Not for Publication in West's Federal Reporter

United States Court of Appeals For the First Circuit

No. 20-2134 MARIA FOURNIER,

Plaintiff, Appellant,

v.

COMMONWEALTH OF MASSACHUSETTS, Executive Office of the Trial Court, LEWIS SPENCE, JOHN BELLO, JONATHAN WILLIAMS,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, U.S. District Judge]

Before

Thompson, Barron, Hawkins,* Circuit Judges.

Benjamin Flam, with whom Philip J. Gordon, and Gordon Law Group LLP were on brief, for appellant. J. David Hampton, Assistant Attorney General, with whom Maura Healey, Attorney General of Massachusetts, was on brief, for appellees.

September 15, 2021

* Of the Ninth Circuit, sitting by designation. HAWKINS, Circuit Judge. Plaintiff Maria Fournier

("Fournier") appeals the grant of summary judgment in favor of

Defendants, Commonwealth of Massachusetts, Lewis Spence, John

Bello, and Jonathan Williams ("Defendants"), on her unlawful

retaliation claims under Title VII,

(e), and the

Massachusetts Whistleblower Act, Mass. Gen. Laws ch. 149 § 185

("MWA"). We reverse and remand.

I.1

Fournier became the Director of Support Services for

Massachusetts's Executive Office of the Trial Court ("Trial

Court") in 2013. One of the departments within Support Services,

the Office of Interpreter Services ("OCIS"), had been the frequent

subject of criticism by judges, clerks, and members of the public,

who complained about its efficiency. When Fournier started, her

supervisor, Court Administrator Lewis Spence ("Spence"), warned

her that some difficult changes needed to be made across Support

Services and that there would be opposition from court staff and

other stakeholders. But they worked together, and Spence was

initially encouraged by Fournier's determination.

During her tenure as Director of Support Services,

Spence conducted two annual performance reviews of Fournier and

1 We recite the facts in the light most favorable to Fournier because her case has come before us on her appeal from a grant of summary judgment. See Taite v. Bridgewater State Univ., Bd. of Trustees,

, 89 n.2 (1st Cir. 2021).

- 2 - both highlighted positive and negative aspects of her work. For

example, in her 2015 review, Spence praised Fournier's ability to

"take hard actions with staff," but criticized her communication

skills and ability to "manage for the long term." In her 2016

review, Spence recognized that Fournier had increased the

efficiency of OCIS, while noting that her work was met with

"widespread dissatisfaction." At some point, Spence asked

Director of Facilities John Bello ("Bello") to supervise and train

Fournier due to his concerns with "Fournier's ability to manage."

By 2016, Spence became concerned that progress toward

organizational improvement at OCIS had waned.

To address OCIS's issues, the Trial Court hired a

consulting firm, the Ripples Group ("Ripples"), to examine OCIS's

problems and offer solutions. Attila Habip ("Habip"), a founding

partner of Ripples, largely executed the review. At the conclusion

of its investigation, Ripples gave a presentation to Trial Court

management, including Spence, that suggested Fournier was largely

the root cause of OCIS's deficiencies. As such, Habip specifically

suggested (1) "re-launching" Fournier, "meaning to undertake a

major effort to improve her performance and how she was perceived,"

or (2) removing her as Director of Support Services. Both Spence

and Habip went on vacation for a week following the presentation.

When Habip returned to the office, he met with Fournier

to discuss his findings, communicated the results of the Ripples

- 3 - investigation "pretty bluntly," and told her "that 'a relaunch of

OCIS and [her]' was necessary"; Fournier seemed to agree. She

also recalled that Habip stated: "I think we need to rebrand []

you," and tried to convince her to go somewhere else in the Trial

Court. But there was no discussion of transfer, demotion, or

removal.

A few days after her meeting with Habip, on March 30,

Fournier told Human Resources Director Mark Conlon ("Conlon")

about a blatantly racist comment directed at one of her colleagues,

Chief Experience and Diversity Officer John Laing ("Laing").

The next morning, on March 31, Spence called Fournier

into a meeting to inform her that he "did not have confidence in

her ability to continue as [] Director of Support Services" and

advised her of "the range of options available to [him], which

included demotion and/or separation."

The parties dispute whether Spence was aware of

Fournier's complaint to Conlon before their March 31 meeting.

Fournier testified that Conlon told her that he had told Spence

about her report on March 30. But Spence testified that he was

not aware of Fournier's complaint prior to their March 31 meeting.

See Fournier v. Exec. Off. of the Trial Ct.,

,

205 (D. Mass. 2020).

Spence proceeded to inform Fournier via letter (the

"charge letter") that he would convene an informal hearing

- 4 - regarding her removal to examine her performance problems, namely

her inappropriately adversarial nature and lack of managerial

skills. The hearing ultimately resulted in an impasse. Spence

placed Fournier on paid administrative leave, explaining that her

unsatisfactory behavior and performance were hindering the

operational needs of the Trial Court. The same day, Spence

retired, and Bello became the interim Court Administrator.

About two weeks later, Fournier contacted the Trial

Court's Human Resources Department ("HR"), stating that Spence had

retaliated against her for complaining about the racist comment

directed at Laing. HR promptly forwarded Fournier's account to

Administrative Attorney for Diversity Heena Trivedi, who commenced

an investigation. Trivedi met with Fournier to discuss her

retaliation allegations, in addition to interviewing a host of

other Trial Court stakeholders. Trivedi eventually issued a

lengthy report, concluding that Spence's actions were supported by

legitimate business reasons and not motivated by retaliatory

animus.

Meanwhile, as the interim Court Administrator, Bello

began to hear the same criticisms about Fournier's volatile

management style that Ripples identified, e.g., Fournier was prone

to "lash[ing] out in anger resulting in a lack of communication

for days." He also convened another informal hearing with Fournier

concerning her removal. Again, they reviewed Spence’s charge

- 5 - letter and the Ripples presentation's account of Fournier's poor

behavior and performance. Fournier responded in written, denying

any wrongdoing and requesting to be restored to her position as

Director of Support Services.

After the hearing, Bello sent a letter to Jonathan

Williams, who had assumed his role as Court Administrator,

recommending Fournier's termination based on her inability to

improve OCIS, due to her hostile management style and dismal

rapport with her subordinates. HR also sent a letter to Williams

consistent with Bello's termination recommendation.

Finally, having reviewed Fournier's written submissions,

HR's review and recommendation, and Bello's recommendation,

Williams terminated Fournier from her employment with the Trial

Court. Fournier did not appeal.

Fournier proceeded to bring this suit against

Defendants. After Defendants filed a motion to dismiss Fournier's

complaint, the parties agreed to dismiss certain claims with

prejudice but to allow Fournier to proceed with her unlawful

retaliation claims under Title VII and the MWA. The district court

subsequently granted Defendants' summary judgment on these claims,

and Fournier timely appealed. We have jurisdiction under

.

- 6 - II.

We review a district court's grant of summary judgment

de novo, McDonough v. Donahoe,

(1st Cir. 2012),

and draw "all reasonable inferences in favor of the non-moving

party while ignoring conclusory allegations, improbable

inferences, and unsupported speculation," Shafmaster v. United

States,

(1st Cir. 2013) (internal quotations and

citations omitted).

A.

To establish a prima facie case of retaliation under

Title VII, a plaintiff must demonstrate:

(1) she engaged in protected conduct; (2) she experienced an adverse employment action; and (3) there was a causal connection between the protected conduct and the adverse employment action.

Calero-Cerezo v. U.S. Dep't of Justice,

(1st Cir.

2004) (internal citation omitted). "[T]he prima facie burden in

this context is not an onerous one."

. Similarly, to

establish a retaliation claim under the MWA, a plaintiff "must

show that [she] engaged in protected activity and that [her]

participation in that activity played a substantial or motivating

part in the retaliatory action." Pierce v. Cotuit Fire Dist.,

(1st Cir. 2014) (internal quotations and citations

omitted).

- 7 - Fournier has established a prima facie case of

retaliation under Title VII and the MWA.

First, it is undisputed that Fournier engaged in

protected conduct when she complained about the racist comment.

Second, an adverse employment action is typically one

that "alter[s] a term or condition of employment," Bishop v. Bell

Atl. Corp.,

(1st Cir. 2002), such as demotions,

disadvantageous transfers, or refusals to promote, Rivera-Rivera

v. Medina & Medina, Inc.,

(1st Cir. 2018). But

the anti-retaliation provisions of Title VII also cover employer

actions that are materially adverse, specifically those that are

harmful enough to dissuade a reasonable employee from complaining

about discrimination.

; see also Mole v. Univ. of

Massachusetts,

, 339 & n.14 (Mass. 2004)(An "adverse

action is any action to coerce, intimidate, threaten, or interfere

with the [employee]." (internal quotations omitted)). As such, a

juror could reasonably conclude that Fournier indeed suffered an

adverse employment action when Spence threatened Fournier with

termination, demotion, and/or transfer, even though she was not

officially terminated from the Trial Court on that day.

Finally, a reasonable juror could also find that there

was a causal connection between Fournier's complaint and the

adverse employment action she suffered. Although Defendants note

that employers, who are "proceeding along lines previously

- 8 - contemplated, though not yet definitively determined, is no

evidence whatever of causality," Clark County Sch. Dist. v.

Breeden,

(2001), such an objection is not fatal

here. First, Ripples did not, and could not, establish a

definitive course of action for Fournier's future with the Trial

Court, instead it suggested removing her from or "relaunching" her

within the organization. Second, Spence had knowledge of Ripples's

suggestions and their findings but did not act on this knowledge

until the end of his first week back from vacation and the day

after Fournier lodged her complaint. A reasonable factfinder could

also conclude that Spence knew of Fournier's complaint before their

March 31 meeting, given her testimony. Third, the temporal

proximity between Fournier's complaint and the adverse employment

action she suffered was one day, which is a sufficiently brief

period for a reasonable factfinder to determine causation. See

Calero-Cerezo,

(stating that "very close" temporal

proximity can be sufficient evidence of causality alone to

establish a prima facie case (quoting Clark County Sch. Dist., 532

U.S. at 273–74)).2

2 To the extent that Fournier alternatively argues her ultimate termination from the Trial Court was influenced by Spence's retaliatory animus as well, a reasonable juror could find that Williams rubber-stamped Spence's decision. See Ameen v. Amphenol Printed Circuits, Inc.,

(1st Cir. 2015).

- 9 - B.

When a prima facie case of Title VII retaliation is

established, absent direct evidence of retaliation, we employ the

burden-shifting approach announced by the Court in McDonnell

Douglas Corp. v. Green,

(1973):

[The] defendant must articulate a legitimate, non- retaliatory reason for its employment decision. If the defendant meets this burden, the plaintiff must now show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant's retaliatory animus.

Calero-Cerezo,

. A similar burden-shifting

framework is also employed for MWA claims. See Pierce,

.

Defendants have proffered legitimate, non-retaliatory

reasons for their removal decision, namely a lack of confidence in

Fournier's ability to manage due to her unprofessionalism and

underperformance. See Ponte v. Steelcase Inc.,

, 322–

23 (1st Cir. 2014).

Turning to pretext, courts typically view the record as

a whole and focus on whether the plaintiff "adduced sufficient

evidence to create a genuine issue as to whether retaliation was

the real motive underlying [her] dismissal." Harrington v.

Aggregate Indus. Ne. Region, Inc.,

(1st Cir. 2012).

Such evidence may include "weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

- 10 - employer's proffer," the close temporal proximity between the

protected conduct and the adverse action, or the sequence of events

leading up to the adverse action.

(quotations,

citations, and alterations omitted). Moreover, "[c]ourts should

be especially cautious before granting summary judgment when

pretext and retaliatory animus are at issue."

A juror could reasonably find that Spence's proffered

reasons for removing Fournier from Director of Support Services

were pretextual in nature.3 As discussed, Spence waited over a

week to take any steps to confront Fournier about his concerns

with her performance in light of the Ripples presentation. What's

more, Spence informed Fournier of his removal decision the day

after she submitted her complaint. There is also no evidence that

anyone at the Trial Court, including Spence, ever explicitly

contemplated removing Fournier before her complaint. The Ripples

report, which detailed Fournier's shortcomings at length, even

suggested "relaunching" her within the organization. Finally, the

temporal proximity between Fournier's complaint and her removal

was a one-day period. Taken together, these circumstances present

material questions that a jury must resolve.

3Fournier uses the same evidence to demonstrate causation and pretext. Because similar evidence can support causation and pretext, see, e.g., Ponte,

, we can consider all of Fournier's proffered evidence as support for pretext.

- 11 - III.

For the foregoing reasons, we reverse the decision of

the district court and remand for further proceedings consistent

with this decision. The parties shall bear their own costs on

appeal.

- 12 -