United States Court of Appeals
`For the First Circuit
`
`
`
`
`No. 21-1104
`
`JENNIFER SALMON,
`
`Plaintiff, Appellant,
`
`v.
`
`ROGER LANG; LINDA HIRSCH; JOHN MOSES; JASON FREDETTE; KURT
`MCPHEE; CHELMSFORD SCHOOL COMMITTEE; PATRICIA TOBIN; TOWN OF
`CHELMSFORD,
`
`Defendants, Appellees.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Richard G. Stearns, U.S. District Judge]
`
`
`
`Before
`
`Barron, Chief Judge,
`Howard, Circuit Judge,
`and Singal,* District Judge.
`
`
`Joseph L. Sulman, with whom The Law Office of Joseph L.
`Sulman, Esq. was on brief, for appellant.
`
`Douglas I. Louison, with whom Alexandra M. Gill and Louison,
`Costello, Condon & Pfaff were on brief, for appellee.
`
`
`
`December 16, 2022
`
`
`
`
`
`* Of the District of Maine, sitting by designation.
`
`
`
`
`For the First Circuit
`
`
`
`
`No. 21-1104
`
`JENNIFER SALMON,
`
`Plaintiff, Appellant,
`
`v.
`
`ROGER LANG; LINDA HIRSCH; JOHN MOSES; JASON FREDETTE; KURT
`MCPHEE; CHELMSFORD SCHOOL COMMITTEE; PATRICIA TOBIN; TOWN OF
`CHELMSFORD,
`
`Defendants, Appellees.
`
`
`
`
`
`
`
`
`
`APPEAL FROM THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
`
`[Hon. Richard G. Stearns, U.S. District Judge]
`
`
`
`Before
`
`Barron, Chief Judge,
`Howard, Circuit Judge,
`and Singal,* District Judge.
`
`
`Joseph L. Sulman, with whom The Law Office of Joseph L.
`Sulman, Esq. was on brief, for appellant.
`
`Douglas I. Louison, with whom Alexandra M. Gill and Louison,
`Costello, Condon & Pfaff were on brief, for appellee.
`
`
`
`December 16, 2022
`
`
`
`
`
`* Of the District of Maine, sitting by designation.
`
`
`
`
`
`HOWARD, Circuit Judge. Jennifer Salmon -- a public
`
`school teacher and former president of her local teachers' union
`
`-- brought suit against several public school officials, her town,
`
`and the local school committee, alleging First Amendment
`
`retaliation and state-law claims arising from various negative
`
`reactions to her union advocacy efforts between 2016 and 2018.
`
`The district court entered summary judgment for all defendants.
`
`Salmon now appeals the district court's summary judgment ruling
`
`and two other rulings from the pleading and discovery stages. We
`
`affirm.
`
`I. BACKGROUND
`
`
`
`
`
`Salmon has been a public school teacher in Chelmsford,
`
`Massachusetts since 2002. In May 2016, she became president of
`
`the Chelmsford Federation of Teachers ("CFT"), a local chapter of
`
`the American Federation of Teachers ("AFT"). During her tenure as
`
`CFT president, Salmon advocated on behalf of the union regarding
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`classroom-temperature problems in many of the town's school
`
`buildings (e.g., cold temperatures during the winter months). Her
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`advocacy involved an August 2016 meeting with defendant Roger Lang,
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`Chelmsford Superintendent, and email exchanges with certain school
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`principals. Specifically, Salmon identified these heating issues
`
`in emails to defendant Jason Fredette, principal of Byam
`
`Elementary, in October 2016, and to defendant Kurt McPhee,
`
`principal of McCarthy Middle School, in March 2017.
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`- 2 -
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`
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`In September 2017, Salmon began teaching third grade at
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`Harrington Elementary after transferring from a different school.
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`The next month, at the request of colleagues, Salmon raised
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`concerns to the Harrington principal, defendant Patricia Tobin,
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`about working conditions at her new school. The plaints focused
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`on special-needs classrooms and included the need for "increased
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`staffing and improved [student] monitoring." On October 13, 2017,
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`Tobin had a phone call with Salmon about an unrelated matter, in
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`which Tobin "yelled" at Salmon and mentioned that the principal at
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`Salmon's previous school "had warned" Tobin about her.
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`Specifically, Tobin believed that Salmon had interfered with her
`
`instructions regarding a school-day scheduling change by telling
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`another teacher that the teacher did not have to listen to Tobin.
`
`Tobin later received an email from the CFT vice president about
`
`her call with Salmon, which Tobin characterized as "scathing" and
`
`found "shocking" and "unfounded." Tobin printed and taped this
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`email to a filing cabinet in her office, feeling that she "needed
`
`some time to react to [it]."
`
`
`
`
`
`In early November 2017, Carol LeRivee, a Harrington
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`first-grade teacher, asked Salmon for help with a special-needs
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`student in her classroom whose disruptive behavior presented
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`safety concerns. LeRivee explained that the child habitually
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`"bolted" out of the classroom and off the playground, which took
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`support-staff members off task and interfered with other students'
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`- 3 -
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`classwork. LeRivee had brought these concerns to the
`
`administration's attention during the previous month, but felt
`
`their response was slow and inadequate. Several teachers,
`
`including Salmon, tried to help LeRivee deal with the disruptive
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`child by spending time in LeRivee's classroom to assist with the
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`other children in the class.
`
`
`
`
`
`On November 16, 2017, Salmon emailed Tobin about this
`
`child's behavior and requested a meeting to discuss the attendant
`
`concerns. The email copied two non-party administrators -- Amy
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`Reese, Chelmsford Director of Special Education, and Patricia
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`Doherty, Chelmsford Special Education Chairperson -- as well as
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`Rick Blanchet, an AFT field representative. In her email, Salmon
`
`noted that "[a]fter reviewing the Major Incident Report Binder, it
`
`appear[ed] there are a minimum of 23 major incident reports
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`completed for this student," and that the student's behavior posed
`
`a "major safety concern" for the classroom.1 A few hours later,
`
`
`1 The Major Incident Report Binder ("MIR Binder") was where
`teachers filed discipline reports for individual students in the
`teachers' dedicated folders. At the time of Salmon's email, the
`MIR Binder was kept in the school's main office on top of a filing
`cabinet. Under Massachusetts regulations, these discipline
`reports constitute "student records." See 603 Mass. Code. Regs.
`§ 23.02. As such, access to them was limited to certain
`"authorized personnel," as defined in applicable regulations. See
`id. §§ 23.02, 23.07. Salmon contends that the district court
`improperly found that she was not authorized to view LeRivee's
`student's file and that this was a material fact in dispute. For
`the reasons discussed infra, Section II.A.2, we disagree, as the
`relevant school policy and regulations indisputably prohibited her
`access in this instance.
`
`- 4 -
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`
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`Salmon emailed this group again, asking that a meeting be scheduled
`
`for Wednesday, November 22 at 8:00 AM between her, Blanchet, and
`
`the three school administrators. She added that if Tobin, Doherty,
`
`and Reese were unavailable to meet or discuss, her "next step
`
`[would be] to go to the [Chelmsford] School Committee with these
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`incident reports."
`
`
`
`
`
`On November 20, 2017, Tobin met with Salmon in response
`
`to her email. Tobin questioned why Salmon felt this was a "union
`
`issue," explaining that "the process of working with a student"
`
`typically is not, and asked Salmon other questions about her
`
`request, i.e., with whom she wanted to meet, and "why and how" she
`
`was "able to go into [LeRivee's] classroom to support [her]."
`
`Later that day, Salmon again emailed Tobin, Reese, and Doherty,
`
`reiterating her request for a meeting at 8:00 AM on November 22
`
`and explaining why she believed that it was a union issue and that
`
`she did "not need to ask permission" to enter LeRivee's classroom
`
`on her own time. She reiterated that she was "acting as the Union
`
`President" in her request to meet on this issue. Tobin responded
`
`that same evening, writing that she would be "happy to attend any
`
`meeting [Salmon] schedule[d]."
`
`
`
`
`
`On November 21, Salmon again emailed the three
`
`administrators to confirm the meeting schedule. Tobin responded
`
`that she would not be available that day, which was the day before
`
`Thanksgiving, due to "many classroom visits" on a shortened
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`- 5 -
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`
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`schedule. Reese also emailed Salmon back, explaining that "[t]his
`
`is not a union matter" and that she would "not meet with [Salmon]
`
`as union president to discuss this student-related matter." Salmon
`
`responded to Reese, reiterating the union's concerns about teacher
`
`and student safety, stating that "[Blanchet] will be here at 8am
`
`tomorrow," and adding: "Your unreasonable unwillingness to have a
`
`conversation about solutions is cowardly." Later that night,
`
`Salmon emailed Superintendent Lang, asking him to "help . . .
`
`direct[]" Tobin to meet with her and Blanchet.
`
`
`
`
`
`On November 22, Salmon and Blanchet entered Tobin's
`
`office to request a meeting.2 Tobin told them she did not have
`
`time to discuss or schedule a meeting, and asked Blanchet to leave.3
`
`She then left the office to attend to other matters. Blanchet and
`
`Salmon, however, remained. Upon learning that fact, Tobin directed
`
`her support staff to call Lang for assistance. Following phone
`
`conversations between staff members at Harrington and Lang's
`
`office, Lang eventually received a message that Blanchet was at
`
`
`2 While certain details of this encounter are disputed, such
`as the tenor of the interaction between Tobin and Blanchet, those
`details are not material to Tobin's claims or the issues presented
`on appeal.
`
`3 In her opposition to the defendants' motion for summary
`judgment, Salmon contended that there is no evidence that Tobin
`asked Blanchet to leave. But this is refuted by Tobin's undisputed
`deposition testimony that she "told" Blanchet that "he needed to
`leave."
`
`- 6 -
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`
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`Harrington and "was becoming . . . agitated and combative toward
`
`[Tobin]." Lang then proceeded to Harrington to intervene.
`
`
`
`
`
`On his way, Lang notified the Chelmsford Police
`
`Department that there was an incident occurring at the school.
`
`When Lang arrived, he spoke with Tobin and then with Blanchet, who
`
`"put his hands on Lang incidental to the conversation." Lang then
`
`asked one of the responding police officers to escort Blanchet
`
`from the building. Lang returned to speak with Salmon and informed
`
`her that he was sending her home for the day in order to de-
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`escalate the situation and investigate the day's events. He
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`assured her that she was not being punished. Salmon went upstairs
`
`to her classroom to gather her things. Soon thereafter, Salmon
`
`was escorted out of the back of the building by a plain-clothes
`
`officer, at Lang's request. Lang had requested the escort because
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`Salmon was visibly upset and the students would soon be arriving.
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`Salmon complied and was driven home by a co-worker.
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`
`
`
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`Later that day, Lang retained outside counsel, on behalf
`
`of the Chelmsford School Committee, to investigate the events
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`surrounding the incident. He also placed Salmon on paid
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`administrative leave pending the investigation's outcome. In
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`addition, Lang sent an email to all Harrington parents and staff
`
`about the incident and held a meeting with Tobin and Harrington
`
`teachers to discuss the same. During the meeting, Lang stated
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`that he was "shocked and disappointed with the actions" of "some
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`- 7 -
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`
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`individuals" and that there was "a right way and a wrong way" to
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`bring issues to the administration's attention.4
`
`
`
`
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`The November 22 incident sparked public commentary and
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`debate among the residents of Chelmsford and some neighboring towns
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`over the weeks that followed. This involved discussion and posts
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`on social media -- including some from defendant John Moses, a
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`School Committee member -- and a "contentious and heated" School
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`Committee meeting held on December 5, which was attended by
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`supporters of both Salmon and the administration. Attendees in
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`support of Lang and Tobin included Fredette and McPhee.
`
`
`
`
`
`On December 6, the School Committee's outside counsel
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`delivered a report to Lang detailing the findings of the
`
`investigation (the "Investigation Report") and sent a letter to
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`Salmon summarizing the same. As detailed in the Investigation
`
`Report, the investigation consisted of approximately 23 witness
`
`interviews, including those with LeRivee, Salmon, and Tobin, as
`
`well as a review of video footage from inside the school, police
`
`reports, student incident reports, emails, and various School
`
`Committee policies and training materials. Counsel ultimately
`
`concluded that Salmon (i) was "insubordinate with regards to [her]
`
`appearing for and demanding a meeting that had been previously
`
`
`4 Tobin reiterated this sentiment that there was "right way
`and a wrong way to raise concerns" during a meeting with Harrington
`teachers in January 2018.
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`- 8 -
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`denied by two supervisors," and (ii) had "violated District policy
`
`with regards to student records confidentiality" by viewing
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`LeRivee's student's incident reports. Salmon was permitted to
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`return to work the same day.
`
`
`
`
`
`On December 12, Lang issued Salmon a letter of reprimand
`
`to be placed in her personnel file. Lang noted that he concurred
`
`with the Investigation Report's findings that Salmon was
`
`insubordinate and had inappropriately accessed confidential
`
`student information. In March 2018, Salmon took a leave of absence
`
`from Harrington and did not return for the remainder of the school
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`year. In the summer of 2018, Salmon sought transfer to several
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`open teaching positions at Fredette's and McPhee's respective
`
`schools.5 She was interviewed and considered, but ultimately not
`
`hired. In both instances, hiring committees at each school
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`unanimously decided to hire external applicants over Salmon.
`
`
`
`
`
`In June 2019, Salmon filed this action against Lang,
`
`Tobin, Fredette, McPhee, and the School Committee, alleging
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`violations of the First Amendment, under 42 U.S.C. § 1983, and the
`
`Massachusetts Civil Rights Act ("MCRA"), Mass. Gen. Laws ch. 12,
`
`§ 11H. The thrust of her claims was that the defendants retaliated
`
`
`5 For Fredette's school (Byum Elementary), Salmon applied and
`interviewed for three positions: second-grade teacher, fourth-
`grade teacher, and elementary moderate special needs teacher. For
`McPhee's school (McCarthy Middle), Salmon applied and interviewed
`for an eighth-grade special education teaching position.
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`- 9 -
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`
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`against her in response to her union advocacy, through workplace
`
`harassment, disciplinary action, and transfer denials. Salmon
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`also sued Moses for defamation, arising from several social media
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`posts about her involvement in the November 22 incident. In
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`February 2020, Salmon sought leave to amend her complaint to add
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`a new claim against the Town of Chelmsford under the Massachusetts
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`Whistleblower Act ("MWA"), Mass. Gen. Laws ch. 149, § 185, arising
`
`from her complaints to school officials of classroom-temperature
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`issues, dating back to 2016, the complaints of working conditions
`
`raised to Tobin in 2017, and various adverse actions taken against
`
`her from November 22 through her 2018 transfer denials. The court
`
`granted her motion to amend only insofar as the new claim was based
`
`on alleged adverse actions occurring since February 2018 (within
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`the MWA's two-year statute of limitations period), thus denying
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`Salmon's request for "relation back" under Federal Rule of Civil
`
`Procedure 15(c). After discovery, the defendants secured summary
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`judgment on all claims. See Salmon v. Lang, No. 19-cv-11378, 2021
`
`WL 294512 (D. Mass. Jan. 28, 2021). This timely appeal followed.
`
`II. SUMMARY JUDGMENT RULINGS
`
`
`
`
`
`We turn first to Salmon's challenges to the district
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`court's entry of summary judgment on her First Amendment-
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`retaliation, MCRA, MWA, and defamation claims. We review summary
`
`judgment decisions de novo, affirming only if the record shows
`
`"there is no genuine dispute as to any material fact and the movant
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`- 10 -
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`
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`is entitled to judgment as a matter of law." Fed. R. Civ. P.
`
`56(a); Stuart v. City of Framingham, 989 F.3d 29, 34-35 (1st Cir.
`
`2021).6 We evaluate the facts and "draw all reasonable inferences
`
`from the record in the light most favorable to the nonmoving
`
`party," but "disregard[] any 'conclusory allegations, improbable
`
`inferences, and unsupported speculation.'" McGrath v. Tavares,
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`757 F.3d 20, 25 (1st Cir. 2014) (quoting Alicea v. Machete Music,
`
`744 F.3d 773, 778 (1st Cir. 2014)). We may affirm summary judgment
`
`"on any basis apparent from the record." Id.
`
`A. First Amendment Retaliation Claims
`
`
`
`
`
`To prevail on a speech-retaliation claim as a public
`
`employee, a plaintiff must prove that (1) she "spoke as a citizen
`
`on a matter of public concern," (2) her employer lacked "an
`
`adequate justification for treating [her] differently from any
`
`other member of the general public," and (3) her "protected
`
`expression was a substantial or motivating factor in the adverse
`
`employment decision." Bruce v. Worcester Reg'l Transit Auth., 34
`
`F.4th 129, 135 (1st Cir. 2022); see also Alston v. Town of
`
`Brookline, 997 F.3d 23, 42 (1st Cir. 2021) (internal quotation
`
`marks and citations omitted); McGunigle v. City of Quincy, 835
`
`
`6 A dispute is "genuine" if "a jury can reasonably interpret
`the evidence in the non-movant's favor," and a fact is "material"
`if it is "one that might affect the outcome of the suit under
`governing law." Reyes-Orta v. P.R. Highway & Transp. Auth., 811
`F.3d 67, 73 (1st Cir. 2016) (internal quotes and cites omitted).
`
`- 11 -
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`
`
`F.3d 192, 202 (1st Cir. 2016) (explaining that the second element
`
`requires a plaintiff to demonstrate that her interests "'as a
`
`citizen, in commenting upon matters of public concern' outweighed
`
`[her] employer's interest 'in promoting the efficiency of the
`
`public services it performs through its employees'" (quoting
`
`Decotiis v. Whittemore, 635 F.3d 22, 29 (1st Cir. 2011)). Salmon's
`
`appeal concerns only the third element of this test.
`
`
`
`
`
`"For purposes of speech retaliation an 'adverse
`
`employment [decision]' includes an action the employer takes that
`
`would 'deter a reasonably hardy individual from exercising his
`
`constitutional rights.'" Gutwill v. City of Framingham, 995 F.3d
`
`6, 12 (1st Cir. 2021) (cleaned up) (quoting Barton v. Clancy, 632
`
`F.3d 9, 29 (1st Cir. 2011)). Whether a plaintiff's protected
`
`speech was a "substantial or motivating factor in [an] adverse
`
`employment decision . . . is simply a question of causation," and
`
`is "analyzed in two steps." Davignon v. Hodgson, 524 F.3d 91, 106
`
`(1st Cir. 2008) (internal quotes and cites omitted). This two-
`
`step "causation test" has long been known as "the Mt.
`
`Healthy . . . burden-shifting test." See, e.g., Guilloty Perez v.
`
`Pierluisi, 339 F.3d 43, 56 (1st Cir. 2003) (referring to Mt.
`
`Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287
`
`(1977)); see also Pierce v. Cotuit Fire Dist., 741 F.3d 295, 301-
`
`02 (1st Cir. 2014).
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`- 12 -
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`
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`Under Mt. Healthy, "the plaintiff must [first] show that
`
`the employer would not have taken adverse action but for the
`
`plaintiff's speech," through direct or circumstantial evidence of
`
`such a causal link. Davignon, 524 F.3d at 106. Then, "[i]f the
`
`plaintiff meets that burden, the burden shifts to the
`
`employer . . . to sever the causal link." Id. That is, the
`
`employer must "prove by a preponderance of the evidence that 'it
`
`would have reached the same decision [regarding the adverse
`
`employment event] even in the absence of the protected conduct.'"
`
`Stuart, 989 F.3d at 35 (quoting Mt. Healthy, 429 U.S. at 287)
`
`(alterations in original). "If the employer cannot adduce evidence
`
`of an alternative justification . . . or if that evidence, once
`
`adduced, does not suffice to prove the point, the employee has
`
`established a constitutional violation." Guilloty Perez, 339 F.3d
`
`at 51. Conversely, if the employer presents a non-retaliatory
`
`reason for the action, "the burden shifts back to the plaintiff to
`
`'discredit [it], either circumstantially or directly, by adducing
`
`evidence that [retaliation] was more likely than not a motivating
`
`factor." Pierce, 741 F.3d at 302; see, e.g., Stuart, 989 F.3d at
`
`35 (same). Cf. Nieves v. Bartlett, 139 S.Ct. 1715, 1722, 1725
`
`(2019) (discussing the Mt. Healthy test in the context of a
`
`retaliatory-arrest case).
`
`
`
`
`
`Against this backdrop, we begin our examination of
`
`Salmon's arguments. She contends that the district court erred in
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`- 13 -
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`
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`(i) applying the Mt. Healthy "defense" sua sponte; (ii) concluding
`
`that Salmon could not prove causation in her claims against Lang,
`
`Fredette, and McPhee; and (iii) concluding that Salmon could not
`
`prove Tobin took any adverse employment action against her. We
`
`address each in turn.
`
`
`
`
`
`1. Application of Mt. Healthy Burden-Shifting Test
`
`
`
`Salmon first contends that the district court erred in
`
`applying the Mt. Healthy burden-shifting analysis to her
`
`retaliation claim against Lang, arguing that "Mt. Healthy is a
`
`defense that must be raised affirmatively by a defendant" and that,
`
`here, the defendants failed to do so in both their answers and
`
`motion for summary judgment. We disagree.
`
`
`
`
`
`The sometimes-called "Mt. Healthy defense" is not
`
`strictly an "affirmative defense" that is ordinarily waived if not
`
`timely pled, under Rules 8(c) and 12(h). See generally Fed. R.
`
`Civ. P. 8(c), 12(h). However, even if we were to strictly view
`
`the Mt. Healthy defense as an "affirmative defense" under Rule 8,
`
`the defendants adequately raised it here. For instance, in their
`
`answers, the defendants asserted as an "affirmative defense" that
`
`"Plaintiff's claims fail because the Defendant's actions were
`
`based on legitimate business reasons and/or business necessity,"
`
`which Salmon concedes was "arguably a Mt. Healthy-like defense."
`
`In their summary judgment brief, the defendants specifically
`
`challenged the "causal connection" element of Salmon's retaliation
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`- 14 -
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`
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`claims, arguing that Lang's conduct in sending Salmon home was
`
`motivated by a desire to "quell the charged atmosphere," and that
`
`his subsequent discipline of Salmon was "standard protocol."
`
`
`
`
`
`These arguments clearly invoke Mt. Healthy burden-
`
`shifting to anyone familiar with the doctrine and the defendants
`
`cited to caselaw applying it throughout this litigation. See,
`
`e.g., Lewis v. City of Bos., 321 F.3d 207, 219-20 (1st Cir. 2003).
`
`Thus, Salmon's argument that the district court's analysis under
`
`Mt. Healthy constituted "unfair surprise" fails. Given our settled
`
`law in this area, Salmon should have been aware that "[t]o qualify
`
`for relief," her claims "must survive the burden-shifting
`
`enunciated in Mt. Healthy." See, e.g., Pierce, 741 F.3d at 301.
`
`
`
`
`
`2. No Causation As To Claims Against Lang
`
`
`
`Next,
`
`Salmon
`
`challenges
`
`the
`
`district
`
`court's
`
`determination that, under Mt. Healthy, Lang severed the causal
`
`link between Salmon's union advocacy and the written reprimand, by
`
`showing that the latter was motivated by Salmon's insubordination
`
`and unauthorized access of student records.7 Salmon specifically
`
`
`7 Salmon does not appear to specifically challenge the
`district court's conclusion that Lang's decisions to have Salmon
`removed from the school building on November 22 and to place her
`on paid leave were justified by non-retaliatory reasons, i.e., to
`"minimize distraction to students" and to "facilitate an impartial
`investigation," respectively. See Salmon, 2021 WL 294512, at *5.
`Nor does she marshal evidence to discredit these non-retaliatory
`justifications. In any event, we agree with the district court
`that, under Mt. Healthy, Lang was entitled to summary judgment
`
`- 15 -
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`
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`contends that the court improperly relied on two disputed facts in
`
`reaching this conclusion: (i) that Salmon violated the student-
`
`record access policy, and (ii) that Tobin was "willing to meet
`
`with Salmon, but not on the date requested."8 We find no error
`
`and conclude that entry of summary judgment in favor of Lang was
`
`appropriate. The district court's opinion on this point is sound,
`
`and we adopt its reasoning; we add only a few points of emphasis
`
`in response to Salmon's specific arguments on appeal.
`
`
`
`
`
`First, Salmon violated the school's confidential-access
`
`policy, or so Lang supportably determined. Salmon contends that
`
`-- contrary to the district court's finding -- a reasonable jury
`
`could find that Salmon was authorized to view LeRivee's student's
`
`records, because she was a "staff [member] working with the
`
`student" in LeRivee's classroom. We disagree that the record could
`
`reasonably support such a finding.
`
`
`insofar as Salmon's retaliation claim relied upon these other
`adverse actions.
`
`8 Salmon also argues that the district court erred in
`describing certain other facts in a light that was unfavorable to
`her, e.g., that "Blanchet became agitated and combative" during
`his interaction with Tobin, that he "put his hands on Lang," and
`omitting that the plain-clothes officer who escorted Salmon from
`the building had a police badge around his neck. We find no error
`in the district court's recounting of these facts. In any event,
`Salmon fails to explain how any of them are material. Indeed, she
`acknowledges that the district court "did not expressly rely on
`any of these 'facts'" in its ruling.
`
`- 16 -
`
`
`
`
`
`
`
`The school's policy states that "[o]nly those persons
`
`authorized under law and in conformance with these statements of
`
`policy and regulation may see a student's file." State regulations
`
`provide that only "authorized school personnel shall have access
`
`to the student records of students to whom they are providing
`
`services, when such access is required in the performance of their
`
`official duties." 603 Mass. Code. Regs. § 23.07. "Authorized
`
`personnel" is further defined to include two categories of people:
`
`(i) teachers, administrators, or service providers "who are
`
`working directly with the student in an administrative, teaching,
`
`counseling, and/or diagnostic capacity," and (ii) "administrative
`
`office
`
`staff
`
`and
`
`clerical
`
`support . . . whose
`
`duties
`
`require . . . access to student records for purposes of processing
`
`information for the student record." See 603 Mass. Code. Regs.
`
`§ 23.02.
`
`
`
`
`
`Salmon does not adduce any evidence that she was "working
`
`directly with [LeRivee's] student in an administrative, teaching,
`
`counseling, and/or diagnostic capacity." Thus, there is no basis
`
`to conclude that she was "authorized personnel."9 At best, the
`
`record demonstrates that Salmon "checked in with [LeRivee]
`
`regularly" and provided classroom-wide assistance to her on a few
`
`
`9 The second category of "authorized personnel" is plainly
`inapplicable to Salmon, and she does not make any argument to the
`contrary.
`
`- 17 -
`
`
`
`occasions. This classroom assistance included one instance,
`
`during Salmon's lunch break, where she "followed" the student in
`
`question after the student had bolted from class, "along with the
`
`support staff in that classroom." Moreover, LeRivee told
`
`investigators that, when Salmon came into her classroom to help,
`
`she "circulat[ed] the room and [was] helping children," and that
`
`this happened "three different times." In Salmon's view, she was
`
`there "to support a staff member," "acting as the Union President
`
`[but] also [as] a teacher and parent in [the] building." But the
`
`record is devoid of any evidence that Salmon was ever "working
`
`directly" with the student whose incident reports she accessed.
`
`This conclusion is bolstered by the Investigation Report, on which
`
`Lang relied in disciplining Salmon. The Investigation Report found
`
`that Salmon "was not providing any services to [this] student,"
`
`that she "was not an 'authorized school personnel'" as to that
`
`student, and that she therefore "violated student records
`
`confidentiality requirements" when she accessed that student's
`
`file. Thus, Salmon's assertion that she was authorized personnel,
`
`as a "staff [member] working with that student," is not supported
`
`by the record. There was no error in the district court's
`
`treatment of this undisputed fact. See, e.g., Rossy v. Roche
`
`Prods., Inc., 880 F.2d 621, 624 (1st Cir. 1989) (noting that even
`
`where proof is based on inferences, summary judgment for defendant
`
`may be appropriate where "plaintiff rests merely upon unsupported
`
`- 18 -
`
`
`
`allegations" (quoting Méndez v. Belton, 739 F.2d 15, 20 (1st Cir.
`
`1984))).
`
`
`
`
`
`Second, Salmon asserts that -- contrary to the district
`
`court's finding that "Tobin was willing to meet with Salmon, but
`
`not on the date she requested" -- a reasonable jury could find
`
`that Tobin was "not willing to meet" at all. Again, we not only
`
`disagree, but also fail to see how this fact is material. Lang's
`
`discipline of Salmon was based, in part, on his finding that she
`
`was "insubordinate in [appearing for and] demanding a meeting on
`
`November 22 . . . where Ms. Tobin and Ms. Reese . . . had already
`
`notified [her] that they were denying [her] request." It is
`
`undisputed that Salmon's request was in fact denied. Indeed,
`
`Salmon acknowledged these denials herself, in subsequent emails to
`
`Reese, Tobin, and Lang. Whether or not Tobin was genuinely willing
`
`to meet with Salmon on a later date, as she said she was, has no
`
`bearing on the fact that Salmon's request to meet on November 22
`
`had been denied. Nor does it affect the fact that Salmon and
`
`Blanchet appeared in Salmon's office on November 22, contrary to
`
`Tobin's instruction that there would be no meeting that day. Thus,
`
`no reasonable jury could disagree that Salmon appeared for a
`
`meeting that her superiors told her was not happening. Lang
`
`explicitly based his disciplinary action on this insubordinate
`
`conduct, and Salmon has failed to adduce any evidence to discredit
`
`that nonretaliatory reason. We find no error in the district
`
`- 19 -
`
`
`
`court's treatment of this fact. Cf. Torres-Rosado v. Rotger-
`
`Sabat, 335 F.3d 1, 13 (1st Cir. 2003) (affirming summary judgment
`
`in
`
`First
`
`Amendment-retaliation
`
`context
`
`where
`
`"[p]laintiff . . . ha[d] not produced any evidence creating a
`
`material issue of fact that she would not have been terminated in
`
`any event for insubordination [and] absenteeism").
`
`
`
`
`
`3. No Causation As To Claims Against Fredette & McPhee
`
`
`
`Next,
`
`Salmon
`
`challenges
`
`the
`
`district
`
`court's
`
`determination that evidence could not support a causal link between
`
`Salmon's union advocacy and the denial of her transfer applications
`
`by Fredette and McPhee. Specifically, Salmon contends that this
`
`nexus can be inferred from her complaints of heating issues in
`
`Fredette's and McPhee's respective buildings, the fact that both
`
`of them attended the December 5 School Committee meeting in support
`
`of Lang, that neither had ever before passed up an internal
`
`transfer applicant in favor of an external hire, and that McPhee
`
`violated standard policy in considering Salmon's application
`
`together with three external candidates instead of considering
`
`hers first. We adopt the district court's reasoning and find no
`
`error in its entry of summary judgment in favor of Fredette and
`
`McPhee. We again add only a few points of emphasis.
`
`
`
`
`
`As noted above, to succeed on her retaliation claims,
`
`Salmon must introduce enough evidence to support a finding that
`
`her union advocacy "was a substantial or motivating factor behind"
`
`- 20 -
`
`
`
`the denials of her transfer applications. See McGunigle, 835 F.3d
`
`at 203. "It is not enough to show that an official acted with a
`
`retaliatory motive and that the plaintiff was injured -- the motive
`
`must cause the injury." Nieves, 139 S.Ct. at 1722. That is, "it
`
`must be a 'but-for' cause, meaning that the adverse action against
`
`the plaintiff would not have been taken absent the retaliatory
`
`motive." Id. (citing Hartman v. Moore, 547 U.S. 250, 260 (2006)).
`
`Thus, under Mt. Healthy's burden shifting analysis, Salmon must
`
`first show that Fredette and McPhee would not have denied her
`
`applications "but for [her] speech." See Davignon, 524 F.3d at
`
`106. "Although [Salmon] may rely on circumstantial evidence to
`
`make this showing, [she] must produce some facts linking" her
`
`transfer denials with her union advocacy. See McGunigle, 835 F.3d
`
`at 203. Thus, to survive summary judgment, Salmon must have
`
`adduced evidence from which a reasonable juror could infer such a
`
`link, see id. at 201, but she has failed to do so.
`
`
`
`
`
`The mere fact that Salmon communicated building-heating
`
`concerns to Fredette in October 2016, and to McPhee in March 2017,
`
`cannot alone support an inference that either of them acted with
`
`a retaliatory motive in denying her transfer applications in June
`
`and July 2018. See, e.g., McGunigle, 835 F.3d at 204 (argument
`
`that adverse actions "must have been in retaliation for
`
`[plaintiff's] speech because they happened afterwards" cannot
`
`alone support prima facie causation). Cf. González-Droz v.
`
`- 21 -
`
`
`
`González-Colón, 660 F.3d 1, 17 (1st Cir. 2011) ("[A]n interval of
`
`[fourteen months] cannot establish the necessary linkage between
`
`protec
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