

for Truax and to September 3 , 1998 for Johnson. Their Second

Amended Complaint, however, details many incidents which took

place well before this time. Indeed, many of their allegations

of sexual harassment and disparate treatment concern events that

occurred during the 1980's. Accordingly, Truax and Johnson

-16- invoke the continuing violation doctrine in an attempt to impose

liability on the City for these otherwise time-barred actions.

a. Continuing Violation Doctrine

The continuing violation doctrine is an equitable exception

to the 300-day limitation period that allows an employee to

“reach back” and obtain remedies for “otherwise time-barred

allegations if they are deemed part of an ongoing series of

discriminatory acts.” O’Rourke v . City of Providence,

(1st Cir. 2001); see Provencher v . CVS Pharmacy, Div. of

Melville Corp.,

, 14 (1st Cir. 1998); Sabree,

. In other words, “[i]f a Title VII violation is of a

continuing nature, the charge of discrimination filed with the

appropriate agency may be timely as to all discriminatory acts

encompassed by the violation so long as the charge is filed

during the life of the violation or within the statutory period

(e.g., 300 days) which commences upon the violation’s

termination.” Kassaye v . Bryant College,

(1st

Cir. 1993). This doctrine “ensures that these plaintiffs’ claims

are not foreclosed merely because the plaintiffs needed to see a

pattern of repeated acts before they realized that the individual

-17- acts were discriminatory.” Thomas,

4 .

The First Circuit recognizes two varieties of continuing

violations: serial violations and systemic violations. See,

e.g., Megwinoff v . Banco Bilbao Vizcaya,

3 , 74-76 (1st

Cir. 2000); Provencher, 145 F.3d at 1 4 . Truax and Johnson

contend they have set forth sufficient facts to establish a

serial violation.

i. Serial Violation

A serial violation consists of “a number of discriminatory

acts emanating from the same discriminatory animus, [with] each

act constituting a separate wrong actionable under Title VII.”

Thomas,

(quoting DeNovellis,

0 7 ) ; see

also Lawton,

; Kassaye,

.

To sustain a serial violation claim, a plaintiff must prove

that at least one act in the series occurred within the

limitations period. See DeNovellis,

; Lawton,

; Sabree,

. The timely violation,

sometimes referred to as the “anchor violation,” must itself be

an actionable wrong under Title VII. See Provencher, 145 F.3d at

14. A plaintiff cannot establish a serial violation merely by

-18- showing that the effects of untimely acts of discrimination

continued into the limitations period. See DeNovellis,

(citing Evans,

5 8 ) ; Kassaye,

.

The First Circuit has identified three criteria that should

be considered when determining the sufficiency of a serial

violation claim. See O’Rourke,

(acknowledging

that these criteria are modeled after the test set forth in Berry

v . Bd. of Supervisors of L.S.U.,

(5th Cir.

1983)). These criteria are: (1) subject matter, i.e., “[I]s the

subject matter of the discriminatory acts sufficiently similar

that there is a substantial relationship between the otherwise

untimely acts and the timely acts?” (2) frequency, i.e., “[A]re

the acts isolated and discrete or do they occur with frequency or

repetitively or continuously?” (3) permanence, i.e., “[A]re the

acts of sufficient permanence that they should trigger an

awareness of the need to assert one’s rights?”

(citations

omitted); see Provencher, 145 F.3d at 14-15; Smith v . Bath Iron

Works Corp.,

(1st Cir. 1991).

The First Circuit has indicated that it considers permanence

to be the most important of these factors. See Sabree, 921 F.2d

-19- at 402. Permanence involves “an inquiry into what the plaintiff

knew or should have known at the time of the discriminatory act.”

A plaintiff who knew or should have known that she was the

victim of discrimination while the earlier, untimely acts were

occurring cannot take advantage of the serial violation doctrine,

because “[a] knowing plaintiff has an obligation to file promptly

or lose [her] claim.” Id.; see also Provencher, 145 F.3d at 1 4 ;

Bath Iron Works,

. In contrast, a serial

violation claim may be asserted by “a plaintiff who is unable to

appreciate that he is being discriminated against until he has

lived through a series of acts and is thereby able to perceive

the overall discriminatory pattern.” Provencher, 145 F.3d at 15

(quoting Sabree,

0 2 ) . “What matters is whether,

when, and to what extent the plaintiff was on inquiry notice.”

Jensen,

. This so-called “revelatory standard”

reflects the purpose of the continuing violation doctrine, which

“is to permit the inclusion of acts whose character as

discriminatory acts was not apparent at the time they occurred.”

Provencher, 145 F.3d at 15 (quoting Speer v . Rand McNally & Co.,

5 8 , 663 (7th Cir. 1997)) (internal quotation marks

-20- omitted).

The question of permanence is often a difficult one in cases

such as this, where plaintiffs raise allegations of hostile work

environment sexual harassment, because such harassment “is often

a cumulative process . . . [that,] [i]n its early stages may not

be diagnosable as sex discrimination or may not cross the

threshold that separates the non-actionable from the actionable,

or may not cause sufficient distress to be worth making a federal

case out of.” O’Rourke,

2 7 , 732 (quoting Galloway

v . General Motors Serv. Parts Operations,

(7th

Cir. 1996)). Thus, although “not every hostile work environment

claim presents a plausible continuing violation,” courts should

proceed with care when evaluating whether a plaintiff knew or

should have known that she was subject to sexual harassment. Id.

at 727-28, 732.

In this case, however, neither Truax nor Johnson can satisfy

the revelatory standard because they both knew that they were the

victims of sexual harassment and sex discrimination as early as

1991, and elected not to pursue their claims either

administratively or in court. See Robbins v . Jefferson County

-21- Sch. Dist. R-1,

(10th Cir. 1999) (finding

that the plaintiff failed to satisfy the permanence requirement

where she filed and withdrew a prior complaint with the EEOC).

Thus, even assuming, for purposes of analysis, that plaintiffs

can establish the other elements of a serial violation, their

claim fails.

In 1991, Johnson filed a charge of discrimination with the

NHCHR in which she stated: “I believe I have been subjected to a

continuing pattern of sex discrimination and sexual harassment

based upon my sex (female) since July 1985.”9 Charge of

Discrimination, Exh. B to Defs.’ Mot.; see also Aff. of Karen

Johnson (“Johnson Aff.”), Exh. 5 to Pls.’ Objection to Defs.’

Mot. for Summ. J. (“Pls.’ Objection”), (Doc. N o . 2 7 ) , at ¶¶ 1 ,

13. By this time, the sexual harassment had caused Johnson such

psychological harm that she felt compelled to seek counseling.

See, e.g., Johnson Aff. at ¶¶ 21-22 (“The psychologist confirmed

9 Johnson let this charge lapse, not because she had second thoughts about whether she had been subjected to sexual harassment and disparate treatment, but because “it didn’t appear that there was anything that the [NHCHR] could do except to tell the police department to stop doing what it was doing.” Dep. of Karen Johnson (“Johnson Dep.”), Exh. A to Defs.’ Mot. for Summ. J. (“Defs.’ Mot.”), (Doc. N o . 1 4 ) , at 2 2 .

-22- for me that my stress and nightmares were the direct result of

the harassment I’d been experiencing on the job.”). Thus, the

record clearly shows that Johnson knew that she was being

discriminated against both because she was a women and because

she often voiced her complaints of sex-based discrimination to

others. See, e.g.,

at ¶¶ 1 , 1 2 , 13 (“When I decided in 1989

that I had suffered enough at the hands of Orfe, I went to Don

Clark who told me if I thought I had been sexually harassed I

would be investigated. That threat effectively communicated to

me that the Department would not help defend me from any

harassing or discriminating conduct from other police

officers.”); Johnson Dep. at 39-40, 43-44, 5 2 , 79-80.

In 1991, but prior to Johnson’s filing of a charge with the

NHCHR, the Department conducted an internal investigation of

Johnson’s allegations of sexual harassment and sex-based

disparate treatment. As part of this investigation, the

Department interviewed Truax about her experiences in the

Department. She told investigators that she had been subjected

to some forms of sexual harassment, but that she did not think it

was a major problem within the Department. See Dep. of Nancy

-23- Truax (“Truax Dep.”), Exh. D to Defs.’ Mot., at Vol. I I , 61-62,

and attached Questionnaire on Sexual Harassment in the Work Place

and Incident Report.

In her deposition, however, Truax made it clear that her

responses during that interview were less than complete. Truax

Dep., Vol. I I , at 5 9 . Early in the investigation, Truax, who was

also assigned to interview Johnson, became convinced that the

Department wanted to find a pretext to terminate Johnson because

they were unhappy with her complaints of discrimination.

at

Vol. I I , 56-59 (“[W]e were told that if we could pin her down in

a lie we could fire her, and that was basically what we were sent

in to d o . ” ) . Accordingly, Truax felt that she “need[ed] to be

very careful of what” she said in her own interview, because she

“wanted to keep [her] job.”

at Vol. I I , 5 9 . Therefore,

Truax did not tell the interviewing officer all of the problems

of sex-based harassment and discrimination that she felt existed

within the Department at that time.

at Vol. I I , 5 9 .

Indeed, the record is replete with evidence that Truax, as

early as 1990, knew that she had been subjected to sexual

harassment and sex-based disparate treatment. See, e.g., Aff. of

-24- Nancy Truax (“Truax Aff.”), Exh. A to Pls.’ Mot., at ¶¶ 7 (“It

was apparent from the start that the Portsmouth Police Department

was openly hostile to women.”), 1 6 , 7 1 , 7 6 ; Truax Dep., at Vol.

I , 75-76, 7 8 , 89 (“I was ridiculed for being a woman, and I was

straight out told directly that I wasn’t wanted there and I

wasn’t going to make i t . ” ) , 90-92. Moreover, since she

interviewed Johnson she knew that these problems were not unique

to her.

Unlike Johnson, however, Truax was reluctant to file

internal complaints or charges with the NHCHR. See, e.g., Truax

Dep., at Vol. I , 7 5 . Because she was “determined to excel so

[that she] could prove to everyone that [she] would become an

excellent police officer,” Truax made “every effort to ignore

[the] many sexist, degrading comments and acts” of her co-workers

throughout her career. Truax Aff. at ¶¶ 5 5 , 146; see Truax Dep.,

at Vol. I , 75 (“It was my job to adapt to their environment.”);

see also Pls.’ Memo. in Support of Objection to Defs.’ Mot. for

Summ. J., (Doc. N o . 2 7 ) , at 15 (“[B]oth women attempted to work

through and improve a hostile working environment.”).

This evidence establishes that Truax and Johnson knew, or at

-25- the very least should have known, prior to the limitations period

that they had colorable Title VII claims. Because they were, or

should have been, aware that they were “being unlawfully

discriminated against while the earlier acts, now untimely, were

taking place,” their serial violation claim must fail.

Provencher, 145 F.3d at 1 4 ; see also Bath Iron Works,

; Sabree,

. Accordingly, any of their Title

VII claims that flow from alleged acts of discrimination that

accrued prior to May 3 0 , 1998, for Truax, and September 3 , 1998,

for Johnson, are time barred. Therefore, I grant defendants’

motion for summary judgment with regard to: (1) Truax’s claim of

quid pro quo sexual harassment, which concerns events which took

place well before May 3 0 , 1998; (2) Truax’s hostile work

environment sexual harassment claim, to the extent that it is

based on events which occurred prior to May 3 0 , 1998; and (3)

Johnson’s hostile work environment sexual harassment claim, to

the extent that it is based on events which occurred prior to

September 3 , 1998.

2. Sex Discrimination

Truax and Johnson allege that the City discriminated against

-26- them by: (1) initially refusing to promote Truax to Captain

because she is a woman; and (2) discharging Johnson because she

is a woman. See 42 U.S.C. § 2000e-2(a)(1) (making it unlawful to

“discharge any individual, or otherwise to discriminate against

any individual with respect to [her] compensation, terms,

conditions, or privileges of employment, because of such

individual’s . . . sex”). The City asserts that it took these

actions for legitimate, non-discriminatory reasons and that Truax

and Johnson offer insufficient evidence to support their

assertions that these actions were motivated by unlawful bias.

I analyze Truax and Johnson’s claims by applying the burden-

shifting framework established by the Supreme Court in McDonnell

Douglas Corp. v . Green,

(1973). See Dominguez-Cruz

v . Suttle Caribe, Inc.,

(1st Cir. 2000);

Smith v . F.W. Morse & Co., Inc.,

(1st Cir. 1996). 10

10 The McDonnell Douglas burden-shifting framework is used in cases where the plaintiff seeks to prove discriminatory motivation entirely through circumstantial evidence. See Dominguez-Cruz,

. A somewhat different inquiry ordinarily is warranted if the plaintiff bases her claim in part on direct evidence of discriminatory motivation. See

Although Truax has produced direct evidence to support her claim

-27- a. Truax’s Claim

Under the first step of the burden-shifting framework, Truax

must establish a prima facie case of discrimination by proving by

a preponderance of the evidence that: (1) she is a member of a

protected class; (2) she applied for, and was denied, a promotion

for which she was qualified; and (3) after the denial, the City

filled the position with someone with comparable

qualifications.11 See Reeves v . Sanderson Plumbing Products,

Inc.,

(2000); McDonnell Douglas,

; Petitti v . New England Tel. & Tel. Co.,

8 , 32 (1st

Cir. 1990). Truax’s burden at this preliminary step is “not

onerous.” Texas Dep’t of Cmty. Affairs v . Burdine,

(1981); see Fernandes v . Costa Bros. Masonry, Inc.,

, 584 n.4 (1st Cir. 1999) (describing the nature of proof

that the City intentionally discriminated against her, I follow the parties’ lead in analyzing both plaintiffs’ claims using the McDonnell Douglas rubric. See Smith,

. 11 The precise requirements of a plaintiff’s prima facie case will differ depending on the type of discrimination alleged and the specific employment practice at issue. See McDonnell Douglas,

n.13. I have tailored my description of the prima facie case to fit the contours of Truax and Johnson’s claims.

-28- required to establish a prima facie case as “de minimis”). If

Truax succeeds in making her prima facie case, she creates a

rebuttable presumption that the City acted in a discriminatory

manner. See S t . Mary’s Honor Ctr. v . Hicks,

(1993); Burdine,

.

Construing the facts in the light most favorable to Truax, I

conclude that she has established a prima facie case of

discrimination. She is a woman and, therefore, a member of a

class protected by Title VII. There is evidence in the record

from which a reasonable jury could conclude that the City failed

to promote her, that she was qualified for the position of

Captain, and that this position was given to a man with

comparable qualifications. See, e.g., Dep. of Bradley Russ

(“Russ Dep.”), Exh. 10 to Pls.’ Objection, at 3 6 ; Aff. of Bradley

Russ (“Russ Aff.”), Exh. F. to Defs.’ Mot., at attached Memo.

from Brad Russ to Dianna Fogarty of 8/24/1998 (including attached

resumes); Truax Aff. at ¶¶ 126, 131-32, 134-35. Given that

Truax’s burden is minimal at this initial stage, I find that she

has established a prima facie case.

Once the plaintiff has set forth a prima facie case, the

-29- burden shifts to the defendant, who can rebut the presumption of

discrimination by articulating a legitimate, nondiscriminatory

reason for its actions. See Hicks,

; Burdine,

. The defendant’s burden is solely a matter of

production; the burden of persuasion remains at all times with

the plaintiff. See Hicks,

; Burdine,

.

The City has articulated a nondiscriminatory reason for not

promoting Truax and has produced admissible evidence in support

of its position. The City asserts that it chose Irving over

Truax, although they were both qualified for the position, and

even though Truax had more seniority, “because he was believed to

have exceptional knowledge and expertise with computers and the

Department was looking for an individual with superior knowledge

of computers.” Aff. of William Mortimer (“Mortimer Aff.”), Exh.

G. to Defs.’ Mot., at ¶ 6; Aff. of William Devine (“Devine

Aff.”), Exh. I . to Defs.’ Mot., at ¶ 5 ; see also, e.g., Russ Aff.

at ¶¶ 10-11, and attached Memo. from Russ to Dianna Fogarty of

8/24/1998.

Because both Truax and the City have met their burdens at

-30- steps one and two of the McDonnell Douglas framework, the

presumption of discrimination drops away, and I turn to the

ultimate issue: whether Truax has presented sufficient evidence

to prove that the City intentionally refused to promote her

because of her sex. See Reeves,

(“The ultimate

question in every employment discrimination case involving a

claim of disparate treatment is whether the plaintiff was the

victim of intentional discrimination.”); Burdine,

; Keeler v . Putnam Fiduciary Trust Co.,

, 9

(1st Cir. 2001) (noting that, once the presumption disappears,

“the plaintiff retains the ordinary burden of proving

discrimination”). There is “no mechanical formula” for

determining whether a plaintiff’s evidence is sufficient to prove

discrimination. Feliciano De La Cruz v . El Conquistador Resort &

Country Club,

, 6 (1st Cir. 2000).

A “plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is

false, may permit [, but does not compel,] the trier of fact to

-31- conclude that the employer unlawfully discriminated.”12 Reeves,

. Whether such a showing is sufficient to prove

discrimination will depend upon the circumstances of the case,

including “the strength of the plaintiff’s prima facie case, and

the probative value of the proof that the employer’s explanation

is false.”

Of course, a plaintiff may choose to offer

additional evidence of discriminatory intent in order to buttress

her claim and satisfy her burden of proof. See Feliciano De La

Cruz,

0 ; Dominguez-Cruz,

n.5.

12 In Reeves, the Supreme Court rejected the “pretext plus” standard, which required that the plaintiff produce evidence of pretext plus additional evidence of discriminatory intent, beyond that asserted as part of the plaintiff’s prima facie case. See

. The Court identified the First Circuit as one of the courts that had adopted the “pretext plus” standard. See

at 140-41 (citing Woods v . Friction Materials, Inc.,

(1st Cir. 1994)). The First Circuit responded to Reeves by asserting that it had never adopted the “pretext plus” standard: “Although our prior use of the label “pretext plus,” may have resulted in a misunderstanding about the proof required to state a discrimination claim in this circuit, we have been careful to explain that the phrase did not mean that the plaintiff must present evidence beyond the proof of pretext in order to establish discrimination.” Feliciano De La Cruz,

(denying panel rehearing) (citations omitted). Thus, according to the First Circuit, its “precedents are in accordance with Reeves.” Id.; see also Fite v . Digital Equip. Corp.,

, 7 (1st Cir. 2000) (discussing pre-Reeves case l a w ) .

-32- Regardless of the type or quantum of proof offered by the

plaintiff, a court, in evaluating a motion for summary judgment,

should consider all relevant evidence of pretext and

discrimination in the aggregate. See Dominguez-Cruz,

; Fernandes,

. In other words, the appropriate

inquiry is whether, based on the totality of the evidence, a

reasonable jury could infer that the defendant’s proffered

explanation was pretextual and that the defendant was actually

motivated by discriminatory animus. See Feliciano De La Cruz,

; Dominguez-Cruz,

. The First

Circuit has cautioned that courts making this inquiry into an

employer’s motivation should be especially reluctant to grant

summary judgment in the employer’s favor. See, e.g., Hodgens v .

Gen’l Dynamics Corp.,

(1st Cir. 1998);

DeNovellis,

; Mulero-Rodriguez v . Ponte, Inc.,

(1st Cir. 1996). I now consider the evidence that

Truax offers in support of her claim.

First, Truax alleges that she spoke with Russ the day after

Irving was promoted and asked him whether, if she had been a man,

Russ would have still recommended Irving for the position. Truax

-33- Dep., at Vol I , 7 9 . In response, according to Truax, Russ said

“I might have promoted you.”13

This statement is more than a

mere stray remark. See Dominguez-Cruz,

n.6;

Fernandes,

. Given the importance of Russ’

recommendation, and the temporal proximity of his remark to the

promotion decision at issue, it constitutes significant direct

evidence that Russ made his recommendation on the basis of sex.

See McMillan v . Mass. Soc’y for the Prevention of Cruelty to

Animals,

, 300-01 (1st Cir. 1998). Further, a

reasonable jury could infer from this evidence that the City’s

explanation for its decision was a pretext for unlawful

discrimination. See id.; Dominguez-Cruz,

n.6;

Fernandes,

. Russ denies making this statement.

He also denies another allegation made by Truax, namely, that he

came to her office and kissed her on the neck in the weeks prior

13 The record shows that the Commission generally defers to the promotion recommendations made by the Department’s administration. See, e.g., Mortimer Aff. at ¶¶ 4-5, Russ. Aff. at ¶ 6. A reasonable jury could infer that, because Russ was a leading candidate to become the permanent Chief of Police, his recommendation carried substantial weight with other members of the Department’s administration and with the Commission. See Russ Dep. at 27-34.

-34- to the interview.14 I need not determine whether Truax or Russ

is telling the truth, however, because “any such credibility

determinations are for the factfinder at trial, not for the court

at summary judgement.” Simas, 170 F.3d at 4 9 ; see Dominguez-

Cruz,

; Woodman v . Haemonetics Corp.,

(1st Cir. 1995). Second, Truax alleges that Russ

told her that he “had no concrete reason for the decision” not to

promote her. Truax Aff. at ¶ 135. Moreover, Russ conceded in

his deposition that at no time prior to the interview process had

he or the Department indicated that the Department wanted the new

Captain to have significant computer skills.15 Russ Dep. at 6 7 .

In addition, Truax asserts that, in the past, the Department

14 In addition, I note that Truax alleges: (1) that Russ used his influence to have her removed as an OJJDP instructor after she refused to rekindle their affair; and (2) that, while she and Russ were engaged in a dispute over office space in the early 1990's, Russ said: “Well, Nancy, don’t you think it would behoove you to have me as your friend rather than your enemy for future promotions.” Truax Dep., at Vol. I , 7 0 . 15 The Department’s “Policy for Promotions” lists five “general items [that] will always be considered” during the promotion process: (1) the recommendation of the Chief of Police; (2) seniority; (3) past job performance and acquired skills; (4) educational background; and (5) a “proven willingness to contribute unselfishly” to help the Department achieve its goals. Policy for Promotions, Exh. 14 to Pls.’ Objection.

-35- considered seniority to be a significant factor in promotion

decisions. See Policy for Promotions. Thus, she argues that,

because she was senior to Irving and because the City had not

articulated any prior desire for a Captain with computer skills,

the City’s explanation for its decision not to hire her is not

worthy of credence. While the City does not dispute that Truax

was senior to Irving16, it contends that Irving’s computer skills

compensated for the relatively small difference in seniority

between them.

Where, as here, an employer asserts that he relied on a

previously unarticulated factor in reaching an employment

decision, a factfinder may infer that the actual reason for the

decision was discriminatory animus. See Dominguez-Cruz,

; Santiago-Ramos v . Centennial P.R. Wireless Corp.,

6 , 56 (1st Cir. 2000). Moreover, Russ’ differing

explanations for the decision also constitute circumstantial

evidence of discriminatory intent. See Dominguez-Cruz,

(holding that when an employer, “at different times, gives

16 At the time, Truax had served on the Portsmouth police force for more years than Irving. They were both promoted to Sergeant on the same day in 1990.

-36- different and arguably inconsistent explanations, a jury may

infer that the articulated reasons are pretextual”).

After reviewing all the evidence, and construing it in the

light most favorable to Truax, I conclude that Truax has raised a

genuine factual dispute concerning the actual motivation for the

City’s decision not to promote her. Accordingly, I deny the

City’s motion for summary judgment with regard to Truax’s

disparate treatment claim. I now address Johnson’s disparate

treatment claim.

b. Johnson’s Claim

Under the first step of the burden-shifting framework,

Johnson must establish a prima facie case of discrimination by

proving by a preponderance of the evidence that: (1) she is a

member of a protected class; (2) she performed her job

satisfactorily; (3) she was discharged; and (4) after she was

discharged, her employer continued to have her duties performed

by a comparably qualified person. See Reeves,

;

McDonnell Douglas,

; Santiago-Ramos,

. If Johnson succeeds in carrying her comparatively light

burden at this preliminary step, she creates a rebuttable

presumption that the City acted in a discriminatory manner. See

-37- Hicks,

; Burdine,

.

Johnson is a woman and, therefore, a member of a class

protected by Title VII. There is evidence in the record from

which a reasonable jury could conclude that the City discharged

her and continued to have her duties performed by comparably

qualified officers. Although Johnson’s burden is minimal at this

initial stage, I note that a substantial question exists as to

whether she performed her job satisfactorily. See Oliver v .

Digital Equip. Corp.,

(1st Cir. 1988) (noting

that the prima facie case and the question of employer motive are

“irretrievably intertwined” where the employer asserts that it

discharged the plaintiff because her job performance was not

satisfactory). I assume for the moment, however, that she has

satisfied this element of her prima facie case. See id.;

Santiago-Ramos,

4 .

The burden now shifts to the City, who can rebut the

presumption of discrimination by articulating a legitimate,

nondiscriminatory reason for its actions. See Hicks,

; Burdine,

. The City’s burden is solely

a matter of production; the burden of persuasion remains at all

times with Johnson. See Hicks,

; Burdine, 450

-38- U.S. at 257-58, 260.

The City has articulated a nondiscriminatory reason for

discharging Johnson and has produced admissible evidence in

support of its position. The City asserts that it discharged

Johnson because of her conduct during the Market Square incident

“and the inordinate number of disciplinary issues and citizen

complaints during her employment as a police officer.” Mortimer

Aff. at ¶ 1 0 ; see Mahoney Aff. at ¶¶ 10-11 and attached “Decision

of the Portsmouth Police Commission Concerning Personnel

Investigation IAD # 99-15 Officer Karen Johnson” (hereinafter the

“Commission Decision”); Devine Aff. at ¶¶ 8-9.

I note that, although the City and Johnson offer differing

accounts of the Market Square incident, Johnson admits that she

confronted, and cursed a t , fellow officers in public. See

Johnson Dep. at 116-120. She testified during her deposition

that she regrets her actions and acknowledges that it was not her

“proudest moment.” Id. at 120-21. Moreover, the record shows

that during her tenure in the Department, Johnson had: (1) been

the subject of multiple citizen complaints; (2) been suspended

from duty on numerous occasions for disciplinary violations; and

(3) received numerous warnings regarding her behavior. See Memo.

-39- from Michael Magnant to Bradley Russ of 7/9/1999, attached to

Russ. Aff. (describing Johnson’s disciplinary history);

Commission Decision. In addition, some of Johnson’s fellow

officers have expressed their concern about her ability to be a

police officer. See, e.g., Dep. of Anne Rogers-Bernier, Exh. C2

to Defs.’ Mot., at 95-96 (“I would not trust her to back me up in

a situation . . . One minute she’s got things under her control

and the next minute she’s screaming at everybody.”); Dep. of

Leonard Disesa, Exh. C3 to Defs.’ Mot., at 30-34.

Because both Johnson and the City have met their burdens at

steps one and two of the McDonnell Douglas framework, the

presumption of discrimination drops away and I turn to the

ultimate issue: whether Johnson has presented sufficient

evidence to prove that the City intentionally discharged her

because of her sex. See Reeves,

; Hicks,

; Burdine,

; Keeler,

.

In evaluating Johnson’s claim, I consider all relevant

evidence of pretext and discrimination in the aggregate. See

Fernandes,

; Dominguez-Cruz,

. In

other words, I must determine whether, based on the totality of

-40- the evidence, a reasonable jury could infer that the City’s

proffered explanation was pretextual and that the City was

actually motivated by discriminatory animus. See Dominguez-Cruz,

; De La Cruz,

. In making this

determination, I am mindful of the fact that the First Circuit

has cautioned that courts making this inquiry into an employer’s

motivation should be especially reluctant to grant summary

judgment in the employer’s favor. See, e.g., Hodgens,

; DeNovellis,

. I now consider the evidence

that Johnson offers in support of her claim.

First, Johnson contends that Commissioner Mahoney’s 1995

statement that the FBI’s high standards ended “when they hired

broads” is proof of discriminatory animus. The probative value

of this remark is minimal, however, because it was: (1) neither

directed at Johnson nor related to the decision to discharge her;

and (2) made years prior to her discharge. See Dominguez-Cruz,

n.6; McMillan, 140 F.3d at 301 (noting that the

probative value of a decisionmaker’s remarks “is circumscribed if

they were made in a situation temporally remote from the date of

the employment decision in question . . . or if they were not

related to the employment decision in question”).

-41- Second, Johnson argues that the arbitrator’s ruling on her

grievance supports her claim in this case. Arbitrator Pinkus

acknowledged that Johnson’s behavior was cause for some

disciplinary action, but he concluded that the City violated the

collective bargaining agreement’s “just cause” provision when it

discharged Johnson because: (1) her discharge violated the notion

of “progressive discipline” because it constituted too harsh a

punishment for her offense; (2) the Department had indicated to

Johnson that certain prior incidents of bad behavior would not be

cause for future discipline; and (3) Johnson was not allowed to

cross examine one of the witnesses against her, a teenager who

had witnessed the Market Square incident and whose affidavit was

read at the hearing. See Opinion and Award, dated Aug. 1 8 , 2000,

attached to Mahoney Aff.

An “arbitral decision may be admitted as evidence and

accorded such weight as the court deems appropriate” based on

“the facts and circumstances of each case.” Alexander v .

Gardner-Denver Co.,

6 , 6 0 , 60 n . 21 (1974). Among the

relevant factors that a court should consider in determining the

weight to be accorded to an arbitral opinion are: (1) “the

existence of provisions in the collective bargaining agreement

-42- that conform substantially with Title VII;” (2) the “degree of

procedural fairness in the arbitral forum;” (3) the “adequacy of

the record with respect to the issue of discrimination;” and (4)

“the special competence of particular arbitrators.” Id. at 60

n.21.

Applying the relevant factors, I conclude that Arbitrator

Pinkus’ Opinion and Award is not entitled to any weight on the

issue of whether the City discharged Johnson due to her sex

because: (1) the collective bargaining agreement’s “just cause”

provision does not “conform substantially” with the language of

Title VII; and (2) Arbitrator Pinkus never addressed the issue of

whether Johnson’s discharge was tainted by discriminatory animus.

See Gardner-Denver Co., 415 U.S. at 60 n . 2 1 ; Jackson v . Bunge

Corp.,

(7th Cir. 1994) (holding that it was not

an abuse of discretion for a district court to exclude evidence

of an arbitrator’s decision at trial where “the arbitrator never

addressed the issue” of whether the employer had a discriminatory

motive).

Third, Johnson offers an affidavit from Penny Harrington,

the former Chief of Police of Portland, Oregon, and a proposed

expert witness. Because the City does not challenge the

-43- admissibility of Harrington’s testimony, I assume, for purposes

of discussion only, that it is admissible as expert testimony.17

See Cortes-Irizarry v . Corporacion Insular De Seguros,

(1st Cir. 1997) (suggesting that courts should be wary

of ruling on the admissibility of expert testimony at the summary

judgment stage); see also Fed. R. Evid. 702; Lipsett v . Univ. of

Puerto Rico,

2 1 , 923-25 (D.P.R. 1990) (denying

motion to qualify witnesses as experts in the field of sexual

harassment).

Harrington, however, offers little more than conclusory

assertions based on Johnson’s own allegations. For example, she

opines, without offering supporting evidence, that Johnson was

“treated very differently from other officers, and was ultimately

17 I note that Harrington’s affidavit contains neither a copy of her curriculum vitae nor a list of the documents upon which she bases her opinion. See Aff. of Penny Harrington (“Harrington Aff.”), Exh. 16 to Pls.’ Objection, at ¶¶ 1 0 , 1 3 . Thus, even assuming that Harrington has some “specialized knowledge” that would assist the jury, these omissions make it impossible to ascertain whether her testimony would satisfy the requirements of the recently revised Rule 702. See Fed. R. Evid. 702 (stating that a witness, “qualified as an expert by knowledge, skill, experience, training, or education” may testify “if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.”); see also Fed. R. Evid. 703.

-44- dismissed” because she chose to confront anti-female bias in the

Department. Harrington Aff. at ¶ 1 6 . Such testimony casts

little, if any, new light on whether the City discharged Johnson

because she is a woman.

Fourth, Johnson argues that she was discharged despite the

fact that male officers, under similar circumstances, had

received more lenient discipline. Evidence of this sort is

certainly probative of discriminatory intent, provided that “a

prudent person, looking objectively at the incidents, would think

them roughly equivalent and the protagonists similarly situated.”

Carey v . M t . Desert Island Hosp.,

1 , 38 (1st Cir. 1998)

(internal quotation marks and citations omitted). “Exact

correlation is neither likely nor necessary, but the cases must

be fair congeners.” Id.; see Perkins v . Brigham & Women’s Hosp.,

(1st Cir. 1996). Johnson bears the burden of

showing that the individuals with whom she seeks to be compared

to “engaged in the same conduct without such differentiating or

mitigating circumstances that would distinguish their conduct or

the employer’s treatment of them for it.” Perkins,

(quoting Mitchell v . Toledo Hosp.,

(6th

Cir. 1992)); see Smith, 40 F.3d at 1 7 .

-45- Johnson compares her situation to that of a male officer

who, in violation of Department rules, took one of the

Department’s submachine guns to a firing range and allowed a

civilian to shoot i t . Despite this violation, the officer’s only

punishment was removal from the Department’s Emergency Response

Team and a two-day suspension.

Johnson fails, however, to provide any information about the

officer’s prior disciplinary history. See Perkins,

(noting that the plaintiff, unlike the comparator, had a

“history of repeated disciplinary actions over a ten-year period”

and therefore the requisite similarities were lacking); Smith, 40

F.3d at 1 7 . Thus, even assuming that these dramatically

different factual circumstances could be construed as being

roughly equivalent, Johnson fails to provide “a sufficient

foundation for a legally relevant comparison” between herself and

the male officer and, therefore, this comparison “cannot support

an inference that [her] dismissal was motivated by discriminatory

animus.” Smith, 40 F.3d at 1 7 ; see Perkins,

.

Johnson’s other possible comparators fail for the same reason.18

18 For example, Johnson alleges that, in the past, the Department encouraged male officers to “take it out back,” i.e.,

-46- Lastly, Johnson claims that the Department’s history of

discrimination, and the relatively small number of women in the

Department, supports an inference that her discharge was the

product of intentional discrimination. While these facts are

relevant, they are insufficient here, given the paucity of other

evidence of pretext or discriminatory animus offered by Johnson,

to create a question of material fact as to whether the City

discharged Johnson because of her sex. See Santiago-Ramos,

(stating that evidence of a discriminatory atmosphere

“may be considered along with any other evidence bearing on

motive” in deciding whether a Title VII plaintiff has met her

burden) (emphasis in the original) (internal quotation marks and

citation omitted).

Even when viewed in the light most favorable to Johnson, the

record in this case supports the City’s contention that it

discharged her because of her unfavorable disciplinary record,

culminating in the Market Square incident. Johnson has failed to

raise a genuine factual dispute as to whether the City’s

to settle their disputes through physical confrontations, and that they were rarely disciplined even when such confrontations became violent. She fails, however, to provide any details about these incidents.

-47- articulated reason for her discharge was a pretext for unlawful

discrimination. Accordingly, I grant the City’s motion for

summary judgment with regard to this claim.

3. Sexual Harassment

Truax and Johnson next allege that the City violated Title

VII by fostering and condoning the creation of a work environment

that is so infused with hostility towards women that it creates

an abusive work environment. See Meritor Savs. Bank v . Vinson,

7 , 66 (1986) (holding that “a plaintiff may prove a

violation of Title VII by proving that discrimination based on

sex has created a hostile or abusive work environment”); see also

Harris v . Forklift Sys., Inc.,

7 , 21-23 (1993);

O’Rourke,

. The City argues that it is entitled

to summary judgment on these claims because: (1) Truax and

Johnson have produced insufficient evidence upon which to base

their hostile work environment claims; and (2) neither Truax nor

Johnson suffered a “tangible employment action” and, therefore,

the City may avail itself of the affirmative defense to vicarious

liability and damages set forth by the Supreme Court in

Burlington Industries, Inc. v . Ellerth,

(1998). For

the reasons discussed below, I grant the City’s motion with

-48- regard to Johnson’s claim and deny it with regard to Truax’s

claim.

a. The Governing Law

“For sexual harassment to be actionable, it must be

sufficiently severe or pervasive to alter the conditions of [the

victim’s] employment and create an abusive working environment.”

Meritor Savs. Bank, 477 U.S. at 67 (internal quotation marks and

citation omitted). The work environment “must be both

objectively and subjectively offensive, one that a reasonable

person would find hostile or abusive, and one that the victim in

fact did perceive to be so.” Farragher v . City of Boca Raton,

(1998) (citing Harris,

).

In evaluating whether the alleged sexual harassment is

sufficiently severe to be actionable, a court must consider “the

record as a whole” and the “totality of the circumstances.”

Meritor Savs. Bank, 477 U.S. at 69 (internal quotation marks and

citations omitted); see Clark County Sch. Dist. v . Breeden,

(2001) (per curiam) (“Workplace conduct is not

measured in isolation”); Oncale v . Sundowner Offshore Servs.,

Inc.,

5 , 81-82 (1998) (Ginsburg, J., concurring)

(noting that this “inquiry requires careful consideration of the

-49- social context in which particular behavior occurs and is

experienced by its target”). In making this determination, a

court should consider “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.”

Harris,

(noting that “no single factor is

required”). A court must also consider harassing conduct, even

though “not explicitly sexual in nature, which undermines [the

plaintiff’s] ability to succeed at her job.” O’Rourke,

; see Lipsett v . Univ. of Puerto Rico,

(1st Cir. 1988).

As discussed above, much of the most damning evidence of

sexual harassment produced by Truax and Johnson falls outside of

the limitations period, and therefore, cannot create liability.

Accordingly, I limit my analysis to whether the events that

allegedly occurred within the limitations period suffice to

establish the existence of a hostile working environment.

Because Truax and Johnson: (1) dual-filed their charges with

the NHCHR and the EEOC at different times, and therefore have

different limitations periods; and (2) left the Department at

-50- different times, I analyze their claims separately. See, e.g.,

Edwards v . Wallace Cmty. College,

(11th Cir.

1995) (noting that events which were not made known to the

plaintiff until after she was terminated could not have

contributed to her subjective perception of her work

environment).

b. Johnson’s Claim

Johnson alleges that the following events contributed to the

creation of a hostile work environment in the Department during

her tenure: (1) the Department’s decision to require her to

undergo a psychological evaluation in September of 1998 to

determine her fitness for duty; (2) her discovery, in the police

station, of a “muscle magazine” containing pictures of scantily

clad women; (3) the City’s discrimination against and harassment

of Truax; and (4) certain harassing statements Sergeant Famulari

made to other women.19 The City argues, and I agree, that this

19 The First Circuit has advised that “[c]ourts should avoid disaggregating a hostile work environment claim, dividing conduct into instances of sexually oriented conduct and instances of unequal treatment, then discounting the latter category of conduct.” O’Rourke,

. Accordingly, I consider the alleged harassing conduct in the aggregate. See

. Of course, I need not consider those events which occurred after the City discharged Johnson. See Edwards,

.

-51- evidence, even when viewed in the aggregate and considered in the

light most favorable to Johnson, does not satisfy her burden at

summary judgment.

First, the City contends that it required Johnson to undergo

a psychological evaluation because she had recently told people

in the Department that she was being treated for depression and

a number of citizens had recently filed complaints against her.

Johnson, in response, fails to offer any evidence to suggest that

the Department made this decision because of her sex. See

O’Rourke,

; Higgins v . New Balance Athletic

Shoe, Inc.,

(1st Cir. 1999) (holding that,

where a plaintiff “toiled in a wretchedly hostile environment,”

but failed to show that he was harassed because of sex, the

district court properly granted summary judgment for the

defendant). As a result, she does not advance her argument

merely by alleging that she was required to undergo a

psychological evaluation.

Second, the circumstances under which Johnson was exposed to

the “muscle magazine” will not support a sexual harassment claim.

Johnson claims that another officer left the “muscle magazine” on

his desk when he went to change his clothes. While Johnson

-52- asserts that the magazine depicted scantily clad women, she does

not claim that it qualifies as pornography or that its focus was

predominately on women. See Johnson Dep. at 56-57. Nor does she

assert that it was placed on display in the Department.

Third, Johnson cannot establish her sexual harassment claim

merely by focusing on any sexual harassment and/or discrimination

that Truax suffered. In certain circumstances, a court should

consider harassing conduct towards women other than the plaintiff

when evaluating a sexual harassment claim. See Hernandez-Loring

v . Universidad Metropolitana,

9 , 55 n.4 (1st Cir.

2000); Lipsett,

. While the plaintiff need not be

present for this conduct to contribute to her subjective

impression that her work environment is hostile or abusive, she

must at least be aware that this other harassment is occurring.

See, e.g., Brooks v . City of San Mateo,

(9th

Cir. 2000) (“Harassment directed towards others of which an

employee is unaware, can, naturally, have no bearing on whether

[the plaintiff] reasonably considered her working environment

abusive.”); Hirase-Doi v . U.S. West Comms., Inc.,

(10th Cir. 1995) (“[Plaintiff] could not subjectively

perceive [her fellow employee’s behavior] towards others as

-53- creating a hostile work environment unless she knew about that

behavior.”); Edwards,

; Morales-Evans v . Admin.

Office of the Courts of the State of New Jersey,

(D.N.J. 2000) (holding that statements made outside

the plaintiff’s presence are not probative as to the question of

whether her work environment was hostile or abusive).

In this case, while Johnson was undoubtedly aware that Truax

was not promoted, there is no indication in the record that she

knew of Russ’ encounters with Truax. Thus, the latter events

could not have contributed to Johnson’s subjective impression

that the Department was a hostile work environment. See, e.g.,

Brooks,

; Hirase-Doi,

.

Lastly, Johnson attempts to buttress her claim by referring

to statements allegedly made by Sargeant Famulari towards other

female officers. See, e.g., Dep. of Anne K. Rogers-Bernier, Exh.

11 to Pls.’ Objection, at 71 (“[w]hy don’t you go home and make

us muffins . . . [w]omen don’t bust down doors like men don’t

wear lipstick.”). It is unclear when these statements were made,

although I note: (1) that they only came to light during a 1998

investigation of Famulari; and (2) there is evidence in the

record which suggests that some of these statements were made a

-54- year earlier, outside of the limitations period. I assume,

however, for purposes of defendants’ motion, that they were made

during the limitations period and that Johnson had knowledge of

them.

After reviewing the record as a whole, however, including

the statements allegedly made by Sargeant Famulari, I conclude

that Johnson fails to offer sufficient evidence to permit a

reasonable jury to conclude that Johnson suffered sexual

harassment that was so severe or pervasive that it altered the

conditions of her employment and created an abusive work

environment. Accordingly, I grant the City’s motion for summary

judgment with regard to this claim.

c. Truax’s Claim

The crux of Truax’s claim is that Russ’ repeated visits to

her office created a hostile work environment. First of all, I

note that, although Truax’s complaint focuses on her allegation

that Russ repeatedly kissed her on the neck in the weeks leading

up to her interview for the Captain’s position, in her deposition

she stated that Russ kissed her on the neck “often over the

years,” and that his visits to her office increased in frequency

in the months leading up to the interview. Truax Dep., at Vol.

-55- I I , 6 5 . In the two weeks leading up to the interview, Russ came

into Truax’s office and kissed her on the neck five or six times.

at 6 4 . When she pushed him away, he allegedly replied “I

just can’t resist” or “I just can’t help myself.”

at 6 4 .

Although even a single unwanted kiss could, depending on the

circumstances, “seriously poison the victim’s working

environment,” EEOC, Policy Guidance on Current Issues of Sexual

Harassment,

, *10 (Mar. 1 9 , 1990) (“If an

employee’s supervisor sexually touches that employee, the

Commission normally would find a violation” of Title V I I . ) , not

every kiss will create an objectively hostile work environment.

See, e.g., Saxton v . Am. Tel. & Tel. Co.,

(7th

Cir. 1993) (finding no sexual harassment where the defendant

kissed and repeatedly touched the plaintiff); see generally

Hostetler v . Quality Dining, Inc.,

(7th Cir.

2000) (discussing acts of physical harassment generally and

noting that while a “peck on the cheek” might not be actionable

in and of itself, a “kiss on the lips” might be actionable, even

in isolation). Kisses, as with all alleged acts of harassment,

must be evaluated in context and in conjunction with the totality

of the circumstances. See Breeden,

; Meritor

-56- Savs. Bank, 477 U.S. at 6 9 .

It is clear that Russ’ actions, when viewed in context, go

beyond “ordinary socializing in the workplace.” See Oncale, 523

U.S. at 1003 (Ginsburg, J., concurring). Thus, I conclude that a

reasonable jury could find that being kissed on the neck almost

every day by a superior officer, in advance of a promotional

interview in which that superior officer plays an important role,

creates an objectively hostile work environment that alters the

terms or conditions of the victim’s employment. See Harris,

3 . Accordingly, I proceed to address the merits of the

City’s affirmative defense.

( i ) . The Affirmative Defense

In Burlington Industries, the Supreme Court held:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence. 524 U.S. at 765 (emphasis added). Thus, the affirmative defense

is available to an employer only when no tangible employment

action has been taken against an employee. Id.

-57- The City does not dispute that a failure to promote

constitutes a tangible employment action. Id. at 761. It

contends, however, that Truax has neither pled nor proven that

the City based its decision not to promote Truax on her refusal

to submit to Russ’ advances. Therefore, the City argues, it may

avail itself of the affirmative defense. See Frederick v .

Sprint/United Mgmt. Co.,

(11th Cir. 2001)

(affirming grant of summary judgment for the employer where the

plaintiff “failed to present sufficient evidence to establish any

causal link between the adverse ‘tangible employment action’ she

suffered and the alleged harassment”); see also Farragher, 524

U.S. at 808 (“No affirmative defense is available . . . where the

supervisor’s harassment culminates in a tangible employment

action.”) (emphasis added).

I need not address this argument, however, because Truax

asserts that the harassment she endured culminated in her

constructive discharge. The City contests neither the validity

of Truax’s constructive discharge claim nor whether that claim

constitutes a tangible employment action for purposes of the

affirmative defense. See generally Elmasry v . Veith,

(collecting cases, discussing the split of authority,

-58- and holding that, under certain circumstances not present in that

case, a constructive discharge may constitute a tangible

employment action). Because a finding of constructive discharge

could potentially negate the availability of the Burlington

Industries affirmative defense, I deny the City’s motion for

summary judgment.

4. Retaliation

Truax and Johnson allege that the City retaliated against

them for reporting discriminatory conduct. See 42 U.S.C. §

2000e-3(a) (making it unlawful to retaliate against an employee

because she has opposed any practice that is unlawful under Title

VII or because she “has made a charge . . . or participated in

any manner in an investigation, proceeding, or hearing” pursuant

to Title V I I ) . In response, the City argues that neither Truax

nor Johnson have set forth facts which establish a causal

connection between their protected activities and the adverse

employment actions taken against them.

I address Truax and Johnson’s claims in turn, using the

familiar McDonnell Douglas burden-shifting framework.

-59- a. Truax’s Claim

Truax asserts that the City refused to promote her in

retaliation for her decision to lodge a complaint against

Commissioner Mahoney in 1995.

To establish a prima facie case of retaliation, Truax must

show by a preponderance of the evidence that: (1) she engaged in

conduct protected by Title VII; (2) she suffered an adverse

employment action; and (3) the adverse action is causally

connected to the protected activity. See White v . New Hampshire

Dept. of Corrs.,

(1st Cir. 2000) (quoting

Hernandez-Torres v . Intercontinental Trading, Inc.,

3 ,

47 (1st Cir. 1998)); Santiago-Ramos,

7 . If Truax

establishes her prima facie case, the burden of production shifts

to the City, who must respond by articulating a nondiscriminatory

reason for the adverse employment action. See King v . Town of

Hanover,

(1st Cir. 1997). If the City meets

its burden of production, the presumption of retaliation falls

away and Truax must prove that the City’s explanation is actually

a pretext for retaliation. See

Truax claims that the City refused to promote her in 1998

because she lodged a complaint against Commissioner Mahoney in

-60- 1995, in response to his comment about “broads” in the FBI. Even

assuming that Truax’s complaint qualifies as protected activity

under Title VII, Truax fails to “point to evidence in the record

that would permit a rational factfinder to conclude that” the

City decided not to promote her in retaliation for her actions.

King,

; see Breeden,

(holding

that a twenty month gap between a plaintiff’s protected activity

and the adverse employment action taken against her does not

support a finding of causation); Hoeppner v . Crotched Mountain

Rehab. Ctr., Inc.,

(1st Cir. 1994). Accordingly, I

grant the City’s motion for summary judgment with regard to this

claim. See King,

.

b. Johnson’s Claim

Johnson clearly establishes the first two elements of her

prima facie case. First, Johnson engaged in protected activity

when she filed her charge of discrimination with the NHCHR and

when she filed her initial complaint with this court. See 42

U.S.C. § 2000e-3(a). Second, Johnson was discharged, and the

City refused to reinstate her after Arbitrator Pinkus’ award in

her favor. The former is clearly an adverse employment action,

and I assume for purposes of discussion that the latter is as

-61- well. See Hernandez-Torres,

7 .

In order to complete her prima facie case, and survive the

City’s motion for summary judgment, Johnson must “point to

evidence in the record that would permit a rational factfinder to

conclude that the employment action was retaliatory.” King,

; see Hoeppner,

4 . Although Johnson fails

to point to any evidence suggesting such a causal connection, I

note that the record reveals that she filed her charge with the

NHCHR on June 3 0 , 1999, and that she was discharged on September

2 3 , 1999. See Oliver,

(“A showing of discharge

soon after the employee engages in [protected activity] is

indirect proof of a causal connection . . . because it is

strongly suggestive of retaliation.”). Given the relatively

modest nature of the prima facie case, this temporal proximity is

sufficient to establish a causal connection between Johnson’s

protected activity and the adverse employment actions taken by

the City. See Wyatt v . City of Boston,

3 , 16 (1st Cir.

1994) (“One way of showing causation is by establishing that the

employer’s knowledge of the protected activity was close in time

to the employer’s adverse action.”); see also Breeden,

; Beliveau v . United States Dept. of Labor,

3 ,

-62- 87 (1st Cir. 1999). Thus, the burden of production shifts to the

City.

As discussed with regard to Johnson’s disparate treatment

claim, the City has articulated a legitimate non-discriminatory

reason for Johnson’s discharge, namely, that she was discharged

because of her conduct during the Market Square incident on June

1 8 , 1999 and her history of disciplinary problems. See, e.g.,

Mortimer Aff. at ¶ 1 0 ; Mahoney Aff. at ¶¶ 10-11 and attached

Commission Decision. The City further asserts that it did not

reinstate Johnson because it is appealing the arbitrator’s

decision in state court and that it remains concerned with

“Johnson’s relationship with the other police officers, her

relationship with the public and with her general suitability to

fulfill the duties of an armed police officer.” Mahoney Aff. at

¶ 14.

Johnson, however, fails to offer any relevant evidence,

other than the temporal proximity between her protected activity

and the City’s actions, on the ultimate issue of whether the

City’s articulated reasons were a mere pretext for retaliation.20

20 Johnson’s allegation that someone placed a portion of her personnel file in the Portsmouth library while her grievance

-63- See King,

(“It is insufficient for [the

plaintiff] to simply recount that he complained and that he was

disciplined five months later. He must offer sufficient evidence

of discrimination for a rational factfinder to find in his

favor.”). The probative value of this temporal proximity is

tempered by the fact that at the time Johnson filed her charge

with the NHCHR she was already on leave pending an investigation

of the Market Square incident. Cf. Breeden,

(“Employers need not suspend previously planned transfers upon

discovering that a Title VII suit has been filed, and their

proceeding along lines previously contemplated, though not yet

definitively determined, is no evidence whatever of causality.”).

Johnson’s failure to offer additional evidence of retaliation is

fatal, and compels me to grant the City’s motion for summary

judgment with regard to this claim. See, e.g., Santiago-Ramos,

; King,

; Hoeppner,

.

B. The Section 1983 Claims

In Count II of their Second Amended Complaint, Truax and

was still pending sheds little, if any, light on whether the Department’s decisions were retaliatory.

-64- Johnson invoke

as a vehicle for their First and

Fourteenth Amendment claims.21 Truax and Johnson allege that

defendants, while acting under color of state law, violated the

Fourteenth Amendment’s Equal Protection Clause by: (1) initially

refusing to promote Truax to Captain because she is a woman; (2)

discharging Johnson because she is a woman; (3) creating a

hostile work environment towards women at the Department; and (4)

removing Truax from her OJJDP duties because she refused Russ’

sexual advances. Second, Truax and Johnson allege that

defendants, while acting under color of state law, violated the

First Amendment by discharging Johnson, and initially refusing to

promote Truax, in retaliation for their decision to report acts

21 Truax and Johnson also invoke Section 1983 as an independent basis for their Title VII claims. Section 1983, however, does not provide a remedy for statutory violations where Congress, in enacting a statute, has indicated an intent to preclude the use of Section 1983 as an enforcement mechanism. See Middlesex County Sewerage Auth. v . Nat’l Sea Clamers Ass’n,

, 19-20 (1981). Because I agree with those circuit courts that have held that Title VII has its own detailed and comprehensive remedial scheme, I conclude that it provides the exclusive remedy for employment discrimination actions based solely on its violation. See Polson v . Davis,

(10th Cir. 1990); Foster v . Wyrick,

(8th Cir. 1987); Day v . Wayne County Bd. of Auditors,

(6th Cir. 1984); Irby v . Sullivan,

(5th Cir. 1984). Accordingly, I grant defendants’ motion for summary judgment with respect to this portion of Count I I .

-65- of discrimination within the Department.

Defendants move for summary judgment on both sets of

claims. In addition, Mahoney, Mortimer, and Devine assert that

they are entitled to qualified immunity. As discussed below, I

grant defendants’ motion in part and deny it in part.

I begin my analysis by noting that Truax and Johnson’s

Section 1983 claims are subject to New Hampshire’s three-year

statute of limitations for personal injury actions, N.H. Rev.

Stat. Ann. 508:4, I . See Wilson v . Garcia,

(1985); Calero-Colon v . Betancourt-Lebron,

, 2 (1st Cir.

1995) (“The limitation period governing personal injury actions

under the law of the forum state is borrowed for application to

section 1983 claims.”). This three-year limitations period is

longer than the limitations period, discussed above, governing

Truax and Johnson’s Title VII claims. This difference in

limitations periods does not alter the factual foundation of

Truax and Johnson’s claims, however, because they point to no

evidence which, although time-barred for purposes of Title VII,

might give rise to liability for purposes of Section 1983.22

22 Although the City does not advance this argument in its motion for summary judgment, I note that the City “cannot be held

-66- 1. Equal Protection Claims

The Equal Protection Clause of the Fourteenth Amendment

provides that no state shall “deny to any person within its

jurisdiction the equal protection of the laws.” “To prove a

violation of the [E]qual [P]rotection [C]lause, a plaintiff must

show that the defendant acted with discriminatory intent.”

Lipsett,

. The First Circuit generally analyzes

employment discrimination claims brought under the Equal

Protection Clause using the same framework that it employs when

analyzing disparate treatment and sexual harassment claims under

Title VII.

(discussing disparate treatment and

sexual harassment claims); see Pontarelli v . Stone,

,

liable under a respondeat superior theory.” Fletcher v . Town of Clinton,

1 , 55 (1st Cir. 1999) (citing Monell v . Dept. of Social Servs.,

(1980)). “This means that even if the individual defendants are liable, [the City] may not be.”

In order to impose liability on the City pursuant to Section 1983, Truax and Johnson must demonstrate: (1) that “the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by [the municipality’s] officers or is pursuant to governmental custom even though such a custom has not received formal approval through the body’s official decisionmaking channels;” and (2) “a direct causal link between the municipal action and the deprivation of federal rights.”

(internal quotation marks and citations omitted); see also Silva v . Worden,

6 , 30-32 (1st Cir. 1997).

-67- 113-14 (1st Cir. 1991).

Accordingly, because I have already analyzed Truax and

Johnson’s Title VII claims, and because they offer no additional

evidence in support of their identical equal protection claims, I

need not re-analyze their allegations under the Equal Protection

Clause. Therefore, based on my analysis above, I grant

defendants’ motion for summary judgment with regard to Johnson’s

disparate treatment and sexual harassment claims. Because Truax

has demonstrated that genuine questions of material fact exist as

to whether the City initially refused to promote her because of

her sex and whether she experienced hostile work environment

sexual harassment, I deny defendants’ motion for summary judgment

with regard to Truax’s equal protection claims based on disparate

treatment and hostile work environment sexual harassment.

a. Qualified Immunity

Commissioners Mahoney, Mortimer, and Devine contend that

they are entitled to qualified immunity with regard to Truax’s

disparate treatment claim. See Roldan-Plumey v . Cerezo-Suarez,

8 , 65 (1st Cir. 1997) (discussing qualified immunity).

The First Circuit has made it clear, however, that “defendants

normally are denied the pretrial benefits of an immunity defense

-68- where, as here, the court finds trialworthy issues pertaining to

their subjective state of mind, i.e., discriminatory intent.”

Carter v . Rhode Island,

, 10 n.2 (1st Cir. 1995); see

Swain v . Spinney,

, 9 (1st Cir. 1997) (holding that a

qualified immunity determination “may not be resolved on a motion

for summary judgement when material facts are substantially in

dispute”). Accordingly, I reject the Commissioners’ argument.

2. First Amendment Claims

Truax and Johnson allege that defendants violated their

rights under the First Amendment by: (1) discharging Johnson in

retaliation for her decisions to report acts of discrimination in

the Department and to file a charge with the NHCHR; and (2)

initially refusing to promote Truax in retaliation for her

decision to lodge a complaint against Commissioner Mahoney.

Defendants move for summary judgment on both claims.

In order to establish a prima facie case of First Amendment

retaliation, Truax and Johnson must each show that: (1) they

engaged in constitutionally protected conduct; and (2) this

conduct was a “substantial or motivating factor for the adverse

employment decision.” Padilla-Garcia v . Guillermo Rodriguez,

9 , 74 (1st Cir. 2000); see Wytrwal v . Saco Sch. Bd., 70

-69- F.3d 165, 170 (1st Cir. 1995). If Truax and Johnson establish a

prima facie case, the defendants may attempt to show that they

would have taken the same adverse employment actions regardless

of Truax and Johnson’s sex. Padilla-Garcia,

(citing M t . Healthy City Sch. Dist. Bd. of Ed. v . Doyle,

(1977)).

As discussed above with regard to Johnson’s Title VII claim,

the only evidence of retaliatory intent that Johnson offers is

the temporal proximity between her discharge and the filing of

her claim with the NHCHR. Moreover, as discussed above,

defendants offer substantial evidence supporting their position

that they decided to discharge Johnson because of her long

history of disciplinary infractions, culminating with the Market

Square incident. Accordingly, I grant defendants’ motion for

summary judgment with regard to this claim. See Padilla-Garcia,

4 .

Truax, however, cannot even rely on temporal proximity as

evidence of retaliatory intent. As discussed above, she offers

no evidence suggesting a connection between her decision to lodge

a complaint against Mahoney in 1995 and the City’s initial

decision not to promote her in 1998. Accordingly, I grant

-70- defendants’ motion for summary judgment with regard to this

claim. See Padilla-Garcia,

4 .

C. Summary

Defendants did not move for summary judgment with regard t o :

(1) Truax’s Title VII claims against the City for constructive

discharge and retaliatory constructive discharge; (2) Truax’s

Section 1983 claims against all of the defendants for (a)

constructive discharge, in violation of her rights under the

Equal Protection Clause, and (b) retaliatory constructive

discharge, in violation of her rights under the First Amendment;

and (3) Truax’s claim against the City and Russ for constructive

discharge. Accordingly, those claims remain.

As discussed herein, I grant defendants’ motion for summary

judgment in part and deny it in part. I grant the motion with

regard to all claims asserted by Johnson. I grant the motion

with regard to all of Truax’s challenged claims, except for: (1)

her Title VII claims against the City for disparate treatment and

hostile work environment sexual harassment; and (2) her Section

1983 claims against all of the defendants for disparate treatment

and hostile work environment sexual harassment, in violation of

her rights under the Equal Protection Clause.

-71- IV. CONCLUSION

For the reasons discussed above, I grant defendants’ motion

for summary judgment, (Doc. N o . 1 4 ) , in part and deny it in part.

SO ORDERED.

Paul Barbadoro Chief Judge

June 1 8 , 2001

cc: David P. Slawsky, Esq. William G. Scott, Esq.

-72-