Dawn Caputo v. CITY OF HAVERHILL, FRITZ ESCH and JOHN BARRUTO

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 02-1746
DAWN CAPUTO,
Plaintiff, Appellant,
v.
CITY OF HAVERHILL, FRITZ ESCH and JOHN BARRUTO,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Torruella, Circuit Judge,
Bownes, Senior Circuit Judge,
and Lynch, Circuit Judge.
Thomas J. Gleason on brief for appellant.
Maureen L. Reilly on brief for appellees.
June 13, 2003

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BOWNES, Senior Circuit Judge. Plaintiff-appellant, Dawn
Caputo ("Caputo"), brought a six count complaint in the district
court against her employers, The City of Haverhill; Fritz Esch,
School Superintendent of Haverhill; and John Burruto ("Burruto"),
Principal of Haverhill High School. At the heart of this case is
Caputo's allegation that the defendants discriminated against her
based on her gender. The district court found that no reasonable
jury could reach such a conclusion and granted the defendant's
motion for summary judgment. We affirm.
I. BACKGROUND
Taken in the light most favorable to Caputo, MacGlashing v.
Dunlop Equip. Corp., 89 F.3d 932, 936 (1st Cir. 1996), the facts
are as follows. In 1994, Caputo was hired as head coach of
Haverhill High School's boys and girls track team. She maintained
this position until it was eliminated in September 1998. Caputo
experienced great success as head coach. Under her tutelage, the
boys indoor track team won the State Championship for the first
time in Haverhill High School's history.
In July 1996, Martha Jamieson ("Jamieson") became Haverhill's
new athletic director. Under Jamieson's direction, assistant
coaches were added to the track program. According to Caputo, she
was "extremely elated" by this addition because the track "program
was dramatically understaffed."
Beginning in the spring of 1997, Caputo began to have problems

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with her supervisors. Caputo was reprimanded for allowing a
student-athlete to practice without having completed the required
physical consent forms. In June, Jamieson spoke to Caputo about a
phone call Caputo placed to the home of the Brockton track coach,
whose team had recently defeated Haverhill in a track meet.
According to Caputo, she told the coach's son that, "if your dad
has any class, he'll give the trophy back." In September,
Principal Burruto disciplined Caputo for writing a critical
memorandum about the cross country coach, Mike McGuire ("McGuire").
Despite Burruto's warning, Caputo's comments continued. She
repeatedly made "evaluative statements" about McGuire to the cross
country athletes, including telling them that she should have been
their coach and that they would have achieved more success under
her leadership. Caputo also spoke to students and a newspaper
reporter about McGuire not being hired for the position of
assistant indoor track coach.
Burruto met with Caputo in response to these incidents, but no
disciplinary action was taken. In a memorandum dated December 12,
1997, Burruto informed Caputo that her behavior was intolerable and
if it persisted, she would be subjected to "disciplinary action
which could include suspension, or even dismissal from her
employment."
Caputo continued to make comments into 1998. In May, Caputo
told some of her physical education students that she would no

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longer be coaching the outdoor track team. When asked by her
students if McGuire would be replacing her, Caputo told them that
he would not because he was "not half the coach that [she] was."
In response to this incident, Burruto held a meeting with three
students and questioned them about Caputo's comments. All three
students concurred that Caputo was speaking negatively about
McGuire. Burruto then met with Caputo to discuss the matter, but
took no disciplinary action.
On September 16, 1998, Caputo met with both Jamieson and
Burruto for a performance review. Two written evaluations, dated
November 12, 1997, and March 12, 1998, found "unsatisfactory" job
ratings. Areas of improvement included "professionalism with
colleagues," and "professionalism with her relationships with
student-athletes." These same evaluations, however, commended
Caputo for her work ethic and the time she invested in the track
program. Approximately ten percent of the other coaches also
received "unsatisfactory" evaluations.
At this same meeting, Jamieson told Caputo about a plan to
restructure the track program which would eliminate the position of
head track coach. The new track program would resemble
approximately sixty to seventy percent of the other schools in the
Merrimack Valley Conference, of which Haverhill High School was a
member. Jamieson explained that the program would be divided into
four parts, with one coach overseeing each of the following

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programs: boys indoor track; girls indoor track; boys outdoor
track; and girls outdoor track. The impetus for the change was
that Haverhill had one of the largest track programs in the
conference, but one of the smallest coaching staffs.
Although Caputo was "shocked" and "devastated" by the news,
Jamieson encouraged her to reapply for one of the new coaching
appointments. Shortly thereafter, Caputo was named head coach of
the boys indoor track team. Before hiring her, the School
Superintendent of Haverhill had Caputo sign and agree to a list of
contingencies. These included agreeing to work professionally with
other coaches and students, and refraining from criticizing fellow
staff members in front of students. After signing the new
contract, Caputo was not subjected to any further discipline. At
the completion of the winter season, Caputo was hired as head coach
of the boys outdoor track team. This placed Caputo in charge of
two of the four track teams. As head coach of two teams, Caputo
made more money than she had when she was the head coach of the
entire track team. Caputo previously made $4,230 a season. Now,
Caputo earned $5,200 a season.
During the 1999 season, Caputo became outraged by Jamieson's
and Burruto's handling of a disciplinary matter involving her "best
athlete." Three eyewitnesses said they saw the athlete violently
push another student. Caputo, however, and five other eyewitnesses
who observed the event from a different vantage point, claimed that

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there was no pushing. Jamieson and Burruto did not believe
Caputo's version of events and subsequently suspended the athlete.
As a result, the athlete could not compete in track meets over a
ten day holiday period. According to Caputo, this incident was the
"straw that broke the camel's back," and during a meeting with
Jamieson on April 26, 1999, Caputo announced her resignation.
After Caputo resigned, Jamieson asked her to reconsider, but she
declined. Haverhill twice posted advertisements to fill Caputo's
positions, although there is no evidence that the positions were
actually filled.
Following her resignation, Caputo filed suit in the district
court. Caputo alleged that the defendants violated her
constitutional rights under the Due Process and Equal Protection
Clauses of the Fourteenth Amendment; discriminated against her
based on her gender in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000(e); and violated various state laws.
The defendants moved for summary judgment. The district court
granted the defendants' motion for summary judgment on the federal
claims and declined to exercise jurisdiction over the pendent state
law claims. On appeal, Caputo challenges the district court's
ruling on the federal gender discrimination claim, but not the due
process or equal protection claims. Caputo also challenges the
district court's failure to consider her state law claims.

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II. DISCUSSION
We review a district court's entry of summary judgment de
novo. Segrets, Inc. v. Gillman Knitwear Co., Inc., 207 F.3d 56, 61
(1st Cir. 2000). Summary judgment is appropriate when "the
pleadings, depositions, answers to interrogatories, and admissions,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the nonmoving party is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c).
The primary issue in this case is whether Caputo lost her job
because of gender discrimination. In discrimination discharge
cases, we apply the McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), burden shifting analysis. The first step in the analysis
requires a plaintiff to establish a prima facie case. This is
accomplished when a plaintiff shows that: (1) she is a member of a
protected class; (2) she was meeting the employer's legitimate
employment expectations; (3) she was actually or constructively
discharged; and (4) she was replaced by another individual of
similar skills or qualifications, thereby confirming the employer's
continued need for equivalent services. See Vega v. Kodak
Caribbean, 3 F.3d 476, 479 (1st Cir. 1993). The third prong is the
portion of the prima facie case that is disputed by the parties and
our discussion is focused accordingly.
A constructive discharge is a "label for treatment so hostile
or degrading that no reasonable employee would tolerate continuing

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in the position." Melendez-Arroyo v. Cutler-Hammer de P.R. Co.,
Inc., 273 F.3d 30, 36 (1st Cir. 2001). The standard is an
objective one: "it cannot be triggered solely by the employee's
subjective beliefs, no matter how sincerely held." Marrero v. Goya
of P.R., Inc., 304 F.3d 7, 28 (1st Cir. 2002). When this standard
is properly applied, it "does not guarantee a workplace free from
the usual ebb and flow of power relationships and inter-office
politics." Suarez v. Pueblo Intern, Inc., 229 F.3d 49, 54 (1st
Cir. 2000). An injury to Caputo's "ego or prestige does not
furnish a legally cognizable reason to treat a resignation as a
constructive discharge." Id. at 55.
In the instant case, Caputo claims that she was forced to
resign from her position due to hostile and degrading treatment.
Caputo maintains that three pieces of evidence support her claim.
First, Caputo says that she was treated in a hostile and degrading
manner when Jamieson and Burruto restructured the track program.
A constructive discharge can arise from, among other things,
"reassignment with significantly diminished job responsibilities,
or a decision causing a significant change in benefits."
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998).
However, "a reduction in responsibility or a change in the way
business is done, unaccompanied by a diminution in salary or some
other marked lessening of the quality of working conditions, does
not constitute a constructive discharge." Suarez 229 F.3d at 55.

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There is no evidence that the restructured track program
significantly diminished Caputo's job responsibilities or the
quality of her working conditions. While the new program decreased
the number of students for which Caputo was responsible, her new
position left her in charge of two high school track teams: the
boys indoor and outdoor teams. This is not a case where Caputo was
demoted from a supervisory position to one with little or no
managerial responsibilities whatsoever. Cf. Melendez-Arroyo v.
Cutler-Hammer de P.R. Co., Inc., 273 F.3d 30, 36 (1st Cir. 2001)
(employee was "taken from a position of substantial responsibility
supervising a number of employees," and transferred to a job
involving only "sketchy menial" tasks); Jirau-Bernal v. Agrait, 37
F.3d 1, 4-5 (1st Cir. 1994) (employee "was transferred from a
position with supervisory responsibility for more than 200
employees, to a nonsupervisory position . . . ."). Coaching these
two particular track teams may have been less prestigious than
coaching just one team, but a loss of prestige is not sufficient,
standing alone, to support a finding of constructive discharge.
See Serrano-Cruz v. DFI P.R., Inc., 109 F.3d 23, 27 (1st Cir.
1997).
Nor did Caputo suffer a reduction in salary. Id. at 26
("Salary considerations are important in determining whether a job
transfer can support a claim of constructive dismissal."). In
fact, Caputo was making more money after the restructuring than she

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had been previously making. In short, the record before us reveals
that Caputo "still retained duties and emoluments appropriate to
[her] rank." Suarez, F.3d at 55. Therefore, we find that the
restructuring of the track program is not sufficient evidence of
hostile or degrading treatment by the defendants to be a
constructive discharge.
Caputo also claims that she was treated in a hostile and
degrading manner by being subjected to written reprimands,
unsatisfactory performance evaluations, and being asked to sign a
list of contingencies before she was able to accept her new
coaching position. Caputo, however, admits to partaking in the
underlying behavior for which she was disciplined. Under such
circumstances, we cannot say that Caputo was subjected to
objectively hostile or degrading treatment. Being disciplined is
certainly unpleasant, but if Caputo wanted the reprimands to cease,
she simply could have complied with her employers' professional
standards.
Finally, Caputo cites the suspension of her best athlete as
evidence of the defendants' hostile treatment towards her. There
is simply no evidence in the record that this event adversely
affected Caputo's job responsibilities or working conditions. We
do not think that an objectively reasonable coach would construe
the suspension of an athlete who violently pushed a fellow student
as creating hostile working conditions so severe that she would

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1 While our above ruling ends the matter, we note further that
even supposing error in granting summary judgement for failure to
present a prima facie case of discrimination, the defendants would
still prevail under the McDonnell Douglas framework. The
defendants' decision to increase coaching supervision in the track
program conformed with the prevailing practice at similar schools
in the area. Thus, the defendants presented a legitimate
nondiscriminatory reason for their changes in the structure of the
coaching staff. Straughn v. Delta Airlines, Inc., 250 F.3d 23, 33-
34 (1st Cir. 2001). Caputo has presented no evidence even
suggesting, let alone demonstrating, that the defendants' reason
for changing her responsibilities was pretextual.
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feel compelled to resign.
We also note that Caputo was asked to reconsider her
resignation, but refused to do so. She resigned voluntarily.
In sum, we rule that Caputo failed to present a prima facie
case of gender discrimination because the restructured track
program, the written reprimands and unsatisfactory performance
evaluations, and the suspension of a talented athlete do not
constitute a constructive discharge. We need not address the
remaining steps in the McDonnell Douglas burden shifting analysis.1
Summary judgment for the defendants was correctly granted.
We now briefly turn to whether the district court erred in not
deciding Caputo's pendent state law claims. Caputo addresses this
matter in the statement of issues section of her appellate brief,
but completely fails to subsequently argue it. The issue is
therefore waived. See Brown v. Tr. of Brown Univ., 891 F.2d 337,
352 (1st Cir. 1989) (issues not argued in brief are abandoned); see
also Fed. R. App. P. 28(a) (brief must contain statement of issues

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presented for review and argument with respect to such issues).
III. CONCLUSION
After viewing the record in the light most favorable to
Caputo, we rule that she has not presented a prima facie case of
gender discrimination. Caputo also waived her argument regarding
the state law claims. The district court's grant of summary
judgment for the defendants is AFFIRMED.

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