Simas v. First Citizens' ( 1999 )

                   FOR THE FIRST CIRCUIT
    No. 98-1450
                     VICTOR E. SIMAS,
                   Plaintiff, Appellant,
                 AND BARBARA M. W. SILVA,
                  Defendants, Appellees.
     [Hon. Robert B. Collings, U.S. Magistrate Judge]
                  Torruella, Chief Judge,
          Aldrich and Cyr, Senior Circuit Judges,
    Philip N. Beauregard, with whom Law Offices of Beauregard & Burkewas on brief for appellant.
    Michael P. Duffy, with whom Harvey Weiner and Peabody & Arnold LLPwere on brief for appellees.
                      March 2, 1999
    CYR, Senior Circuit Judge.  Victor E. Simas appeals the
    district court judgment which dismissed his complaint charging
    First Citizens' Federal Credit Union ("Citizens") and its president
    and CEO, Barbara M.W. Silva, with violating the "whistleblower"
    provisions of the Federal Credit Union Act, 12 U.S.C.  1790b(a)
    (FCUA or "the Act"), by retaliating against him for having informed
    the National Credit Union Administration ("NCUA") that Citizens,
    notwithstanding its longstanding policy, had made a suspect
    commercial loan to a member of its board of directors.  We vacate
    the district court judgment and remand for further proceedings.
    The district court opinion thoroughly explicates the
    factual background underlying the present claim.  See Simas v.
    First Citizens' Fed. Credit Union, 
    996 F. Supp. 76
     (D. Mass. 1998). 
    Accordingly, we restrict our opening recitation to the essentials. 
    At all relevant times, Simas was a vice-president under
    Silva's supervision, with primary responsibility for all delinquent
    loan collections.  In September 1993, Simas learned that Silva's
    friend, Louis Xifiras, was about to default on an undersecured
    commercial loan with an outstanding balance approximating $831,000. 
    Simas considered the circumstances surrounding the 1990 loan to
    Xifiras suspicious.  For one thing, Silva herself had arranged the
    loan, the largest in Citizens' history, even though Xifiras was
    serving on the Citizens board of directors at the time and intended
    to use the proceeds to acquire commercial real estate.  Citizens
    had a longstanding policy against making commercial loans. 
    Moreover, several Board members expressed concern that the
    $1,030,000 real estate appraisal, prepared by an appraiser selected
    by Xifiras, was inflated.  Furthermore, Xifiras and Lisa Grace,
    Silva's daughter and Citizens' senior vice-president for mortgage
    loans, were rumored to be involved in an extramarital affair. 
    Finally, Ms. Grace personally presented the Xifiras loan
    application for Board approval.
    Simas alerted Silva to his concerns, then asked Citizens'
    internal auditor to conduct an investigation.  The auditor
    declined.  When Simas persisted, the auditor complained to Silva. 
    Simas thereafter informed the auditor that if she chose not to
    investigate internally, he might be forced to report his concerns
    to the NCUA or the press.
    In October 1993, Silva sent Simas a memorandum advising
    that his repeated "irrational" and "aggressive" verbal harangues
    about the Xifiras loan were causing the internal auditor "emotional
    distress."  She characterized Simas' announced intention to contact
    the NCUA or the press as "threats to the credit union," and his
    concerns about the Xifiras loan as totally unwarranted.  She
    suggested that Simas was making trouble because he was unhappy with
    his own working conditions and she explicitly warned that he would
    be terminated immediately if the "verbal harassments [or]
    unwarranted charges or threats" occurred again.  Shortly
    thereafter, Silva removed Simas from all responsibility for the
    Xifiras loan.  Following this "final warning" from Silva, Simas was
    informed by Citizens' senior vice-president that he believed Silva
    should have fired Simas for "stirring [up]" the Xifiras matter.
    After Xifiras defaulted on the Citizens loan and declared
    bankruptcy, the commercial real estate securing the loan was
    appraised at $538,000.  As required by law, Silva reported the loss
    to the NCUA.  Fearing for his job in the event he chose to pursue
    the Xifiras matter internally, Simas promptly reported his concerns
    to the FBI and NCUA.
    Thereafter, Simas "experienced an abrupt and substantial
    change in the way that he was treated by [Citizens]."  Coworkers
    shunned him, socially and professionally.  Citizens disapproved his
    car loan application for the first time ever.  Although Citizens
    ultimately approved his education loan application, it did so over
    Silva's active opposition.  Simas was stripped of many work-related
    privileges consistently accorded him in the past; including (1)
    attending board of directors meetings, (2) supervising employees in
    the credit department, (3) approving credit-card applications, (4)
    personal access to the file vault, and (5) serving as Citizens'
    acting president in Silva's absence.  Silva also refused to
    consider Simas' request for promotion to a vacant vice-presidency,
    removed him as network administrator, denied him permission to
    attend a business-related seminar, and refused his request for a
    cellular phone.  These adverse employment actions were
    In January 1994, the NCUA conducted its annual audit of
    Citizens, devoting an "unusual" amount of time to consultations
    with Simas.  Its audit report noted "the presence of adverse
    conditions and trends [which] [i]f left unresolved . . . will
    jeopardize the financial condition and/or operations of
    [Citizens]."  The NCUA found that the Xifiras loan had been made
    "without the support of a comprehensive written Member Business
    Loan program" and that it was improperly preferential in its terms
    and conditions to a compensated member of the board of directors. 
    The NCUA cited Citizens for allowing Xifiras to engage his own
    appraiser, directed Citizens to cease making business loans to its
    members, and ordered that it notify its surety bond carrier of all
    regulatory violations.  Citizens' board of directors accepted the
    NCUA report.  Thereafter, the NCUA requested that several Citizens'
    directors resign, including Silva.
    In March 1994, Citizens' new internal auditor recommended
    that Simas start looking for another job.  After locating a lesser
    paying job at another bank, on May 2 Simas submitted his
    resignation to Citizens, effective May 13.  Silva, however, made
    the resignation effective immediately, and directed that Simas be
    escorted from the credit union premises in full view of his
    coworkers, several of whom questioned him about the reason for the
    unprecedented treatment.  In reporting Simas' accelerated
    "resignation" to the NCUA, Silva characterized Simas as "a
    disgruntled employee" with access to confidential information. 
    Later, she defined the term "disgruntled employee" as including one
    who might come into work and shoot his fellow workers. 
    In due course Simas brought suit against Citizens and
    Silva in federal district court, alleging violations of the FCUA
    "whistleblower" provisions, see 12 U.S.C.  1790b(a), together with
    several pendent state-law claims, including wrongful termination,
    defamation, and tortious interference with an advantageous
    relationship.  Following discovery, both defendants moved for
    summary judgment on all claims. 
    The district court granted summary judgment on the FCUA
    claim, concluding that Simas had not generated a trialworthy
    dispute as to whether the treatment accorded him after September
    1993 was sufficiently adverse to constitute either a "constructive
    discharge" or "discriminat[ion] . . . with respect to compensation,
    terms, conditions, or privileges of employment," within the meaning
    of section 1790b(a).  Finally, the pendent state-law claims were
    dismissed for lack of supplemental jurisdiction. See 28 U.S.C. 
    A.   The Statutory Framework
    One of several federal "whistleblower" statutes, the FCUA
    provides in pertinent part:
    No insured credit union may discharge or
    otherwise discriminate against any employee
    with respect to compensation, terms,
    conditions, or privileges of employment
    because the employee (or any person acting
    pursuant to the request of the employee)
    provided information to the [National Credit
    Union] Board or the Attorney General regarding
    any possible violation of any law or
    regulation by the credit union or any
    director, officer, or employee of the credit
    12 U.S.C.  1790b(a)(1).  Should a federal credit union violate
    section 1790b, the aggrieved employee may bring suit for
    compensatory damages and "other appropriate actions to remedy any
    past discrimination."  Id.  1790b(c).
    In according safeguards against retaliation to credit
    union employees who report potential irregularities, Congress
    intended to "enhance the regulatory enforcement powers of the
    depository institution regulatory agencies to protect against
    fraud, waste and insider abuse."  H.R. Rep. No. 101-54(I), at 308
    (1989), reprinted in 1989 U.S.C.C.A.N. 86, 103-04.  Since the case
    law interpreting section 1790b itself is extremely sparse, however,
    the courts have looked to case law construing comparably-phrased
    anti-retaliation provisions in other federal employment-
    discrimination statutes, such as Title VII, 42 U.S.C.  2000e etseq., the Americans with Disabilities Act (ADA), id.  12101 etseq., and the Age Discrimination in Employment Act (ADEA), 29
    U.S.C.  621 et seq., as well as other federal whistleblower
    statutes, such as the False Claims Act (FCA), 31 U.S.C.  3730(h),
    the Safety Transportation Assistance Act (STAA), 49 U.S.C. 
    31105(a)(1)(A), and FIRREA  1831j(a)(1) (providing  1790b-type
    coverage to employees of all "insured depository institutions"
    "with respect to . . . the terms, conditions, or privileges of
    employment").  We follow their lead.  See Larou v. Ridlon, 
    98 F.3d 659
    , 663 n.6 (1st Cir. 1996).
    B.   Burdens of Proof
    Many of these federal anti-retaliation statutes require
    the claimant to make a three-part prima facie showing that:  (1)
    the claimant engaged in the protected activity (e.g., filed a
    complaint or reported information to the government); (2) the
    defendants subjected the claimant to some materially adverse
    employment action, and (3) a causal connection existed between the
    protected activity and the adverse action.  Cf. BSP Trans, Inc. v.
    United States Dep't of Labor, 
    160 F.3d 38
    , 46 (1st Cir. 1998) (STAA
    whistleblower provision); Hernandez-Torres v. Intercontinental
    Trading, Inc., 
    158 F.3d 43
    , 47 (1st Cir. 1998) (Title VII
    retaliation); Hodgens v. General Dynamics Corp., 
    144 F.3d 151
    , 161
    (1st Cir. 1998) (Family and Medical Leave Act).  Even under these
    analogous statutes, however, "[t]he [claimant's] initial burden to
    establish a prima facie case of discrimination is 'not onerous' .
    . . [and] '[a]ll that is needed is the production of admissible
    evidence which, if uncontradicted, would justify a legal conclusion
    of discrimination.'" Brennan v. GTE Gov't Sys. Corp., 
    150 F.3d 21
    26 (1st Cir. 1998) (emphasis added; citation omitted); see alsoTexas Dep't of Community Affairs v. Burdine, 
    450 U.S. 248
    , 253-54
    Under yet other anti-retaliation statutes, moreover, the
    claimant's prima facie burden on the third or "causation" element
    is further eased, so as to require only a showing that the
    protected activity was a "contributing factor" in the adverse
    action, not necessarily its substantial or motivating cause.  SeeFrobose v. American Sav. and Loan Ass'n of Danville, 
    152 F.3d 602
    612 (7th Cir. 1998) (FIRREA  1831j(a)(1)).  Indeed, Citizens and
    Silva acceded to the latter prima facie standard below, see Simas,
    996 F. Supp. at 86, and we accept their concession in addressing
    the merits on appeal.  See, e.g., Clean Harbors Envtl. Servs., Inc.v. Herman, 
    146 F.3d 12
    , 22 (1st Cir. 1998) ("Both parties have
    accepted this [allocation of the BOP] as the standard and we do not
    reexamine it.").
    Once the claimant makes a prima facie showing, a
    presumption of retaliation arises and the burden shifts to the
    defendants.  With respect to the former category of anti-
    retaliation statutes, see supra Section II.B, 1, only the burden
    of production passes to defendants, i.e., requiring them merely to
    articulate  not prove  a nondiscriminatory motive for their
    actions.  See Alvarez-Fonseca v. Pepsi Cola of Puerto Rico Bottling
    152 F.3d 17
    , 24 (1st Cir. 1998); Clean Harbors, 146 F.3d at
    21-22 (STAA).  Once defendants meet their minimal burden of
    production, the initial presumption of retaliatory motivation is
    removed from the calculus, and the claimant must bear the burden of
    proving that the nondiscriminatory motive articulated by defendants
    is pretextual and the real motive was the claimant's decision to
    exercise the "whistleblower" rights endorsed by the applicable
    statute.  See Hazel v. United States Postmaster Gen., 
    7 F.3d 1
    , 3
    (1st Cir. 1993). 
    Under the latter variety of anti-retaliation statute,
    however, see supra Section II.B, 2, the entire burden of
    persuasion passes to defendants, who must then adduce clear andconvincing evidence that the alleged adverse actions would have
    been taken regardless whether the claimant had engaged in the
    protected whistleblower activity.  See Frobose, 152 F.3d at 612
    (FIRREA  1831j(a)); see also infra note 8.  Unlike section
    1831j(a), however, section 1790b contains no explicit burden-of-
    proof allocation.  Nevertheless, these defendants acceded below to
    the more plaintiff-friendly burden-shifting paradigm utilized under
    section 1831j(a), see Simas, 996 F. Supp. at 86, which thereby
    became the law of the case.  See Clean Harbors, 146 F.3d at 22.
    C.   Summary Judgment Rulings
    1.   Defendants' Knowledge of the NCUA Contacts by Simas
    The summary judgment motion submitted by Silva and
    Citizens asserted two grounds for dismissing the FCUA claim;
    namely, that Simas failed to adduce competent evidence from which
    a jury rationally might infer that (1) defendants were aware of
    Simas' contacts with the NCUA prior to his resignation; and (2)
    their adverse employment actions were consequential enough to
    constitute either a "constructive discharge" or "discrimination."
    Silva unambiguously attested that she could not have
    retaliated against Silva for contacting the NCUA, because she never
    knew whether he had carried out his threat to do so until after he
    had submitted his resignation on May 2, 1994.  See, e.g., Lewis v.
    Gillette, Co., 
    22 F.3d 22
    , 24 (1st Cir. 1994) (noting that claimant
    normally cannot establish the requisite causal connection without
    establishing that "the alleged retaliators knew of the protected
    plaintiff's activity").  After defendants filed their summary
    judgment motion, Simas promptly filed a motion for continuance,
    pursuant to Fed. R. Civ. P. 56(f), in which his counsel asserted
    that he recently learned from a "highly reliable source" that
    Michael DeBarros, formerly a Citizens senior vice-president and
    CFO, had overheard Silva declare in early 1994 that she believed it
    was Simas who had prompted the NCUA auditor to take such a special
    interest in the Xifiras loan.  Simas' counsel then contacted
    DeBarros' counsel, who refused to allow his client to file an
    affidavit out of fear that "Silva might attempt to retaliate
    against [DeBarros]."  Nonetheless, DeBarros' counsel indicated that
    DeBarros would submit to a deposition under subpoena. 
    The district court bypassed the question whether Simas
    had adduced sufficient evidence as to Silva's knowledge.  Instead,
    it rested its grant of summary judgment for defendants on the
    independent ground that Simas had not adduced enough evidence of a
    constructive discharge or sufficiently "adverse employment
    actions."  Thus, the district court denied the Rule 56(f) motion as
    moot.  On appeal, however, defendants urge us to affirm on this
    alternative ground.  See Sammartano v. Palmas del Mar Properties,
    161 F.3d 96
    , 97 n.2 (1st Cir. 1998) (appellate court may
    affirm summary judgment on any ground apparent in the record).  We
    now address the infirmities in their present position.
    First, despite Silva's attestations to the contrary, we
    seriously question whether Simas needed the DeBarros testimony to
    survive summary judgment.  After all, there is no dispute that
    Silva knew by the fall of 1993 that Simas had threatened to contact
    the NCUA, see supra Section I, 3, and since there is no evidence
    that any other Citizens employee ever made such a threat, the
    January 1994 targeted audit of the Xifiras loan documents was a
    good deal more than a subtle hint that Simas must have alerted the
    NCUA.  Thus, even absent the DeBarros deposition a jury would not
    have been compelled to conclude that Silva was unaware that Simas
    was the likely "whistleblower."  See Perez-Trujillo v. Volvo Car
    Corp. (Sweden), 
    137 F.3d 50
    , 54 (1st Cir. 1998) (court cannot
    resolve genuine credibility issues at summary judgment).
    Furthermore, the summary judgment record discloses no
    principled ground which would preclude the reasonable possibility
    that the DeBarros deposition would bear the expected fruit. 
    Defendants argue, without citation to authority, that Simas' Rule
    56(f) motion was defective because he relied on inadmissible
    hearsay (e.g., the unnamed "highly reliable source")   rather than
    his personal knowledge   to conclude that DeBarros could provide
    the damaging evidence.  Their argument fundamentally confuses Rule
    56(f)'s requirements with those in Rule 56(e) ("Supporting
    affidavits . . . shall set forth such facts as would be admissible
    in evidence . . . .").
    "[A] Rule 56(f) proffer need not be presented in a form
    suitable for admission as evidence at trial, so long as it rises
    sufficiently above mere speculation."  Resolution Trust Corp. v.
    North Bridge Assocs., 
    22 F.3d 1198
    , 1206 (1st Cir. 1994) (citing
    Carney v. United States, 
    19 F.3d 807
    , 813 (2d Cir. 1994)). "This is
    as it should be, for Rule 56(f) is best understood as a complement
    to other provisions contained in Rule 56, allowing the opposing
    party to explain why he is as of yet unable to file a full-fledged
    opposition, subject to the more harrowing evidentiary standard that
    governs under Rules 56(e) and 56(c)."  Id. at 1206-07.  Thus,
    reliance on hearsay is not, per se, a dispositive defect under Rule
    Furthermore, the Rule 56(f) motion filed by Simas did not
    rely exclusively on the information provided by the unnamed source,
    but also on the personal knowledge counsel had gained in subsequent
    consultations with DeBarros' counsel, who confirmed that DeBarros
    feared retaliation were he to testify against Silva.  The latter
    evidence would provide rational support for Simas' counsel's
    suspicion that the DeBarros testimony would prove damaging to
    Silva.  See id. at 1207 (finding Rule 56(f) motion valid where
    multiple sources supported recited facts).
    On the present record, therefore, Simas appears to have
    satisfied all five preconditions for obtaining a Rule 56(f)
    continuance.  See supra note 4.  "When all five requirements are
    satisfied . . . a strong presumption arises in favor of relief . .
    . [and the movant] should be treated liberally."  Id. at 1203.
    Thus, since the district court never resolved the Rule 56(f) motion
    on the merits, we cannot affirm its summary judgment ruling on the
    alternative ground suggested by defendants.
    2.   The Adverse Employment Actions
    a)   Constructive Discharge
    The FCUA prohibits a federal credit union from engaging
    in two distinct types of retaliatory employment action: (1) an
    actual or constructive "discharge"; or (2) other "discriminat[ion]
    . . . with respect to compensation, terms, conditions, or
    privileges of employment" short of discharge, or what we have
    sometimes labeled "adverse employment actions." See 12 U.S.C. 
    1790b(a)(1).  The complaint alleged that Citizens constructively
    discharged Simas, which necessitated that he show that Citizens
    imposed "working conditions so intolerable [] that a reasonable
    person would feel compelled to forsake his job rather than to
    submit to looming indignities."  Vega v. Kodak Caribbean, Ltd., 
    3 F.3d 476
    , 480 (1st Cir. 1993); see also Sanchez v. Puerto Rico Oil
    37 F.3d 712
    , 719 (1st Cir. 1994). 
    The district court concluded, however, that the various
    "indignities" to which Simas had been subjected were "nothing more
    than minor slights," Simas, 996 F. Supp. at 83, which did not rise
    to the level of "constructive discharge."  It suggested further
    that the Simas complaint alleged only a constructive discharge, and
    no other adverse employment actions.  See id. at 84 (citing
    Serrano-Cruz v. DFI Puerto Rico, Inc., 
    109 F.3d 23
    , 28 (1st Cir.
    1997)).  It stated that, like the plaintiff in Serrano, Simas had
    merely alleged damages for "loss of income and employment benefits,
    loss of personal reputation, and other financial losses . . . and
    little, if anything, else," id. (citing Complaint  32) (emphasis
    added), and, further, that these economic damages flowed
    exclusively from Simas' decision to leave his job, rather than from
    defendants' imposition of adverse working conditions in the months
    preceding his resignation.
    Even assuming arguendo the premise that the constructive
    discharge standard under the FCUA would require proof of more
    intolerable employment actions than its "discrimination" standard,
    we need not determine whether the Rule 56 proffer established a
    prime facie case of constructive discharge since Simas
    unquestionably alleged "adverse employment actions" as well.  Seeinfra Section II.C.2(b).  Thus, Serrano-Cruz is inapposite, both
    legally and factually.
    Unlike Simas, Serrano resigned rather than accept
    transfer to a different position   at the same salary   which she
    considered demeaning.  We affirmed summary judgment for the former
    employer because, "by not accepting the newly created and ambiguous
    position, Serrano foreclosed the possibility of presenting concrete
    evidence, rather than mere assertions, to a jury regarding the
    [intolerable] nature of her new working conditions."  Serrano-Cruz,
    109 F.3d at 27.  In determining that Serrano had failed to frame
    her complaint alternatively to allege actionable "adverse
    employment actions" short of discharge, we noted that all the
    damages she alleged were purely economic   e.g., lost income  
    flowing entirely from her decision to reject the transfer and
    resign, and not from other indignities (i.e., gradual reduction in
    her job responsibilities) allegedly suffered in the months
    preceding the transfer.  Id. at 28.
    By contrast, the Simas resignation did not foreclose
    judicial assessment of the adverse working conditions allegedly
    imposed by Citizens, most of which preceded his resignation.  Nor
    can we agree with Citizens that Simas alleged "little" more than
    economic damages.  Paragraph 32 in the complaint, cited by the
    district court, alleged "loss of income and employment benefits,
    loss of personal reputation, other financial losses, and mental and
    emotional distress." (Emphasis added.)  Moreover, although
    paragraph 32 is part of the defamation count, and not the FCUA
    count proper, paragraph 36 of the FCUA count expressly realleges
    and incorporates paragraph 32 by reference.  See also Complaint
    Prefatory  21 (alleging that Simas "was the object of anger and
    scorn from his superiors, and he was suffering emotionally and
    physically as a result") (emphasis added).
    Thus, the Simas complaint alleged ongoing emotional
    damages of a type that arose at the time the defendants imposed the
    adverse employment actions and long before he resigned, culminating
    in his humiliating exit from the employment premises under the
    personal escort ordered by Silva.  See Viqueira v. First Bank, 
    140 F.3d 12
    , 16 (1st Cir. 1998) (noting that complaints are to be
    liberally construed).  These noneconomic damages are fully and
    independently recoverable under the FCUA.  See 12 U.S.C. 
    1790b(c)(2) (broadly allowing plaintiff to recover "compensatory
    damages"); cf. Hogan v. Bangor and Aroostook R.R. Co., 
    61 F.3d 1034
    , 1037 (1st Cir. 1995) (emotional harm compensable under ADA). 
    Thus, we may bypass the constructive discharge claim.
    b)   "Adverse Employment Actions"
    We now turn to the sufficiency of the Rule 56 proffer,
    wherein Simas attested to an extended series of "abrupt and
    substantial change[s] in the way he was treated as an employee"
    after he first expressed concerns regarding the Xifiras loan.  Seesupra Section I.
    At summary judgment the trial court must consider a
    defendant's alleged conduct both in context and in totality, not
    merely assess the respective allegations in isolation.  See Calhounv. Acme Cleveland Corp., 
    798 F.2d 559
    , 562-63 (1st Cir. 1986)
    (rejecting "divide-and-conquer" defense strategy); see also Coffmanv. Tracker Marine, 
    141 F.3d 1241
    , 1246 (8th Cir. 1998) ("[The]
    court looks at the combined effect of the employer's actions to
    determine if there was discrimination") (emphasis added; citation
    omitted).  Thus, otherwise minor slights, relentlessly compounded,
    may become sufficiently "adverse" to warrant relief under the FCUA. 
    At the outset we focus on an important consideration  
    given short shrift by defendants   which sharply distinguishes the
    present action from the more typical retaliation case.  Normally,
    employers do not leave behind direct evidence of their
    discriminatory animus, such as express declarations of their
    retaliatory intentions.  Therefore, generally the plaintiff-
    employee must make do with circumstantial evidence, leaving it to
    the jury whether to infer from the nature of the materially adverse
    employment conditions that the defendant-employer harbored a
    retaliatory animus.
    In the present case, however, Simas adduced both
    circumstantial and direct evidence of Silva's retaliatory animus. 
    In her October 8, 1993 memo, Silva not only complained that Simas
    had harassed the internal auditor, but stated directly to Simas
    that the charges he made about the Xifiras loan were "unwarranted,"
    and that if he persisted in making "unwarranted charges or threats
    [to report his suspicions to the NCUA]," he would be terminated
    immediately.  So too, Citizens' senior vice-president told Simas
    that he thought Silva should have fired Simas outright for
    "stirring [up]" the Xifiras matter. See, e.g., Frobose, 152 F.3d at
    616 (affirming denial of summary judgment for employer in  1831j
    retaliation case where president's express antagonism toward
    plaintiff was echoed in antagonistic remarks made by other senior
    The term "making unsubstantiated charges," as employed in
    the Silva memo, is amply expansive to encompass Simas' report to
    the NCUA, and Silva's express intention to terminate Simas likewise
    bespeaks a premeditated plan to punish him for the same activity. 
    Given that Silva orchestrated the loan for her friend Xifiras in
    the first instance, and that the concerns Simas voiced about the
    loan eventually proved anything but "unwarranted," a jury
    reasonably could conclude that the sole intendment of her October
    8 memo was to prevent Silva's regulatory violations from coming to
    the attention of the appropriate federal authorities.
    So construed, these direct retaliatory expressions by
    Silva could be considered materially adverse employment actions
    which sufficed to preclude summary judgment for defendants.  SeeHernandez-Torres, 158 F.3d at 47 ("adverse employment actions [may
    include] . . . unwarranted negative job evaluations").
    Section 1790b prohibits discrimination relating to
    "conditions" of employment.  Although the term "conditions" may
    mean merely the physical setting in which one's work is performed,
    (e.g., reassignment to a remote cubicle), it is not so limited in
    scope as to exclude illicit supervisory directives conditioning
    continued employment upon prohibitions against employee conduct
    which is authorized by federal laws governing employer-employee
    relations.  Thus, the explicit direction from Silva that Simas
    refrain from exercising his federal legal right to contact the NCUA
    clearly came within section 1790b.
    If nothing else, Congress intended that section 1790b
    deter federal credit unions from expressly dissuading their
    employees in exercising the statutory right to report suspected
    regulatory violations.  In our case, it is no exaggeration to
    observe that the "not-so-veiled" threat made by Silva, which by its
    terms was self-perpetuating, hung like a sword of Damocles over
    Simas' head.  Moreover, pursuit of the Xifiras loan investigation
    by Simas was in no sense ultra vires, since it is difficult to
    conceive a "condition" more materially adverse to the proper
    performance of the fiduciary duties of the senior vice-president
    for loan collections.
    At this juncture, of course, we do not suggest that a
    jury would be compelled to construe this direct evidence adversely
    to defendants, who presumably would contend that (i) Silva truly
    believed the Xifiras loan was not problematic, (ii) Simas raised
    his concerns in bad faith because he was disgruntled with what he
    perceived as Silva's preferential treatment of her daughter to the
    detriment of other Citizens officers; and (iii) Silva's memo sought
    only to urge Simas to cease his overly aggressive efforts to
    initiate an internal investigation, and keep any intentions to
    contact the NCUA to himself.
    Be that as it may, any such credibility determinations
    are for the factfinder at trial, not for the court at summary
    judgment.  Perez-Trujillo, 137 F.3d at 53.  "[T]rial courts should
    'use restraint in granting summary judgment' where discriminatory
    animus is in issue."  DeNovellis v. Shalala, 
    124 F.3d 298
    , 306 (1st
    Cir. 1997) (citation omitted).
    Further, given defendants' concessions regarding the
    allocation of burdens of proof, see supra Section II.B, the Silva
    memo would support a finding that whatever other motives Silva may
    have harbored (e.g., her pique at Silva's alleged badgering of the
    internal auditor), a retaliatory motivation was at least one
    "contributing factor" in her campaign to oust or silence Simas. 
    Thus, the burden of persuasion would pass to the defendants to
    adduce clear and convincing evidence that they would have engaged
    in the same litany of alleged employment actions even if Simas had
    not contacted the NCUA.  See Frobose, 152 F.3d at 615 ("Given that
    the burden of proof on this point is assigned to the defendant, and
    questions of intent and credibility will often be raised,
    particular care must be taken to resolve all doubts in favor of the
    plaintiff.")(emphasis added; citations omitted).
    In all events it is unnecessary to determine definitively
    whether the direct evidence, standing alone, demonstrated a
    materially adverse employment action.  At a minimum the direct
    evidence necessarily colors and informs the circumstantial evidence
    of the adverse employment action which followed.  "'[T]erms,
    conditions, or privileges' is pretty open-ended language . . .
    [which] obviously includes opportunities that are not strictly
    entitlements, and a number of cases have extended coverage to
    slights or indignities that might seem evanescent."  Randlett v.
    118 F.3d 857
    , 862 (1st Cir. 1997).  "Typically, the
    employer must either (1) take something of consequence from the
    employee, say, by discharging or demoting her, reducing her salary,
    or divesting her of significant responsibilities, or (2) withhold
    from the employee an accouterment of the employment relationship,
    say, by failing to follow a customary practice of considering her
    for promotion after a particular period of service."  Blackie v.
    State of Maine, 
    75 F.3d 716
    , 725 (1st Cir. 1996).  "Determining
    whether an action is materially adverse necessarily requires a
    case-by-case inquiry. Moreover, the inquiry must be cast in
    objective terms.  Work places are rarely idyllic retreats, and the
    mere fact that an employee is displeased by an employer's act or
    omission does not elevate that act or omission to the level of a
    materially adverse employment action."  Id. (emphasis added;
    citations omitted).
    Our review leads us to conclude that these employment
    actions, viewed in aggregate, could be considered "materially
    adverse."  The fact that Citizens did not reduce Simas' salary or
    benefits, though plainly relevant, is not conclusive.  See Serrano-
    Cruz, 109 F.3d at 26 (ADEA); Collins v. State of Illinois, 
    830 F.2d 692
    , 702-03 (7th Cir. 1987) (Title VII).
    The district court overlooked the crucial, undisputed
    fact that Silva withdrew from Simas all responsibility for the
    Xifiras account.  See Burlington Indus. v. Ellerth, 
    118 S. Ct. 2257
    , 2268 (1998) (conduct is adverse employment action if it
    "constitutes a significant change in employment status, such as .
    . . reassignment with significantly different responsibilities");
    Collins, 830 F.2d at 703 & n.7 (describing various changes to basic
    aspects of the job).  As the vice-president for collections and
    credit, Simas' core responsibility was to collect delinquent loans,
    and the $838,000 Xifiras loan was by far the largest Citizens
    loan.  Thus, Simas clearly was not acting ultra vires in
    investigating the Xifiras loan.  Rather, there can be no serious
    question that removing Citizens' chief loan and collection officer
    from any responsibility whatever for its largest outstanding loan
    represented a very substantial divestment of responsibility.  Thus,
    since the FCUA implicitly focuses on individuals like Simas 
    insiders with an optimal opportunity to uncover improprieties  it
    would be ironic to hold that a jury could not even consider whether
    Silva's decision to take the Xifiras loan account away from Simas
    constituted an adverse employment action. 
    There was evidence that Simas had been divested of other
    responsibilities and perquisites as well.  For example, Simas
    attested that he had been stripped of his supervisory authority
    over credit department personnel and the power to approve credit-
    card applications.  See Dahm v. Flynn, 
    60 F.3d 253
    , 258-59 (7th
    Cir. 1994) (noting that "terminating [plaintiff's] supervisory
    authority over other employees" may constitute an adverse
    employment action) (First Amendment retaliation).  Yet the district
    court found this evidence too vague and conclusory to survive
    summary judgment because Simas "proffer[ed] no facts to explain the
    extent of his prior authority and the significance of the
    'removal.'" Simas, 996 F. Supp. at 85.  We cannot agree.
    It is axiomatic on summary judgment, of course, that "the
    nonmoving party 'may not rest upon mere allegation or denials of
    [the movant's] pleading, but must set forth specific facts showing
    that there is a genuine issue' of material fact as to each issue
    upon which he would bear the ultimate burden of proof at trial."
    DeNovellis, 124 F.3d at 306 (quoting Anderson v. Liberty Lobby,
    477 U.S. 242
    , 256 (1986)); Smith v. Stratus Computer, Inc.,
    40 F.3d 11
    , 12-13 (1st Cir. 1994).  Nor may the court accept the
    nonmovant's subjective characterizations of events, unless the
    underlying events themselves are revealed.  See Santiago v. Canon
    U.S.A., Inc., 
    138 F.3d 1
    , 6 (1st Cir. 1998).  On the other hand,
    the competence of the nonmovant's own testimony is treated no
    differently than that of any other potential trial witness.  Thus,
    the nonmovant's statements normally pass muster provided they (1)
    are made "on personal knowledge" of the facts or events described;
    and (2) neither depend on inadmissible hearsay nor (3) purport "to
    examine the [movants'] thoughts as well as their actions."  See,
    e.g., Maiorana v. MacDonald, 
    596 F.2d 1072
    , 1079-80 (1st Cir.
    1979); see also Fed. R. Civ. P. 56(e).
    Although pithy, the attestations made by Simas adverted
    to such facts and events.  Simas undoubtedly would have direct
    personal knowledge of his own job functions, including whether he
    had exercised authority over credit department personnel and
    approved credit-card applications in the past.  Therefore, his
    attestations are statements of fact, not subjective
    characterizations.  Thus, while the defendants may present evidence
    contesting their truth, to the extent they do so they simply
    preclude summary judgment for either party.  See Brennan, 150 F.3d
    at 26 (plaintiff's prima facie burden is "'not onerous' . . . [and]
    '[a]ll that is needed is the production of admissible evidence
    which, if uncontradicted, would justify a legal conclusion of
    discrimination.'") (emphasis added).  Nor can we say that no
    rational jury could conclude that these two privileges were
    consequential, if for no other reason than defendants' own
    concession that Simas' official job title was vice-president of
    collections and credit.  DeNovellis, 124 F.3d at 308 ("'[A]t the
    summary judgment stage the judge's function is not . . . to weigh
    the evidence and determine the truth of the matter but to determine
    whether there is a genuine issue for trial.'").
    In a similar vein the district court ruled that the
    contention that Simas had been denied a car loan could not
    demonstrate an adverse employment action.  Simas, 996 F. Supp. at
    83.  Defendants argue that (1) they have no record of the loan
    application and Simas failed to adduce a copy; and (2) Simas failed
    to attest to facts demonstrating that he was otherwise qualified to
    receive a car loan.  Neither argument is valid. 
    First, "there is no general rule that proof of a fact
    will be excluded unless its proponent furnishes the best evidence
    in his power."  See Allstate Ins. Co. v. Swann, 2
    7 F.3d 1
    539, 1543
    (11th Cir. 1994) (citation omitted).  Thus, Simas can prove he
    filed a loan application simply through his own trial testimony. 
    See Fed. R. Evid. 1002 ("To prove the content of a writing, . . .
    the original writing ... is required, except as otherwise provided
    in these rules or by Act of Congress.") (emphasis added); Fed. R.
    Evid. 1004(1) (original document need not be produced if the
    original was lost or destroyed, except where party opposing
    admission proves the proponent lost or destroyed the original in
    bad faith); Fed. R. Evid. 1004(3) (original need not be produced if
    it was under the control of the party against whom it was offered,
    which did not produce it at hearing); see also United States v.
    938 F.2d 1501
    , 1509 n.4 (1st Cir. 1991).
    Second, Simas attested to the fact that Citizens had
    always approved his loan applications in the past, without
    objection.  At least absent evidence that his financial condition
    had changed, this constituted competent evidence that Citizens
    considered Simas financially qualified to receive such loans.  SeeBlackie, 75 F.3d at 726 ("[U]nder certain circumstances an
    employer's inaction can operate to deprive an employee of a
    privilege of employment that an employee had reason to anticipate
    he would receive.").  Hence, Simas met his prima facie burden of
    proof, and the burden of persuasion thereupon shifted to defendants
    to show the true reason for the loan denial.  Finally, we cannot
    say that the denial of a car loan must be considered
    inconsequential per se.
    Simas likewise attested that he was denied unfettered
    access to the file vault.  The only rejoinder from defendants is
    that Citizens banned all officers, not only Simas, from accessing
    the vault, and that Simas was permitted to obtain any file he
    wanted through a vault clerk.  These claims are flawed as well.
    For one thing, Simas was only required to attest that the
    new vault-access procedure was materially adverse.  As vice-
    president in charge of collections, his need for vault access was
    evident.  Moreover, in light of Silva's October 8 memo, a jury
    reasonably could find the timing of the new procedure especially
    suspect, since it interposed a vault clerk between Simas and
    important bank documents at precisely the time Silva sought to
    deter any further investigation of the Xifiras loan by Simas. 
    Requiring Simas to make a request for a specific document from a
    vault clerk clearly had two adverse effects:  (1) Simas could not
    anonymously examine documents in the vault; and (2) Silva could
    learn from the vault clerk precisely which files Simas was
    examining.  Although Silva explained:  "We were having a problem
    with the vault[,] of officers going into the vault, and pulling
    files and never being replaced[,]" her decision to make the new
    vault-access procedure applicable to all bank officers does not
    preclude a finding that she harbored an illicit motive in doing so;
    that is, to reduce access to information by Simas.  Thus, the
    burden of persuasion would pass to defendants to show by clear and
    convincing evidence that the new vault-access procedure was
    necessary for reasons independent of Simas' threats to alert the
    Finally, although the evidence of yet other adverse
    employment actions may be less compelling, it is not so obviously
    makeweight as to compel inferences in defendants' favor.  Since
    we are required to assess defendants' conduct in context and in
    totality, rather than piecemeal, see Calhoun, 798 F.2d at 562-63;
    Coffman, 141 F.3d at 1246, we conclude that summary judgment on the
    FCUA claim was improvidently granted, and must be vacated.  The
    state-law claims for defamation, wrongful termination, and tortious
    interference with an advantageous relationship must be reinstated
    as well, since the district court dismissed them solely for lack of
    supplemental jurisdiction.  See Alexis v. McDonald's Restaurants of
    Mass., Inc., 
    67 F.3d 341
    , 354 (1st Cir. 1995) (remand on state-law
    claims warranted where federal claim is reinstated).
    The district court judgment is vacated and the case is
    remanded for further proceedings consistent with this opinion. 
    Costs are awarded to appellant.
            * Concurring Opinion Follows *
    ALDRICH, Senior Circuit Judge, concurring.  Judge Cyr's
    opinion, which I entirely accept, reads very persuasively.  So,
    however, does the district court's.  In choosing to go along with
    the later one, I note several matters.  To begin, whistleblowers
    face many obstacles.  In the first place, they face those whom they
    charge, and the higher up those persons, the more difficult they
    are to meet.  In the second place, whistleblowers face others who,
    if not directly concerned, know on which side their bread is
    buttered.  These obstacles must always be remembered.  It must also
    be remembered that whistleblowers are Congressionally approved,
    rather than everybody's enemy.
    Next, it is to be noted that there is an odor pervading
    this case.  Consider the exceptional, indeed unique, size of the
    loan; the way it was granted, particularly the selection of the
    appraiser; and the relationship of the parties in interest,
    specifically, the fact that the borrower sat on the credit union's
    board of directors at the time and was allegedly involved in an
    extramarital affair with its senior vice-president for mortgage
    loans.  Consider also, at least in passing, the amount that the
    collateral proved to be below the indebtedness, not to mention the
    required excess.  This all produced a substantial odor that cannot
    be made to disappear simply by attacks that may be voiced against
    the plaintiff individually.          With all this in mind, I note that this is summary