USCA1 Opinion

       [NOT FOR PUBLICATION--NOT TO BE CITED AS PRECEDENT]



                  United States Court of Appeals

                      For the First Circuit

                       ____________________





No. 98-1410



                         SONIA J. SZABO,



                      Plaintiff, Appellant,



                                v.



              TRUSTEES OF BOSTON UNIVERSITY, ET AL.,



                      Defendants, Appellees.



                       ____________________



           APPEAL FROM THE UNITED STATES DISTRICT COURT



                FOR THE DISTRICT OF MASSACHUSETTS



        [Hon. George A. O'Toole, Jr., U.S. District Judge]



                       ____________________



                              Before



                      Stahl, Circuit Judge,



Reavley, Senior Circuit Judge,



                    and Lipez, Circuit Judge.



                      _____________________



     William F. Green, with whom Robert A. Rossi and Law Office of

William F. Green were on brief, for appellant.

     Lawrence S. Elswit for appellees.





                       ____________________



                        December 31, 1998

                       ____________________          REAVLEY, Senior Circuit Judge.  Sonia Szabo appeals a

summary judgment entered against her in her suit against Boston

University (BU) and two individuals.  We affirm.

                            BACKGROUND

          Szabo's complaint alleged that she was terminated from

her position as a histology technician in the dermatology lab of

the BU medical school.  She claims that she was fired in

retaliation for making a complaint of sexual harassment, in

violation of Title VII, 42 U.S.C.  2000e-3(a).  She also claims

that defendants violated the Family and Medical Leave Act (FMLA),

29 U.S.C.  2601-2654, in connection with leave necessitated by her

pregnancy.

                            DISCUSSION

          Under Fed. R. Civ. P. 56(c), the district court shall

enter summary judgment for the moving party if the record discloses

"that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law."

Rule 56 "mandates the entry of summary judgment, after adequate

time for discovery and upon motion, against a party who fails to

make a showing sufficient to establish the existence of an element

essential to that party's case, and on which that party will bear

the burden of proof at trial."  Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986).  Under modern summary judgment practice "there is

no issue for trial unless there is sufficient evidence favoring the

nonmoving party for a jury to return a verdict for that party.  If

the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted."  Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted).  To

be a "genuine" issue of material fact, "the evidence relevant to

the issue, viewed in the light most flattering to the party

opposing the motion, must be sufficiently open-ended to permit a

rational factfinder to resolve the issue in favor of either side." 

National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st

Cir. 1995) (citations omitted).

A.  Title VII

          Szabo alleged that she was terminated in retaliation for

complaining about sexual remarks made by her supervisor, Labadie. 

She testified that in the summer of 1993, Labadie, in a vulgar

manner, asked whether she was having sexual relations with a

coworker.  She complained to the lab director, Dr. Bhawan, about

the incident, and claims that Bhawan did not take her complaint

seriously.  Bhawan testified that he recalled the incident as

related to him by Szabo, that he was shocked and surprised, and

apologized to Szabo on his own behalf and on behalf of Labadie. 

Bhawan testified that at his behest Labadie apologized to Szabo in

Bhawan's presence.  Labadie confirmed making such an apology, but

Szabo testified that no apology occurred.  

     Szabo also complained to Dr. Gilchrest, the chair of the

dermatology department.  Szabo testified that Gilchrest considered

the matter a serious one.  According to Szabo, Labadie then told

Szabo, "I don't see why you are complaining to Dr. Gilchrest," and

told her he was going to keep a file on her and "you'll pay for

this."  Labadie denied making such threats.  Gilchrest remembered

having a brief meeting with Szabo where Szabo discussed

difficulties at work, but Gilchrest was sure that Szabo did not

mention sexually offensive language from a supervisor.  

     Szabo testified that after the incident with Labadie,

Labadie changed the attendance policy.  Labadie agreed that there

was a change in attendance procedure requiring employees to use

time sheets.  Labadie denied making the change in policy himself,

but claimed that it came from the university.  

     Szabo became pregnant in the summer of 1994.  Szabo

offered medical records showing hospital emergency care in the

summer and fall of 1994 relating to her pregnancy.  She was also

admitted to Brigham and Women's Hospital in March of 1995.  Her

physician admitted her after he failed to detect a fetal heartbeat. 

The pregnancy ended in a stillbirth.

     Szabo was fired in the fall of 1995, more than two years

after the alleged sexual harassment.  Szabo's supervisor, Hasan,

testified that Szabo was fired because of her attendance problems. 

He testified that her poor attendance "was a big issue in the lab,"

and that throughout 1995 he spoke to her almost every other day

about her attendance.  Szabo admitted receiving "a lot" of written

warnings about her attendance, but claimed that she and others in

the lab made fun of the warnings, because they knew the warnings

were in retaliation for the 1993 incident.

     On October 20, 1995 Labadie wrote Szabo, notifying her

that she was being terminated for poor attendance.  The letter

listed eight instances in which BU had warned Szabo about her poor

attendance, including the November 8, 1993 announcement of the new

attendance policy directed to all employees.  It documented seven

occasions in September and October of 1995 where Szabo was observed

leaving early, as well as a pattern of arriving late and several

occasions when Szabo did not show up for work at all.  Szabo

testified that she had permission to leave early on the dates

referenced in the letter.  

     We generally analyze claims of retaliation under Title

VII as we would other discrimination claims.  We look to the

burden-shifting framework established by McDonnell Douglas Corp. 

v. Green, 411 U.S. 792 (1973), and later Supreme Court cases.  To

establish a prima facie case of retaliation, the plaintiff must

show that she engaged in protected conduct under Title VII, that

she suffered an adverse employment action, and that a causal

connection exists between the protected conduct and the adverse

action.  Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st

Cir. 1996).  Once the plaintiff makes out a prima facie case, the

burden of production shifts to the defendant to articulate a

legitimate, non-retaliatory reason for its employment decision. 

Id.  Under the McDonnell Douglas framework, once the defendant

offers such a reason, the presumption raised by the prima facie

showing "drops from the case."  Hidalgo v. Overseas Condado Ins.

Agencies, Inc., 120 F.3d 328, 335 (1st Cir. 1997) (quoting St.

Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)).  The

plaintiff must show that the defendant's non-discriminatory reason

for its action is pretextual, and at all times "the plaintiff

retains the ultimate burden to show that he has been the victim of

intentional discrimination."  Provencher v. CVS Pharmacy, Division

of Melville Corp., 145 F.3d 5, 10 (1st Cir. 1998).

     "To prevail under federal law, it is insufficient for a

plaintiff merely to undermine the veracity of the employer's

proffered justification; instead, she must muster proof that

enables a factfinder rationally to conclude that the stated reason

behind the adverse employment decision is not only a sham, but a

sham intended to cover up the proscribed type of discrimination." 

Dichner v. Liberty Travel, 141 F.3d 24, 30 (1st Cir. 1998).  The

plaintiff must elucidate specific facts that would enable a jury to

make such findings, and "the plaintiff cannot avert summary

judgment if the record is devoid of adequate direct or

circumstantial evidence of discriminatory animus on the part of the

employer."  Hidalgo, 120 F.3d at 335 (quoting LeBlanc v. Great Am.

Ins. Co., 6 F.3d 836, 843 (1st Cir. 1993)).  "[B]efore becoming

entitled to bring the case before the trier of fact," the plaintiff

"must show evidence sufficient for the factfinder reasonably to

conclude that the employer's decision to discharge him or her was

wrongfully based" on the alleged discriminatory animus.  LeBlanc,

6 F.3d at 843.  "On summary judgment, the need to order the

presentation of proof is largely obviated, and a court may often

dispense with strict attention to the burden-shifting framework,

focusing instead on whether the evidence as a whole is sufficient

to make out a jury question as to pretext and discriminatory

animus."  Fennell, 83 F.3d at 535.

     We conclude that summary judgment was properly granted

because a rational finder of fact, viewing the record as a whole,

could not find that BU's legitimate, nondiscriminatory reason for

firing Szabo was pretextual, and that the firing was instead the

result of an illegal retaliatory motive.  Summarizing, defendants

presented compelling evidence that Szabo had a history of poor

attendance, which continued years after the alleged incident of

sexual harassment by Labadie and up to the month of termination. 

In addition to the evidence discussed above, defendants produced

eight memos, written by Labadie and others, documenting attendance

problems.  Szabo offered no evidence that she made contemporaneous

objections to the criticism regarding her attendance.  We agree

with the district court that the memos "reveal not an effort to

retaliate, but rather a remarkable patience with an employee with

attendance problems."   We have held that the passage of time can

so weaken any claim of a causal connection between the alleged act

on which the retaliation claim is based and the employee's

termination as to make summary judgment appropriate.  Mesnick v.

General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991).  Szabo's

termination occurred over two years after Labadie's alleged sexual

harassment and her complaints to management.  Szabo claims that she

was singled out under the attendance policy, but BU offered

evidence that several other employees received written and oral

warnings regarding attendance.  On this record, Szabo's evidence of

retaliation is at best "merely colorable," Anderson, 477 U.S. at

249, and is not sufficiently probable to avoid summary judgment. 

"In order to survive summary judgment, the plaintiff must point to

evidence in the record that would permit a rational factfinder to

conclude that the employment action was retaliatory."  King v. Town

of Hanover, 116 F.3d 965, 968 (1st Cir. 1997).  We conclude that

Szabo failed to meet this burden.

     Szabo also claims as a separate act of retaliation that

Dr. Bhawan refused to sign her application to become certified as

an histology technician in October of 1995, shortly before she was

terminated.  Bhawan testified that Szabo never asked him to sign

such an application and that he would have signed it if asked. 

Viewing the evidence in a light most favorable to Szabo, we do not

believe that a rational jury could find that Bhawan's refusal to

sign the application was retaliation for Labadie's conduct over two

years earlier.  Szabo never accused Bhawan of complicity in the

sexual harassment by Labadie, only that Bhawan did not take her one

complaint to him seriously enough.  In the interim Szabo received

many warnings and reprimands about her attendance.  Bhawan

testified that he did not give Szabo a small 1994 Christmas bonus

given to other employees because of her attendance problems.   The

alleged refusal to sign the application is temporally too far

removed from Szabo's complaints about Labadie for a rational jury

to find a causal link between the protected activity (complaining

about Labadie) and the adverse personnel action (refusal to sign

the application), especially in light of all that transpired in

between.

B.  FMLA

     In her complaint Szabo alleged that defendants violated

the FMLA by denying her repeated requests for maternity leave.  In

responding to defendants' summary judgment motion and on appeal,

Szabo additionally argues that defendants violated the FMLA by

demanding that she return to work, on threat of termination, after 

leave of only about two weeks following surgery.

     Szabo offered evidence that on several occasions she

asked Labadie for medical leave forms.  She testified that she

received a "runaround" in that Labadie referred her to personnel

officer McKinley for the forms and McKinley referred her back to

Labadie.  Defendants produced a February 27, 1995 staff

request/notification for leave, signed by Szabo and Dr. Bhawan. 

While she admitted that her signature on the form was genuine,

Szabo denied ever seeing the document.  Defendants also produced an

unsigned letter from George Snowden, assistant personnel director,

granting Szabo medical leave.  Snowden swears that he sent the

letter, though Szabo claims that it was sent to the wrong home

address.

     Szabo's pregnancy ended in a stillbirth, as explained

above.  Szabo's physician, Dr. Olson, performed a caesarean section

on or about March 3, 1993.  Olson, testified that patients normally

should be off work for four to six weeks after a caesarean section,

but patients could return earlier if they felt fine.  Szabo

testified that about two weeks after the delivery lab supervisor 

Hasan called her at home and told her that she would be replaced if

she did not return to work.  Hasan denied making such a call. 

Szabo then called Dr. Olson and asked him to prepare a letter

stating that she could return to work.  According to Szabo, Olson

told her she was "crazy" to go back to work so soon.  Nevertheless,

the letter states that Szabo "may return to work on March 22,

199[5] as she is recovering well."  Olson testified that he did not

recall using the term "crazy" to describe Szabo's request for the

letter,  but "I don't doubt that I said something to that effect,

but not meaning mentally crazy, but in the context that perhaps she

would like to allow herself more time for recovery and that maybe

she would be uncomfortable returning this early, and I would

encourage her staying out, but if she really wants to go back,

that's fine."  Olson testified that he would not have written the

letter if Szabo was not well enough to return to work.  Szabo

returned to work about two and one-half weeks after the delivery. 

     Under the FMLA, an employee generally is entitled to 12

weeks of leave "[b]ecause of the birth of a son or daughter of the

employee and in order to care for such son or daughter," or

"[b]ecause of a serious health condition that makes the employee

unable to perform the functions of the position of such employee." 

29 U.S.C.  2612(a)(1).  It is unlawful for an employer "to

interfere with, restrain, or deny the exercise of or the attempt to

exercise, any right provided under" the Act.  Id.  2615(a). 

Violation of  2615 entitles the employee to recover "any wages,

salary, employment benefits, or other compensation denied or lost

to such employee by reason of the violation," or "in a case in

which wages, salary, employment benefits, or other compensation

have not been denied or lost to the employee, any actual monetarylosses sustained by the employee as a direct result of the

violation, such as the cost of providing care, up to a sum equal to

12 weeks of wages or salary for the employee."  Id.  2617

(a)(1)(A).

     We conclude that summary judgment was properly granted on

the FMLA claim.  Szabo did not raise a material issue of fact of a

violation of the Act.  Tragically, Szabo's child was stillborn, but

this means that she was not entitled to maternity leave under the

Act, since such leave is only required under the Act in order to

care for a son or daughter.  Nor did Szabo demonstrate "a serious

health condition that makes the employee unable to perform the

functions of the position of such employee," an alternative basis

for leave under the Act.  Her own doctor wrote a letter saying that

she was able to return to work "as she is recovering well." 

Dr. Olson also testified that recovery times vary and that he would

not have written the letter if Szabo was unable to return to work,

and that Szabo did not tell him that her employer was pressuring

her to return to work.  He stated that if Szabo had told him her

employer was pressuring her to return to work, he would have noted

this reason on her chart.  Instead, his notes indicate: "Patient

feels well.  Wants to return to work.  Minimal pain."  True, Szabo

claims that she prevailed upon her doctor to write the note because

she was afraid BU would fire her if she did not return to work, but

she points to no evidence showing that upon her return she was

"unable to perform the functions of the position of such employee."

     Szabo separately argues that BU's ordering her back to

work was an independent act of retaliation under Title VII.  If

Szabo is arguing that cutting short her leave was retaliation for

complaining about Labadie's inappropriate sexual remarks, this

claim suffers from the same deficiencies as her termination claim. 

The alleged demand that she return to work occurred almost two

years after Szabo's complaints about Labadie's remarks; in the

interim there were numerous documented warnings about her poor

attendance.  The supervisor who allegedly demanded that she return

to work denied making any such demand, but did testify that he was

warning her almost every other day about her poor attendance.  In

any event, this supervisor, Hasan, was not the supervisor who

allegedly sexually harassed Szabo, and she offered insufficient

proof to allow a rational jury to find that Hasan had any reason or

motive to retaliate against her because of her complaints of sexual

harassment leveled at Labadie years earlier.

     Affirmed.