THOMPSON v. WEBBER HOSPITAL ASSOCIATION

Filing 40

ORDER ON DEFENDANTS MOTION FOR SUMMARY JUDGMENT granting 29 Motion for Summary Judgment By JUDGE JON D. LEVY. (nwd)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
WILLIAM THOMPSON,

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Plaintiff,
v.
THE WEBBER HOSPITAL
ASSOCIATION, d/b/a SOUTHERN
MAINE MEDICAL CENTER,
Defendant.

Case No. 2:13-cv-00141-JDL

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff William Thompson (“Thompson”) brings this suit against The
Webber Hospital Association d/b/a Southern Maine Medical Center (“SMMC”),
alleging racial discrimination in violation of both federal and state law. His threecount Complaint alleges that he suffered racial discrimination, a hostile work
environment, and unlawful disparate treatment in violation of 42 U.S.C. § 1981, 42
U.S.C. § 2000e, and 5 M.R.S.A. § 4572(1)(A). For the reasons set forth below, I
GRANT SMMC’s Motion for Summary Judgment.
I. BACKGROUND
Thompson was employed as a full-time respiratory therapist at SMMC in
Biddeford, Maine between 2007 and 2011. SMMC is owned and operated by the
defendant, The Webber Hospital Association. Thompson was terminated from his
position in June 2011 following a series of incidents for which he was counseled or
otherwise disciplined by his supervisor.

1

Thompson, an African-American man,

contends that he was terminated from employment on the basis of racial
discrimination in response to his initiation of a romantic relationship with a fellow
hospital employee (hereinafter referred to as “JC”) who is a Caucasian woman. He
seeks relief based under both the disparate treatment and hostile work
environment frameworks.
II. SUMMARY JUDGMENT STANDARD
A.

Federal Rule of Civil Procedure 56
Summary judgment is appropriate “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir.
2014). “A dispute is genuine if ‘the evidence about the fact is such that a reasonable
jury could resolve the point in favor of the non-moving party.’” Johnson v.
University of Puerto Rico, 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v.
Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the
potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R.
Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).
The party moving for summary judgment must demonstrate an absence of
evidence to support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986). In determining whether this burden is met, the court must view
the record in the light most favorable to the nonmoving party and give that party
the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once
the moving party has made a preliminary showing that no genuine issue of material

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fact exists, the nonmovant must “produce specific facts, in suitable evidentiary
form, to establish the presence of a trialworthy issue.” Brooks v. AIG SunAmerica
Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (citing Clifford v. Barnhart, 449
F.3d 276, 280 (1st Cir. 2006)); Fed. R. Civ. P. 56(c). “As to any essential factual
element of its claim on which the nonmovant would bear the burden of proof at
trial, its failure to come forward with sufficient evidence to generate a trialworthy
issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27,
31 (1st Cir. 2001) (citation and internal punctuation omitted).
B.

Local Rule 56
The evidence that the court may consider in deciding whether genuine issues

of material fact exist for purposes of summary judgment is circumscribed by the
local rules of this district. See Loc. R. 56.

The moving party must first file a

statement of material facts that it claims are not in dispute. See Loc. R. 56(b).
Each fact must be set forth in a numbered paragraph and supported by a specific
record citation.

See id.

The nonmoving party must then submit a responsive

“separate, short, and concise” statement of material facts in which it must “admit,
deny or qualify the facts by reference to each numbered paragraph of the moving
party’s statement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must
support each denial or qualification with an appropriate record citation. See id.
The nonmoving party may also submit its own additional statement of material
facts that it contends are not in dispute, each supported by a specific record citation.
See id.

The movant then must respond to the nonmoving party’s statement of

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additional facts, if any, by way of a reply statement of material facts in which it
must “admit, deny or qualify such additional facts by reference to the numbered
paragraphs” of the nonmovant’s statement. See Loc. R. 56(d). Again, each denial or
qualification must be supported by an appropriate record citation. See id.
Local Rule 56 directs that “[f]acts contained in a supporting or opposing
statement of material facts, if supported by record citations as required by this rule,
shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition,
“[t]he court may disregard any statement of fact not supported by a specific citation
to record material properly considered on summary judgment” and has “no
independent duty to search or consider any part of the record not specifically
referenced in the parties’ separate statement of fact.” Id.; see also, e.g., Borges, ex
rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed. R. Civ. P. 56(e)(2)
(“If a party fails to properly support an assertion of fact or fails to properly address
another party’s assertion of fact as required by Rule 56(c), the court may . . .
consider the fact undisputed for purposes of the motion[.]”).
III. ANALYSIS
A.

DISPARATE TREATMENT
SMMC challenges Thompson’s ability to make out a prima facie case of

disparate treatment discrimination. A prima facie case for discrimination based on
disparate treatment presents a four-part test:
(1) the plaintiff must be a member of a protected class; (2) [he] must be
qualified for [his] job; (3) [he] must suffer an adverse employment
action at the hands of [his] employer; and (4) there must be some
evidence of a causal connection between [his] membership in a
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protected class and the adverse employment action, e.g., in the case of
a firing, that the position was filled by someone with similar
qualifications.
Bhatti v. Trustees of Boston University, 659 F.3d 64, 70 (1st Cir. 2011); see also
Cham v. Station Operators, Inc., 685 F.3d 87, 93 (1st Cir. 2011). Only a “relatively
low threshold showing [is] necessary to establish a prima facie case.” Che v. Mass.
Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003).
1.

Thompson’s Prima Facie Case

At the outset of its argument concerning Thompson’s prima facie case of
disparate treatment, SMMC contends that his claim is not really a race
discrimination claim after all, but is really a claim for “associational race
discrimination.” ECF No. 29 at 10-11. Yet SMMC cites no authority to support this
point.

Id. at 11.

SMMC claims that Thompson cannot bring a claim for

associational discrimination because such claims are “not available in this context;”
the gist of SMMC’s argument being that Thompson, an African-American man and
a member of a protected class, cannot sue for associational discrimination because
such claims are available exclusively to plaintiffs who are not protected minorities
but who suffer discriminatory animus for associating with a member of a protected
class. Id. (citing Perez v. Greater New Bedford Vocational Technical School District,
2013 WL 6058054 (D. Mass. Nov. 13, 2013)).
I do not agree that Thompson’s claim is properly construed as one for
“associational race discrimination.” To follow SMMC’s logic would be to foreclose to
all protected groups the ability to bring a Title VII claim in situations where the

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alleged discrimination is based upon an interracial relationship, while reserving
those claims exclusively to non-protected groups. This would go against the purpose
of Title VII, and is unsupported by legal authority. In fact, the case law from other
circuits and districts demonstrates that in Title VII discrimination cases featuring
both African-American and Caucasian plaintiffs, the African-American plaintiffs
brought claims of race discrimination and the Caucasian plaintiffs brought claims of
associational race discrimination. See Arnold v. City of Columbus, 515 Fed. Appx.
524 (6th Cir. 2013) (eight African-American plaintiffs filed suit under Title VII
alleging race discrimination and retaliation, along with two Caucasian plaintiffs
who filed suit alleging associational discrimination and retaliation); Booker v. Dee
Sign Co., 2008 WL 839786 (S.D. Ohio 2008) (African-American husband and
Caucasian wife sued employer, alleged claims of race discrimination as to the
husband and associational discrimination as to the wife); Black Grievance
Committee v. Philadelphia Elec. Co., 1984 WL 1506 (E.D. Philadelphia 1984)
(twelve construction workers brought Title VII claim alleging a pattern and practice
of Title VII discrimination by employer – nine African-American workers alleged
race

discrimination

and

three

white

workers

alleged

associational

race

discrimination).
The summary judgment record demonstrates that Thompson has satisfied
the threshold of evidence required for a prima facie case. There is no dispute that
Thompson is African-American, and that African-Americans constitute a protected

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class for purposes of Title VII and § 1981 claims. He therefore has satisfied the first
element of a prima facie case of racial discrimination.
Second, Thompson has presented proof that he was qualified for the job
because he held the licensing required for the position and had received generally
positive job evaluations throughout his employment.
Third and fourth, having been fired from his job, there is little doubt that
Thompson suffered an adverse employment action, and SMMC does not dispute
that it sought to replace Thompson with someone with roughly equal qualifications.
Because I find that Thompson has made out a prima facie case,
discrimination may be inferred and the burden of production – but not persuasion –
shifts to SMMC to produce evidence that the decision to terminate Thompson was
taken for a legitimate, non-discriminatory reason. Lockridge v. Univ. of Me. Sys.
597 F.3d 464, 470 (1st Cir. 2010); see also Thompson v. Coca-Cola Co., 522 F.3d 168,
176 (1st Cir. 2008).
2.

SMMC’s Legitimate, Non-discriminatory
Terminating Thompson’s Employment

Reason

for

Thompson responded to many of SMMC’s statement of material facts by
indicating that he “does not concede the veracity of the statements,” but did not
otherwise support his denials or qualifications with a citation to an appropriate
record citation. Therefore, those facts are deemed admitted. As previously stated,
Local Rule 56(d) provides that unless a fact is admitted, the non-movant’s reply
statement of material facts must support each denial or qualification with a record

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citation. Facts that are not properly controverted are deemed admitted. See D. Me.
Local R. 56(f).
The summary judgment record, viewed in the light most favorable to
Thompson as the non-moving party, reveals the following: SMMC asserts that
Thompson was terminated in June 2011 based on his “ongoing performance and
competency issues, along with the information he had provided about his
documentation practices.”

DSMF ¶ 71, ECF No. 30.

Thompson denies this,

claiming his termination was racially motivated. Pl.’s Resp. to DSMF ¶ 71, ECF
No. 33. SMMC cites the following occurrences between 2009 and 2011 as the basis
for its decision to end Thompson’s employment:


May 5, 2009: Thompson received a written warning in May 2009
concerning the level of attention he had paid to a patient’s
condition. DSMF ¶¶ 6, 7.



May 13, 2009: Thompson received a warning regarding the manner
in which he weaned a ventilator patient’s oxygen level and his
failure to respond to a subsequent page. This resulted in Thompson
receiving a six-month probation. DSMF ¶¶ 8-11, ECF No. 26-7 at 1.



August 13, 2009: Thompson received a written warning based on a
call he made to a doctor regarding the sedation of a patient because
a nurse had already ordered the medications she deemed
appropriate. Thompson was placed on another three-month
probation. DSMF ¶¶ 13-15.

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

November 2, 2010: Thompson received a written warning for
violating the Hospital’s “Unauthorized Visitor” policy by entering
the hospital while not working and using his security badge to
enter the WIS unit. DSMF ¶¶ 35, 36.



February 1, 2011: A registered nurse reported to Darren Rainey,
Thompson’s supervisor, that Thompson was unable to assess a
distressed newborn infant because he claimed he did not know
enough about the baby, although the nurse had called for a
respiratory assessment only. DSMF ¶ 47. Thompson disputes this
characterization of his exchange with the nurse, asserting that the
nurse told him that she “just wanted ‘another set of eyes’ to look at
the newborn” and was looking for support from him as to whether a
physician should be called, thus denying the implication that he
refused to perform a requested assessment. PASMF ¶ 28, ECF No.
33. There was no warning or other formal discipline initiated as a
result of this incident.



May 1, 2011: A respiratory therapist informed Rainey that
Thompson could not be located during a recent shift and failed to
respond to calls or his pager. This had been a persistent issue with
Thompson and had been addressed previously.1 DSMF ¶ 48.

1 Thompson explained to Rainey that he was “using the printer in the [Post Anesthesia Care Unit]” and was
surprised that this issue had been brought up again. PASMF ¶ 29, ECF No. 33. He did not, therefore, dispute
SMMC’s assertions that he could not be reached on his pager and that this had been a persistent problem.

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

May 9, 2011: Rainey sent Thompson an email related to a
complaint from a non-supervisory nurse regarding an interaction
she had with Thompson in which he asked extensive questions, and
failed to assess the patient and communicate with the nurse.
DSMF ¶ 49.

Thompson denies this, stating that the referenced

email does not report that he “failed to assess” the patient but that
he “did the treatment.” Pl. Resp. to DSMF ¶ 49. Rainey met with
Thompson following this incident to work on his communication
skills, but no warning or other formal discipline was initiated.
DSMF ¶ 50.
The events that immediately preceded Thompson’s termination occurred on
June 7 and 8, 2011. At the end of Thompson’s night shift on June 7, Rainey had a
conversation with Thompson, at which supervisor Mike Pelletier (“Pelletier”) was
also present. DSMF ¶ 57. During the conversation, “Thompson stated that when
he is busy he sometimes documents respiratory listening assessments [of patients]
that he had not performed.” DSMF ¶ 58. Rainey was shocked by Thompson’s
statement because falsely documenting respiratory assessments that have not been
performed places patients’ health at risk, does not meet the minimum standard of
care required from a respiratory therapist, violates SMMC policy, and places SMMC
at risk of liability.

DSMF ¶ 59.

Caucasian employees of SMMC had been

disciplined for violating the Documentation Policy in 2010 and 2011, and a
Caucasian employee was terminated in March 2011 on this basis. DSMF ¶¶ 63, 64.

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Rainey and Pelletier met with Thompson again on June 8, 2011, along with
Susan LaTorre (“LaTorre”) of the Human Resources Department. Thompson was
told that he was being placed on administrative leave pending further investigation.
DSMF ¶ 65. Thompson did not deny that he documented patient assessments that
he had not performed, but claimed that he may have misunderstood what Rainey
was saying the previous day or thought that he was joking. DSMF ¶ 66. Thompson
maintains that he believed at the June 8 meeting they (presumably, Thompson and
Rainey) “were joking the day before and he does perform every assessment to the
best of his ability.” Pl. Resp. to DSMF ¶ 66. He also stated, and Rainey agreed,
that it is often difficult to perform a good assessment on a sleeping patient. See id.2
In short, on June 8 Thompson did not dispute that he had told Rainey and Pelletier
on June 7 that when he was busy he had documented respiratory listening
assessments of patients that he had not performed.
Following the June 8 meeting, SMMC conducted an investigation, including
“a review of Thompson’s numerous prior warnings, counselings, and his 2010
evaluation.” DSMF ¶¶ 67, 68.

Thompson asserts that he met or exceeded all or

nearly all expectations in his annual performance evaluations.

PASMF ¶ 7.

Thompson’s employment was terminated on June 29, 2011. DSMF ¶ 70.

Thompson admitted DSMF ¶¶ 13, 35. Pl. Resp. to DSMF, ECF No. 33 at 2, 4. As to the remaining
statements, Thompson either denied or qualified the remaining statements of material fact, primarily by
indicating that he “does not concede the veracity of the statements therein.” See, inter alia, id. at ¶ 27. He did
not cite to any record citations in support of his denial or qualification, except with respect to the August 2009
incident and the June 2011 incident. He did, however, submit his own additional statement of fact regarding
the August 2009 incident and the June 8, 2011, meeting.

2

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The foregoing largely undisputed facts establish that SMMC has met its
burden of demonstrating a legitimate, non-discriminatory reason for Thompson’s
discharge.

Accordingly, the burden shifts back to Thompson to show, by a

preponderance of the evidence, that SMMC’s justification for his termination was a
pretext for its discriminatory purpose. See Lockridge, 597 F.3d at 470.
3.

Thompson’s Evidence of Pretext

Pretext may be demonstrated by showing “weaknesses, implausabilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered
legitimate reasons such that a fact-finder could infer that the employer did not act
for the asserted non-discriminatory reasons.” Santiago-Ramos v. Centennial P.R.
Wireless Corp., 217 F.3d 46, 56 (1st Cir. 2000) (quotation omitted). The court looks
to whether the “employer’s proffered justification for its adverse employment action
was such that a trier of fact can reasonably infer from the falsity of the explanation
that the employer is dissembling to cover up a discriminatory purpose.” RondaPerez v. Banco Bilbao Vizcaya Argentaria-Puerto Rico, 404 F.3d 42, 44 (1st Cir.
2005) (quotation omitted).
Thompson’s claim of pretext rests on two pillars. First, he claims that he fell
into disfavor at the hospital after he became romantically involved with JC, and
that their interracial relationship unsettled their co-workers and supervisors,
resulting in the discrimination. Second, he contends that there are disputed issues
of material fact as to the various job performance problems cited by SMMC as
justification for his termination.

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a. Thompson’s Relationship with JC
In December 2009, Thompson began dating JC, who worked as a nurse on the
pediatric floor at SMMC until August 25, 2010, when SMMC terminated her
employment for purported misconduct. PSAMF at ¶ 8. Thompson refers to several
incidents to support his claim that his co-workers at SMMC discriminated against
him on the basis of race in reaction to his and JC’s interracial relationship.
Thompson first asserts that he noticed “more intense discrimination” when
the relationship began and that Rainey told him that the relationship was “trouble.”
PSAMF at ¶ 9. However, at his deposition Thompson testified that the alleged
“trouble” comment could have been related to “anything,” Def.’s Reply to PSAMF ¶
9, ECF No. 36, and Thompson did not identify any specific incidents supporting his
claim of “discrimination” or “more intense discrimination.” Id.
Thompson also asserts that JC experienced negative feedback from her
supervisors and co-workers regarding her relationship with Thompson. PSAMF at
¶ 10.

However, as SMMC indicates, Thompson failed to generate a dispute as to

the fact that the “negative feedback” JC received “was related to JC frequently
texting and making personal calls, disappearing off the unit, failing to perform
patient duties, and making her co-workers uncomfortable” by sharing with them
details about her relationship with Thompson. Def.’s Reply to PSAMF ¶ 10.
The closest Thompson comes to proving that his supervisor’s and co-workers’
concerns regarding his relationship with JC was connected to race are statements

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contained in two memoranda. 3

The first memorandum was prepared by a

supervisor after meeting with one of JC’s co-workers on March 22, 2010, regarding
the co-worker’s perception that JC’s and Thompson’s relationship was affecting JC’s
work performance. The memorandum cites several concerns, including that “[JC]
has said that although he leaves it in his vehicle [Thompson] carries a gun because
he grew UP ‘in the hood.’” ECF No. 34-11. As is apparent, the comment about
Thompson carrying a gun and growing up “in the hood” is attributed to JC, not the
employee reporting it to the supervisor who prepared the memorandum.
The second memorandum was prepared in connection with a March 25, 2010
meeting of the department where JC worked. It reflects, among other things, that
staff members were concerned because: (1) “they [were] watching a ‘train wreck’
about to happen to a co-worker [that they] cared about”; (2) in one instance, JC and
Thompson were speaking to each other in a room while a mother was holding a
newborn; (3) there were rumors that Thompson had a weapon; and (4) staff claimed
that these circumstances were “frightening to them [and] created a hostile work
environment because they did not know what these people were capable of and felt
JC is unpredictable.” ECF No. 34-13. The first and second comments are consistent
with the overall issue addressed in the memorandum that JC and Thompson’s
workplace behavior as a couple was compromising their professionalism and
distracting the staff. The comments were neutral as to Thompson’s race. The third
Thompson also asserts that in March 2010 JC was told “by her supervisor and co-workers . . . that
they were ‘disappointed’ that she was dating Plaintiff,” PSAMF at ¶ 11, and that JC told him that
her employment was in jeopardy due to her relationship with him. Id. I disregard these statements
as hearsay statements that are not supported by references to admissible evidence.
3

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and fourth comments relate to JC’s expression of concern to a co-worker regarding
Thompson keeping a gun in his truck at work. The reference to “these people,”
relates to JC “[t]alking about a weapon and she feels threatened by [Thompson’s]
ex-girlfriend.”

Id.

Thus, the memorandum’s reference to “these people” is to

Thompson and his ex-girlfriend, and is not a reference to Thompson’s race or a
racial group.
Thompson also cites a notation made by SMMC’s Director of Human
Resources Lorraine Bouchard (“Bouchard”) in her written record regarding the
termination of JC’s employment in August 2010, which reads: “Waiting for info on
Will Thompson.” ECF No. 34-14. Standing alone, this notation imports nothing,
other than that Bouchard was waiting to receive information regarding Thompson.
Thompson also cites to evidence that JC applied for unemployment benefits
following her termination for “misconduct,” and received unemployment benefits
after a hearing officer found that she was not insubordinate. JC’s entitlement to
unemployment benefits is, however, immaterial as to SMMC’s treatment of
Thompson.
The evidence cited by Thompson regarding SMMC’s response to his
workplace relationship with JC does not support his contention that SMMC’s stated
reason for his termination was pretextual.
b. Thompson’s Job Performance Issues
To the extent that Thompson responds to the various job performance
problems cited by SMMC by offering his explanation or justification for his conduct,

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he does not put into dispute SMMC’s corresponding position regarding each
incident. “Mere questions regarding the employer’s business judgment are
insufficient to raise a triable issue as to pretext.” Pearson v. Massachusetts Bay
Transp. Auth., 723 F.3d 36, 41 (1st Cir. 2013) (quotation omitted). Thompson’s
disagreement, for example, with a nurse’s characterization of his conduct on May 4,
2011, does not create a genuine dispute of material fact as to Rainey’s receipt of the
nurse’s report and the action he took in response.

See Wallace v. O.C. Tanner

Recognition Co., 299 F.3d 96, 102 (1st Cir. 2002) (summary judgment is appropriate
where there is no genuine dispute about the honesty of an employer’s belief that the
employee was neglecting his duties).
Thompson also cites to his annual performance appraisals for 2008 through
2010, as evidence of pretext, noting that he met or exceeded the majority of his
performance goals for the year.

He contends that the performance evaluations

“demonstrate ‘weaknesses or implausibilities’ in any claim by [SMMC] that [he] was
not meeting expectations or not demonstrating competence in his job at any time
prior to March 6 2011.”4 Pl.’s Resp. at 19, ECF No. 32. SMMC responds that the

4

Thompson’s Additional Statements of Material Fact, and SMMC’s Response are as follows:
7. Plaintiff’s annual performance appraisals indicate that he met or exceeded the majority of
his performance goals year after year.
RESPONSE: Denied. In Plaintiff’s last performance evaluation – for calendar year 2010 – he
received a score of 650 points out of 1000, which was the lowest score out of 9 [respiratory
therapists]. (DSMF ¶¶ 39-40; JSR Ex. 13.) In his 2009 evaluation, Plaintiff received 600 points
out of 1000. (JSR Ex. 12.) In his 2010 evaluation, Plaintiff received three stars in the majority
of evaluation categories, which represents the second to lowest available rating. (JSR Ex. 13.)
Plaintiff’s 2010 evaluation included several items of critical feedback in the narrative sections,
including: “Feedback from multiple disciplines has identified they do not always feel supported
or have confidence in Will”; “he needs to give all of his attention to the disciplines seeking his
assistance and guidance . . . [and] rely less on mentors”; “Will had a few experiences where he

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performance evaluations did not address the events that occurred in 2011 and, as to
the prior years, the evaluations were not in conflict with the disciplinary events
that SMMC relies upon to establish its legitimate, non-discriminatory basis for
Thompson’s termination. I agree with SMMC’s characterization of this evidence for
the following three reasons.
First, the performance evaluations establish that Thompson met or exceeded
the majority of his performance goals, meaning that he failed to meet or exceed at
least some of his annual performance goals.

Second, the 2010 performance

evaluation contains comments by Rainey, Thompson’s supervisor, that are
consistent with the problems that occurred in 2010 (for example, “Feedback from
multiple disciplines has identified they do not always feel supported or have
confidence in Will”). ECF No. 26-13 at 5.

Finally, there is no performance

evaluation for 2011, the year in which Thompson’s most serious transgressions
occurred.

That the performance evaluations from 2008 to 2010 reflect that

Thompson performed most aspects of his responsibilities in a commendable manner
does not call into question the reliability of the largely undisputed evidence related
to those aspects of his performance which were deficient. See Benoit v. Technical
Mfg. Corp., 331 F.3d 166, 174 (1st Cir. 2003) (concluding that an employee’s
improved performance review was insufficient to create a trialworthy issue as to

did not utilize active listening skills due to the critical situation at hand. This is one of the
most crucial times to utilize excellent communication skills . . . .” (JSR Ex. 13.) Furthermore,
Plaintiff’s last performance evaluation predated the investigation and events leading up to his
termination. (JSR Ex. 13; LaTorre Aff. ¶ 6; Ex. 3 thereto.)
Def.’s Reply to PSAMF ¶ 7, ECF No. 36.

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pretext, especially given the employer’s reliance on other reasons for firing the
employee); Byrd v. Ronayne, 61 F.3d 1026, 1032 (1st Cir. 1995) (concluding that an
employee’s favorable performance review does not generate a trialworthy dispute as
to pretext where a subsequent “mixed” performance review presaged the declining
trajectory of the employee’s performance).
Thompson’s performance evaluations are not in serious conflict with his
disciplinary history and do not demonstrate that SMMC’s stated rationale for
ending his employment is weak or implausible.

The pretext evidence that

Thompson offers falls far short of generating a genuine dispute of fact as to SMMC’s
position that it terminated Thompson because of “ongoing performance and
competency issues, along with Documentation Policy violations.”

ECF No. 29.

Accordingly, I find that summary judgment is warranted on Plaintiff’s claim of
disparate treatment race discrimination.
B.

HOSTILE WORK ENVIRONMENT
Although Thompson’s complaint includes an allegation of a hostile work

environment on the basis of race, his response to SMMC’s statement of material
facts and his additional statement of material facts do not contain evidence that
could establish a hostile work environment at SMMC.

As indicated earlier,

Thompson relies upon certain statements directed at either him or JC that were
supported by citations to admissible evidence. However, none of those statements
were racially-tinged or suggest a workplace “permeated with discriminatory
intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the

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conditions of the victim’s employment and create an abusive working environment.”
Wilson v. Moulison N. Corp., 639 F.3d 1, 6-7 (1st Cir. 2011); see also Prescott v.
Higgins, 538 F.3d 32, 42-43 (1st Cir. 2008).

Because Thompson has failed to

generate a factual dispute that could give rise to liability based on a hostile work
environment, I conclude that summary judgment is properly awarded to SMMC as
to that theory of liability as well.
IV. CONCLUSION
SMMC’s motion for summary judgment is GRANTED as to all counts of the
complaint.
SO ORDERED.
DATED THIS 8TH DAY OF September, 2014.

/s/ Jon D. Levy
United States District Judge

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