United States Court of Appeals For the First Circuit

No. 00-1549

CLAIRE A. STRAUGHN,

Plaintiff, Appellant,

v.

DELTA AIR LINES, INC.,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Steven J. McAuliffe, U.S. District Judge]

Before

Selya, Circuit Judge,

Cyr, Senior Circuit Judge,

and Boudin, Circuit Judge.

An Braa Hnz wt wo Gtemn & Hli, PA, Hahr Brs ad Utn Snes & Sih wr o bif fr na abr at, ih hm otsa ols .. ete un, n po, adr mt ee n re o appellant. Dae Mrh Qiln wt wo Mr T Boh Dvn, Mlie & Bac, PA,ad Jy D Mln wr o bif fr in upy una, ih hm ak . rt, eie ilmt rnh .. n a . ioe ee n re o appellee Delta Air Lines, Inc. May 17, 2001 CYR, Senior Circuit Judge. Plaintiff Claire A. Straughn

urges us to vacate several summary judgment rulings which ultimately

prompted the district court to dismiss her claims against Delta

Airlines, Inc., alleging gender discrimination under Title VII of the

Civil Rights Act of 1964, as amended,

, et seq., race

discrimination under

, and breach of contract, wrongful

termination, and defamation under New Hampshire law. Lastly, she seeks

to set aside the summary judgment entered against her on Delta’s

counterclaim for reimbursement of certain workers’ compensation

benefits inadvertently disbursed to her in the first instance. We

affirm the district court judgment in all respects.

I

BACKGROUND

Straughn began her employment with Delta in October 1983, as

a reservations agent. In January 1995, she became a sales

representative in its Boston Marketing Office, responsible for an area

which includes Vermont and Western New Hampshire. She was one of five

women, as well as the only African American, among the fourteen sales

representatives in the Boston Marketing Office. Her immediate

supervisor was Zone Manager Helen Meinhold, who reported directly to

Lou Giglio, District Marketing Manager.

On January 19, 1996, while on a sales call for Delta,

Straughn fell and broke her wrist, which disabled her from work for

3 most of the ensuing period through March of 1997. Although she

returned to work during this period, on each occasion she was unable to

continue for more than a few days.

Under the applicable Delta employment policy, employees

injured on the job were entitled to thirteen weeks’ accident leave, as

well as accumulated sick leave, vacation time and full salary.

Nevertheless, these employees were obligated to reimburse Delta for all

workers’ compensation benefits received while absent on accident leave,

pursuant to the following Delta policy statement:

Personnel who receive weekly benefits for occupational injury or illness under the provisions of applicable Worker's (sic) Compensation laws must reimburse the Company in an amount equal to the sum of all such weekly benefits received for the period during which the Company pays the employee's wages, in whole or in part, under accident leave, sick leave, and disability benefit policies.

ESIS, the third-party administrator of Delta’s self-insured

workers’ compensation plan, makes an independent determination as to

whether an employee is eligible for workers’ compensation benefits,

based on the controlling workers' compensation laws and the

circumstances surrounding the work-related injury. ESIS disburses

workers' compensation benefits directly to the eligible Delta

employee, notwithstanding the fact that the employee continues

4 to receive full salary from Delta pursuant to its accident leave

policy. While the pertinent policy statement, supra, obligates

an employee absent on accident leave to reimburse Delta for all

workers' compensation benefits received from ESIS while on full

salary, once an employee's accident leave, accumulated sick

leave and vacation time have been exhausted the employee is

removed from the Delta payroll and thereafter retains whatever

workers' compensation benefits are received from ESIS.

Thus, Straughn received three forms of remuneration

while on accident leave. First, during the fourteen-month

period she was unable to work, she received her regular Delta

salary. Second, from January 25 through July 4, 1996, she

received $11,608.86 in workers’ compensation benefits through

ESIS. Third, she received periodic checks from ESIS as

reimbursement for medical expenses directly related to her

injury, including medical bills, prescription costs, and travel

expenses to and from medical appointments.1 Notwithstanding her

obligation to remit the $11,608.86 in workers’ compensation

1 Although the parties have not addressed the matter, these reimbursements appear to have been made in accordance with

& 45, which require insurers to furnish injured employees with "adequate and reasonable health care services, and medicines if needed, together with the expenses necessarily incidental to such services . . . ," see

§ 30, as well as reimbursement for "reasonable travel expense incidental" to physician examinations requested by the insurer or the insured, see id. § 45.

5 benefits received from ESIS during her absence from work,

Straughn failed to do so.

Meanwhile, Delta inadvertently continued to disburse

Straughn’s full salary from July 5, 1996, until her eventual

return to work in March, 1997, even though her entitlement to

full salary had expired on July 4, 1996, pursuant to the

accident leave policy. Furthermore, the administrative

employees responsible for disbursing Straughn’s salary were

neither aware that she had received and retained workers’

compensation benefits, along with her regular Delta salary, from

January 25 through July 4, 1996, nor that her Delta salary

continued to be disbursed some nine months beyond the time she

was entitled to receive it.2 In March of 1997, upon discovering

its error, Delta conducted a thorough review of all amounts

disbursed to Straughn since her injury.

Shortly after returning to work in April of 1997,

Straughn was asked by Giglio, on two separate occasions, whether

she had received workers’ compensation benefits in addition to

2 The confusion appears to be explainable, at least in part, by the fact that during the time Straughn received workers’ compensation benefits through ESIS, she coordinated her receipt of the benefits solely with Catherine Ackles, an employee of ESIS, and did not deal directly with any Delta employee. Nonetheless, Delta acknowledges, as its error, the breakdown in its communications with ESIS. Thus, Delta has not sought to impose responsibility upon Straughn for the receipt of these overpayments in the first instance.

6 her salary while absent on accident leave.3 On each occasion,

Straughn denied receiving workers’ compensation benefits,

explaining instead that she had received money which she used

for meals and other expenses relating to her injury.4

At her deposition, however, Straughn recalled these

conversations with Giglio as follows:

A. [Giglio] said to me . . . "By the way, did you receive any money from compensation?"

Q. And what did you answer?

A. I told him, no. The money that compensation gave me I used to order out my meals, to help take care of myself, because I was not able to do anything. I had no support system . . . .

Q. Could you have said . . . "No, they gave me money for food, transportation and expenses directly related to my accident"?

3Upon returning to work, Straughn was asked by Giglio to sign and backdate certain personnel forms relating to her injury. Apparently, these forms were to have been completed at the time of her injury, rather than when she returned to work. Straughn refused to do so. 4 Although neither party clearly defines the contours of ESIS's obligation to reimburse Delta employees for certain injury-related expenses, each has assumed that though travel expenses and certain medical costs are reimbursable by ESIS, food and other personal costs are not. Their assumptions appear to be based on the obligations imposed by Massachusetts law. See

, 45. There is no record evidence that any Delta or ESIS policy required that Delta employees be reimbursed for food and similar personal costs in these circumstances.

7 A. I could have said something like that.

(Emphasis added).

After Straughn repeatedly denied having received

workers’ compensation benefits — an assertion flatly

contradicted by the business records maintained by both Delta

and ESIS — Giglio relayed her responses to Michelle McColly,

Senior Analyst in the Delta Personnel Department. 5 McColly

instructed Giglio to approach Straughn again and obtain her

written response. At the same time, Giglio was instructed to

suspend Straughn pending further investigation.

5Straughn contends on appeal that her responses to these inquiries were mixed and ambiguous, rather than direct denials. Thus, she argues, Giglio should have sought clarification from her first, rather than simply reporting to his superiors that she had denied receiving workers' compensation benefits. The district court succinctly attended to that contention as follows:

Straughn's seemingly odd (and ostensibly ambiguous) 'no, but yes' response to Giglio's inquiry about her receipt of workers' compensation benefits makes perfect sense in context and is, in fact, unambiguous. She denied receiving workers' compensation benefits from ESIS (which she was obligated to sign over to Delta), but acknowledged that ESIS had honored her periodic requests for reimbursement of medical, travel, and related expenses. That response simply did not jibe with the records maintained by Delta and its agent, ESIS.

District Court Opinion, at 11.

8 Following the conversation with McColly, Giglio

inquired of Straughn in the presence of two Delta supervisors —

Helen Meinhold and Tom Keating — regarding whether she had

received workers’ compensation benefits while on accident leave.

Straughn responded that she had not, stating once again that she

had simply received checks to compensate her for costs related

to medical treatment, transportation, and meals.

Giglio thereupon suspended Straughn, as instructed, and

requested that she reduce her statement to writing. Prior to

providing Giglio with her written response, however, Straughn

consulted with an attorney who had been representing her in a

related tort action against the owner of the premises at which

her injury occurred.

Helen Meinhold later recounted Straughn’s responses to

Giglio’s inquiry as follows:

A. [Giglio] asked [Straughn] whether she had received any additional monies in addition to her paycheck.

Q. And what was her response?

A. No; that she only had gotten reimbursement of some medical expenses.

Subsequently, Straughn recalled the interrogation by

Giglio:

I was called into Lou [Giglio's] office and asked if I had received money from

9 compensation to which I initially responded no, but went on to explain to him as I had in the past that I had received money from compensation to help with my expenses such as food, medicine, transportation, etc.

(Emphasis added).

The written response Straughn thereafter submitted to

Giglio explained as follows:

When I spoke to my attorney she advised me [that] until she had an opportunity to look into this[,] do not advise of comp money. When I spoke to [Catherine Ackles] again she reiterated [the] above info. Also was advised by attorney & [Catherine Ackles] all will be settled. When Lou [Giglio] asked me if I received comp, all I thought of was attorney advise [sic].

(Emphasis added). Thus, the written response provided by

Straughn admits that she intentionally misled Delta — albeit

ostensibly on the advice of counsel — regarding her receipt of

workers’ compensation benefits while continuing to receive full

salary from Delta.

Consequently, on May 8, 1997, Giglio recommended that

Straughn be terminated from her employment due to dishonesty.

Following further review, McColly recommended that Straughn be

required to remit the $11,608.86 in workers’ compensation

benefits wrongfully retained, and either resign or face

discharge.

Thereafter, acting on these recommendations, Director

10 of Equal Opportunity Richard Ealey terminated Straughn's

employment due to her dishonesty in responding to the repeated

inquiries regarding her receipt of workers’ compensation

benefits. Director Ealey, himself an African American,

explained that it was Straughn's dishonesty which distinguished

her conduct from that of other employees who had not

spontaneously reimbursed Delta after receiving workers’

compensation benefits in similar circumstances.

Straughn commenced an internal grievance procedure with

the Delta administrative appeals board. In due course, the

board, comprised of McColly and another member, recommended to

Director Ealey that Straughn be reinstated. The appeals board

neither assigned reasons for its recommendation nor prescribed

conditions for the reinstatement, except that Straughn reimburse

Delta for all workers’ compensation benefits wrongfully

retained.

At that point Giglio offered Straughn employment as a

Sales Staff Assistant, a new position with no direct sales

responsibilities, at an annual salary of $39,696 rather than the

$46,462 salary she formerly received. After Straughn accepted

the offer, Delta placed a "final warning" letter in her

personnel file: the most severe disciplinary action short of

11 outright termination.6

Following her reinstatement, Straughn brought suit in

the United States District Court for the District of New

Hampshire. Delta answered and counterclaimed for the $11,608.86

in workers’ compensation benefits retained by Straughn, then

moved for summary judgment on all claims, as well as its

counterclaim, contending that Straughn had been discharged for

a legitimate, nondiscriminatory reason: i.e., her persistent

lack of candor in responding to legitimate inquiries regarding

her wrongful retention of workers’ compensation benefits.

After determining that Straughn had presented no

competent evidence that Delta had tendered a pretextual reason

for terminating her employment, the district court granted

summary judgment against Straughn on the gender and race

6 The “final warning” letter stated, in relevant part:

Even if you did not intend to keep these overpayments, your failure to monitor these payments and to fully advise Delta of these overpayments causes us great concern with respect to your ability to be a reliable and effective Sales Representative. As you know, that position entails great autonomy and responsibility, including the handling of company resources, and we do not believe you should hold such a position at this time considering the way you handled these overpayments. Consequently, we have decided to reinstate your employment as a Sales Staff Assistant.

12 discrimination claims, as well as all state-law claims. At the

same time, the district court directed summary judgment for

Delta on its counterclaim.

II

DISCUSSION

A. The Title VII and Section 1981 Claims.

1. The Standard of Review and Burden Shifting Framework.

Summary judgment rulings are reviewed de novo, see

Mulero-Rodriguez v. Ponte, Inc.,

(1st Cir.

1996), after considering the record evidence "in the light most

favorable to, and drawing all reasonable inferences in favor of,

the nonmoving party." Feliciano De La Cruz v. El Conquistador

Resort & Country Club,

(1st Cir. 2000). The

summary judgment ruling is to be upheld provided "the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show 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." Fed. R. Civ. P.

56(c). Moreover, "[e]ven in employment discrimination cases

where elusive concepts such as motive or intent are at issue,

this standard compels summary judgment if the non-moving party

rests merely upon conclusory allegations, improbable inferences,

and unsupported speculation." Feliciano,

(quoting

13 Medina-Munoz v. R.J. Reynolds Tobacco Co.,

(1st

Cir. 1990)) (internal quotation marks omitted) (emphasis added).

Where, as here, no direct evidence of discrimination

was proffered by the plaintiff, we apply the McDonnell Douglas -

Burdine - Hicks burden-shifting analysis to the Title VII and

Section 1981 claims. See Conward v. Cambridge Sch. Comm.,

(1st Cir. 1999). Under that familiar regimen the

plaintiff "must carry the initial burden . . . of establishing

a prima facie case of . . . discrimination." McDonnell Douglas

Corp. v. Green,

(1973).

In employment discrimination cases, the plaintiff must

make a prima facie

. . . showing that: (1) [she] is a member of a protected class; (2) [her] employer took an adverse employment action against [her]; (3) [she] was qualified for the employment [s]he held; and (4) [her] position remained open or was filled by a person whose qualifications were similar to [hers].

Rodriguez-Cuervos v. Wal-Mart Stores, Inc.,

(1st

Cir. 1999) (citing St. Mary's Honor Ctr. v. Hicks,

(1993); McDonnell Douglas,

; Conward,

)).

We shall assume, without deciding, that Straughn

proffered sufficient competent evidence to establish prima facie

claims based on race and gender discrimination. At that point

14 it became necessary for Delta to articulate “a legitimate,

non-discriminatory reason for its adverse employment action[,]"

(citing McDonnell Douglas,

; Shorette v. Rite

Aid of Maine, Inc.,

(1st Cir. 1998)), by

identifying enough admissible evidence to “support a [rational]

finding that unlawful discrimination was not the cause of the

employment action." Feliciano,

-6 (quoting Hicks,

) (internal quotation marks omitted).

Delta proffered competent evidence that Straughn was

dismissed due to her dishonesty in repeatedly attempting to

mislead a supervisor regarding her wrongful retention of

workers’ compensation benefits in violation of Delta policy.

Richard Ealey, the Delta official ultimately responsible for the

dismissal action, attested that though there had been other

instances in which Delta employees had not spontaneously

surrendered workers’ compensation checks in similar

circumstances, he was "not aware of any situation where the

individual denied [having received such checks] when

questioned."

Where, as here, the employer proffers “a

nondiscriminatory reason for its action, the burden shifts back

to the plaintiff to show that the reason . . . was 'a coverup'

for a 'discriminatory decision.'"

at 6 (quoting McDonnell

15 Douglas,

). At that point, Straughn’s "burden of

producing evidence to rebut the stated reason for [Delta’s]

employment action merge[d] with the ultimate burden of

persuading the court that she [was] the victim of intentional

discrimination."

(quoting Texas Dep’t of Cmty. Affairs v.

Burdine,

(1981)) (internal quotation marks

omitted). Straughn failed to generate a genuine issue of

material fact regarding whether she was discharged due to either

her race or gender.

2. Pretext and Discriminatory Animus.

At the ultimate stage in the burden-shifting analysis,

it would have been necessary that Straughn persuade the

factfinder that she experienced unlawful discrimination at the

hands of her employer, see Thomas v. Eastman Kodak Co.,

(1st Cir. 1999), cert. denied, --- U.S. ----,

(2000) (citations omitted), by "present[ing] sufficient

evidence to show both that the employer's articulated reason for

[the discharge was] a pretext and that the true reason [was]

discriminatory[,]" id. (emphasis added) (internal quotation

marks and citations omitted). E.g., Fernandes v. Costa Bros.

Masonry, Inc.,

(1st Cir. 1999) (“[T]he

plaintiff must show both that the employer’s 'proffered reason

is a sham, and that discriminatory animus sparked [its]

16 actions.'") (quoting Conward,

). The “same

evidence used to show pretext can support a finding of

discriminatory animus if it enables a factfinder reasonably to

infer that unlawful discrimination was a determinative factor in

the adverse employment action." Feliciano,

.

Thus, we must determine whether the competent evidence

proffered by Straughn, together with all reasonable inferences

which may be drawn in her favor, raised “a genuine issue of fact

as to whether [her] termination, [and/or the demotion following

her rehire, were] motivated by [either race or gender]

discrimination." Santiago-Ramos v. Centennial P.R. Wireless

Corp.,

(1st Cir. 2000) (citations and quotations

omitted). The summary judgment must be set aside if the record

includes sufficient competent evidence from which a reasonable

jury “could (although it need not) infer that the employer's

claimed reasons for terminating [the] employment were pretextual

and that the decision was the result of discriminatory animus."

Dominguez-Cruz v. Shuttle Caribe, Inc.,

(1st

Cir. 2000). Finally, we must “exercise particular caution

before [sustaining] summary judgment[s] for employers on such

issues as pretext, motive, and intent." Santiago-Ramos,

(citing Hodgens v. General Dynamics Corp.,

(1st Cir. 1998)).

17 Straughn insists that the rationale Delta ascribes for

discharging her — the alleged efforts to conceal her wrongful

retention of workers’ compensation benefits — was pretextual and

its actual intent was discriminatory. The record does not bear

out her contention.

It is undisputed that Director of Equal Opportunity

Richard Ealey, after reviewing the dismissal recommendations by

Michelle McColly and Giglio, ultimately was responsible for

terminating Straughn's employment. Yet there is no record

evidence, nor has Straughn contended, that either Ealey or

McColly harbored any race-or-gender-based animus. Instead,

Straughn maintains that Giglio, her intermediate supervisor, was

in a position to influence Ealey, the ultimate decisionmaker;

thus, she argues, Giglio indirectly brought about her wrongful

termination for discriminatory reasons by presenting the

ultimate decisionmaker with a pretextual justification.

Straughn contends in particular that Giglio

intentionally inquired in an ambiguous manner regarding her

receipt of workers’ compensation benefits, then mischaracterized

her responses, as categorical rather than qualified, when

reporting to Ealey and McColly. She claims that Giglio's

discriminatory intentions are evidenced (i) by workplace

utterances reflecting bias against African Americans and (ii) by

18 relatively undesirable work assignments, unfair criticisms, and

the withholding of various perquisites and incentives available

to other Delta sales representatives.

Straughn also claims that the decision to rehire her,

following her internal appeal, demonstrates that Delta

management ultimately realized that Giglio's rendition of her

responses had been contrived, whereas her actual responses were

accurate. Similarly, she insists that Giglio unilaterally

demoted her to a position entailing reduced responsibilities and

salary even though Delta had recommended her unconditional

reinstatement. Finally, Straughn argues that the discipline

initially imposed upon her — outright discharge — differed

materially from that meted out to another Delta employee who had

made similar statements to Giglio in the past. We discuss these

contentions in turn.

a. The Allegedly Discriminatory Utterances and Related Workplace Mistreatment

In order to sustain her burden of persuasion on

pretext, Straughn needed to demonstrate either that her

dismissal was (i) "more likely motivated” by discrimination than

by the explanation proffered by Delta, or (ii) the proffered

“explanation [was] unworthy of credence" in circumstances where

the suspect denial, taken together with other facts, suggests

19 such a motivation. Burdine,

(citing McDonnell

Douglas,

); see also Fite v. Digital Equipment

Corp.,

(1st Cir. 2000). The burden of

persuasion on pretext may be met, inter alia, by showing “that

discriminatory comments were made by the key decisionmaker or

those in a position to influence the decisionmaker." Santiago-

Ramos,

(discriminatory comments by direct

supervisor, along with similar comments by key decisionmaker,

constitute evidence of pretext where direct supervisor was

consulted by key supervisor during decisionmaking process)

(emphasis added).

(i) The “Southern Black” Accent

Straughn testified on deposition that Giglio frequently

used an offensive "southern black" accent at meetings attended

by her and other Delta employees. Although Giglio denies the

charge, it must be credited at summary judgment. See

(citing DeNovellis v. Shalala,

(1st Cir.

1997)).

For present purposes, we assume arguendo that there are

circumstances in which use of an offensive “southern black”

workplace accent, by a superior in a position to influence the

key decisionmaker, would constitute probative evidence that the

proffered explanation for disciplining an employee was

20 pretextual. Cf.

(Discriminatory comments, by key

decisionmaker and another person in position to influence

decisionmaker, "could lead a jury to conclude that [the

employer's] proffered reasons for firing [plaintiff] were

actually a pretext for discrimination."). As we have

acknowledged, “in combination with other evidence[,]” see

McMillan v. Massachusetts Soc’y for Prev. of Cruelty to Animals,

, 300 (1st Cir. 1998), cert. denied,

(1999), so-called “stray remarks” may permit a jury reasonably

to determine that an employer was motivated by a discriminatory

intent, id. But though such “stray remarks” may be material to

the pretext inquiry, “their probativeness is circumscribed if

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

the employment decision, or . . . were not related to the

employment decision in question, or were made by

nondecisionmakers." Id. at 301 (emphasis added) (citations

omitted). See, e.g., Santiago-Ramos,

(remarks

within two weeks of discharge probative of pretext); Fernandes,

(remarks at time of employment action probative

of pretext); cf. McMillan, 140 F.3d at 301 (remoteness

heightened where at least one of three remarks occurred several

years before challenged employment action).

Although statements directly related to the challenged

21 employment action may be highly probative in the pretext

inquiry, see Santiago-Ramos,

; Fernandes,

, mere generalized “stray remarks,” arguably probative of

bias against a protected class, normally are not probative of

pretext absent some discernible evidentiary basis for assessing

their temporal and contextual relevance. Compare McMillan, 140

F.3d at 301 (workplace remarks by male department head at time

remote from incident in dispute — regarding physical traits and

sexual activities of female co-workers, but bearing no direct

relationship to employment — held not probative of pretext where

challenged decision involved lower salaries for female

employees), with Fernandes,

(comments by

decisionmaker — including "I don't need minorities”; “I don't

need residents on this job”; "I don't have to hire you locals or

Cape Verdean people” — were not mere "stray remarks" where

challenged employment action concerned refusal to rehire dark-

skinned residents of Cape Verdean descent). Accordingly, even

if we were to assume that the assertedly offensive workplace

“accent” is somehow suggestive of racial bias,7 it would not be

significantly probative of pretext absent some discernible

indication that its communicative content, if any, materially

7As concerns the gender-based discrimination claim, however, we can discern no relevance whatsoever in the “southern black” accent evidence.

22 erodes the stated rationale for the challenged employment

action.

Straughn proffered no evidence that Giglio ever used

the nondescript “southern black” accent either during or in

relation to the challenged employment action. Nor is there

competent evidence from which a rational factfinder might fairly

infer that the communicative import of the nondescript accent

pertained to employment matters, let alone to Straughn or her

employment. Indeed, Straughn herself has never intimated either

a rationale or a circumstantial predicate for reasonably

inferring that the “southern black” accent amounted to anything

other than insensitive banter. Thus, Straughn’s naked ipse

dixit was insufficient to generate a genuine issue of material

fact.

Accordingly, we conclude that the “southern black”

accent allegedly used on occasion by Giglio, without more, is

not probative of pretext on the part of Delta, given (i) the

absence of any discernible contextual or temporal relationship

between the discharge decision and the workplace accent used by

Giglio, (ii) the demonstrably self-sufficient basis for the

management recommendation by Richard Ealey to discharge Straughn

due to her persistent work-related dishonesty, and (iii) the

distinctly subordinate role Giglio played in the dismissal

23 decision.

(ii) The Disparate Workplace Treatment

Straughn claims that Giglio singled her out for

inferior work assignments, unfairly criticized her performance,

and withheld various perquisites and inducements accorded

similarly situated sales representatives. The district court

determined that the evidence Straughn tendered to demonstrate

pretext was insufficient in light of the countervailing evidence

that Delta management reasonably believed that Straughn

repeatedly lied to her superiors regarding her receipt and

wrongful retention of workers' compensation benefits while

absent on accident leave and receiving full salary. See

District Court Opinion, at 24. 8 After evaluating Straughn’s

differential treatment claim against the “totality of the

evidence . . . 'as part of an aggregate package of proof[,]'"

Fernandes,

(citation omitted), we conclude that

the district court ruling is founded on adequate record support.

8The district court noted:

Straughn's complaint[s] that Giglio chastised her for being late and for driving excessive miles, and that she was denied reimbursement for donuts she says she purchased for a customer, arguably support her discrimination claim to some degree, though the persuasive value of such evidence in [sic] not substantial.

District Court Opinion, at 24. We agree.

24 Although pretext may be established with evidence of

"differential treatment in the workplace[,]"

(quoting

Mesnick v. General Elec. Co.,

(1st Cir. 1991),

cert. denied,

(1992)) (internal quotation marks

omitted), Straughn failed to sustain her evidentiary burden in

relation to the claim that she was singled out for inferior work

assignments. The record discloses that the Vermont and Western

New Hampshire sales territory, to which Straughn initially was

assigned, historically has generated lower revenues than all but

one other sales territory within the Boston Marketing Office

area and accordingly has been selected in the past as a training

territory for relatively inexperienced sales representatives.

Nor did Straughn tender evidence that there was any

normal time frame within which sales representatives in training

customarily were transferred to more lucrative sales

territories. Similarly, she proffered no evidence regarding any

criteria utilized by Delta in determining when newer sales

representatives were considered eligible for transfer to more

desirable sales territories.

On the other hand, the record plainly discloses that

a white male sales representative drew the Maine sales

territory, which is comparable to the Vermont-Western New

Hampshire sales territory in terms of the driving distances and

25 relatively low sales revenues. Yet Straughn proffered no

evidence regarding the tenure of her counterpart in the Maine

sales territory. Finally, there is no record evidence that

Straughn’s experience or tenure differed in any material respect

from that of her predecessors in the Vermont-Western New

Hampshire sales territory.

Since Straughn tendered no competent evidence that her

initial assignment as a sales representative differed materially

from that of other relatively new sales representatives in the

Boston Marketing Office, summary judgment was appropriate. See

id.; Conward,

(“Where . . . the plaintiff in a

disparate treatment race [or gender] discrimination case offers

comparative evidence . . . to raise an inference of racial [or

gender-based] discrimination, [she] must provide a suitable

provenance for the evidence by showing that others similarly

situated . . . in all relevant respects were treated differently

by the employer.”) (emphasis added).

(iii) Miscellaneous Evidence of Pretext

Similarly, Straughn tendered insufficient other

evidence to generate a trialworthy issue on pretext. Instead,

she simply pointed to evidence that Giglio reprimanded her for

tardiness, driving excessive miles, visiting too few sales

accounts, and failing to generate adequate “shuttle” flight

26 ticket sales. She maintains that these criticisms were

unjustified, given the undisputed evidence that (i) sales

representatives in the Boston Marketing Office were not required

to report to work at any particular hour; (ii) her sales

territory necessitated more driving, as it is one of the two

largest in geographic area; and (iii) it normally generates

fewer “shuttle” ticket sales.

Straughn relies almost exclusively upon the Thomas

case, which held that where poor work performance is the stated

reason for discharging an employee, pretext may be established

by demonstrating that the evaluation process itself was tainted

by racial bias and that the plaintiff’s "abilities and

qualifications were equal or superior to employees who were

retained." Thomas,

(quoting Goldman v. First

Nat'l Bank of Boston,

(1st Cir. 1993))

(internal quotation marks omitted). The Thomas case is

inapposite.

There is no record evidence that Straughn’s discharge

was related in any way to work performance. For that matter,

there is no evidence that Straughn ever received a “poor” work

evaluation. See id. at 62-63. On the contrary, following the

only documented review of her work performance with the Boston

Marketing Office, Straughn received a “high” rating from none

27 other than Giglio and Meinhold. Consequently, the present

contention provides no support for the claim that Straughn was

subjected to "differential treatment in the workplace.”

Fernandes,

.

Straughn also testified that various privileges

available to other sales representatives were withheld from her,

including authorization to: (a) provide clients with free

promotional flight tickets, (b) obtain reimbursement for meals

while entertaining clients, and (c) work on a part-time basis

from a “virtual” home office. Nevertheless, she failed to

proffer competent evidence that she and these other sales

representatives were “similarly situated” in all or even most

relevant respects. See Conward,

.

(a) Free Promotional Flight Tickets

Straughn asserts, in conclusory fashion, that all sales

representatives in her office were permitted, at their

discretion, to give promotional flight tickets to their

respective clients, whereas she "rarely" was allowed to do so.

She makes no attempt to approximate the number of occasions on

which promotional flight tickets were made available to her or

to other Delta sales representatives. Instead, she focuses on

a single instance in which Helen Meinhold directed her to

recover a promotional flight ticket which Straughn had made

28 available to the spouse of a client. It is undisputed that

Delta policy contemplates that these promotional flight tickets

are to be made available to Delta clients, not their spouses.

The record also indicates that the episode referred to by

Straughn occurred during the first six months of her tenure as

a sales representative. Yet Straughn presented no competent

evidence that she and these other sales representatives were

similarly situated, either in regard to tenure, experience, or

the numbers of clients served.

(b) Client Entertainment

Straughn asserts that some sales representatives were

reimbursed for meal costs incurred while entertaining Delta

clients. The one person she names — Jane Martin — began work

with the Boston Marketing Office two weeks before Straughn.

Other than similar starting dates, however, Straughn tendered no

evidence that she and Martin were “similarly situated,” most

notably in regard to the particular characteristics of their

respective sales territories and clienteles. Moreover, Straughn

admitted that she was never denied reimbursement. Instead, she

states that she was reprimanded by Meinhold on one occasion for

purchasing donuts for the personnel in a “couple of offices” and

warned not to do so again. See also note 8 supra.

(c) The “Virtual Home Office” Privilege

29 Straughn testified that all other sales representatives

in the Boston Marketing Office were granted the “virtual home

office” privilege. See Mesnick,

(noting that

evidence of “differential treatment in the workplace” supports

pretext claim). Yet Straughn points to no evidence that she and

these other sales representatives were similarly situated.

Competent proof that the plaintiff was denied

privileges and opportunities available to similarly situated

employees may constitute probative evidence that an adverse

employment action was motivated by discriminatory animus. See

Thomas,

(evidence that supervisors prevented

minority employee from making important presentation and

withheld "appropriate developmental opportunities" and computer

training, all of which were accorded non-minority employees,

supports disparate treatment claim). Straughn testified on

deposition that she made at least three requests to work from a

virtual home office. The record also reflects that some sales

representatives were permitted to work from a “virtual” home

office. Yet Richard Ealey denied Straughn permission to do so

following her extended absence from work, since her doctor had

advised that, though able to work, Straughn was not yet well

enough to drive an automobile — hence unable to service clients,

the primary responsibility of her position.

30 As concerns Straughn’s previous requests to work from

a “virtual” home office, one was denied by Meinhold and several

by Giglio. The record reflects that her first request to Giglio

was made within six months of her hiring. Straughn presented no

evidence that other new sales representatives were accorded the

privilege so early in their tenure. With regard to the other

requests which Giglio denied, she points to no evidence (i) that

she was “similarly situated” to any sales representative who was

accorded the privilege, or (ii) that she met Delta’s criteria

for evaluating such requests. Instead, she simply asserts in

conclusory fashion that everyone else was permitted to work

part-time from a “virtual” home office. Thus, she failed to

present competent evidence that the proffered reason for the

challenged employment action was pretextual. See Fernandes, 199

F.2d at 581; Conward,

; Mesnick,

.

Moreover, given the overwhelming weight of the evidence

that the proffered reason for the dismissal action was both

sound and sufficient, the tenuous disparate treatment evidence

presented by Straughn was plainly insufficient to enable a

reasonable factfinder to conclude that Giglio had fabricated the

report about Straughn’s prevarications relating to her wrongful

retention of the workers’ compensation benefits.9 Nothing more

9The other instances Straughn cites in relation to her disparate treatment claim lack adequate evidentiary support as

31 is exigible.

b. The Alleged Distortions of Straughn’s Responses

Straughn likewise failed to generate a trialworthy

issue in relation to her claim that Giglio mischaracterized her

responses to his inquiries regarding her receipt and retention

of workers’ compensation benefits. As the district court

appropriately noted, Straughn's deposition testimony, affidavit,

and written statement abundantly demonstrate her utter lack of

candor in responding to these legitimate inquiries.

Upon initial inquiry by Giglio, as to whether she had

received "any money from compensation," Straughn responded in

the negative, then added that she had received money "to order

out my meals [and] to help take care of myself . . . ." On the

second occasion, in the presence of two other supervisors,

Straughn again denied receiving workers’ compensation benefits,

well. With regard to the authority to provide clients with promotional flight tickets, she points to no evidence that Giglio was involved in any way. Instead, Straughn herself testified on deposition that it was Meinhold who restricted her authority in this regard. Straughn acknowledged that some, but not all, Delta sales representatives were reimbursed for client meal costs. Furthermore, she neither presented evidence that she was not reimbursed, nor that she was similarly situated to those employees who were regularly reimbursed. Thus, she failed to generate a rational inference that any race-or-gender based bias harbored by Giglio accounted in any way for the alleged rejections of her requests for reimbursement. See Conward,

.

32 while allowing that she had received reimbursements for certain

expenses. These responses were not only materially false, but

knowingly made, in that Straughn was well aware that she had

received and retained workers’ compensation benefits meant to

compensate her for lost salary, while continuing to receive full

salary from Delta.

Straughn also received other checks from ESIS,

representing reimbursements for various expenses incurred in

connection with her job-related injury, such as medical

services, prescription drugs, and travel expenses incurred in

connection with medical appointments. Although food was not an

expense reimbursed by ESIS, it was among those Straughn listed

when Giglio asked whether she had received money for "expenses."

Curiously, Straughn now attempts to characterize her response to

Giglio as an admission that she had indeed received both

workers’ compensation benefits and reimbursements for expenses

from ESIS. She reasons that since she listed food — an expense

not eligible for reimbursement from ESIS — her direct response

to Giglio that she had never received workers’ compensation

benefits somehow acknowledged that she had indeed received

workers’ compensation benefits.

She also attempts to rationalize her negative response

to Giglio as simply a reference “to the promised workers’

33 compensation settlement, not weekly benefits . . . .” Since she

has not elaborated, we are left to speculate about the precise

details.

Thus, essentially Straughn sought — indeed still seeks

— to rationalize the obvious inaccuracies in her response to

Giglio, which she attributes to inartful language, as including

an accurate response to a question she was never asked. In

contrast, Giglio and Delta management rationally assessed her

persistent refusals to acknowledge her receipt and wrongful

retention of workers’ compensation benefits as attempts to

conceal the truth.

Undeterred, Straughn continues to defend her responses

as technically accurate in the sense that she did tell Giglio

that she had received food money, which could only have derived

from workers’ compensation benefits since food is not an expense

related to medical treatment. This artful contention is belied

as well, however, by her own written submission following her

suspension by Delta:

When I spoke to my attorney[,] she advised me . . . do not advise of comp money. . . . When [Giglio] asked me if I received comp, all I thought of was attorney advise [sic].

(Emphasis added).

Thus, Straughn admitted to an attempt to conceal the

fact that she had received workers’ compensation benefits while

34 on accident leave from her employment with Delta, albeit on the

advice of counsel. At a minimum, then, the summary judgment

record unambiguously established that Straughn plainly

understood that she had received workers’ compensation benefits

while on full salary, yet set out to conceal that fact from

Delta.

No less importantly, at this point in the burden-

shifting analysis the principal focus must be upon whether

McColly and Ealey, the responsible Delta decisionmakers,

reasonably believed that Straughn lied, rather than whether she

actually lied. "In assessing pretext, [our] 'focus must be on

the perception of the decisionmaker,' that is, whether the

employer believed its stated reason to be credible." Goldman v.

First Nat’l Bank of Boston,

(1st Cir. 1993)

(quoting Mesnick,

; Gray v. New England Tel. &

Tel. Co.,

, 256 (1st Cir. 1986)). As Straughn has

never claimed that either McColly or Ealey harbored a gender-

based or race-based bias, but rather that they were misled by

Giglio's allegedly wrongful recommendation that her employment

be terminated, in these particular circumstances it is the

reasonableness of Giglio's belief alone which is controlling.

The record plainly demonstrates that Giglio reasonably

regarded Straughn’s responses to his inquiries as wrongful

35 attempts to conceal what he well knew to be so, based on Delta’s

business records; viz., that Straughn had received and

wrongfully retained workers’ compensation benefits from ESIS,

while continuing to receive her full Delta salary on accident

leave. Giglio accordingly recommended that Straughn be

discharged, due to her persistent dishonesty, pursuant to

longstanding Delta policy.

In these circumstances, no rational trier of fact could

conclude that Giglio did not reasonably believe that Straughn

had responded dishonestly when repeatedly confronted with the

documented fact that she had received workers’ compensation

benefits, as well as full salary, while on accident leave.

Thus, Straughn utterly failed to generate a trialworthy issue of

material fact as to whether Giglio reasonably believed that she

had attempted to mislead him regarding her receipt and retention

of the workers’ compensation benefits to which she was not

entitled.10 A fortiori, she failed to generate a trialworthy

10 Nevertheless, Straughn now insists that Giglio "set [her] up and then reported her," by asking whether she had received workers’ compensation benefits, rather than simply telling her that he knew she had, then presenting her with various repayment options. We can discern no animus in these attempts to verify, firsthand with Straughn, the documented information that Giglio had received. As the district court appropriately noted, in these circumstances Straughn cannot —

legitimately complain that Giglio knew the answer to the question about her receipt of workers' compensation benefits before he

36 issue as to whether McColly and Ealey reasonably accepted

Giglio’s version of the relevant events.

c. The Rehiring Decision As Evidence of Pretext

Pretext may be established "'by showing weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons'

such that a factfinder could 'infer that the employer did not

act for the asserted non-discriminatory reasons.'" Santiago-

Ramos,

(quoting Hodgens,

). For

present purposes, we shall assume, without deciding, that there

may be circumstances in which the decision to rehire a

discharged employee constitutes competent evidence of pretext,

at least insofar as the rehiring plainly undermined the

proffered justification for the original discharge. Cf.

Nitschke v. McDonnell Douglas Corp.,

(8th Cir.

1995) (evidence of employee's competence, as demonstrated by

employer's decision to rehire, would have constituted evidence

of pretext had incompetence been the proffered ground for

original discharge). Even so, the summary judgment record came

up well short of the required evidentiary support for Straughn’s

asked it. Put simply, an employer has a legitimate right to expect that its employees will respond in a truthful, non- evasive manner to its questions . . . .

District Court Opinion, at 26, n. 6.

37 contention that the decision to rehire her in a different

capacity reflected an abandonment of Delta’s original position

that she had misled Giglio in the first instance.

Straughn insists that the decision to rehire her, after

her internal appeal, indicates that upon considering her version

of the encounter with Giglio, Delta management must have

realized that Giglio had misled McColly and Ealey regarding

Straughn's responses to Giglio’s inquiries. McColly, one of the

two Delta supervisors who participated in the internal appeal,

explained the rationale for recommending Straughn’s

reinstatement as follows:

[D]espite the fact that I . . . believed that [Straughn] had still done something wrong, and furthermore that she knew she had done something wrong, I did believe, after meeting with her, that there was a considerable amount of confusion in the administration of the workers’ compensation, or that it could have been handled better. And Ms. Straughn did have a good record, and several years with the company, so we decided that we should recommend . . . another chance.

(Emphasis added).

Asked to clarify what she meant by "confusion," McColly

stated that she had neither concluded that Straughn was confused

by Giglio's questions, nor that Straughn had retained the

workers’ compensation payments unwittingly. Instead, McColly

explained: "I still believe that Ms. Straughn very likely knew

38 that she had not been entitled to the payments,” emphasizing

that the appeals process had in no sense caused her to "question

the story that Lou Giglio had been telling . . . [and] that

ultimately led to [Straughn's] termination."

Plainly, then, the recommendation to rehire Straughn

was made notwithstanding McColly’s earnest belief that it was

very likely that Straughn knowingly had done “something wrong.”

Furthermore, McColly stated that though the workers’

compensation disbursements should have been managed more

efficiently and that some actual confusion had indeed resulted,

Delta nonetheless had been justified in discharging Straughn due

to her repeated attempts to mislead.

Thus, there is no evidentiary support for the

contention that the appeals board hearing prompted McColly to

conclude either that Giglio had misrepresented Straughn's

responses or that Straughn had been wrongfully discharged.

Instead, the record is clear that McColly recommended a "second

chance" based on Straughn’s overall employment record,

notwithstanding ample grounds for the dismissal. Accordingly,

not only does the decision to rehire Straughn provide no support

for the claim that the proffered reason for discharging her was

“unworthy of credence,” Burdine,

, it strongly

evidences an absence of any forbidden animus on the part of

39 Delta.

Next, we turn to the contention that Straughn’s

demotion to a position entailing reduced compensation and

responsibilities, notwithstanding the unconditional

reinstatement recommended by Delta management, demonstrates that

Giglio harbored discriminatory motives in recommending her

discharge in the first instance. The record reflects that

McColly transmitted a memorandum to Director of Equal

Opportunity Richard Ealey summarizing a discussion which had

taken place during the appeals process, as follows: "Mr.

Stevenson and I recommend [Straughn’s] request for reinstatement

be granted and that she be required to reimburse Delta for the

overpayment."

Subsequently, McColly explained that her recommendation

to Ealey was simply that Straughn be reinstated, whereas the

particulars relating to her reinstatement, i.e., position and

salary, were left to others. Furthermore, Giglio denied any

role in determining that Straughn should be demoted after her

rehiring and Straughn neither identified nor presented any

evidence to the contrary. Thus, Straughn’s rehiring and

placement in a position entailing reduced salary and

responsibilities provide no support for the claim that the

stated reason for her discharge was pretextual.

40 d. The Other Disparate Treatment Evidence

Straughn next contends that the discipline Delta

administered to her was disproportionately severe in comparison

with that meted out to one John Higgins, a white-male sales

representative who had worked under Giglio in the Boston

Marketing Office and supposedly engaged in comparable conduct.

The record reflects that Higgins was disciplined for falsifying

weekly sales reports relating to time spent with clients. Yet,

it also plainly establishes that Higgins readily acknowledged

the misrepresentations upon inquiry by Giglio. Consequently,

Delta simply relegated Higgins to a less desirable sales

territory and placed a "letter of concern" in his personnel

file.

Evidence that an employer administered disparate

treatment to similarly situated employees may be competent proof

that the explanation given for the challenged employment action

was pretextual, see Conward,

, provided the

plaintiff-employee can make a preliminary showing “that others

similarly situated . . . in all relevant respects were treated

[more advantageously] by the employer."

at 20 (citing

Perkins v. Brigham & Women's Hosp.,

(1st Cir.

1996)) (emphasis added) ("Reasonableness is the touchstone:

while the plaintiff's case and the comparison cases that [s]he

41 advances need not be perfect replicas, they must closely

resemble one another in respect to relevant facts and

circumstances.").

The district court correctly concluded that Straughn

and Higgins were not similarly situated in certain relevant

respects. For one thing, their wrongful conduct differed

materially. Although each misled a supervisor, Straughn stood

to realize a substantial monetary benefit through her deception

— more than $11,000 — whereas Higgins did not. Yet more

importantly, unlike Straughn, Higgins forthrightly acknowledged

his misconduct when first confronted, whereas Straughn

repeatedly attempted to deceive Giglio in an effort to conceal

the fact that she had retained workers’ compensation benefits to

which she was not entitled. These "differentiating or

mitigating circumstances" unquestionably undermined Straughn’s

attempt to demonstrate that her conduct was similar to Higgins’s

in all material respects. See id. at 21. Consequently, her

disparate treatment claim was fatally flawed.

As Straughn failed to generate a genuine issue of

material fact regarding either pretext or disparate treatment,

summary judgment was entirely proper on her gender and race

discrimination claims.

B. The State Law Claims

42 1. Wrongful Discharge

Straughn contends that the district court erred in

ruling that no trialworthy issue of material fact remained

regarding her wrongful discharge claim under New Hampshire law.

Straughn alleged that Delta wrongfully (i) discharged her for

refusing to backdate certain personnel forms at Giglio’s request

upon her return to work in April 1997, (ii) then demoted her for

resorting to the internal appeals process.

In order to prevail on a wrongful termination claim

under New Hampshire law, “a plaintiff must establish two

elements: one, that the employer terminated the employment out

of bad faith, malice, or retaliation; and two, that . . . the

employment [was terminated] because the employee performed acts

which public policy would encourage or . . . refused to perform

acts which public policy would condemn.” Short v. School Admin.

Unit No. 16,

,

(1992) (citing

Cloutier v. A & P Tea Co., Inc.,

,

(1981)). Bad faith or malice on the part of an

employer may be established under New Hampshire law where (i) an

employee is discharged for pursuing policies condoned by the

employer, (ii) the record does not support the stated reason for

the discharge, or (iii) disparate treatment was administered to

a similarly situated employee. See Cloutier,

921-22,

.

Upon returning to work after her injury, Straughn was

asked by Giglio to complete and backdate certain disability

forms to correspond with the date of her injury, more than a

year earlier. See supra note 3. Straughn declined. Shortly

thereafter her employment was terminated by McColly, on Giglio’s

recommendation.

As the summary judgment record plainly demonstrates,

see supra Section II.A, Delta discharged Straughn based on its

well-founded belief that she had not responded honestly

regarding her receipt and retention of workers’ compensation

benefits to which she was not entitled. In these circumstances,

the mere temporal proximity between (i) the occasion on which

Straughn refused to backdate the disability forms and (ii) the

later recommendation by Giglio that her employment be terminated

pales to insignificance against the overwhelming weight of the

evidence underpinning the plainly legitimate rationale for the

discharge decision by Delta. Accordingly, we need not address

the public policy issue Straughn endeavors to raise.

Furthermore, there is simply no validity to the claim

that Straughn was demoted by Delta for resorting to its internal

appeals process. Following her discharge on June 16, 1997, and

the ensuing internal appeal, Straughn was rehired by Delta in a

44 position which carried reduced compensation and entailed less

responsibility. Once again Straughn attempts to elide the

obvious, however, by disregarding the indisputable reality that

Delta thereby voluntarily conferred a substantial benefit upon

her, notwithstanding her wrongful conduct. Thus, no rational

factfinder reasonably could conclude that Straughn was

wrongfully demoted for resorting to the internal appeals

process.

2. Breach of Contract

Straughn faults the dismissal of her breach of contract

claim as well, which was based on the spurious thesis that she

was dismissed as a result of Delta's failure to monitor her

receipt of workers’ compensation benefits as provided in the

Delta Corporate Safety Handbook:

The supervisor should establish a protocol for communication with the injured employee, the medical provider and the workers’ compensation administrator. . . . This communication will ensure that Delta management is apprised of the injured employee's diagnosis, status, and prognosis for return to work.

Straughn claims that the district court incorrectly determined

that (i) she could not establish a breach of contract, since she

was not an intended beneficiary of the Delta policy statement,

and (ii) no damages resulted from the alleged breach in any

event.

45 Although the district court did question whether

Straughn was an intended beneficiary of the above-quoted policy,

its decision did not rest on that basis. Instead, the district

court assumed arguendo that the Delta policy statement creates

an enforceable legal obligation that Delta monitor the workers’

compensation benefits received by its employees. 11 As the

district court decision in no sense rested on the basis

suggested by Straughn, her present argument fails.

The alternative argument is flawed as well. Assuming,

as did the district court, that Delta was obligated, yet failed,

to monitor her receipt of workers’ compensation benefits,

Straughn cannot demonstrate that any harm flowing from the

failure to monitor was proximately related to her discharge.

"Damages are available only if the harm was a reasonably

foreseeable result at the time the parties entered into the

contract." Independent Mech. Contractors, Inc., v. Gordon T.

Burke & Sons, Inc.,

,

(1993)

11 The New Hampshire Supreme Court has held that "an employer's unilateral promulgation to present at-will employees of a statement of intent to pay and provide such economic benefits may be recognized under New Hampshire law as an offer to modify their existing relationship by means of a unilateral contract, which offer is subject to such an employee's acceptance by continued performance of his duties." Panto v. Moore Bus. Forms, Inc.,

,

(1988) (Souter, J.). Thus, statements in employee handbooks regarding benefits may give rise to enforceable contracts under New Hampshire law. See

.

46 ("[A] plaintiff may satisfy this requirement by specifically

proving that the defendant 'had reason to know the facts' at the

time the parties contracted and to foresee that the injury would

be a probable consequence of a breach."). Any breach of the

obligation to monitor Straughn’s receipt of workers’

compensation benefits resulted in an overpayment of benefits,

rather than termination of her employment.

As previously discussed at considerable length, see

supra Section II.A., the termination of Straughn’s employment

directly resulted from her attempts to conceal — through

dishonest responses to the inquiries initiated by Delta — her

retention of the inadvertently disbursed workers’ compensation

benefits. Consequently, summary judgment was entirely proper,

since the decision to terminate Straughn’s employment was in no

sense precipitated by any failure on the part of Delta to

monitor her receipt of workers’ compensation benefits, as

distinguished from her wrongful retention of those benefits and

her prevarications concerning their retention.

3. Defamation

The remaining state-law claim alleged that Straughn was

defamed by Giglio following her reinstatement. Straughn

testified on deposition that two coworkers told her that Giglio

said she had done something "very, very bad." This claim

47 likewise fails, since there can be no actionable defamation

unless the offending statement was false. See Nash v. Keene

Publ'g Corp.,

,

(1985)

(citing Duchesnaye v. Munro Enter., Inc.,

,

(1984)). "To establish defamation, there must be

evidence that a defendant failed to exercise reasonable care in

publishing, without a valid privilege, a false and defamatory

statement of fact about the plaintiff to a third party."

Independent Mech. Contractors, Inc.,

,

(emphasis added) (citations omitted). As previously

discussed, see supra Section II.A, the record plainly

demonstrates that Straughn attempted to mislead her supervisors

in an effort to conceal the fact that she had retained more than

$11,000 in workers’ compensation benefits to which she was not

entitled. Accordingly, summary judgment was entirely proper.

C. The Delta Counterclaim

The district court granted summary judgment on the

Delta counterclaim for $11,608.86, representing the total

workers’ compensation benefits improperly retained by Straughn.

Straughn insists that summary judgment was inappropriate since

Delta failed to establish the amount due.

Delta established its entitlement to $11,608.86, as

claimed, representing the workers’ compensation benefits

48 mistakenly disbursed to Straughn between January 25 and July 4,

1996, while she remained on full salary with Delta. Donna

Crews, Delta Payroll Administrator, attested that she had

calculated the mistaken overpayments to Straughn at not less

than $11,608.86.12 Straughn cites no record evidence to the

contrary and Delta is entitled to reimbursement in that amount

pursuant to its “accident leave” policy.

Accordingly, the summary judgment entered on Delta’s

counterclaim was entirely proper.

III

CONCLUSION

The district court judgment is affirmed in all

respects. Costs are assessed against appellant.

SO ORDERED.

12 Once her accident and sick leave benefits had been exhausted, Straughn received full salary from July 1996 through March 1997, when she returned to full-time work. These salary payments totaled approximately $20,000 in additional overpayments to Straughn. Nevertheless, at oral argument, counsel explained that though Delta was entitled to reimbursement in the larger amount, it intended to pursue only its $11,608.86 counterclaim for the period January 25 through July 4, 1996, since its own oversight had enabled Straughn to continue to receive full salary after July 4, 1996.

49