Facts (Read the fact pattern and answer the question that follows.

Employee, an Iranian-born doctor training in United States as forensic pathologist, brought lawsuit against a state department of Forensic Sciences alleging that department terminated her because of her national origin and in retaliation for her complaints about discriminatory treatment, and that her direct supervisor harassed her based on her national origin.

Employee was born in Iran, and she trained as a doctor in France. She came to the United States in 1993 to train as a forensic pathologist. She is currently a legal resident of the United States and has applied to become a citizen. From 1993 to 1998, she was a resident in pathology at New University, and, from 2000 to 2001, she was a forensic fellow in the office of the chief medical examiner in Boston, Massachusetts.

In the spring of 2001, the Director of the state department of Forensic Sciences and the Chief Medical Examiner for state recruited Employee to come to work for the department. Employee began work at the department on July 23, 2001. At first, she worked in the town office, but she was transferred to the main office effective October 1, 2001. During the relevant time period, Employees supervisor in the main office was Dr. Edith Warton; Wartons supervisor was Cal Brown, the director of the main Regional Laboratory; and the departments director was Joe Upton. Employee, like all state employees, was a probationary employee for her first six months on the job.

Warton was highly critical of Employee almost immediately upon her arrival in the main office. On her first day at work, Warton accused Employee of being inconsiderate for not offering to help her. Warton looked at Employee with a hatred filled stare and mocked her by repeating her in a high-pitched voice. On or about October 22, 2001, Warton became enraged at Employee, shouted at her, accused her of wrongdoing, and said she had had enough of Employee and that Employee was the rudest person she had ever met. When Employee tried to explain her actions, Warton yelled louder and said that she did not like Employee and that no one else liked her either.

On October 24, Employee expressed to Cal Brown, the office director, her concerns about the way Warton was treating her. Brown later told Employee that, after his conversation with her, he spoke to Warton to find out if she had a problem with people of Middle Eastern descent. Brown told Employee that people from the Middle East were perceived as rude and aggressive.

On November 7, Warton implied to Employee that she was getting calls from people asking about Employees background and her accent, and she threatened to expose Employees nationality to law enforcement agencies. Warton also said that she was getting calls from people asking who Employee was, asking why she was there, and stating that she did not belong there.

Employee had two more run-ins with Warton in December 2001, after Employee had taken time off in November to visit her mother in another state after the death of her father. On December 6, Warton called Employee into her office, where Brown yelled at Employee, accusing her of neglecting the office after her father died and not performing enough autopsies. Brown also questioned Employee about whether she was looking for a job in another state. On or about December 25, Employee confronted Warton about whether Warton had spread a rumor that Employee was looking for a job in another state.

On January 2, 2002, Employee received an employee probationary performance appraisal and an attached narrative performance appraisal, dated November 15, 2001. The narrative performance appraisal stated that Employee appears to be a very intelligent and dedicated Forensic Pathologist and that she seems to have been well trained. The narrative appraisal, however, goes on to state that her performance has been problematic in four inter-related areas: expectations of co-workers, recognition of and subordination to authority, incessant inquisitiveness, and lack of organization. It also states that Employee comes across as very self-centered and projects an entitlement complex, that she has also refused to comply with departmental regulations and/or rules if she doesnt agree with them; and that her work habits leave room for improvement. The narrative was signed by Warton and Upton as well as by the Deputy Medical Examiner, for himself and for another Regional Medical Examiner.

The employee probationary performance appraisal, signed by Warton and Employee, gave Employee an average rating of 1.57 out of four on seven responsibilities, including handles evidence/case materials and analyzes evidence/case materials/gathers case history. Based on this average score, the performance evaluation concluded that Employees work partially met standards.

On the day that Employee received her performance evaluation, Warton again made reference to Employees national origin. Warton suggested that she was receiving calls about Employee and that people wanted to know where Employee was from and why she was there. Warton suggested that she was getting these calls because of Employees accent. At this meeting, Warton and Employee also discussed Employees performance appraisal. Warton alluded to the fact that she knew people all over the country and that if Employee left the department she would make sure Employee would not get a job anywhere else.

Employee brought her concerns about Warton to Upton on January 4, 2002. Employee told Upton that Warton had threatened to expose her nationality; Employee also told Upton that she felt confused and intimidated. Upton told Employee that Middle Eastern people were generally facing troubles in the wake of the terrorist attacks on September 11, 2001, and that Employee should turn the other cheek. However, Upton said he would speak to Warton.

On January 9, 2002, Upton wrote a letter to the state personnel director, requesting that Employees probationary period be extended by three months. Upton wrote that Employee requires additional training in autopsy procedures to take a more organized approach to the process and that she must also learn to use the chain of command.

The relationship between Warton and Employee did not improve after Upton spoke to Warton. On January 3, Employee accidently cut the carotid artery during an autopsy. A county coroner called her to report that the funeral home handling the body called him to complain because, due to the cut in the carotid artery, it had not been able to proper embalming and the family of the deceased was upset. Warton wrote a memorandum to Upton about this incident and noted that the coroner said to her that Employee did not appear concerned about the inconvenience that she had caused.

On January 14, Warton smirked at Employee during a weekly meeting while Employee presented an autopsy she had done on an apparent suicide. The deceased had died of a drug overdose and had left a note describing her emotional pain. Warton again wrote a memorandum on this incident, noting that Employee was focusing more on the emotional state of the decedent than on the entire scenario of the death investigation.

On January 30, Warton interrogated Employee during her presentation of a homicide case. Warton, again, described this incident in a memorandum, writing that Employee has continued to be argumentative and responded angrily when questioned about her autopsy findings.

On February 5, 2002, in the course of an autopsy on a fire victim, Employee, without asking Wartons permission, sent a blood sample to an outside laboratory for confirmation that the victim died of carbon dioxide inhalation. It was Employees understanding the cost of outside test was low enough that she did not need approval. The following day, Warton criticized Employee for ordering the test without permission. Warton wrote a memorandum on this incident as well, stating that Employee defiantly refused to comply with department requests about outside laboratory tests.

On February 13, Warton accused Employee of causing problems because Employee would not release information from an autopsy. When Employee explained that she wanted to wait until she had complete information, Warton yelled that if she could not make a decision, she should leave. On February 19, Warton questioned Employee in front of other department employees about whether she would get her autopsies done in time.

Warton alluded to Employees nationality again on March 7, 2002. Warton told Employee that nobody liked her, that everybody complained about her, that she did not belong there, that should leave, and that her English was bad. After this incident, Employee complained to Upton again on March 21, about Wartons hostility. At this meeting, Upton told Employee that he would start an investigation, and Employee told Upton that she had contacted a lawyer. Employee also complained to the department chief of staff, on March 25.

Events came to a head on March 28, at a meeting attended by Employee, Warton, Brown and the departments personnel manager. Employee claims that she was terminated during the meeting and that when she met with the personnel manager shortly after the meeting, the personnel manager told her it was unofficial policy that terminated employees could submit a letter of resignation. Memoranda written by Warton, Brown and the personnel manager present slightly different accounts. According to Warton, she informed Employee that the situation was not working out and that the department had not seen any improvement in the areas identified in Employees performance appraisal. According to Warton, before she could finish, Employee interrupted her to say she would quit. According to Brown, Warton requested Employees resignation, and Employee agreed. According to the personnel manager, Warton told Employee that an offer of permanent employment would not be forthcoming and then told Employee to speak with him later that day. According to the personnel manager, when they met, he told her it was the departments unofficial policy to allow employees to resign to make it easier to look for work in the future.

Employee submitted a letter of resignation on April 1, 2002. A letter from Upton, dated April 18, confirmed Employees separation from employment at the department effective April 19. Uptons letter stated that the reason for Employees separation is that she continued to require additional training in autopsy procedures and failure to properly use the chain of command.

After Employees separation from the department, she was sent an offer of an employment contract by the department. The contract called for Employee to provide court testimony, to appear as an expert witness, to nd instruct scientific and law enforcement personnel, and to provide technical review of cases.

Employee filed a charge with the EEOC alleging, among several claims that the Forensic Department retaliated against her for complaining to Upton and to the department chief about Wartons conduct. The department has moved for summary judgment on the basis that its employment decision was motivated by legitimate, non-retaliatory reasons.

INSTRUCTIONS:

Analyze the retaliation claim, including theprima faciecase, the legitimate non-retaliatory reason(s) and pretext.