Tang v. Citizens Bank, N.A. , 821 F.3d 206 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 15-2003
XIAOYAN TANG,
Plaintiff, Appellant,
v.
CITIZENS BANK, N.A., a/k/a Citizens, N.A., a/k/a Citizens,
a/k/a RBS Citizens, N.A.; RBS CITIZENS, N.A.;
ROYAL BANK OF SCOTLAND GROUP, a/k/a RBS; DAVID NACKLEY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Julie E. Green, with whom Todd & Weld LLP, was on brief for
appellant.
Mark W. Batten, with whom Rebecca J. Sivitz and Proskauer
Rose LLP, were on brief for appellees.
May 19, 2016
TORRUELLA, Circuit Judge. Xiaoyan "Ivy" Tang was
terminated from her position in the Technology Banking Group at
Citizens Bank, N.A. ("Citizens") in June 2011. She sued Citizens
and her supervisor, David Nackley, then the Senior Vice President
of the Technology Banking Group, bringing numerous claims stemming
from her termination. Relevant here are her claims for
retaliation and sexual harassment under Title VII of the Civil
Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., and
Massachusetts General Laws Chapter 151B ("Chapter 151B"). The
United States District Court for the District of Massachusetts
entered summary judgment in favor of Citizens and Nackley, and
Tang now appeals that decision. We vacate and remand.
I.
A. Factual Background
"We recite the facts in the light most favorable to
[Tang] as the non-moving party." Pérez-Cordero v. Wal-Mart P.R.,
Inc., 656 F.3d 19, 20 (1st Cir. 2011).
Tang began working in the Commercial Real Estate Group
of Citizens in October 2007 in Boston. After applying for a
position as a portfolio manager in the Technology Banking Group,
Tang interviewed with Nackley in early 2010.1 Nackley had arranged
1 The parties dispute Tang's reason for transferring from the
Commercial Real Estate Group. Whereas Tang asserts that she was
interested in the professional opportunities available in the
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the interview at a restaurant that Tang characterized as a popular
dating spot. During the interview, Tang was surprised by Nackley's
focus on personal matters and other topics not relevant to the
transfer. Tang, who is Chinese, recalled that Nackley expressed
his views that Asian women are obedient and mentioned two live-in
au pairs whom he had hired from Thailand. He told Tang that the
Thai au pairs did not wear sufficiently revealing swimsuits and
also offered to teach Tang to golf. Nackley asked whether Tang
was married and, after she said no, enquired where she looked to
find a boyfriend. In response, Tang told Nackley that this was
her business. She does not recall how he responded to this
comment.2
At the end of the interview, Tang showed Nackley examples
of her work from the Commercial Real Estate Group. Nackley
described this work as "excellent" and encouraged her to apply for
a position as a senior portfolio manager. Although Tang felt
uncomfortable during the interview, she did not believe she would
Technology Banking Group, Citizens suggests that Tang was hoping
to start anew after receiving a mediocre performance review in the
Commercial Real Estate Group.
2 Nackley disputes that he focused on only personal matters during
the interview. In a declaration, he asserts that "[m]y questions
for Ms. Tang focused primarily on why she wanted to leave the
Commercial Real Estate Group," and describes the conversation as
"entirely professional." That said, he does not deny making any
of the comments alleged by Tang.
-3-
be working directly with Nackley and was extremely excited for the
opportunity to work in technology and capital markets, her longtime
career goals. At that time, she did not share her concerns about
Nackley's conduct with anyone. Tang pursued the transfer and
interviewed with other members of the Technology Banking Group.
Tang began working as a portfolio manager in the
Technology Banking Group in May 2010. Nackley typically worked
from his home office in Connecticut and visited the Boston office
on a weekly basis. In July 2010, he met with Tang for a semi-
annual performance review at the office. According to Tang,
however, Nackley did not discuss Tang's work during the meeting.
Nackley brought up his two Thai au pairs, telling Tang what they
wore at his swimming pool and asking what type of swimsuit she
preferred. He again stated that he wished his au pairs wore more
revealing swimsuits and reiterated that he thought Asian women
were obedient. He also discussed the immigration status of the
Thai au pairs. Tang is not a United States citizen, and Nackley
indicated that "he had great control over" her immigration status
and future career at Citizens. Nackley again asked Tang where she
found men and queried which dating websites she used.
During this meeting, Nackley wrote the word "assume" on
a piece of paper and stated it could be broken into "ass," "u,"
and "me." He then stood up, gestured to Tang's "private area,"
-4-
and said, "This is your ass, this is my ass." Nackley drew closer
to Tang and became very excited.3 He suggested that Tang "combine
[her] 'ass' with [his] 'ass' and "ma[de] obscene coupling
indications with his hands."
Following this conversation, Tang felt deeply
uncomfortable in Nackley's presence and avoided interacting with
him. Although Nackley never directly propositioned Tang, he "made
it very clear" he wanted a relationship with her: on various
occasions when Nackley encountered Tang in the office, he would
broach the topic of his Thai au pairs and their swimming attire.
He would offer to teach her to golf, leer at her, and repeat that
he thought Asian women were obedient.
Tang asserts that Nackley's attitude toward her changed
dramatically once he realized she was not responding to his
advances. In January 2011, Tang was surprised to receive a
negative performance review from Nackley. The review indicated
that "development [was] required" in various areas, that Tang
"need[ed] to focus on being able to work [i]ndependently and
complete the required tasks . . . without assistance/
intervention," and that "[h]er level of performance in terms of
3 Tang does not recall if Nackley walked toward her or leaned
toward her. In any case, she stated that he was "very close to
[her] physically."
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deal completion times is well below that of her peers." Concerned
that she would lose her job if she refused to endorse the
evaluation, Tang signed the review, stating that she
"appreciate[d] the constructive advice . . . and look[ed] forward
to utilizing it in the coming year."
Tang had two additional meetings with Nackley in
February 2011. In the first meeting, which took place in early
February, Nackley gave Tang a Performance Improvement Plan
("PIP").4 The PIP reiterated many of the concerns raised in Tang's
January review and established steps that Tang needed to achieve
"to improve [her] performance deficiencies." Tang asserts that
Nackley became angry and shouted at her during this meeting,
telling her to "shut [her] mouth," and stating that she did "not
have any rights."5
In the second February meeting, Nackley again became
angry with Tang. In his declaration, Nackley asserts that he had
4 The parties do not agree as to the dates of these meetings.
Nackley asserts that the meeting in which Nackley gave Tang the
PIP took place on February 8, 2011, whereas Tang asserts that the
second meeting took place on February 8.
5 Many of the details as to the February meetings were not
presented to the district court prior to its ruling on summary
judgment and only asserted later, in Tang's motion for
reconsideration. Nevertheless, we recite them here insofar as
they clarify Tang's account of the events leading up to her
dismissal from Citizens.
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recently learned that Tang was dating Mark Atkin, an executive at
a company that was a client of the bank, and the meeting "was
solely for the purpose of preventing or eliminating any conflict
of interest and protecting the integrity of the bank's business."
To the contrary, Tang asserts that Nackley had known about Atkin
since February 2010 and that neither Citizens nor Nackley had ever
required that she disclose her relationship with him. During the
meeting, Nackley "waved his arms" as if to "beat" Tang and
threatened to "kick [her] out of the bank" if she did not identify
Atkin. Appalled by Nackley's behavior and aggressive questioning,
Tang became emotional and "begged" Nackley to let her leave. A
human resources representative joined the meeting by telephone and
also pressured Tang to disclose her relationship with Atkin.
Defeated, Tang told them that she had broken off the relationship.
The meeting was adjourned, and, as Nackley left, he informed Tang,
"You are being watched."6 Tang later observed Nackley mimicking
her emotional responses during the meeting to two of Tang's
coworkers, Relationship Manager William Clossey and senior
Portfolio Manager Jennifer Perry.
6 In his declaration Nackley provided a very different description
of the meeting: "Ms. Tang said very little and did not seem
emotional. She did not raise her voice, nor did anyone else in
the meeting."
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On February 14, 2011, Tang returned the PIP with a
handwritten note stating that she "disagree[d] with the
Performance Improvement Plan" and "felt the plan [wa]s the result
of discriminatory treatment based on my race, gender and national
origin." That same day, Tang called the human resources hotline
to report Nackley's behavior. A human resources representative,
Brenda Cosgrove, called Tang requesting more information and Tang
responded by letter dated February 27, 2011. In her letter, Tang
detailed Nackley's comments regarding his Thai au pairs and the
purported obedience of Asian women, his constant questions about
Tang's relationships, and the "assume" conversation in July 2010.
She also asserted that her "work has been highly professional and
competent" and that the PIP was "false, outrageous, and indeed,
ludicrous." Tang declined Cosgrove's suggestion that the two set
up a time to speak, instead requesting that all their
communications be in writing. Cosgrove informed Tang that she
would be "unable to conduct a proper investigation if I am not
able to speak with you," and that, if Tang continued to refuse,
Cosgrove would "have to proceed with [the] investigation without
the benefit of [Tang's] input." Tang still refused, and Cosgrove
did not send Tang any further questions. On March 31, 2011,
Cosgrove issued an investigative summary finding that Tang's
"allegations were unsubstantiated."
-8-
Unhappy with Cosgrove's treatment of her complaint, Tang
conducted her own investigation and spoke to a former colleague
who described Nackley as "notorious for disrespect[ing] women."7
In May 2011, Tang reported these findings to human resources, but
Citizens did not pursue her claims.
On May 25, 2011, Tang received a Final Written Warning
("FWW") from Nackley stating that Tang "failed to demonstrate
improvement" since receiving her PIP. In mid-June, Nackley
learned that Tang "had made a material mistake in violation of her
FWW." She was terminated later that month.
B. Procedural History
Proceeding pro se, Tang brought this action against
Citizens and Nackley on March 7, 2014.8 Her amended complaint
included separate claims for fraud, promissory estoppel, sexual
harassment, breach of fiduciary duty, breach of contract, breach
of the implied covenant of good faith and fair dealing, unfair and
deceptive acts under Massachusetts General Laws Chapter 93A,
termination in violation of public policy, discrimination under
7 Again, Tang first described the facts surrounding this
independent investigation and her subsequent complaint in her
motion for reconsideration before the district court.
8 Tang originally filed suit in Massachusetts state court. After
she submitted an amended complaint, the case was removed to federal
court on June 17, 2014.
-9-
Title VII and Chapter 151B, intentional infliction of emotional
distress, and negligent failure to supervise. Tang's amended
complaint also included an allegation that the "[d]efendants did
wrongfully, unlawfully, unjustly, and tortiously fire her, as a
result of her respectfully informing HR of her complaint against
him, and her declining to have sex with him."
The defendants filed a motion for partial judgment on
the pleadings in July 2014. They sought to dismiss all her claims
except the counts for discrimination under Chapter 151B and Title
VII, arguing, among other things, that Tang's common law and
Chapter 93A claims should be dismissed, as Chapter 151B provides
the exclusive remedy for employment discrimination disputes under
Massachusetts law. The district court allowed the motion without
comment in an electronic order. Tang sought to amend her complaint
and add several claims, including counts for retaliation and
retaliation in violation of public policy, in April 2015. The
district court denied the motion as untimely.
The defendants sought summary judgment as to Tang's
remaining claims. At the motion hearing, the district court
granted the defendants' motion from the bench. The district court
noted that, even if Nackley had acted inappropriately, Tang's
allegations did not amount to sexual harassment:
[S]o we take it [Nackley] says, 'This is your ass,
this is my ass,' and then he physically approaches
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you. Now that's probably a rather boorish choice of
words, but I don't really see the sexual harassment
there. . . . [T]he same terms could be used between
people of the same gender, and it's that type of
problem that I'm having with your whole case.
The district court noted that nothing in the record indicated that
Nackley had ever touched Tang or made sexual demands of her.
Accordingly, the district court determined that Tang's version of
events did "not constitute a triable issue of sexual harassment."
The district court did not address the issue of retaliation.
Tang filed two motions for reconsideration, both of
which were denied. In the second motion, she asserted additional
evidence and reiterated that her case also involved a claim for
retaliation. The district court denied the motion in a two-line
electronic order, explaining that "[w]hatever new material is
provided in support of this motion is both untimely and
unverified." Now represented by counsel, Tang appeals on the
basis that the district court erred in dismissing her retaliation
and sexual harassment claims.
II.
A. Standard of Review
The grant of summary judgment is subject to de novo
review, with all reasonable inferences drawn in favor of Tang as
the non-moving party. Pérez-Cordero, 656 F.3d at 25. The
non-moving party, however, must "produc[e] specific facts
-11-
sufficient to deflect the swing of the summary judgment scythe."
Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003).
Summary judgment is warranted where "there is no genuine dispute
as to any material fact and the movant is entitled to judgment as
a matter of law." Fed. R. Civ. P. 56(a). "An issue is 'genuine'
if it can 'be resolved in favor of either party,' and a fact is
'material' if it 'has the potential of affecting the outcome of
the case.'" Pérez-Cordero, 656 F.3d at 25 (quoting Calero-Cerezo
v. U.S. Dep't of Justice, 355 F.3d 6, 19 (1st Cir. 2004)).
B. Hostile Work Environment
Title VII prohibits "discriminat[ion] against any
individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual's race,
color, religion, sex, or national origin." 42 U.S.C. § 2000e-
2(a)(1).9 There are two primary types of sex-based discrimination
claims. In the case of "quid pro quo sexual harassment[,] . . . an
employee or supervisor uses his or her superior position to extract
sexual favors from a subordinate employee, and if denied those
favors, retaliates by taking action adversely affecting the
9 Chapter 151B is Massachusetts's analog to Title VII's
discrimination and retaliation bar. See Billings v. Town of
Grafton, 515 F.3d 39, 47 n.6 (1st Cir. 2008). As neither party
has identified meaningful distinctions between Title VII and
Chapter 151B that would affect the outcome here, we do not provide
separate analysis for the Chapter 151B claims. See id.
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subordinate's employment." O'Rourke v. City of Providence, 235
F.3d 713, 728 (1st Cir. 2001). Quid pro quo sexual harassment "is
actionable because it involves explicit and tangible alterations
in the terms or conditions of employment." Pérez-Cordero, 656
F.3d at 26.
Title VII's discrimination ban also "extends to sex-
based discrimination that creates a hostile or abusive work
environment," also known as sexual harassment. Billings v. Town
of Grafton, 515 F.3d 39, 47 (1st Cir. 2008). To prevail on a
claim for sexual harassment, a plaintiff must make a six-part
showing:
(1) that she (or he) is a member of a protected
class; (2) that she was subjected to unwelcome sexual
harassment; (3) that the harassment was based upon
sex; (4) that the harassment was sufficiently severe
or pervasive so as to alter the conditions of
plaintiff's employment and create an abusive work
environment; (5) that sexually objectionable conduct
was objectively and subjectively offensive, such
that a reasonable person would find it hostile or
abusive and the victim in fact did perceive it to be
so; and (6) that some basis for employer liability
has been established.
O'Rourke, 235 F.3d at 728. Because the defendants focus on whether
Tang was subjected to sex-based discrimination under the second
and third prongs and whether the alleged harassment was severe or
pervasive and both objectively and subjectively offensive under
the fourth and fifth prongs, we focus on these elements as well.
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1. Sex-Based Discrimination
The defendants assert that Tang cannot show that the
alleged harassment was based on sex, as she asserts no evidence of
sexual comments or behavior.10 As the district court determined,
Tang does not allege that Nackley directly propositioned her or
touched her. Title VII, however, does not require evidence of
overtly sexual conduct for a sexual harassment claim. See
O'Rourke, 235 F.3d at 729; see also Oncale v. Sundowner Offshore
Servs., Inc., 523 U.S. 75, 80 (1998) ("Courts and juries have found
the inference of discrimination easy to draw in most male-female
sexual harassment situations, because the challenged conduct
typically involves explicit or implicit proposals of sexual
activity . . . .").
The defendants assert that, even accepting Tang's
testimony as true, many of Nackley's comments lack any sexual
content. For example, the defendants contend that Nackley's use
of the word "ass" is not sexual in nature because "[t]he term 'ass'
is a vulgar expression that refers to a portion of the anatomy of
both sexes." Gross v. Burggraf Constr. Co., 53 F.3d 1531, 1543
(10th Cir. 1995). Similarly, as to Nackley's remarks regarding
his Thai au pairs, the defendants note that Tang does not allege
10 The defendants do not dispute that Tang considered Nackley's
conduct unwelcome.
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that he ever made blatantly sexual comments about them. But Title
VII requires no magic words to convert a verbal exchange into the
stuff of sexual harassment. See Billings, 515 F.3d at 48 ("[N]o
particular 'types of behavior' are essential to a hostile work
environment claim."). The context in which something is said may
be just as important as what is said. Cf. O'Rourke, 235 F.3d at
730 ("Courts should avoid disaggregating a hostile work
environment claim, dividing conduct into instances of sexually
oriented conduct and instances of unequal treatment, then
discounting the latter category of conduct."). As the defendants
argue, an innocuous comment that Nackley hired two Thai au pairs,
without more, is unlikely to qualify as sexual harassment. When
viewed in the context of Tang's allegations that Nackley also
discussed the purported obedience of Asian women and whether the
au pairs' swimwear choices were sufficiently revealing, however,
Nackley's statements take on a sexually suggestive tone.
Similarly, using the word "ass" in the workplace does
not necessarily amount to sexual harassment: like many words,
"ass" has varied meanings and connotations that hinge on the
context in which it arises. Here, Tang alleges that Nackley
approached her, gestured at her "private area," and made obscene
gestures with his hands. The defendants assert that Tang's
testimony as to this episode (and many others) has grown more
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elaborate with time and urge us to disregard her changed testimony.
A party's inconsistent testimony may render her an easily
impeachable witness: it does not mean that summary judgment is
warranted. See Simas v. First Citizens' Fed. Credit Union, 170
F.3d 37, 49 (1st Cir. 1999) ("[C]redibility determinations are for
the factfinder at trial, not for the court at summary judgment.").11
The defendants contend, and Tang agrees, that many of
the exchanges alleged here do not involve sexual conduct. For
example, even if the court accepts Tang's allegations that Nackley
yelled at her during the February meetings, this aggressive
behavior is not necessarily based on her sex. However, "[t]he
fact that not all of the complained-of conduct has obvious sexual
11 The defendants are correct that, "[w]here a party has given
'clear answers to unambiguous questions' in discovery, that party
cannot 'create a conflict and resist summary judgment with an
affidavit that is clearly contradictory.'" Escribano-Reyes v.
Prof'l Hepa Certificate Corp., Nos. 15-1259, 15-1404, 2016 WL
1239570, at *3 (1st Cir. Mar. 30, 2016) (quoting Hernández-Loring
v. Universidad Metropolitana, 233 F.3d 49, 54 (1st Cir. 2000)).
Contrary to the defendants' assertions, Tang's deposition
testimony is largely consistent with the account in her later-
filed affidavit, although her affidavit does expand on some of her
deposition testimony. Nevertheless, both the deposition testimony
and the affidavit contain many of her core allegations as to her
sexual harassment claim, including that Nackley approached her and
made obscene gestures in the "assume" conversation and that he
commented on the Thai au pairs' swimwear. Although her initial
complaint to human resources omitted many of these more
objectionable details, the defendants do not cite any authority
suggesting that Tang is bound by the accusations raised in a human
resources complaint.
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connotations does not diminish the force of the evidence indicating
gender-based animus." Pérez-Cordero, 656 F.3d at 28. Further,
Tang alleges that Nackley's egregious behavior in their later
interactions stemmed from her having rebuffed his advances, and
"when harassment is motivated by a failed attempt to establish a
romantic relationship, 'the victim's sex is inextricably linked to
the harasser's decision to harass.'" Id. (quoting Forrest v.
Brinker Int'l Payroll Co., 511 F.3d 225, 229 (1st Cir. 2007)).
Viewing the circumstances as a whole, then, this court
determines that the evidence was sufficient to raise a reasonable
inference that Nackley engaged in sex-based discrimination.
2. Severe or Pervasive; Objectively and Subjectively
Offensive
For purposes of a sexual harassment claim, the conduct
must be so severe or pervasive that it "amount[s] to a change in
the terms and conditions of employment." Ponte v. Steelcase Inc.,
741 F.3d 310, 321 (1st Cir. 2014) (quoting Faragher v. City of
Boca Ratón, 524 U.S. 775, 788 (1998)); see also Billings, 515 F.3d
at 47. In addition, the "sexually objectionable environment must
be both objectively and subjectively offensive, one that a
reasonable person would find hostile or abusive, and one that the
victim in fact did perceive to be so." Billings, 515 F.3d at 47
(quoting Faragher, 524 U.S. at 787). In assessing whether conduct
is severe or pervasive and both objectively and subjectively
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offensive, we evaluate "the severity of the conduct, its frequency,
whether it is physically threatening or not, and whether it
interfered with the victim's work performance." Ponte, 741 F.3d
at 320 (quoting Gerald v. Univ. of P.R., 707 F.3d 7, 18 (1st Cir.
2013)).
The defendants assert that Tang identifies only four
instances of harassment -- the initial interview, the July 2010
performance review, Nackley's veiled threats as to her immigration
status, and the conflict-of-interest meeting -- and such isolated
incidents do not qualify as severe or pervasive. To the contrary,
Tang stated that Nackley made inappropriate comments to her
"[e]very time he had a chance." To be sure, Nackley did not work
in the same office as Tang, and Tang's deposition testimony is
unclear as to how frequently these exchanges took place.
Nevertheless, Nackley frequented Citizens's Boston office and
acted as the manager of the Technology Banking Group, giving Tang
projects and delivering her performance reviews. On summary
judgment, "we cannot definitively say . . . that [Nackley's]
conduct was not sufficiently severe or pervasive to allow a jury
to find in favor of [Tang] on her hostile environment claim."
Billings, 515 F.3d at 50 (noting that the testimony as to the
frequency of the allegedly harassing conduct was "incomplete" yet
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the plaintiff testified "that it happened a lot" (alteration
omitted) (internal quotation marks omitted)).
Turning to the question of whether Nackley's conduct was
objectively offensive, the defendants assert that Tang's reactions
to Nackley's comments were extraordinarily subjective and her
description of Nackley's behavior overly vague. For example, when
Nackley asked Tang about her relationship with Atkin, she reported
"feel[ing] like, 'Oh, my God, this is the end of the world.'" In
addition, her amended complaint alleged that Nackley told Tang
"that, despite having a wife and children, he also had two Thai
house girls at his home, which was also intended to suggest to
Plaintiff . . . [to] get with his mandated, in effect, program of
sex." In this way, the defendants ask us to interpret Tang's
allegations as completely subjective responses to Nackley's
otherwise innocuous comments and questions. We do not take the
bait.
Tang's deposition testimony expands upon many of these
exchanges. For example, Tang asserts that Nackley had learned of
her relationship with Atkin long before the February meeting and
his "conflict of interest" motive was purely pretextual.
According to Tang, Nackley was angry that Tang had not responded
to his advances and was seeking an excuse to learn about her
personal life. Nackley acted outraged and was physically
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threatening during the meeting and, in the months prior, had pried
into Tang's personal relationships and made references to her
immigration status. This cumulative evidence could support a
reasonable inference that Nackley called this meeting with an
improper motive.
As with many of the events described by the parties,
Nackley and Tang have wildly divergent accounts of what happened
at the February meeting. There is no question, however, that we
must resolve all factual disputes in favor of the non-moving party
on summary judgment. See id. Further, Tang has alleged that
Nackley continually stared at her, asked about her personal
relationships, and discussed his "Thai girls" and their swimwear
choices, as well as physically approaching her and making obscene
gestures during a one-on-one meeting. Accordingly, a reasonable
jury could determine that Nackley's conduct, as alleged by Tang,
was both subjectively and objectively offensive.
For these reasons, we find that the evidence is
sufficient to defeat summary judgment as to Tang's hostile work
environment claim. All in all, many of the defendants' arguments
are oblique criticisms of Tang's credibility and veracity.
Ultimately, these points are for the jury -- and not for the
court -- to decide.
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C. Retaliation
Both Chapter 151B and Title VII prohibit employers from
"retaliat[ing] against persons who complain about unlawfully
discriminatory employment practices." Noviello v. City of Bos.,
398 F.3d 76, 88 (1st Cir. 2005) (citing 42 U.S.C. § 2000e-3(a);
Mass. Gen. Laws ch. 151B, § 4(4)). To demonstrate retaliation
under either statute, "a plaintiff must show that (i) she undertook
protected conduct, (ii) she suffered an adverse employment action,
and (iii) the two were causally linked." Id. "[A]n employee who
carries her burden of coming forward with evidence establishing a
prima facie case of retaliation creates a presumption of
discrimination, shifting the burden to the employer to articulate
a legitimate, non-discriminatory reason for the challenged
actions." Billings, 515 F.3d at 55. Should the employer create
a genuine issue of fact, "the presumption of discrimination drops
from the case," and the plaintiff carries the burden of showing
that the employer's reason for the adverse action was pretextual.
Id. (quoting Colburn v. Parker Hannifin/Nichols Portland Div., 429
F.3d 325, 336 (1st Cir. 2005)).
1. Waiver
As a threshold matter, we must determine whether the
retaliation claim is properly before this court. The defendants
assert that any retaliation claim is waived: Tang's amended
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complaint contained no claim for retaliation, and the district
court denied her request to amend her complaint to add a count for
retaliation, a decision she does not dispute on appeal. Although
the defendants are correct that Tang's amended complaint does not
include a retaliation claim among its numbered causes of action,
paragraph thirty-one of her amended complaint asserts that the
"[d]efendants did wrongfully, unjustly, and tortiously fire her,
as a result of her respectfully informing HR of her complaint
against him, and her declining to have sex with him." In addition,
her complaint contained allegations that Nackley sought a sexual
relationship with her and that she was terminated despite "solid
job performance" after "declin[ing] his advances." These
allegations clearly set out a prima facie case for retaliation,
and, given Tang's status as a pro se litigant, they are sufficient
to state a retaliation claim. See Rodi v. S. New Eng. Sch. of
Law, 389 F.3d 5, 13 (1st Cir. 2004) ("[T]he fact that the plaintiff
filed the complaint pro se militates in favor of a liberal
reading."); Ahmed v. Rosenblatt, 118 F.3d 886, 890 (1st Cir. 1997)
("The policy behind affording pro se plaintiffs liberal
interpretation is that if they present sufficient facts, the court
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may intuit the correct cause of action, even if it was imperfectly
pled.").
That said, neither the defendants nor the district court
appear to have acknowledged Tang's retaliation claim. To be sure,
the defendants were on notice of the claim: in their answer to
the amended complaint, the defendants denied the allegation in
paragraph thirty-one. Still, they made no mention of retaliation
in their partial motion for judgment on the pleadings, nor did the
district court refer to retaliation in its brief order granting
the defendants' motion. 12 The defendants did not address
retaliation in their motion for summary judgment, and neither the
district court nor the defendants raised the topic at the motion
hearing.
12 The district court granted the motion in a single sentence,
stating, "[t]he motion for partial judgment on the pleadings is
allowed and the defendants' proposed schedule as modified is
adopted." Given the absence of information on the record
concerning the fate of Tang's retaliation claim, this order could
be interpreted as a dismissal of Tang's allegations of retaliation.
But the defendants do not argue this point, and, in any case, we
are reluctant to accept that the district court dismissed a claim
properly pled by a pro se plaintiff without explaining its reasons
and lacking any argumentation from the moving party. We think the
better approach is to interpret the district court's order as
dismissing only those claims explicitly listed in the defendant's
motion for judgment on the pleadings. And, because the motion
omitted any reference to Tang's retaliation claim, that claim would
have survived the pleadings stage.
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At the summary judgment stage, Tang tried to notify the
district court of her retaliation claim. In her opposition to the
defendants' motion for summary judgment, she explained that her
termination constituted retaliation for not submitting to
Nackley's sexual harassment. Following the motion hearing, she
submitted two motions for reconsideration, the second of which
explicitly stated that "[t]his is not merely a sexual harassment
cause. It is a . . . [r]etaliation . . . case." The district
court denied both motions.13 It is unclear from the record whether
the district court determined that summary judgment was warranted
13 Insofar as the district court denied the motions for
reconsideration on the basis that Tang had failed to allege
retaliation earlier in the proceedings, that decision constituted
an abuse of discretion, as Tang's amended complaint contained a
retaliation claim. That said, the district court did not err in
declining to acknowledge evidence that Tang presented after the
issuance of summary judgment. For motions for reconsideration
under Federal Rule of Civil Procedure 59(e) premised on new
evidence, the movant must show that "newly discovered evidence
(not previously available) has come to light." Palmer v. Champion
Mortg., 465 F.3d 24, 30 (1st Cir. 2006). The evidence alleged in
her motion for reconsideration, much of which concerned events
that took place around the time of her termination, was available
before the district court granted the defendants' motion for
summary judgment. "While courts have historically loosened the
reins for pro se parties, the 'right of self-representation is not
a license not to comply with relevant rules of procedural and
substantive law.'" Eagle Eye Fishing Corp. v. U.S. Dep't of
Commerce, 20 F.3d 503, 506 (1st Cir. 1994) (internal citations
omitted) (quoting Andrews v. Bechtel Power Corp., 780 F.2d 124,
140 (1st Cir. 1985)). To that end, the district court did not err
in determining that Tang's submission of evidence, available long
before the defendants sought summary judgment, was "untimely."
For this reason, we do not consider this evidence in our analysis.
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as to the retaliation claim, or, in the alternative, whether it
determined that a retaliation claim had never been pled in the
first place. The district court's basis for dismissing the claim
is of no matter, however: because review on summary judgment is
de novo, the district court's failure to address the merits of
Tang's retaliation claim does not prevent us from doing so today.
See Demelo v. U.S. Bank Nat'l Ass'n, 727 F.3d 117, 121 (1st Cir.
2013) (holding that, where the basis for the district court's
decision is unclear, "we are not restricted to the district court's
reasoning" but may decide "on any basis made manifest by the
record").
2. The Merits
There is no question that Tang undertook protected
conduct by submitting her complaint to human resources and
subsequently suffered an adverse employment action upon her
termination.14 We must address whether the evidence is sufficient
14 Tang also contends that she suffered retaliation because she
was terminated for not responding to Nackley's advances. It is
unclear to what extent such conduct qualifies as protected conduct
under Title VII. See, e.g., EEOC v. New Breed Logistics, 783 F.3d
1057, 1067 (6th Cir. 2015); Mihalik v. Credit Agricole Cheuvreux
N. Am., Inc., 715 F.3d 102, 115 n.12 (2d Cir. 2013); Tate v. Exec.
Mgmt. Servs., Inc., 546 F.3d 528, 532 (7th Cir. 2008). Because
neither party addresses this issue -- and because Tang's human
resources complaint clearly constitutes protected conduct -- we
leave for another day the question of whether Tang's act of
refusing Nackley's come-ons constitutes a protected activity under
Title VII. In any case, evidence that Nackley punished Tang for
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to demonstrate that Tang's "protected activity was a but-for cause
of the alleged adverse action by the employer." Ponte, 741 F.3d
at 321 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2534 (2013)). Tang contends that the timing of her
termination supports a finding of causation. She brought her
complaint to human resources in February 2011 and was terminated
only four months later, in June. The parties dispute whether
timing alone is sufficient to demonstrate causation. Compare
Ponte, 741 F.3d at 322 ("Chronological proximity does not by itself
establish causality, particularly if the larger picture undercuts
any claim of causation." (quoting Wright v. CompUSA, Inc., 352
F.3d 472, 478 (1st Cir. 2003) (internal formatting omitted))),
with Pérez-Cordero, 656 F.3d at 32 ("[T]emporal proximity between
[the plaintiff]'s initial complaints and these retaliatory actions
is sufficient to establish the causal connection required for a
prima facie case of retaliation."). Here, however, we have more
than just timing. The defendants asserted evidence of Tang's
problems in the Technology Banking Group, including email chains
between Tang and various supervisors that were later forwarded to
Cosgrove in human resources, as evidence that Citizens had a non-
discriminatory motive for terminating her. One such email
rebuffing him remains relevant to her sexual harassment claim.
-26-
purports to demonstrate that Tang failed to submit a project to
her supervisor before going on vacation in December 2010. Another
email chain shows that, in October 2010, Tang miscalculated the
risk-adjusted return on capital for a major client.15
To be sure, these emails show that Tang had performance
issues long before she complained to human resources and that
reports regarding her performance came from individuals besides
Nackley,16 evidence that militates against a finding of causation.
See Ponte, 741 F.3d at 322. We nevertheless believe that the
15 Tang contends that these emails are inadmissible hearsay and
therefore cannot be considered on summary judgment. That
argument, however, is foreclosed under Ramírez Rodríguez v.
Boehringer Ingelheim Pharm., Inc., 425 F.3d 67, 76-77 (1st Cir.
2005), where this court determined that a "report and physician
statements were not offered to prove that [the plaintiff] engaged
in misconduct, but rather to demonstrate that his superiors had
reason, based on a thorough investigation, to believe that he had."
Id. at 77. Similarly, these emails were not admitted to
demonstrate that Tang was a poor performer, but that those in
charge of hiring decisions at Citizens had reason to believe that
she was. Tang asserts that there is no evidence that Nackley or
anyone else in charge of these hiring decisions saw these emails.
Many of these communications, however, were addressed to Nackley
and Cosgrove, who, as a human resources employee, presumably would
be involved in a decision to terminate an employee.
16 Even then, many of these emails were from Perry and Clossey,
two employees whom Tang has alleged were close to Nackley.
Accordingly, a reasonable jury could determine that Nackley, as
"[t]he target of the complaint," had "coworker-friends who c[a]me
to his defense" following Tang's complaint. See Noviello, 398 F.3d
at 93 (remanding on summary judgment grounds where the plaintiff's
coworkers contributed to a hostile work environment following her
submitting a complaint concerning another employee).
-27-
circumstances surrounding these emails are sufficient to suggest
pretext, which may be shown "through 'such weaknesses,
implausibilities, inconsistencies, incoherencies, or
contradictions in the employer's proffered legitimate reasons for
its actions that a reasonable factfinder could rationally find
them unworthy of credence.'" Billings, 515 F.3d at 55-56 (quoting
Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 168 (1st Cir. 1998)).
Although many of the events described in these emails
took place long before Tang submitted her human resources
complaint, the emails appear to have been forwarded to human
resources as evidence of her poor performance in March 2011,
immediately after Tang's complaint that February. The most
logical inference is that human resources had compiled these emails
to investigate whether there was any basis for Tang's claim that
her PIP was false. But, as Tang suggests, another inference is
available: that, upon receiving Tang's complaint, Citizens had
realized she posed a problem and was beginning to collect
information for her termination. While this inference may be less
plausible, it is not for this court on summary judgment to decide
between competing inferences.
Tang contends that many of these emails are devoid of
context, and it is therefore difficult to distinguish them from
-28-
"the ordinary back and forth involved in training a new employee."17
Indeed, in the instance where Tang left for vacation before
finishing a project, the email recipient thanks Tang for completing
her assignment while on vacation and states, "you really do not
have to do this while you are on vacation." The recipient does
not reprimand or otherwise criticize Tang. In addition, the
defendants have declined to clarify the precise circumstances of
Tang's termination. In his declaration, Nackley stated that Tang
"made a material mistake in violation of her FWW," but Citizens
has never explained what this "material mistake" was. Such
ambiguity reinforces the impression that Citizens's reasons for
terminating Tang may have been pretextual.
Tang has also presented evidence of praise she received
while an employee at the Technology Banking Group and the
Commercial Real Estate Group.18 The defendants contend that Tang's
17 That said, we do not accept Tang's argument that the defendants'
failure to adduce evidence of performance reviews from individuals
who worked more closely with Tang and reviews from before 2009
suggests that the defendants are concealing more positive
evaluations for purposes of summary judgment. Indeed, had Tang
felt that more positive reviews were available that Citizens had
yet to tender, she had access to discovery tools and procedures
under Federal Rule of Civil Procedure 56 that would have allowed
her to obtain them. See, e.g., Fed. R. Civ. P. 56(d) (providing
certain relief where "a nonmovant shows by affidavit or declaration
that . . . it cannot present facts essential to justify its
opposition").
18 The defendants emphasize that Tang's performance review from
the Commercial Real Estate Group included a score of "development
-29-
work in Commercial Real Estate is not relevant to her performance
in the Technology Banking Group. Still, the fact that Tang
received positive reviews up until she began working with her
alleged harasser raises the reasonable inference that her negative
reviews and termination were related to Nackley's behavior. To
be sure, the praise is not gushing, and the fact that an employee
may occasionally receive a good review does not necessarily
discount a consistent record of poor performance. For this
reason, we do not foreclose that a jury could reasonably find that
Tang was fired as a result of her poor work product. But, "where
a plaintiff in a discrimination case makes out a prima facie case
and the issue becomes whether the employer's stated
nondiscriminatory reason is a pretext for discrimination, courts
must be 'particularly cautious' about granting the employer's
motion for summary judgment." Billings, 515 F.3d at 56 (quoting
Hodgens, 144 F.3d at 167).
required" (level two) for one of the performance categories.
Based on this evidence, they ask that this court infer that she
received middling reviews in Commercial Real Estate. Viewing the
record in the light most favorable to Tang, we decline to interpret
the performance review as such: the rest of the review indicates
that Tang "fully achieved objectives" (level three) in all other
performance categories, and, although Citizens typically barred
employees who received a two or below on their performance reviews
from inter-department transfers, an exception was made for Tang.
-30-
III.
Because the record raises a triable issue as to whether
Tang suffered sexual harassment and retaliation, the judgment is
vacated and the case remanded for further proceedings consistent
with this opinion. Costs are awarded to Tang.
Vacated and Remanded.
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