UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Tasheena V. Stewart, Plaintiff

v. Case No. 16-cv-341-SM Opinion No.

Dartmouth Hitchcock Mary Hitchcock Memorial Hospital, Defendant

O R D E R

Tasheena Stewart brings this action against her former

employer, Dartmouth-Hitchcock Medical Center (Mary Hitchcock

Memorial Hospital) (“DHMC”), claiming she was subjected to

unlawful workplace sexual and racial discrimination, in

violation of federal law. 1 DHMC now moves for summary judgment

on each of Stewart’s federal discrimination claims. Stewart

objects.

For the reasons discussed, DHMC’s motion for summary

judgment is granted.

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

When ruling on a motion for summary judgment, the court is

“obliged to review the record in the light most favorable to the

nonmoving party, and to draw all reasonable inferences in the

nonmoving party’s favor.” Block Island Fishing, Inc. v. Rogers,

(1st Cir. 2016) (citation omitted). Summary

judgment is appropriate when the record reveals “no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a). In this

context, a factual dispute “is ‘genuine’ if the evidence of

record permits a rational factfinder to resolve it in favor of

either party, and ‘material’ if its existence or nonexistence

has the potential to change the outcome of the suit.” Rando v.

Leonard,

(1st Cir. 2016) (citation omitted).

Consequently, “[a]s to issues on which the party opposing

summary judgment would bear the burden of proof at trial, that

party may not simply rely on the absence of evidence but,

rather, must point to definite and competent evidence showing

the existence of a genuine issue of material fact.” Perez v.

Lorraine Enters.,

, 29–30 (1st Cir. 2014). In other

words, “a laundry list of possibilities and hypotheticals” and

“[s]peculation about mere possibilities, without more, is not

enough to stave off summary judgment.” Tobin v. Fed. Express

2 Corp.,

, 451–52 (1st Cir. 2014). See generally

Anderson v. Liberty Lobby, Inc.,

(1986).

Background

At the outset, it is probably worth noting that Stewart has

decided to represent herself in this action. Recognizing that

the Federal Rules of Civil Procedure can be complex and - at

least for those not trained in the law - difficult to

understand, the court provided Stewart with a “Notice Regarding

Summary Judgment” (document no. 20). That notice included

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

summary judgment. The court highlighted for Stewart her

obligation to respond to DHMC’s motion for summary judgment with

competent evidence, in the form of admissible affidavits,

deposition testimony, and documents. Stewart was also reminded

of her obligation to set forth “a short and concise statement of

material facts, supported by record citations,” as to which she

contends there is a genuine dispute so as to require a trial.

Local Rule 56.1 (emphasis supplied). Stewart has, for the most

part, failed to comply with those requirements.

While she has submitted a “Performance Evaluation Report”

dated August 31, 2011 (document no. 21-2), and a few emails she

says support her position, the majority of “facts” upon which

3 Stewart relies are unsupported by competent, admissible

evidence. She has not, for example, submitted any affidavits.

Nor has she referenced any of the deposition testimony or

hearing testimony submitted by DHMC. Instead, her narrative of

the relevant background is characterized by her feelings, her

beliefs, and her subjective interpretations of various events

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

21) at 2 (“Plaintiff Tasheena V. Stewart started working for

[DHMC] in June of 2011, and was treated unfairly,

disrespectfully, and made to feel uncomfortable on almost a

daily basis.”); id. at 4 (“Andrea Rhodes enjoyed making

Plaintiff Tasheena V. Stewart uncomfortable.”); id. at 5

(“Andrea Rhodes’ corrective actions were not true accounts of

the events that took place.”); id. at 8 (“[U]ntruths were

gathered to unjustly terminate Plaintiff Tasheena V. Stewart.”);

id. at 9 (“It is my belief that because I, Plaintiff Tasheena V.

Stewart, am a Black woman whom was mistreated and discriminated

[against], and spoke up about it, was wrongfully terminated on a

first warning and fake correctives from a racist and

disrespectful supervisor.”). See also Plaintiff’s Sur-Reply

(document no. 25) at 2 (“When I found out from the EEOC that the

hospital hired the Black woman, I was not surprised. If you are

accused of being racist and fostering a racist environment it

would make sense because you can now say look we hired a Black

4 woman.”); id. (“This seems to be the climate of our nation at

this time, where you see major institutions hiding, covering up,

or protecting management, supervisors, and/or people in

leadership roles that are outright mistreating employees and

abusing their power.”).

Putting aside, for the moment, Stewart’s subjective beliefs

and interpretations, the facts pertinent to summary judgment (as

supported by competent evidence of record) are as follows. In

2011, Andrea Rhodes was (and had been for approximately four

years) the Supervisor of DHMC’s Cytogenetics Laboratory, where

she oversaw the work of several clinical lab scientists and lab

aides. In May of that year, she interviewed and hired Stewart

as clinical lab scientist. Stewart began working in the lab in

June of 2011, and her initial performance was quite good

(indeed, her skills as a lab scientist never seem to have been

in question). In August, Rhodes gave Stewart a very favorable

“Performance Evaluation - 90 Day Introductory Review” (document

no. 19-2).

The following month, Rhodes had an “awareness conversation”

(DHMC’s lowest level of counseling/discipline) with Stewart

after Stewart “responded negatively” to having her work reviewed

by a colleague whom Stewart believed had less experience than

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

para. 14. Nevertheless, on December 1, 2011, Rhodes again gave

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

Shortly thereafter, however, Rhodes reports that Stewart’s

attitude deteriorated and her interactions with colleagues and

superiors became more volatile, hostile, and insubordinate.

Stewart was, for example, openly rude to Rhodes at a staff

meeting, she often complained about her co-workers, she was not

bashful about telling Rhodes (her supervisor) that Rhodes was

not doing her job properly, and she acted inappropriately toward

one of the lab aides who required minor accommodations due to a

medical issue. The latter prompted another “awareness

conversation” with Rhodes in April of 2012. Rhodes Affidavit at

para. 18. A few months later, Stewart had “a loud, angry

outburst at a staff meeting,” id. at para. 20, which prompted

Rhodes to contact Human Resources seeking assistance with

shaping Stewart’s style of communication. On September 25,

2012, Rhodes, Stewart, and Stephen Woods (Senior Employee

Relations Advisor) met and discussed Stewart’s “unprofessional

manner of communication” and what she might do to correct it.

According to Rhodes, Stewart “repeatedly interrupted us and

would not allow us to finish speaking, which demonstrated the

very conduct we were coaching her about.” Rhodes Affidavit at

6 para. 23. See also Affidavit of Stephen Woods (document no. 19-

17) at para. 5 (“Ms. Rhodes explained that we were meeting to

discuss Ms. Stewart’s communication manner and style at work.

Ms. Stewart immediately interrupted Ms. Rhodes. When I tried to

answer Ms. Stewart’s questions, she also kept interrupting me.

I finally told her that she needed to give us a minute to

explain what the documented coaching was about. Ms. Stewart’s

behavior during the coaching meeting was consistent with the

problems Ms. Rhodes had described.”).

The following day, Stewart, Rhodes, and Woods met again.

According to Woods, “when Ms. Rhodes tried to explain the

reasons for the coaching, Ms. Stewart angrily pointed her finger

in Ms. Rhodes’ face and called her a liar. I told Ms. Stewart

her behavior during the meeting was not acceptable.” Woods

Affidavit at para. 6. See also Rhodes Affidavit at para. 25.

Stewart was then presented with a “written coaching,” which had

been prepared by Rhodes and reviewed by Woods. It provided the

following:

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

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

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

the measured tone of that document, Stewart’s response to it was

plainly not professional (and certainly tone-deaf). In the

“Employee Comments” section, Stewart wrote:

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

Id. Stewart’s response illustrated the very workplace behavior

with which Rhodes and Woods were concerned. But,

notwithstanding the disrespectful and insubordinate comments

Stewart had directed at her, Rhodes chose not to pursue the

matter any further. Rhodes Affidavit at para. 27.

After a brief interlude of calm, Stewart resumed her

disrespectful, coarse, and/or inappropriate behavior. In

8 November, Rhodes had another “awareness conversation” with

Stewart about a disrespectful email she sent to Rhodes (see

document no. 19-5). In early February of the following year,

Rhodes had yet another “awareness conversation” with Stewart

after Stewart refused to take a mandatory competency assessment

that Rhodes had asked her to complete. Stewart acquiesced only

after being informed that she would be subject to disciplinary

action if she remained steadfast in her obstinance. Two weeks

later, Rhodes was made aware of at least two occasions on which

Stewart had adopted an “unprofessional tone and manner” toward a

subordinate. One of those interactions had been witnessed by

two other lab technologists, who confirmed to Rhodes that

Stewart’s behavior toward the co-worker was inappropriate.

According to Rhodes, because she was already aware of other

occasions on which Stewart had acted inappropriately toward that

individual, and because she “felt that Ms. Stewart was creating

a hostile work environment by bullying a subordinate,” Rhodes

Affidavit at para. 36, she decided she needed to discuss the

situation with Stewart. But, in light of the “poor interactions

in the past with Ms. Stewart when discussing her communication

issues and recognizing this as a potentially volatile

conversation,” Rhodes asked Dr. Mohandas (Clinical Director of

the Cytogenetics Lab) to be part of the conversation. Although

Rhodes originally planned to give Stewart a “written warning”

9 for her conduct, she ultimately decided to downgrade the

discipline and give her a “written coaching.” Id. at para. 38.

That written coaching provided:

I would like to document the conversation we had on 2/20/2013 with Dr. T. K. Mohandas about your communication style, specifically when talking to [a Lab Aide]. In that conversation we heard your version of the events that [the Lab Aide] had reported. We talked about how certain things that [the Lab Aide] does aggravates/frustrates the situation. We also talked about how communications can be misinterpreted, even with the best of intentions. We agreed that the workplace should be free from communications that could be interpreted as demeaning or disrespectful.

To address this issue, you agreed to do the following: Add work related tasks to [the Lab Aide’s] clipboard. Minimize conversation with [the Lab Aide] for a few weeks. If there are items or situations that you would like addressed, you will relay them to Andrea Rhodes and in Andrea’s absence, to Dr. Mohandas. We will meet again in mid-March to reassess the situation.

If your performance in this area does not improve within the stated period, I will have to initiate formal corrective action. As I said in our meeting, you are welcome to any and all resources available to you through this or any other department. However, I’m counting on you to take responsibility for the improvement as we discussed, and I know that you can.

Documentation of a Coaching Session (document no. 19-8).

According to Rhodes, when she presented that document to

Stewart, “she handled the conversation well and did not have an

explosive diatribe, as had happened in the past. I wanted to

encourage this communication style and complimented her on it.”

10 Rhodes Affidavit at para. 40. Stewart did, however, refuse to

sign the document.

Rhodes’s patience in dealing with Stewart’s workplace

insubordination and hostility was not unbounded, however. It

seems it eventually ran out. On June 25, 2013, Rhodes says a

“case-related task” had not been properly completed when the

case files were presented to her. In her affidavit, she

recounts the relevant events as follows:

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

Rhodes Affidavit at para. 41. Rhodes then asked Stewart to

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

issue further. Stewart continued to argue her point with Rhodes

in a loud and unprofessional tone. She refused to complete the

11 work Rhodes requested of her, insulted Rhodes, and said

something to the effect that she hates working with Rhodes and

that Rhodes is a “terrible person.” Id. at para. 44. That

prompted Rhodes to issue a “written warning” for

“insubordination and disruptive and unprofessional

communications” (document no. 19-9). Eventually, at Dr.

Mohandas’ urging, Stewart acquiesced and agreed to perform the

requested tasks and she sent Dr. Mohandas an email upon their

completion.

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

different. She says she “was written up for not completing a

task that was completed and confirmed within eight minutes.”

Plaintiff’s Memorandum at 8. She goes on to assert that because

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

begin with. Then, [she] was terminated for the reaction

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

In support of that view, she has submitted a copy of the e-mail

she sent to Dr. Mohandas, notifying him that she had completed

the requested tasks. See E-mail dated June 25, 2015 (document

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

apologize that your time was wasted with ongoing nonsense.”).

But, of course, that Stewart eventually (and begrudgingly)

agreed to comply with the clear directive of her supervisor and

12 do her job is beside the point. The reason Dr. Mohandas was

brought into the situation in the first place was because

Stewart refused to comply with her supervisor’s directive.

The following day, Stewart met with Rhodes and Woods (the

Senior Employee Relations Advisor) to discuss the events of the

prior evening. Rhodes recounted the salient points of that

meeting as follows: “[Ms. Stewart] was not receptive to the

feedback I was trying to give her and became verbally aggressive

with me and Mr. Woods. She called me a liar and said I was

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

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

down.’” Rhodes Affidavit at para. 47. Mr. Woods’ account of

the interaction is substantially similar:

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

13 Woods Affidavit at para. 10. See also Stewart Deposition at 163

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

psychotic.’ Did you say that? A: I did.”).

That outburst, it would seem, was the proverbial last

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

Park (Clinical Pathology Manager) and Michael Harhen

(Administrative Director of the Pathology Department) to discuss

whether Stewart’s behavior warranted a “final warning” or

termination. Woods told the group that Stewart’s behavior was

“the most unprofessional [he] had ever seen.” Woods Affidavit

at para. 11. After discussing the matter, all four participants

in the meeting unanimously decided that Stewart’s behavior had

“crossed the line” and all agreed that her employment with DHMC

should be terminated. Woods Affidavit at para. 11. See also

Rhodes Affidavit at para. 49. Rhodes then prepared a

“Corrective Action Form” (document no. 19-10) outlining the

reasons for Stewart’s termination.

On June 29, 2013, Rhodes and Woods met with Stewart to

inform her that her employment was being terminated. Stewart

was given a copy of the “Corrective Action Form,” as well as her

“Final Performance Appraisal” (document no. 19-11), which states

that “Tasheena has excellent technical skills, unparalleled

14 initiative and true dedication to providing quality care for

patients. While at D-H, Tasheena has gained technical

experience in solid tissue culture and analysis of hematologic

malignancies. Her interpersonal skills and communication skills

do not meet D-H standards.”

Stewart subsequently grieved her discharge, seeking removal

of two corrective actions from her employee record and

reinstatement to her position as a clinical lab scientist.

During that process, she never asserted that any action was

taken against her because of her race or gender. Woods

Affidavit at para. 14. Instead, she claimed she lost her job

because she was a “whistleblower” - that is, in retaliation for

a complaint she made about a lab aid whom Stewart believed was

not following proper procedures. Rhodes Affidavit at para. 59.

The grievance panel upheld Stewart’s discharge. See Step Three

- Grievance Hearing (document no. 19-12). Stewart then filed a

complaint with the New Hampshire Commission for Human Rights,

alleging that she was the victim of both gender-based and racial

discrimination.

In support of her claims of unlawful discrimination,

Stewart recounted several examples of what she viewed as gender-

based and/or race-based discriminatory animus on the part of

15 Rhodes. First, she says that when purchasing new office chairs

for employees in the lab, Rhodes ordered Stewart a chair

designed for “an extremely overweight” person - something that

Stewart says caused her to be embarrassed and subjected her to

ridicule from co-workers. According to Stewart, she weighs 200

pounds and was the “only plus-sized person working in the

cytogenetics laboratory at the time.” Plaintiff’s Memorandum at

4. But, according to Rhodes’ unrebutted testimony, her conduct

was not motivated by discriminatory animus, nor was any offense

intended.

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

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

Next, Stewart says Rhodes referred to her as “city people.”

Stewart testified that, based on Rhodes’ use of the phrase, she

inferred that Rhodes “perceived [Stewart’s] communication style

to be loud and scary.” Transcript of N.H. Employment Security

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

at 34. See also Id. at 37. It is, however, entirely unclear

whether Stewart perceived the phrase “city people” as some sort

of oblique racial slur. For example, at her deposition, Stewart

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

her job.

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

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

A. She said a city person.

Q. No. I understand that. But you equated --

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

Stewart Deposition at 73. For her part, Rhodes testified that:

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

17 Rhodes Affidavit at paras. 58.

Indeed, having been in the same position herself, it would

seem that Rhodes understood the difficulty “city people” might

have in transitioning to life in the Upper Valley. And, to her

credit, she seems to have made substantial efforts to assist

Stewart in making that transition. When Stewart first arrived

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

a hotel. After she complained to Rhodes that the hotel had

increased the cost of her room, Rhodes told Stewart that she and

her husband had an empty bedroom in their home and offered to

let Stewart stay with them until she found long-term housing.

Additionally, when Stewart began working at DHMC, she did not

have a car or driver’s license. So, Rhodes would, on occasion,

take her shopping - particularly on the weekends, when the local

busses were not running. Rhodes also gave a bicycle to

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

Stewart to different towns to look at various apartments. And,

once Stewart found an apartment, Rhodes gave her a sewing

machine and fabric when she learned that Stewart wanted to make

curtains for her living room. See Rhodes Affidavit at paras. 8-

9. Of course, at least that early conduct toward Stewart

(including the fact that Rhodes actually hired Stewart) suggests

that Rhodes did not bear any racial or gender-based animus

18 toward Stewart. See, e.g., Proud v. Stone,

, 797–98

(4th Cir. 1991) (“[I]n cases where the hirer and the firer are

the same individual and the termination of employment occurs

within a relatively short time span following the hiring, a

strong inference exists that discrimination was not a

determining factor for the adverse action taken by the

employer.”).

Finally, in relation to her claims of gender-based

discrimination, Stewart says Rhodes engaged in unwelcome talk

about sexual topics, attempted to hug Stewart and/or rub her

back when she knew (or should have known) that Stewart didn’t

like to be touched, and made an odd comment about horses she

owned. At her deposition, Stewart testified about that alleged

incident as follows (since it is one of the few instances of

alleged sexual harassment, it is important to note):

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

Q. What things?

A. Like she had horses.

Q. Right.

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

19 Stewart Deposition at 97-98. Rhodes’ response to that

allegation is concise, but direct: “I never spoke with Ms.

Stewart about sex, sex acts, or anything of the sort. My horses

are/were geldings.” Second Rhodes Affidavit at para. 6.

After completing its investigation into each of Stewart’s

allegations of racial and/or sexual discrimination (all of which

are discussed in detail in its report), the New Hampshire

Commission for Human Rights concluded that there was “no

probable cause” to credit any of them. Report of New Hampshire

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

United States Equal Employment Opportunity Commission adopted

the investigative findings of the New Hampshire Commission. Id.

at 8. This litigation ensued.

Discussion

As construed by the magistrate judge, Stewart’s amended pro

se complaint advances three federal claims: (1) workplace sexual

harassment in violation of Title VII of the Civil Rights Act;

(2) workplace racial harassment, also in violation of Title VII;

and (3) workplace racial harassment, in violation of

. See Order on Preliminary Review (document no. 11). None

of those claims has merit.

20 Title VII of the Civil Rights Act of 1964 makes it unlawful

for an employer “to discharge any individual, or otherwise to

discriminate against any individual . . . because of such

individual’s race, color, religion, sex, or national origin.”

42 U.S.C.A. § 2000e-2. Similarly, Section 1981 of Title 42

makes it unlawful for employers to discriminate on the basis of

an employee’s race.

When, as here, the plaintiff has not (or cannot) point to

any overt evidence of gender-based or racial discrimination,

courts typically employ the burden-shifting framework

articulated by the Supreme Court in McDonnell Douglas Corp. v.

Green,

(1973). See also Ayala–Gerena v. Bristol

Myers–Squibb Co.,

(1st Cir. 1996) (observing that

the familiar burden-shifting framework articulated in McDonnell

Douglas also applies to racial discrimination claims arising

under § 1981). The Court of Appeals for the First Circuit has

summarized that analytical framework as follows:

Under this formulation, a plaintiff opens with a prima facie showing of certain standardized elements suggestive of possible discrimination. . . .

Establishment of the prescribed prima facie case creates a presumption that the employer engaged in impermissible age discrimination. However, to rebut this presumption, the employer need only articulate a

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

LeBlanc v. Great American Ins. Co.,

(1st Cir.

1993) (citations and internal punctuation omitted). And, the

Supreme Court has instructed that,

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

St. Mary’s Honor Center v. Hicks,

, 510–11 (1993).

At that point, the burden reverts to the employee, who must

demonstrate that the reason articulated by the employer for the

adverse employment action was a mere pretext for unlawful racial

or gender-based discrimination. See LeBlanc,

.

And, as the court of appeals has instructed, the employee must

produce “not only minimally sufficient evidence of pretext, but

evidence that overall reasonably supports a finding of

discriminatory animus.”

(citation and internal

quotations omitted).

So, to avoid summary judgment in this case, Stewart must

come forward with some admissible evidence, either direct or

22 circumstantial, of DHMC’s discriminatory animus. She “may not

simply refute or question the employer’s reasons” but, instead,

she “must produce evidence that the real reason for the

employer’s actions was discrimination.” Gadson v. Concord

Hospital,

(1st Cir. 1992) (emphasis supplied).

Given the undisputed evidence of record, as set forth

above, it is plain that Stewart has failed to meet her

obligation to set forth a prima facie case of unlawful gender-

based or racial discrimination. For example, she has not shown

that she was “performing [her] job at a level that rules out the

possibility that [she] was fired for job performance,” nor has

she shown that DHMC “sought a replacement for [her] with roughly

equivalent qualifications.” Benoit v. Tech. Mfg. Corp.,

(1st Cir. 2003). But, even if she had carried

that modest initial burden, DHMC has responded with a patently

legitimate, nondiscriminatory basis for Stewart’s discharge:

“During that meeting [on June 26, 2013], Tasheena behaved in an

unprofessional, hostile, threatening, and aggressive manner,

contrary to [DHMC’s] Code of Ethical Conduct and Rules of

Conduct.” Notice of Termination (“Corrective Action Form”)

(document no. 19-10), at 1. See also Stewart Deposition at 163

(admitting that she called Rhodes, her supervisor, “psychotic”

and a “liar”). See generally Pearson v. Massachusetts Bay

23 Transp. Auth.,

(1st Cir. 2013) (“As we have

often found, insubordination is obviously sufficient to support

an adverse employment action.”).

In response, Stewart has failed to identify any evidence

suggesting that the true reason for her discharge was unlawful

discrimination (either racial or gender-based). Stated slightly

differently, there is no competent evidence in the record “from

which to conclude that the proffered reason for [Stewart’s]

termination was not in fact the real reason.” Fontanez-Nunez v.

Janssen Ortho LLC,

(1st Cir. 2006). Nor has

Stewart pointed to any evidence suggesting that she was

subjected to gender-based or racial harassment in the workplace

during the course of her employment - certainly not to the point

that it was so severe or so pervasive as to materially alter the

conditions of her employment and create an abusive work

environment. See generally Maldonado-Catala v. Municipality of

Naranjito,

(1st Cir. 2017); Garmon v. Nat’l R.R.

Passenger Corp.,

(1st Cir. 2016). See also

Faragher v. City of Boca Raton,

, 787–88,

,

(1998) (“[W]e explained that in

order to be actionable under the statute, a sexually

objectionable environment must be both objectively and

subjectively offensive, one that a reasonable person would find

24 hostile or abusive, and one that the victim in fact did perceive

to be so. We directed courts to determine whether an

environment is sufficiently hostile or abusive by ‘looking at

all the circumstances,’ including the ‘frequency of the

discriminatory conduct; its severity; whether it is physically

threatening or humiliating, or a mere offensive utterance; and

whether it unreasonably interferes with an employee’s work

performance.’”) (citations omitted); Stewart Affidavit at 108

(“So, like I said, [Rhodes] was always overly friendly and

inappropriate, but she wasn’t - it didn’t get to a point where

it affected my work or affected my comfort level at the job.”).

Here, as in

“the plaintiff has not pointed to

a shred of competent evidence adequate to elevate her surmise

from the realm of the possible to the realm of the probable.

Speculation about mere possibilities, without more, is not

enough to stave off summary judgment.”

. None

of Stewart’s papers makes reference to an affidavit, deposition,

or hearing transcript in support of her factual allegations or

her assertion that she was treated unlawfully. And, her

beliefs, feelings, impressions, and interpretations of various

alleged events are simply insufficient.

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

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

Pina v. Children’s Place,

, 795–96 (1st Cir. 2014)

(citations and internal punctuation omitted). Moreover,

Stewart’s pro se status does not absolve her of the obligation

to identify some (any) trial-worthy questions of material fact.

See, e.g., Eagle Eye Fishing Corp. v. United States Dep’t of

Commerce,

(1st Cir. 1994) (“A pro se litigant,

like any litigant, is guaranteed a meaningful opportunity to be

heard. While courts have historically loosened the reins for

pro se parties, the right of self-representation is not a

license not to comply with relevant rules of procedural and

substantive law.”) (citations and internal punctuation omitted).

Conclusion

Stewart’s failure to support her discrimination/harassment

claims with adequate competent evidence compels the court to

conclude that there are no trial-worthy, genuinely disputed

issues of material fact. See generally Perez v. Lorraine

26 Enters.,

. And, given the undisputed facts of

record, it is plain that DHMC is entitled to judgment as a

matter of law with respect to each of Stewart’s federal

employment-related discrimination claims.

Accordingly, for the foregoing reasons, as well as those

set forth in DHMC’s legal memoranda, DHMC’s motion for summary

judgment (document no. 19) is granted. The Clerk of Court shall

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

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

March 26, 2018

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

27