Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

No. 08-1043

MARA SABINSON,

Plaintiff, Appellant,

v.

TRUSTEES OF DARTMOUTH COLLEGE,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

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

Before

 Torruella, Boudin and Dyk,*

Circuit Judges.

K. William Clauson with whom Clauson Atwood & Spaneas was on

brief for appellant.

Bruce W. Felmly with whom Linda S. Johnson, Michael T. Pearson

and McLane, Graf, Raulerson & Middleton, P.A. were on brief for

appellee.

September 12, 2008
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BOUDIN, Circuit Judge. Professor Mara Sabinson

challenges the district court's grant of summary judgment to her

employer, Dartmouth College, on her claims under Title VII, 42

U.S.C. § 2000e (2000) et seq., under the federal age discrimination

statute, 29 U.S.C. § 621 (2000) et seq., and for retaliation. We

review the grant of summary judgment de novo, drawing inferences in

favor of the nonmoving party, here Sabinson. Vesprini v. Shaw

Contract Flooring Servs., Inc., 315 F.3d 37, 39 n.1 (1st Cir.

2002).

The background facts, elaborated in the district court's

decision, Sabinson v. Trustees of Dartmouth Coll., No. 05-cv-424-

SM, 2007 WL 4191943, at *2-*5 (D.N.H. Nov. 21, 2007), can be

summarized briefly. Mara Sabinson is a professor in the Dartmouth

College Theater Department. She first visited the department in

1984, was hired in 1985 and has been tenured since 1991. Her

difficulties there date back at least to 1988, when she almost was

not reappointed to her pre-tenure position due to concerns about

her interactions with students and faculty. Her subsequent tenure

battle was contentious. 

Sabinson served as chair of the Theater Department in

seven non-consecutive years, most recently from 1999 to 2002.

During that time, some of her colleagues and students complained to

school administrators about her behavior toward them. One of these

administrators, then-Dean of the Faculty Edward Berger, wrote her
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a critical letter in June 2001, asserting that her department was

"demoralized" and that she had generated a "high level of acrimony"

amongst the faculty.

Despite such criticisms, a number of Sabinson's student

evaluations for both teaching and directing were positive, and peer

reviews of the productions she directed were favorable. Some

faculty members who worked in the department in the past seem to

have gotten along well with her. Overall, there is evidence she

was a good teacher and director and other evidence suggesting that

her style of interacting with others, both students and faculty,

was controversial.

Sabinson's appointment as chair ended in 2002 and she

left on a year-long sabbatical. Lenore Grenoble, Associate Dean of

the Faculty for the Humanities, concluded that the Theater

Department was in disrepair and needed to be placed in

"receivership" due to the various student and faculty complaints

and the generally contentious atmosphere. Dean Grenoble took over

as chair and, when Sabinson returned in fall 2003, assigned

Sabinson's usual advanced acting class to a different professor; in

fall 2004, Dean Grenoble also reassigned the job (previously

Sabinson's) of directing the 2005-2006 main stage production. 

That same fall, Dean Grenoble determined that an

intensive review of the Theater Department was required to get it

back on track. She selected three reviewers: Peter Saccio, Leon
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D. Black Professor of Shakespearean Studies at Dartmouth; Malcolm

Morrison, Dean of the Hartt School of Music at the University of

Hartford; and Anne Torsiglieri, a professional actress. The review

committee was charged with a review of the department that

encompassed its acting program. 

The review committee met on campus on April 25 and 26,

2005. After conducting interviews and completing its review, the

committee compiled an extensive report detailing a number of

challenges facing the department. It expressed concern about

enrollment and about student attrition and morale, and it made

wide-ranging suggestions for changes in the department's

operations. There was no specific discussion of Sabinson in the

report itself.

However, in a confidential cover letter transmitting the

report, the review committee asserted that there had been

widespread criticism of Sabinson. It described her effect as

"corrosive" and strongly urged that she be offered a retirement

package. In the alternative, it said that she should be

"marginalized to certain courses" -- apparently to the exclusion of

directing. On June 3, 2005, after meeting with the review

committee, Dean Grenoble, along with Dean of the Faculty Carol Folt

and Provost Barry Scherr, met with Sabinson to discuss the

committee's findings, including the options it had proposed. 
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Sabinson claims that she was told in this meeting that

she did not fit into the "culture" of the department. Sabinson

agreed to consider the buyout offer once she was told what course

offerings would otherwise be assigned to her. Soon after Sabinson

returned to her office, Professor Margaret Spicer, a colleague but

also an antagonist of Sabinson, stopped by and, learning of the

meeting, suggested that Sabinson "find [her] rabbi and start . . .

a happy new life." The reference -- to a play in which the

character by Sabinson had done just that -- offended Sabinson. 

On June 6, 2005, Sabinson met with Ozzie Harris, then a

diversity officer at the college, but she did not file a grievance

with him. On August 8, 2005, Sabinson filed a complaint with the

Equal Employment Opportunity Commission and the New Hampshire

Commission on Human Rights. On August 16, 2005, Dean Grenoble

offered Sabinson four courses for the upcoming academic year:

Acting for the Camera and three first-year writing seminars on a

topic of her choosing. 

On November 30, 2005, Sabinson filed suit against

Dartmouth in federal district court, alleging wrongful constructive

discharge and demotion; breach of contract; discrimination based on

age, gender, and religion; and retaliation. On August 29, 2006,

the constructive discharge claim was dismissed and on November 21,

2007, the district court granted Dartmouth's motion for summary
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judgment as to the remaining discrimination and retaliation claims,

declining to exercise pendant jurisdiction over the contract claim.

Sabinson now appeals from the grant of summary judgment as to the

discrimination and retaliation claims. 

In support of her discrimination claims, Sabinson argues

that the review committee was a sham designed to find against her

in accordance with a plan by Dean Grenoble, who was discriminatory

in appointing a biased committee and instructing it improperly, and

that the review committee was itself biased. According to

Sabinson, Dean Grenoble and the review committee failed to review

or recognize her good teaching evaluations and the review committee

members never saw her teach. In addition, Dean Grenoble allegedly

instructed the committee to make findings critical of Sabinson.

In claiming that material issues of fact precluded

summary judgment, Sabinson points to her own affidavit recounting

the events just described, an affidavit of Ozzie Harris that he

thought she was being unfairly treated, and three affidavits of

other professors speaking generally about their perceptions of

racism, anti-Semitism, and sexism at Dartmouth. Sabinson also says

that the buyout offer evidenced age-based animus and that the

decision to assign her to three first-year writing seminars was

retaliation for her complaint to the EEOC.

As the district court found, Sabinson offered no direct

evidence of religious, gender- or age-based discrimination. The
Harris, who had left Dartmouth, said in his deposition that 1

he thought men were more generously treated than women on the

faculty and that Dartmouth was a Christian school; but he also said

that he thought that the review process had been fair, that

Grenoble had been fair minded, and that the retirement offer was

appropriate. 

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statements by decision-makers about the "culture" of the department

were made in the context of a cover letter referring to antagonism

within the faculty and a failure to work together. Cf. Patten v.

Wal-Mart Stores E., Inc., 300 F.3d 21, 25 (1st Cir. 2002) (comments

capable of different interpretations are not direct evidence).

Ozzie Harris, although sympathetic to Sabinson, agreed that this is

all that had been meant.1

By contrast, the three affidavits offered some anecdotal

evidence of racism, sexism, and anti-Semitism. But they were not

directed to any events concerning Sabinson and did not involve the

decision-makers in her case during the time period at issue here.

See Ruiz v. Posadas de San Juan Assocs., 124 F.3d 243, 249 (1st

Cir. 1997). And the offer of a buyout to resolve an employment

dispute is by itself hardly direct evidence of age discrimination

even if the employee is elderly. Cf. Hazen Paper Co. v. Biggins,

507 U.S. 604, 609 (1993) (employment decisions not discriminatory

under ADEA if something besides age motives them).

Absent direct evidence of discrimination, the district

court appropriately applied the McDonnell Douglas burden-shifting

analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142- 2

43 (2000)(after employer offers legitimate nondiscriminatory

reason, "the sole remaining issue [is] 'discrimination vel non'")

(citation omitted); Zapata-Matos v. Reckitt & Colman, Inc., 277

F.3d 40, 44-45 (1st Cir. 2002) (same); Thomas v. Eastman Kodak, 183

F.3d 38, 56 (1st Cir. 1999) (at the third stage of the McDonnell

Douglas framework "the ultimate burden is on the plaintiff to

persuade the trier of fact that she has been treated differently

because of [a protected characteristic]").

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Even assuming arguendo, as the district court did, that Sabinson

made out a prima facie case under this formula -- not a heavy

burden, Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003)

-- Dartmouth has produced a non-discriminatory justification for

its action, namely, the review committee's finding that Sabinson's

manner was damaging the department. 

That conclusion, whether or not correct, accorded with

some of the history already recounted. Once such a colorable

nondiscriminatory explanation is provided, the burden under

McDonnell Douglas shifts back to the plaintiff to show that the

motive was discriminatory. The question is whether Sabinson 2

created a jury issue as to whether Dartmouth's explanation was

simply a pretext for discrimination. See LeBlanc v. Great Am. Ins.

Co., 6 F.3d 836, 842-43 (1st Cir. 1993). 

Sabinson contends that the college's reliance on the

review committee was pretextual because the committee was not

genuinely examining her qualifications, but was rather appointed

and taking action merely to provide cover for a predetermined

adverse action. If arguable unfairness in treatment were enough,
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Sabinson might well have a case for a jury. Allegedly, Saccio had

a history of enmity toward her; the other two review committee

members were friends of Professor Peter Hackett, the new chair of

the department, supposedly also hostile to Sabinson; Grenoble, who

appointed the review committee and participated in the final

ultimatum, already had an unfavorable view of Sabinson. And, it

might be a question of fact whether the review committee fairly

considered or properly weighed all of the relevant evidence.

But, whether or not personal or professional hostility

played a role in the assessment, federal law does not protect

generally against arbitrary or unfair treatment in private

employment, but only against actions motivated by listed prejudices

such as race, age and gender. Hazen Paper Co., 507 U.S. at 609;

Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 22 (1st

Cir. 1999); Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st

Cir. 1994). Discrimination is a form of unfairness; but not all

unfairness is discrimination.

Even if we were to assume that Sabinson has produced

evidence of pretext, the problem is that Sabinson's evidence did

not tend to establish a discriminatory purpose, but rather tended

to establish that a preexisting animus against her (unrelated to

discrimination) was the reason for the adverse action. Thus, in a

sense, the existence of personal or professional hostility toward

Sabinson based on other reasons tends to work against her claim of
See Reeves, 530 U.S. at 147-48 (noting that, while a 3

factfinder generally can consider employer's dishonesty about its

true motivation as evidence of guilt and might be able to draw an

inference of discrimination from pretext, "an employer would be

entitled to judgment as a matter of law if the record conclusively

revealed some other, nondiscriminatory reason for the employer's

decision"); Thomas, 183 F.3d at 61.

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discrimination. Sabinson's case might well be stronger if, after

raising doubts about the purported reason for her treatment, the

only plausible reason left appeared to be discrimination. In any 3

event, the pretext inquiry is heavily fact-specific, Zapata-Matos,

277 F.3d at 45, and in this case Dartmouth's judgment on Sabinson,

whether or not correct, shows no plausible taint of having been

made on grounds of gender, religion, or age. 

As to the retaliation claim, the review committee's

recommendation to "marginalize" Sabinson in her course assignments

-- if she failed to accept a retirement package -- was made in the

May 31, 2005, report, and the decision to follow this course was

made at the June 3 meeting. The partly unattractive August 16

assignments, although occurring after Sabinson's agency complaints

on August 8, were the carrying out of a plan avowed well before the

complaint and therefore not even arguably caused by the complaint.

This failure to show causation is fatal to Sabinson's

retaliation claim. See, e.g., Douglas v. J.C. Penney Co., Inc.,

474 F.3d 10, 15 (1st Cir. 2007). The filing of a complaint cannot

be the basis for adverse employment action but it also cannot

immunize an employee from action already planned and not dependant
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on the complaint. Absent a decision by Sabinson to retire,

unwelcome assignments were inevitable regardless of the complaint.

Affirmed.