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Cherkaoui v. City of Quincy

United States Court of Appeals, First Circuit

December 4, 2017

DEBRA CHERKAOUI, Plaintiff, Appellant,
v.
CITY OF QUINCY, Defendant, Appellee.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Leo T. Sorokin, U.S. District Judge]

          Marisa A. Campagna and Law Office of Marisa A. Campagna on brief, for appellant.

          Sarah A. Catignani, Brandon H. Moss and Murphy, Hesse, Toomey & Lehane, LLP on brief, for appellee.

          Before Torruella, Lynch, and Lipez, Circuit Judges.

          TORRUELLA, CIRCUIT JUDGE

         Debra Cherkaoui ("Cherkaoui" or "Plaintiff") appeals from the district court's grant of summary judgment in favor of her former employer, the City of Quincy, Massachusetts ("City" or "Defendant"), on her claims of employment discrimination, retaliation, and constructive discharge. She argues that the district court erred by adopting the magistrate judge's Report and Recommendation and granting the City's motion for summary judgment. After careful consideration, we find no such error, and thus affirm.

         I. Background

         Because this is an appeal from a grant of summary judgment, "we review the facts in a manner as favorable to [the plaintiff] as the record allows, 'keenly aware that we cannot accept conclusory allegations, improbable inferences, and unsupported speculation.'" Pina v. Children's Place, 740 F.3d 785, 788 (1st Cir. 2014) (quoting Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134 (1st Cir. 2013)).

         A. Factual History

         Cherkaoui was hired by the City as a Spanish teacher in 1998. For approximately eleven years, except for a brief period when her child was born and the 2001-2002 school year when she worked as a full-time Spanish teacher at Sterling Middle School ("Sterling"), Cherkaoui worked part-time at Atlantic Middle School ("Atlantic"). She originally only taught Spanish, but later transitioned to the English Language Learners ("ELL") department. Prior to 2009, Cherkaoui had not been subject to any disciplinary action.

         Plaintiff converted to Islam in 1998. In April 2009, she began wearing a headscarf to work for religious reasons. It is from that point forward, Cherkaoui alleges, that she was subjected to "hostile treatment" by the Defendant. This alleged "hostile treatment" consisted of: 1) several events of discourteous and differential treatment as compared to other similarly situated teachers; 2) inappropriate or impractical assignments; 3) and failure by Defendant to properly respond to her grievances. In addition, Cherkaoui suffers from Attention Deficit Hyperactivity Disorder ("ADHD"), known to the employer, and further alleges that the City did not adequately respond to her requests for reasonable accommodations. We review each of the alleged discriminatory incidents by academic year.

         1. 2009-2010 Academic Year

         a. Different Treatment as Compared to Similarly Situated Teachers

         During the spring of 2009, Cherkaoui requested a full-time teaching assignment for the following school year. She indicated that her first preference was for an assignment in Atlantic, but that she was open to the possibility of a split assignment with another school. The City granted Cherkaoui's request, offering her the only full-time teaching position available: a split assignment between Atlantic and Sterling. Cherkaoui accepted the split assignment. This was to be her first time teaching classes at two different schools. According to Plaintiff, having teachers split their time between two schools is a disfavored practice in the Quincy Public Schools ("QPS") system.

         In June 2009, Cherkaoui received the details of her assignment for the 2009-2010 academic year, consisting of three ELL classes at Atlantic and two at Sterling. However, just a few days before the school year started, the City informed Plaintiff that her teaching assignment in Atlantic would instead consist of two ELL classes and one Spanish class. The Sterling teaching assignment remained unchanged. Plaintiff claims that this last minute reassignment was disadvantageous for her because she had not taught Spanish for many years. She also asserts that it is "extraordinary" for teachers to receive their final assignments so close to the new school year. Cherkaoui objected to this last minute change. Nevertheless, she began teaching her split assignment for the school year.

         By the time the school year started, Cherkaoui had still not been assigned a classroom at Sterling. Sterling's principal, Christine Barrett ("Principal Barrett"), had instead offered her a section of the school's library known as the media center. The media center lacked a desk and a place for her to securely store her materials. Principal Barrett then offered Plaintiff another classroom typically used by the special education teacher.

         b. Tardiness

         Cherkaoui alleges that between her assignments at Atlantic and Sterling, she was not afforded sufficient time for travel, preparation, and lunch, as the Teacher's Union contract required. Because of this, Plaintiff was late to her teaching assignment at Sterling on several occasions and received oral reprimands, three written warnings, and ultimately a suspension. On September 30, 2009, Cherkaoui complained about the insufficiency of her allotted time to travel between schools, and met with QPS officials to discuss this alleged violation of her Union contract. From then on, Defendant gave Cherkaoui an additional ten minutes to travel between Atlantic and Sterling.

         Despite this adjustment, Cherkaoui was again late on October 7. On November 17, 2009, Principal Barrett sent her a written warning. That same day, Cherkaoui met with Principal Barrett to discuss her tardiness. The parties' recollection of this meeting differ. Plaintiff alleges she asked Principal Barrett if she was being treated in a hostile manner because she wore a headscarf. The City, however, contends that Plaintiff exhibited inappropriate and hostile behavior towards Principal Barrett during the meeting.

         Principal Barrett issued Plaintiff a second written warning on November 18, 2009, referencing Cherkaoui's tardiness issues and alleged inappropriate conduct during their meeting the day before. Cherkaoui denies being late on all the referenced dates in the warning letters. On December 3, 2009, Principal Barrett sent Cherkaoui a third written warning due to her tardiness earlier that week. On that same day, after unsuccessfully attempting to discuss this warning letter with Principal Barrett, Cherkaoui left Sterling and met briefly with Superintendent Richard DeCristofaro ("DeCristofaro"). Plaintiff went home after that meeting, taking a half-day on sick leave.

         On December 22, 2009, DeCristofaro issued Plaintiff a Notice of Intent to Suspend for "tardiness and inappropriate conduct." Plaintiff was offered the opportunity to request a meeting to review and discuss the contemplated suspension. Plaintiff requested such a meeting; however, she failed to attend it and did not return to work after December 22, 2009. The next day, Cherkaoui sent an email to the Director of Human Resources, Kevin Mulvey ("Mulvey"), disclosing to the City for the first time that she suffered from ADHD, and requesting reasonable accommodations under the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101-12213.

         On January 7, 2010, the City sent Cherkaoui a letter suspending her for three days due to her "consistent tardiness and inappropriate conduct that ha[d] occurred throughout the school year." On January 9, 2010, Cherkaoui filed a discrimination charge with the Equal Employment Opportunity Commission ("EEOC"), alleging religious discrimination and retaliation.

         c. Independent Medical Examiner

         Under the Union contract, once a QPS employee has used up her accumulated sick leave, she may avail herself of extended paid sick leave. Once an employee requests this benefit, the City may request from the employee any form of evidence of the employee's disability, including an independent medical exam ("IME"). Cherkaoui did not return to work after the suspension for the rest of the 2009-2010 academic year due to her ADHD, exhausting her accumulated sick leave. While on sick leave, Cherkaoui learned through her Union president that she could apply for extended sick leave. The Union president also explained that the City could request an IME as part of her application. Ultimately, Cherkaoui sought access to the extended sick leave benefit and the City exercised its right to have her undergo an IME to substantiate her leave application. After Plaintiff underwent the IME and was deemed unable to return to work, she was awarded extended sick leave benefits. Cherkaoui then amended her EEOC charge to include the City's request for an IME as an additional instance of retaliation.

         2. 2010-2011 Academic Year

         Over the summer of 2010, Cherkaoui notified Defendant that she would be able to return to work for the upcoming 2010-2011 school year. In anticipation of her return, on June 28, 2010, she sent Mulvey a written request for reasonable accommodations for her diagnosed ADHD. Cherkaoui requested: (1) that her teaching assignments be limited to one school; (2) that she receive the names and contents of the assigned courses one month before the start of the school year; (3) that she receive an opportunity to have a meeting with her supervisor before the start of the school year to ...


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