DONOVAN v. NAPPI DISTRIBUTORS

Filing 91

ORDER ON MOTION FOR SUMMARY JUDGMENT granting in part and denying in part 60 Motion for Summary Judgment By JUDGE JOHN A. WOODCOCK, JR. (CCS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
HELENA DONOVAN,
Plaintiff,
v.
NAPPI DISTRIBUTORS,
Defendant.

)
)
)
)
)
)
)
)
)

No. 2:21-cv-00070-JAW

ORDER ON MOTION FOR SUMMARY JUDGMENT
An employer-defendant brings a motion for summary judgment against an
employee-plaintiff’s claims pursuant to Federal Rule of Civil Procedure 56. The
employee alleges that the employer violated the Family and Medical Leave Act and
the Maine Family Medical Leave Requirements by interfering with the plaintiff’s
right to obtain medical leave, violated the Equal Pay Act and the Maine Human
Rights Act by discriminating against her on the basis of sex and sexual orientation,
violated the Americans with Disabilities Act and the Maine Human Rights Act by
discriminating against her for her disability, and violated Title VII of the Civil Rights
Act by discriminating against her on the basis of sex and sexual orientation. The
employee further alleges retaliation under Title VII. The Court denies the motion as
to four of the claims because genuine issues of material fact preclude summary
judgment and grants the motion on the remaining claims because the employer is
entitled to judgment as a matter of law.

I.

PROCEDURAL HISTORY
On March 8, 2021, Helena Donovan filed a complaint against her former

employer Nappi Distributors (Nappi), alleging interference with her rights, unequal
pay practices, disability discrimination, sex discrimination, sexual orientation
discrimination, and related retaliation. Pl.’s Compl. (ECF No. 1) (Compl.). The
Complaint asserted claims under the Federal Medical Leave Act (FMLA), the Maine
Family Medical Leave Requirements Law (Maine FMLA), the Americans with
Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964 (Title VII), the Maine
Human Rights Act (MHRA), and the Federal Equal Pay Act (EPA). Id. ¶ 1.
On December 16, 2022, Nappi filed its motion for summary judgment and
statement of material facts. Def.’s Mot. for Summ. J. (ECF No. 60) (Def.’s Mot.);
Statement of Material Facts in Supp. of Def.’s Mot. for Summ. J. (ECF No. 61)
(DSMF). On February 15, 2023, Ms. Donovan filed her opposition, Pl.’s Resp. in Opp’n
to Def.’s Mot. for Summ. J. (ECF No. 77) (Pl.’s Opp’n). That same day, Ms. Donovan
filed her opposing statement of additional material facts, Pl.’s Opposing and
Additional Statement of Material Facts in Opp’n to Summ. J. at 1-59 (ECF No. 76)
(PRDSMF), and her own statement of additional material facts.

Id. at 60-132

(PSAMF). On April 11, 2023, Nappi replied, Def.’s Reply Mem. of Law in Supp. of
Mot. for Summ. J. (ECF No. 89) (Def.’s Reply), filing both a response and objections
to Ms. Donovan’s additional statements of material fact. Consolidated Statements of
Material Facts Including Def.’s Reply Statement of Material Facts in Supp. of its Mot.
for Summ. J. at 1-49 (ECF No. 90) (DRPSAMF).

2

II.

THE FACTS
A.

Helena Donovan’s Hiring and Position at Nappi

After contacting John Houle, then Nappi’s Wine Purchasing Manager,
concerning potential employment at Nappi and learning that he was retiring, Ms.
Donovan applied. DSMF ¶ 4; PRDSMF ¶ 4; PSAMF ¶ 2; DRPSAMF ¶ 2. Paul Carr,
former Director of Wine Sales, and Elmer Alcott, then Vice President and Chief
Financial Officer, 1 were responsible for hiring Ms. Donovan. PSAMF ¶ 1; DRPSAMF
¶ 1. When Ms. Donovan met with Mr. Carr and Mr. Alcott, they told Ms. Donovan
they were hiring a Wine Purchasing Manager.

PSAMF ¶ 3; DRPSAMF ¶ 3.

Following the meeting with Mr. Alcott and Mr. Carr, Mr. Carr called Ms. Donovan
and told her she was hired for the position of Wine Purchasing Manager, after which
Ms. Donovan spoke with Jim Bourque, Vice President of Human Resources for Nappi,
to go over the benefits information. 2 PSAMF ¶¶ 4, 219, 324; DRPSAMF ¶¶ 4, 219,
324. Before Ms. Donovan began working at Nappi, she met with Mr. Houle again.
Ms. Donovan discussed compensation with Mr. Houle prior to being hired and he

The Statements of Material Fact fail to identify Elmer Alcott’s position at Nappi. The Court
located Mr. Alcott’s description of his position in his deposition. Supp. 56(h) R. Materials for Pl.’s
Opp’n to Def.’s Mot. for Summ. J., Attach. 4, Dep. of Elmer Alcott at 6:1-7:6 (ECF No. 68). To complete
the context, the Court inserted Mr. Alcott’s position at the time of Nappi’s hiring of Ms. Donovan.
2
PSAMF ¶ 4 identifies Jim Bourque only as Mr. Bourque. The Court found Mr. Bourque’s first
name at PSAMF ¶ 9 and has inserted it here as this is the first mention of his name.
Nappi qualifies PSAMF ¶ 4, saying “Mr. Carr testified that [Ms.] Donovan was hired for a
different position because she did not have the requisite experience for Wine Purchasing Manager,”
and Ms. Donovan “testified that she was hired as the wine buyer.” DRPSAMF ¶ 4. Ms. Donovan
testified that Nappi was looking to hire her as “[w]ine purchasing manager” and that a few months
after commencing her employment at Nappi, her “title went from wine purchasing manager to
purchasing agent.” Donovan Dep. at 70:12-14; 74:1-5. Taking the facts in the light most favorable to
Ms. Donovan, the Court overrules Nappi’s objection and admits PSAMF ¶ 4.
1

3

inquired about her prior salary as a wine purchaser working for Pine State. PSAMF
¶¶ 5, 406; DRPSAMF ¶¶ 5, 406.
Although Ms. Donovan had only two years of experience as a wine purchaser,
all at Pine State, DSMF ¶ 3; PRDSMF ¶ 3, Nappi hired her on December 3, 2013.
DSMF ¶ 1; PRDSMF ¶ 1. Ms. Donovan would be performing the same duties she was
performing in her role at Pine State, so the only thing she was trained on was Nappi’s
system. 3

PSAMF ¶ 308; DRPSAMF ¶ 308.

Ms. Donovan was compensated as

discussed with Mr. Houle, DSMF ¶ 5; PRDSMF ¶ 5, and received a $16,000 pay
increase when she left Pine State for Nappi. DSMF ¶ 2; PRDSMF ¶ 2. After Ms.
Donovan started, her salary did not change aside from annual pay increases. DSMF
¶ 7; PRDSMF ¶ 7. When Ms. Donovan began working at Nappi her salary was
$53,000 and when she left it was $60,000. PSAMF ¶ 318; DRPSAMF ¶ 318.
Ms. Donovan understood that she was hired for the exact same job Mr. Houle
was previously working. PSAMF ¶ 308; DRPSAMF ¶ 308. Ms. Donovan was paid
less than Mr. Houle, who started working at Nappi as the wine purchasing manager
in the early 2000s as part of Nappi’s acquisition of Cumberland and York
Distributors, a beer and wine distributor. 4 DSMF ¶ 8; PRDSMF ¶ 8. Mr. Houle had

PSAMF ¶ 308 provides that “[Ms.] Donovan was hired for the exact same job [Mr.] Houle was
previously working. [Ms.] Donovan would be performing the same duties she was performing in her
role at Pine State, the only thing she was trained on was Nappi’s system.” Nappi denies PSAMF ¶
308, saying “Mr. Houle had more duties than Ms. Donovan, including setting up the warehouse, and
additionally, Ms. Donovan could not manage the portion of Mr. Houle’s responsibilities that were given
to her, so Nappi had to take away ordering responsibilities from her, and she was not ordering for
several brands.” DRPSAMF ¶ 308. Having reviewed the relevant record, the Court accepts Nappi’s
denial as a qualification, slightly alters PSAMF ¶ 308, and admits the fact.
4
DSMF ¶ 8 states only that Ms. Donovan “has alleged that she was paid less than Mr. Houle,
who started at Nappi as the wine purchasing manager in the early 2000s as part of Nappi’s acquisition
3

4

considerably more experience than Ms. Donovan, 5 DSMF ¶ 10; PRDSMF ¶ 10; he
had considerable experience prior to his employment at Nappi and continued to gain
experience during his tenure there. DSMF ¶ 9; PRDSMF ¶ 9. Nappi set Mr. Houle’s
compensation at $50,440 annually in 2002, based on the terms of the acquisition deal
and his level of experience. 6 DSMF ¶ 11; PRDSMF ¶ 11. According to Nappi, Ms.
Donovan’s compensation was set based on her level of experience as a Wine Buyer
and any discrepancy in Ms. Donovan’s pay compared to Mr. Houle’s was based on
experience and seniority. 7 DSMF ¶ 12; PRDSMF ¶ 12.

of Cumberland and York” without identifying what Cumberland and York was. The Court found a
reference to Cumberland and York in Mr. Bourque’s sworn declaration, Decl. of James R. Bourque ¶
4, and to provide context the Court added the fact that Cumberland and York was a beer and wine
distributor.
5
DSMF ¶ 10 states that “Mr. Houle had considerably more experience than Ms. Donovan.” Ms.
Donovan denies DSMF ¶ 10, saying she “was performing the same duties as [Mr.] Houle while she was
at Pine State.” PRDSMF ¶ 10. When asked whether it “would be fair to say that [Mr. Houle] had
considerably more experience than [she] had in that role,” Ms. Donovan responded “Sure. Yup.”
Donovan Dep. at 175:15-18. Based on Ms. Donovan’s testimony, the Court finds that the record cited
by Ms. Donovan does not support her contention that she and Mr. Houle had an equivalent amount of
experience and rejects her objection.
6
DSMF ¶ 11 states: “Mr. Houle’s compensation upon joining Nappi was set based on the terms
of the acquisition deal and his level of experience.” Ms. Donovan denies DSMF ¶ 11, saying the “terms
of Mr. Houle’s contract provided for compensation of $50,440 annually in 2002.” PRDSMF ¶ 11.
Having reviewed the relevant record, the Court finds that these facts do not contradict one another
and slightly alters DSMF ¶ 11 to reflect the full record.
7
DSMF ¶ 12 states that “Ms. Donovan’s compensation was set according to her level of
experience as a Wine Buyer.” DSMF ¶ 13 states that “[a]ny discrepancy in Ms. Donovan’s pay
compared to Mr. Houle’s was based on experience and seniority.” Ms. Donovan denies DSMF ¶ 12,
saying “Donovan’s compensation was set after Houle inquired about [her] salary while employed at
Pine State. Donovan was performing all of the same functions at Nappi as she did at Pine State, the
only training Houle provided was learning Nappi’s system. Houle told Donovan he earned more than
she did because he was ‘grandfathered’ into his rate of pay, not because of experience.” PRDSMF ¶
12. Ms. Donovan denies DSMF ¶ 13, saying she “testified that she had the experience to perform the
duties that Houle was performing as they were the same duties she was performing at her prior job.”
Although Ms. Donovan’s denial is in part beyond the scope of the fact, the Court slightly alters DSMF
¶¶ 12-13 to indicate that these facts reflect only Nappi’s contention.

5

Ms. Donovan later had a conversation with Mr. Houle in which he told Ms.
Donovan that he earned more money than she did because he was “grandfathered.” 8
PSAMF ¶ 5; DRPSAMF ¶ 5. Mr. Carr testified that Ms. Donovan was paid less than
her predecessor Mr. Houle because Mr. Houle had more experience and was
“grandfathered” into his rate of pay, manager title, and benefits such as a company
vehicle. 9 PSAMF ¶ 6; DRPSAMF ¶ 6. Mr. Carr testified that Ms. Donovan was also
paid less than her predecessor because Ms. Donovan had a lot of outstanding
difficulties that periodically caused her to miss work such as migraines and domestic
relations issues. 10 PSAMF ¶ 7; DRPSAMF ¶ 7.

Nappi qualifies PSAMF ¶ 5, saying Mr. Houle “earned more money because he had more
experience and seniority, and he told Donovan he had a contract due to the acquisition of Cumberland
& York.” DRPSAMF ¶ 5. Nappi’s objection is beyond the scope of the fact, and the Court admits
PSAMF ¶ 5.
9
PSAMF ¶ 6 states that Mr. Carr “testified [Ms. Donovan] was paid less than her predecessor
Houle because Houle was ‘grandfathered’ into his rate of pay, manager title, and benefits such as a
company vehicle.” Nappi qualifies PSAMF ¶ 6, saying “[t]he record citation indicates that [Ms.]
Donovan’s compensation was determined because she had less experience than her predecessor” and
further testified that “Mr. Houle had more responsibilities than Donovan.” DRPSAMF ¶ 6. Mr. Carr’s
cited testimony reads: Ms. Donovan “was paid less because she didn’t have the experience. Houle was
grandfathered by Cumberland & York to get the same pay and have the title and have a vehicle. She
wasn’t. We hired her because she was an assistant purchaser at Pine State, but she did not have the
experience.” Carr Dep. at 85:17-22. The Court adds to PSAMF ¶ 6 to reflect the cited record.
10
PSAMF ¶ 7 states that Mr. Carr “testified Donovan was also paid less than her predecessor
because Donovan had a lot of outstanding difficulties that periodically caused her to miss work such
as migraines, domestic relations issues, and he sensed she had depression and anxiety.” Nappi
qualifies PSAMF ¶ 7, saying “[t]he record citation also discusses that her predecessor, Mr. Houle, had
more experience and different responsibilities . . . [and] the factual assertion is misleading, in that Mr.
Carr testified that he sensed Donovan may have anxiety and depression after he was specifically asked
if he was aware of such issues, well after discussing the difference in pay between Donovan and her
predecessor.” DRPSAMF ¶ 7. Mr. Carr testified that Ms. Donovan was given different pay than her
predecessor in part because “she had a lot of other outstanding issues . . . She had problems with her
husband. She had – she had, you know, domestic relation problems and she had migraines. And she
would be out of work fairly often, not a long-term or anything like that, a day or two call in sick, but
she had problems at home. And also she had problems doing the job that [John Houle] did.” Carr Dep.
at 85:22-86:6. When specifically asked whether he ever learned of Ms. Donovan’s depression, Mr. Carr
later testified that he “sensed” she had depression. Carr Dep. at 87:10-13. The Court alters PSAMF
¶ 7 to reflect the full record.
8

6

A few months after Ms. Donovan began working for Nappi, her job title
changed from wine purchasing manager to wine purchasing agent. 11 PSAMF ¶ 8;
DRPSAMF ¶ 8. Ms. Donovan lost benefits when her job title changed at Nappi as
she was no longer eligible for a company car or manager bonuses. 12 PSAMF ¶ 10;
DRPSAMF ¶ 10; DSMF ¶ 7; PRDSMF ¶ 7.
Ms. Donovan told Mr. Carr or Mr. Bourque that she had her title taken away
and that she was compensated less than Mr. Houle and that there was no apparent

Nappi qualifies PSAMF ¶ 8, saying she “testified that she was hired as the wine buyer.”
DRPSAMF ¶ 8. Ms. Donovan testified that Nappi was looking to hire her as a “[w]ine purchasing
manager” and that a few months after commencing her employment at Nappi, her “title went from
wine purchasing manager to purchasing agent.” Donovan Dep. at 70:12-14; 74:1-5. The Court
overrules Nappi’s objection and admits PSAMF ¶ 8.
12
Nappi denies PSAMF ¶ 10, saying Ms. Donovan “did not lose benefits. She testified that she
never had a company car, nor did she ever receive manager bonuses . . .. [t]herefore, Donovan cannot
be said to have lost benefits she never had.” DRPSAMF ¶ 10. Ms. Donovan testified:
11

Q. What position do you believe you were hired for?
A. I was hired as the wine buyer.
Q. Did your position change over time?
A. Not the actual responsibilities. My title, yes.
Q. How did your title change?
A. My title went from wine purchasing manager to purchasing agent.
Q. When did that happen?
A. I couldn’t tell you, a few months.
Q. When you indicate the position change occurred, did your salary change?
A. No.
Q. Did your benefits change?
A. Yes.
Q. What benefits changed?
A. I was told that the title change was so that Nappi wasn’t liable for a company car
or manager bonuses.
Q. Prior to the change in your position, as you understand it, did you have a company
car – were you assigned a company car?
A. No.
Q. Prior to the title change, did you receive any manager bonuses?
A. No.
Donovan Dep. at 73:22-74:22. The record indicates that although Ms. Donovan had not yet had a
company car or received manager bonuses, she would have been eligible for them until her title
changed a few months after beginning her employment at Nappi, and she therefore lost access to those
benefits at that time. The Court overrules Nappi’s objection and admits PSAMF ¶ 10.

7

reason for it other than that he was “grandfathered,” so it must have been because
she was a woman. 13 PSAMF ¶ 9; DRPSAMF ¶ 9. Ms. Donovan testified that Mr.
Carr told her the decision to change her job title to exclude manager was made by Mr.
Alcott because he thought her title should reflect that she would not be entitled to
manager’s bonuses and a company vehicle. 14 PSAMF ¶ 11; DRPSAMF ¶ 11. Ms.
Donovan understood that she was hired as the wine buyer and that none of her job
functions required her to use a company vehicle. 15 DSMF ¶ 6; PRDSMF ¶ 6. Mr.

13
Nappi denies PSAMF ¶ 9, saying Ms. Donovan “testified that she did not remember the
conversation, stating, ‘I wish I could remember the specific conversation with Paul [Carr], but you’re
talking nine years ago and I just don't recall.’” Ms. Donovan testified:

Q. During your employment at Nappi, did you ever tell anyone with management that
you felt you were being discriminated against with regard to the terms of your
compensation?
A. Initially.
Q. Who did you talk to about that?
A. It would have been I want to say [Mr. Carr] or [Mr. Bourque]. I’m sorry, I don’t
remember the specific.
Q. What do you remember about that conversation?
A. Well, the fact that that title was taken away from me, that my compensation was
less than [Mr. Houle]’s, that there was no apparent reason for it, other than the excuse
that he was grandfathered, therefore, it must be because I am a woman. I could see
no other reason for it, other than to be told that they didn’t want to provide me with
management bonuses or a car.
Donovan Dep. at 91:91:7-23. Taking the facts in the light most favorable to Ms. Donovan, the Court
overrules Nappi’s denial and admits PSAMF ¶ 9.
14
PSAMF ¶ 11 states that “Donovan testified that Carr told Donovan the decision to change
Donovan’s job title to exclude manager was made by Alcott because Alcott did not want Donovan to be
entitled to manager’s bonuses and a company vehicle.”
Nappi qualifies PSAMF ¶ 11, saying “[t]he factual assertion is misleading in that Donovan’s
testimony indicates that Carr told her that Alcott wanted to change her title to reflect her actual
benefits package. The record citation actually states, ‘[Carr] said that Elmer [Alcott] felt that the title
of manager, basically benefits-wise, entitled me to manager bonuses and a company car and that those
things were not -- they were not included in my benefits package so they changed the title.’” DRPSAMF
¶ 11 (quoting Donovan Dep. at 171:7-11).
Having reviewed the relevant record, the Court slightly alters PSAMF ¶ 11 to reflect the
record.
15
DSMF ¶ 6 states: “Ms. Donovan understood that she was hired as the wine buyer and that
none of her job functions required her to use a company vehicle.”

8

Brown, Nappi’s on-site sales manager—and interim wine director from Paul Carr’s
retirement in 2017 until August of 2018—does not know whether Ms. Donovan was
performing her role as wine purchaser in the same manner as her predecessor Mr.
Houle. 16 PSAMF ¶ 88; DRPSAMF ¶ 88.
Jim Bourque, the former owner of Cumberland and York Distributors, served
as the Vice President of Human Resources for Nappi until September 2015 when
Christine Fox became the HR Manager at Nappi. PSAMF ¶¶ 56, 219, 324; DRPSAMF
¶¶ 56, 219, 324. In 2016, Ms. Donovan reported to Ms. Fox that she thought her job
title had changed or was going to change from Wine Purchasing Manager to Wine

Ms. Donovan objects to DSMF ¶ 6, saying she “understood she was hired as the Wine
Purchasing Manager.” PRDSMF ¶ 6. When asked what position Nappi was initially looking to hire
her for, Ms. Donovan testified: “Wine purchasing manager.” Nappi R., Attach 1, Dep. of Helena
Donovan at 70:12-14 (Donovan Dep.). But when asked what position she was actually hired for, Ms.
Donovan testified that she “was hired as the wine buyer.” Id. at 73:22-23. Then, when asked how her
title changed, she testified that her “title went from wine purchasing manager to purchasing agent.”
Id. at 74:1-2. The record reflects that, depending on the context, Ms. Donovan uses wine purchasing
manager and wine buyer interchangeably to refer to the position for which she was hired.
Taking the facts in the light most favorable to the Plaintiff, the Court changes “wine buyer” to
“wine purchasing manager” in DSMF ¶ 6 to reflect Ms. Donovan’s preferred title, in line with the
record.
16
Nappi qualifies PSAMF ¶ 88, saying “Mr. Brown testified that he was in sales when Ms.
Donovan was hired and therefore had no insight into how either her or Mr. Houle approached their
jobs at that time.” DRPSAMF ¶ 88. Nappi’s qualification is beyond the scope of the fact, and the Court
admits PSAMF ¶ 88.

9

Purchaser. 17, 18 PSAMF ¶ 57; DRPSAMF ¶ 57. Ms. Donovan complained to Ms. Fox
that Mr. Houle, Ms. Donovan’s predecessor, had the title Purchasing Manager, 19
PSAMF ¶ 60; DRPSAMF ¶ 60, and that she would not have taken the job at Nappi if
her title were not going to be Purchasing Manager. 20 PSAMF ¶ 59; DRPSAMF ¶ 59.

PSAMF ¶ 57 states that “[i]n 2016 Donovan reported to Fox that her job title had changed
from Wine Purchasing Manager to Wine Purchaser.”
Nappi objects to the fact as inadmissible hearsay and qualifies PSAMF ¶ 57, saying “Ms.
Donovan told Ms. Fox that she ‘thought’ her title had changed, and Ms. Fox looked in Ms. Donovan’s
file and did not see any reference to Ms. Donovan ever having the title ‘Purchasing Manager.’” Having
reviewed Ms. Fox’s deposition testimony, Nappi’s objection mischaracterizes what Ms. Fox testified
Ms. Donovan told her. Ms. Fox testified:
17

Q. Did Helena ever tell you about her title changing?
A, She told me I believe it was in - - sometime in 2016 that she thought it either had
changed or was going to change. I think she said she thought that it had changed.
Actually, it was she thought that it had changed.
Stip. R. Attach. 14, Dep. of Christine Fox at 8:2-7. Nappi’s objection implies that Ms. Donovan was
guessing about whether her position had changed. In fact, viewing the record in the light most
favorable to Ms. Donovan, she knew that Nappi was in the process of changing her position and was
only uncertain about whether the change had become effective. The Court overrules Nappi’s objection.
Nappi also objects to PSAMF ¶ 57 as inadmissible hearsay. The Court overrules Nappi’s
objection. The record reveals a dispute between Ms. Donovan and Nappi as to whether she was hired
as the Wine Purchasing Manager and whether Nappi changed her position from Wine Purchasing
Manager to Wine Purchaser. In DSMF ¶ 6, Nappi asserts that it hired Ms. Donovan as the wine buyer,
a fact Ms. Donovan denies. DSMF ¶ 6; PRDSMF ¶ 6. In PSAMF ¶ 4, Ms. Donovan asserts that Nappi
hired her as the Wine Purchasing Manager, a fact Nappi did not admit. PSAMF ¶ 4; DRPSAMF ¶ 4.
Furthermore, Nappi argues that “[a]t minimum, Ms. Donovan vaguely recalls an unspecific
conversation that occurred almost a decade ago, in which she alleged that she told someone at Nappi
(she cannot remember who) that she thought her management title was taken away because she was
a woman).” Def.’s Reply at 10. As Nappi is challenging whether it hired Ms. Donovan as Wine
Purchasing Manager and whether it changed her position after hire, Ms. Donovan’s statement to Ms.
Fox, the HR Manager, that Nappi had either already or was about to change her employment position
is not hearsay. It is admissible under Federal Rule of Evidence 801(d)(1).
18
PSAMF ¶ 58 duplicates PSAMF ¶ 57, and the Court therefore omits it.
19
PSAMF ¶ 60 states that “Donovan told Fox that Houle, who was Donovan’s predecessor, had
the title Purchasing Manager when he held Donovan’s position.” Nappi objects to PSAMF ¶ 60 as
inadmissible hearsay and qualifies the fact, saying “[t]he record citation does not support the assertion
that Ms. Donovan assumed Mr. Houle’s position.” DRPSAMF ¶ 60. The Court rejects Nappi’s hearsay
objection for the same reason explained in footnote 17. Having reviewed the relevant record, the Court
slightly alters PSAMF ¶ 60 to reflect the record.
20
Nappi objects to PSAMF ¶ 59 as inadmissible hearsay and argument rather than fact. The
Court rejects Nappi’s hearsay objection for the same reason explained in footnote 17 and rejects
Nappi’s remaining objection because the statement is a factual assertion of what Ms. Donovan said to
Ms. Fox.

10

The application that Ms. Donovan filled out for employment with Nappi indicated
that she desired to apply for the “Purchasing Manager” position. 21 PSAMF ¶ 61;
DRPSAMF ¶ 61.
Ms. Fox testified that after Ms. Donovan reported the job title change to her,
she looked into the issue by reviewing Ms. Donovan’s file and speaking with Mr. Carr
and Mike Hale. 22 Ms. Fox testified that nothing in Ms. Donovan’s file referenced the
title Purchasing Manager. 23 PSAMF ¶ 62; DRPSAMF ¶ 62. Ms. Fox spoke “at length”
with Mr. Carr and Mr. Hale about the fact that Ms. Donovan felt her job title should
be “Purchasing Manager” just like her predecessor. PSAMF ¶ 63; DRPSAMF ¶ 63.
Both Mr. Carr and Mr. Hale told Ms. Fox that Nappi never intended for Ms. Donovan
to have the same “Purchasing Manager” title as Mr. Houle. 24

PSAMF ¶ 64;

DRPSAMF ¶ 64. Yet, according to Ms. Donovan, she received two versions of business

Nappi qualifies PSAMF ¶ 59, saying “Ms. Fox testified that Ms. Donovan commented that she
would not have taken the job if it was not that title. Further, Ms. Donovan filled out her new hire
paperwork with the job title listed as ‘Wine Purchaser.’” DRPSAMF ¶ 59. Nappi’s qualification is
beyond the scope of the fact and the Court admits PSAMF ¶ 59.
21
Nappi qualifies PSAMF ¶ 61, saying “[t]he application does not indicate that she was applying
for that position, but that was the ‘employment desired.’” DRPSAMF ¶ 61. The Court accepts Nappi’s
qualification and slightly alters PSAMF ¶ 61 to reflect the record.
22
Based on the trial in Tourangeau v. Nappi Distributors, 2:20-cv-12-JAW, the Court is aware
that Mike Hale, who testified at the trial, was a manager at Nappi. See id., Tr. of Proceeding at 334:5341:1 (ECF No. 209). However, the parties have elected not to identify Mr. Hale in the statements of
material fact, except obliquely as Valerie Hale’s husband. DSMF ¶ 114; PRDSMF ¶ 114. Despite its
knowledge of Mr. Hale’s former position at Nappi, the Court has not further identified Mike Hale and
has not considered his position within Nappi management.
23
PSAMF ¶ 62 provides that “Fox testified that after Donovan reported the job title change to
Fox she looked into the issue by speaking with Carr and Hale as well as looking at Donovan’s file.
Fox testified that nothing in Donovan’s file referred to her position as a Wine Purchasing Manager.”
Nappi denies PSAMF ¶ 62, saying “Ms. Fox testified that the file did not have any reference to
Purchasing Manager.” DRPSAMF ¶ 62. The Court accepts Nappi’s denial as a qualification and
slightly alters PSAMF ¶ 62 to reflect the record.
24
Nappi admits PSAMF ¶ 64 but objects to the fact as inadmissible hearsay. The Court rejects
Nappi’s objection for the same reason explained in footnote 17.

11

cards while working at Nappi Distributors that identified her job title as Wine
Purchasing Manager. 25 PSAMF ¶ 410; DRPSAMF ¶ 410.
B.

Discrimination within the Industry

Mr. Bourque worked at Nappi Distributors until 2015 and had a chance to
work with Ms. Donovan, seeing her at weekly sales meetings.

26

PSAMF ¶¶ 325;

DRPSAMF ¶¶ 325. Mr. Bourque believes a woman was not hired into the sales
representative position prior to 2014 because it was typically male dominated. 27
PSAMF ¶ 327; DRPSAMF ¶ 327.

Often, Nappi did not post available sales

representative positions. 28 PSAMF ¶ 329; DRPSAMF ¶ 329. Nappi Distributors

Nappi admits PSAMF ¶ 410 but objects because these cards “were produced for the first time
in a photograph . . . on January 30, 2023 . . . [that] is grainy and possibly altered and has differing
versions of Ms. Donovan’s cell phone number. Nappi has been deprived of the opportunity to question
the authenticity of these cards, and accordingly they must be stricken or disregarded.” DRPSAMF ¶
410. The Court admits PSAMF ¶ 410 over objection at the summary judgment stage.
26
PSAMF ¶ 326 reads: “Mr. Bourque had a chance to work with Ms. Tourangeau. He attended
the weekly sales meetings and saw her there.” Ms. Donovan cites the so-called Bourque deposition at
ECF Number 65, Attachment 6. Id.
Nappi objects to PSAMF ¶ 326 as immaterial and further qualifies the fact, saying “Mr.
Bourque’s testimony is that he met Ms. Tourangeau but did not interact with her often.” DRPSAMF
¶ 326.
Ms. Donovan’s citation is to a deposition docketed in a separate case in which a Nappi
employee, Michele Tourangeau, filed suit against Nappi alleging discrimination. See Michele
Tourangeau v. Nappi Distributors, 2:20-cv-00012-JAW, Local R. 56(h) Stip. R., Attach. 6, Dep. of Paul
D. Carr (ECF No. 65). Thus, Ms. Donovan’s citation is a mystery. She is citing a deposition in a
different case without acknowledging it. Furthermore, Ms. Donovan cites the Bourque deposition, but
the actual citation is to the Paul Carr deposition. Finally, the Paul Carr deposition references his, not
Mr. Bourque’s, interactions with Michele Tourangeau, not with Ms. Donovan.
The Court is not sure what is going on. However, the Court declines to include PSAMF ¶ 326
because it is not at all certain that counsel for the Plaintiff intended the reference and the Court is not
clear about the relevance of Michele Tourangeau’s relationship with either Mr. Carr or Mr. Bourque.
27
Nappi objects to PSAMF ¶ 327 as immaterial and further qualifies the fact, saying “[t]he
statement is misleading as it does not reflect the witness’s entire statement. Mr. Bourque also stated
that often times Nappi did not get female applicants for sales positions.” DRPSAMF ¶ 327. The Court
overrules Nappi’s materiality objection, finds Nappi’s content objection beyond the scope of the fact,
and admits PSAMF ¶ 327.
28
Nappi objects to PSAMF ¶ 329 as immaterial and further qualifies the fact, saying “Nappi may
have posted sales positions. In addition, Elmer Alcott testified that he put ads in the paper and would
post a sign.” DRPSAMF ¶ 329. The Court overrules Nappi’s materiality objection, finds Nappi’s
content objection beyond the scope of the fact, and admits PSAMF ¶ 329.
25

12

often did not even get any applicants for sales representative positions—the positions
were filled by informal recruiting, 29 PSAMF ¶ 328; DRPSAMF ¶ 328, such as word
of mouth and networking through the “grapevine.” 30 PSAMF ¶ 330; DRPSAMF ¶
330. Ultimately, Nappi often hired from within, 31 PSAMF ¶ 331; DRPSAMF ¶ 331,
where most of the sales representatives were men. 32 PSAMF ¶ 332; DRPSAMF ¶
332. Most of the sales representatives working for competitors were also men. 33
PSAMF ¶ 333; DRPSAMF ¶ 333. Historically, the male sales representatives at
Nappi helped other men they knew get sales representative positions. 34 PSAMF ¶
341; DRPSAMF ¶ 341.

29
Nappi objects to PSAMF ¶ 328 as immaterial and further qualifies the fact, saying “[t]he cited
testimony does not say that Nappi did not get applicants for positions.” DRPSAMF ¶ 328. Having
reviewed the relevant record, the Court overrules Nappi’s materiality objection, finds PSAMF ¶ 328
supported by the record, and admits the fact.
30
Nappi objects to PSAMF ¶ 330 as immaterial but otherwise admits the fact. The Court
overrules Nappi’s materiality objection and admits PSAMF ¶ 330.
31
PSAMF ¶ 331 states that “Nappi Distributors hired from within.” Nappi objects to PSAMF ¶
331 as immaterial and further qualifies the fact, saying “Mr. Alcott testified that most employees came
from suppliers or other distributors [and] Mr. Carr testified that when a position became available,
they first looked for employees worthy of promotion, then they would look outside to competitors to fill
the position.” DRPSAMF ¶ 331. The Court overrules Nappi’s materiality objection. Having reviewed
the relevant record, the Court slightly alters PSAMF ¶ 331 and admits the fact.
32
PSAMF ¶ 332 provides that “[m]ost of the employees working at Nappi Distributors were men.”
Nappi objects to PSAMF ¶ 332 as immaterial and further qualifies the fact, saying “[t]he cited
testimony refers only to sales representative positions.” DRPSAMF ¶ 332. The Court overrules
Nappi’s materiality objection. Having reviewed the relevant record, the Court slightly alters PSAMF
¶ 332 and admits the fact.
33
Nappi denies PSAMF ¶ 333 as unsupported by the record. DRPSAMF ¶ 333. Mr. Bourque’s
testimony states that “it didn’t seem to be that prevalent throughout the industry [to have female sales
representatives], not just us but most of the ones in the state,” indicating that there were few women
sales representatives working for competitors. Bourque Dep. at 17:15-18. The Court therefore rejects
Nappi’s denial and admits PSAMF ¶ 333 but adopts “sales representatives” rather than “employees.”
34
Ms. Donovan’s PSAMF ¶ 341 states: “Historically, the male sales representatives at Nappi
helped other guys they knew get sales representative jobs at Nappi.” For this proposition, Ms.
Donovan cites “ECF Doc. 65-6, Bourque dep. 18:9-14. Page ID # 668.” Id. ECF Number 65 in this case
does not contain the Bourque deposition. See Order Granting Mot. to Extend Time (ECF No. 65).
The Court believes that Ms. Donovan’s citation is to a deposition filed in Tourangeau v. Nappi
Distributors, 2:20-cv-00012-JAW. See id., Stip. R. Attach. 6, Dep. of Jim Bourque (ECF No. 65).
Although the Court is aware of no prohibition against citing a deposition entered into the record in

13

Another reason Mr. Bourque believes there previously was not a female sales
representative at Nappi Distributors is the physical component of the position,35
PSAMF ¶ 334; DRPSAMF ¶ 334, consisting of getting a call from a customer at 4:30
p.m. Friday afternoon with a missed delivery and possibly needing to deliver a barrel
which weighs more than he does. 36, 37 PSAMF ¶ 335; DRPSAMF ¶ 335.

another case, it is, at least, unconventional. Here, Ms. Donovan did not cite the Tourangeau docket
and simply cited ECF Number 65, leaving it to the Court to figure out that she is citing the docket in
another case. Ordinarily, the Court would not consider citations to the docket in another case without
an explanation (or at least a proper citation) from the proponent. This situation is unusual, however,
in that this Judge presided over Tourangeau and is aware that counsel for both the Plaintiff and Nappi
were the same in Tourangeau as here. Accordingly, it is difficult to imagine a cognizable prejudice to
Nappi from citation to a deposition in which a Nappi supervisor was deposed and Nappi was fully
represented.
Furthermore, Ms. Donovan’s citation to the Tourangeau docket did not stop with the Bourque
deposition. PSAMF ¶¶ 342 through 348 all cite depositions on the Tourangeau docket without
attribution to the Tourangeau case. Not to consider eight statements of material fact in these unusual
circumstances would unduly sanction Ms. Donovan, absent any apparent prejudice to Nappi, even
though Ms. Donovan’s faulty citations and absence of explanation are careless and wanting.
Turning to Nappi’s objection, it asserts that the term “guys” in Mr. Bourque’s deposition could
be gender neutral. Viewing the facts in the light most favorable to Ms. Donovan, the Court treats Mr.
Bourque’s reference to “guys” as referring to men.
35
Nappi denies PSAMF ¶ 334 because Mr. Bourque “specifically testified that the physical
component of the job does not preclude women.” DRPSAMF ¶ 334. When asked why it “took until
2015 for a female sales representative to be hired at Nappi,” Mr. Bourque responded that “[p]art of it
is there is -- there can be a large physical component, which doesn’t necessarily preclude women. But,
for instance, you’d always get a call late on a Friday afternoon like usually 4:30, a missed delivery or
something, and it could involve delivering a barrel, which, you know, weighs more than I do, for crying
out loud. So that’s just one little side effect.” Bourque Dep. at 17:4-11.
The Court rejects Nappi’s denial and admits PSAMF ¶ 334, noting that although Mr. Bourque
testified that the physical component of the job “doesn’t necessarily preclude women,” his testimony
demonstrates that Nappi in fact considered the presumed lack of physical strength of females in its
hiring decisions because it feared that a woman would not be able to deliver a barrel of liquor to a
customer.
36
Nappi objects to PSAMF ¶ 335 as immaterial but otherwise admits the fact. The Court
overrules Nappi’s materiality objection and admits PSAMF ¶ 335.
37
PSAMF ¶ 336 provides that “Mr. Bourque agrees that there was gender discrimination for
sales representatives in the industry.” Nappi objects to PSAMF ¶ 336 as immaterial and further
denies the fact, saying “Mr. Bourque testified that he does not believe there was a ‘feeling to deny
women.’” DRPSAMF ¶ 336.
The Court already admitted Mr. Bourque’s statement about women being unable to handle the
physical aspect of the sales job. Here, Ms. Donovan goes further and alleges that Mr. Bourque
admitted that liquor distributors discriminated against women in hiring sales representatives. The
Court views PSAMF ¶ 336 as a step too far based on Mr. Bourque’s deposition testimony and as
argumentative. Having reviewed the relevant record, the Court finds PSAMF ¶ 336 unsupported by

14

Joline Masters, the key account wine manager at Nappi, agrees that there is
gender discrimination in the industry. 38 PSAMF ¶ 337; DRPSAMF ¶ 337. Although
Ms. Masters was not certain whether she had been rejected due to her gender or her
personality, she thought she may have experienced gender discrimination herself
while employed at a prior distributor. 39 PSAMF ¶ 338; DRPSAMF ¶ 338. While
working for another distributor, Ms. Masters was told they did not think she could do
the sales position because she could not handle it. 40 PSAMF ¶ 339; DRPSAMF ¶ 339.
Ms. Masters was also sexually propositioned by accounts. 41

PSAMF ¶ 340;

DRPSAMF ¶ 340.
Mr. Carr described Melanie Larocca, who held the Wine Director Position
before him, 42

PSAMF ¶ 343; DRPSAMF ¶ 343, as “fluff” and “incompetent.” 43

the record and appropriately summarized in PSAMF ¶¶ 334-35. The Court therefore omits PSAMF ¶
336 from the statement of facts.
38
Nappi qualifies PSAMF ¶ 337 because Ms. Masters “testified she had experienced
discrimination in prior distributorships” and “then testified she was uncertain if her experience was
due to her personality or her gender.” DRPSAMF ¶ 337. Having reviewed the relevant record, the
Court rejects Nappi’s qualification and admits PSAMF ¶ 337, as the record reflects Ms. Masters’
agreement that gender discrimination exists in the field, even if she was uncertain whether she was
rejected due to her gender. The Court altered PSAMF ¶ 337 to better reflect Ms. Masters’ deposition
testimony. The Court also notes that one of the more insidious aspects of gender discrimination is
that an employee is rarely sure whether the employer discriminated against her because of her gender.
39
Nappi objects to PSAMF ¶ 338 for the same reason as it objects to PSAMF ¶ 337, and the Court
overrules Nappi’s objection for the reason explained in the prior footnote.
40
Nappi objects to PSAMF ¶ 339 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Masters testified that she did not know if she was rejected from that position (at
Central Distributors) because of her personality or her gender.” DRPSAMF ¶ 339. The Court
overrules Nappi’s hearsay objection for the reason explained in footnote 17, overrules Nappi’s
materiality objection, overrules Nappi’s content objection for the reason explained in the footnote 38,
and admits PSAMF ¶ 339.
41
Nappi objects to PSAMF ¶ 340 as immaterial but otherwise admits the fact. The Court
overrules Nappi’s materiality objection and admits PSAMF ¶ 340.
42
Nappi objects to PSAMF ¶ 343 as immaterial but otherwise admits the fact. The Court
overrules Nappi’s materiality objection and admits PSAMF ¶ 343.
43
Nappi objects to PSAMF ¶ 344 as immaterial and further qualifies the fact, saying that these
words were said when describing Ms. Larocca’s termination and that “Mr. Carr further explained that
Ms. Larocca was bad-mouthing the Nappi family in public and was skipping presentations on year-

15

PSAMF ¶ 344; DRPSAMF ¶ 344. Mr. Carr heard that Ms. Larocca believed she was
terminated because of gender discrimination. 44 PSAMF ¶ 345; DRPSAMF ¶ 345.
Frank Nappi, Sr. owned and ran Nappi Distributors until he died a few years
ago. 45 PSAMF ¶ 348; DRPSAMF ¶ 348. Mr. Brown heard Frank Maiorino, 46 who
may have been part of redistributing accounts for the wine department, 47 PSAMF ¶
346; DRPSAMF ¶ 346, make sexist comments. 48 PSAMF ¶ 347; DRPSAMF ¶ 347.
Anjali Race Quinn is a female Sales Assistant in the Wine Department who
worked at Nappi Distributors from June 9, 2021 to early 2022, reporting to Mr.
Monaghan. 49 PSAMF ¶ 349; DRPSAMF ¶ 349. Ms. Quinn primarily covered Steve

end projections.” The Court overrules Nappi’s materiality objection, rejects Nappi’s content objection
as beyond the scope of the fact, and admits PSAMF ¶ 344.
44
Nappi objects to PSAMF ¶ 345 as inadmissible hearsay and immaterial. DRPSAMF ¶ 345.
The Court overrules Nappi’s hearsay objection for the reason explained in footnote 17, overrules
Nappi’s materiality objection, and admits PSAMF ¶ 345.
45
PSAMF ¶ 348 states that “Frank Nappi Senior owned and ran Nappi Distributors until he
died a year or two ago.” Nappi qualifies the fact, saying “[t]he statement ‘a year or two ago’ is vague,
particularly given that Mr. Bourque testified to that on February 9, 2021.” DRPSAMF ¶ 348. The
Court accepts Nappi’s qualification and slightly alters PSAMF ¶ 348.
46
The parties’ statements of material fact refer to Frank Maiorino but fail to identify his position
at Nappi. See PSAMF ¶¶ 138, 228, 319, 320, 321, 346, 347. There is evidence from which the Court
can infer that Mr. Maiorino was a member of Nappi management. See PSAMF ¶ 346. But there is no
evidence of his position at Nappi, his dates of employment, and his supervisory authority, if any, over
Ms. Donovan.
47
Nappi objects to PSAMF ¶ 346 as immaterial and further qualifies the fact, saying that “[t]he
cited testimony indicates that ‘folks like [Mr.] Maiorino’ would have been involved, but that ‘[Mr.] Carr
would have been the ultimate guy . . ..’” DRPSAMF ¶ 346. The Court overrules Nappi’s materiality
objection and, having reviewed the relevant record, slightly alters PSAMF ¶ 346 to reflect the record
and admits the fact.
48
Nappi objects to PSAMF ¶ 347 as immaterial but otherwise admits the fact. The Court
overrules Nappi’s materiality objection and admits PSAMF ¶ 347.
49
Nappi objects to PSAMF ¶¶ 349-366 because these proposed facts rely on “an affidavit by Anjali
Race Quinn” when “Ms. Quinn was never identified in initial disclosures, interrogatories, or any
supplement to interrogatories, or during discovery as a person with information relevant to any of Ms.
Donovan’s claims.” DRPSAMF ¶¶ 349-358. Given the sequential nature of the parties’ submissions,
Ms. Donovan has not responded to Nappi’s allegations of discovery violations, and the Court declines
to exclude evidence about Ms. Quinn based solely on Nappi’s say so. Assuming Ms. Donovan
committed a discovery violation, the First Circuit has directed the trial courts to “consider the totality
of events and then choose from the broad universe of available sanctions in an effort to fit the

16

Cohen’s sales route, but also aided other sales representatives.
DRPSAMF ¶ 350.

PSAMF ¶ 350;

When Ms. Quinn started working as a Sales Assistant, she

required access to Google Dropbox on her work iPad. PSAMF ¶ 351; DRPSAMF ¶
351. Valarie Hale sent Ms. Quinn a Dropbox link, but she was unable to download
the link. Id. Ms. Quinn first requested assistance downloading the app from Ms.
Hale, but she refused to help. Id. Ms. Quinn then sought help from an IT employee
named Gavin. PSAMF ¶ 352; DRPSAMF ¶ 352. Gavin explained to Ms. Quinn that
because it was Ms. Hale’s link, she would have to assist her. Id. Ms. Quinn responded
to Gavin that she had already asked her for help and Ms. Hale refused but agreed to
try again and said something to the effect of “wish me luck.” Id. Ms. Quinn asked
Ms. Hale to assist her with Dropbox on four separate occasions; she intentionally
made it extremely difficult for Ms. Quinn to accomplish simple tasks like this.
PSAMF ¶ 353; DRPSAMF ¶ 353. In Ms. Quinn’s experience, Ms. Hale made herself
inaccessible to anyone she did not like. PSAMF ¶ 354; DRPSAMF ¶ 354.
Ms. Quinn notified her manager, Bill Monaghan, of the issues she was having
with Ms. Hale. 50 PSAMF ¶ 355; DRPSAMF ¶ 355. Mr. Monahan responded: “Yeah,
I know she has a reputation of not playing well with others.” Id. Ms. Quinn believes
Bill Monaghan was suggesting that Valarie Hale has a reputation for not getting

punishment to the severity and circumstances of the violation.” Young v. Gordon, 330 F.3d 76, 81 (1st
Cir. 2003). The Court is not in a position to make the necessary evaluation as to whether a discovery
violation occurred, what prejudice was caused to Nappi, whether a sanction should be imposed, and
what sanction should be imposed. The Court’s consideration of Ms. Quinn’s evidence in this dispositive
motion is without prejudice to Nappi’s later ability to press for a sanction at trial concerning Ms.
Quinn’s testimony.
50
Nappi denied PSAMF ¶ 355, citing Mr. Monahan’s contrary testimony. The Court declines to
accept Nappi’s denial because it is required to view contested evidence in the light most favorable to
Ms. Donovan.

17

along with other women, not the men who worked at Nappi. Id. Ms. Quinn was told
by many that, as a new employee, Nappi had “thrown” her “to the wolves” with the
route she was assigned to cover. 51 PSAMF ¶ 356; DRPSAMF ¶ 356. Even though
she had a difficult assignment, Matt Watson and Bill Monaghan took Ms. Quinn into
Matt Watson’s office and congratulated her on a job very well done. PSAMF ¶ 357;
DRPSAMF ¶ 357. Bill Monaghan commended Ms. Quinn’s work ethic on multiple
occasions. 52 Id.
During that time, Ms. Quinn was averaging 50 hours of work per week. Id.
Nappi was short-staffed with drivers, so Ms. Quinn was required to do a significant
amount more manual lifting than was normally expected of sales assistants. PSAMF
¶ 358; DRPSAMF ¶ 358. Ms. Quinn was overworked and required to perform labor
that was beyond her means despite being in stellar physical health. Id. Ms. Quinn
suffered a work-related injury at Nappi in the summer of 2021 when a work van
slammed shut on her arm, impacting her elbow. 53 Id. After Ms. Quinn filed a

Nappi interposed a qualified response, indicating that because it is unclear who made the
quoted statement, it is “nearly impossible” for Nappi to respond. DRPSAMF ¶ 356. The Court declines
to accept the qualified response because Ms. Quinn states that she was told this by “many” employees.
At the same time, given the lack of attribution, the Court does not view Ms. Quinn’s statement as
especially probative.
52
Nappi denied PSAMF ¶ 357 on the ground that “Ms. Monaghan testified that there were
multiple issues with Ms. Quinn’s performance.” The Court rejects Nappi’s denial. Assuming there
were multiple issues with Ms. Quinn’s performance does not mean that Mr. Monaghan would not have
congratulated Ms. Quinn on the things she had done well. Furthermore, if there is a conflict between
what Ms. Quinn and Mr. Monaghan recall, the Court is required to view conflicting evidence in the
light most favorable to Ms. Donovan.
53
Nappi interposed a qualified response to PSAMF ¶ 358, asserting that Ms. Quinn did not
report the work-related injury until late fall. DRPSAMF ¶ 358. Nappi’s objection is beyond the scope
of the fact, and the Court admits PSAMF ¶ 358.
51

18

worker’s compensation claim, Nappi employees began harassing and bullying her. 54
PSAMF ¶ 359; DRPSAMF ¶ 359. Christine Fox, Matt Watson, Matt Wells, Bill
Monaghan, and/or Valarie Hale bullied and harassed Ms. Quinn nearly every day
from that point forward. 55 PSAMF 360; DRPSAMF ¶ 360.
Ms. Quinn left Nappi Distributors shortly thereafter because she felt that it
was a very toxic work environment, she was being falsely accused of performance
issues, and Nappi was clearly retaliating against her for filing a worker’s
compensation claim. 56

PSAMF ¶ 361; DRPSAMF ¶ 361.

From Ms. Quinn’s

perspective, it was clear from the actions of Christine Fox, Valarie Hale, and the wine
department management team that she was not going to be successful at Nappi
Distributors based on her gender and her work-related injury. 57 PSAMF ¶ 362;
DRPSAMF ¶ 362.
While working at Nappi Distributors, Ms. Quinn learned from others in the
warehouse that Valarie Hale had also mistreated, oppressed, and intimidated a

Nappi issued a qualified response to PSAMF ¶ 359, stating that the alleged employees are not
identified. The Court declines to accept Nappi’s qualified response because Ms. Donovan identifies the
employees in the very next paragraph.
55
Nappi denied PSAMF ¶ 360, asserting that it is “impossible to determine to whom the
assertion relates.” DRPSAMF ¶ 360. The Court declines to accept Nappi’s denial, because Ms.
Donovan lists five Nappi employees who harassed her after she asserted her workers’ compensation
claim and Nappi could presumably have asked those employees whether the allegations of harassment
were true.
56
Nappi denied PSAMF ¶ 361 on the ground that Ms. Quinn left Nappi to take a position in an
unrelated field and her performance issues were legitimate and widespread. DRPSAMF ¶ 361. The
Court declines to accept Nappi’s denial because it is required to view conflicting evidence in the light
most favorable to Ms. Donovan. The Court amended PSAMF ¶ 361 to reflect that the assertion is Ms.
Quinn’s opinion.
57
Nappi denied PSAMF ¶ 362 on the ground that Ms. Quinn was unsuccessful at Nappi because
of her performance and behavioral issues, and she had little contact with Ms. Hale. DRPSAMF ¶ 362.
The Court declines to accept Nappi’s denial because it is required to view conflicting evidence in the
light most favorable to Ms. Donovan. The Court amended PSAMF ¶ 362 to reflect that the assertion
is Ms. Quinn’s opinion.
54

19

former female employee who is a lesbian. 58

PSAMF ¶ 363; DRPSAMF ¶ 363.

Multiple employees referred to this former employee not by her name, but as “the
lesbian.”

Id.

Another employee named Matt Auger told Ms. Quinn that the

employees at Nappi were relentless in their tormenting of the former lesbian
employee and called her a “muff muncher.” 59 PSAMF ¶ 364; DRPSAMF ¶ 364. At
some point, Ms. Quinn learned the former employee who was a lesbian was Helena
Donovan. PSAMF ¶ 365; DRPSAMF ¶ 365.
Ms. Quinn believes Valarie Hale has a problem with women in the workplace,
that she routinely harasses and intimidates other women in the workplace, and that
she does not treat her male colleagues with the same contempt and instead is quite
pleasant in her interactions with the men at Nappi. 60 PSAMF ¶ 366; DRPSASMF ¶
366.

Nappi interposed a qualified response to PSAMF ¶ 363 on the ground that the assertion is too
vague to verify. DRPSAMF ¶ 363. The Court declines to accept Nappi’s qualified response since it is
based on Ms. Quinn’s sworn declaration. However, in light of its vagueness, the Court observes that
its probative value is minimal.
59
PSAMF ¶ 364 reads: “Another employee named Matt Auger told me that the employees at
Nappi were relentless in their tormenting of the former lesbian employee and called her a ‘muff
muncher.’” Nappi denied PSAMF ¶ 364 on the ground that PSAMF ¶ 364 does not identify who “me”
is. DRPSAMF ¶ 364. Nappi’s objection is entirely frivolous. Ms. Quinn’s entire affidavit, which Ms.
Donovan cites in support, is in the first person and it is obvious PSAMF ¶ 364 is referring to something
Mr. Auger said to Ms. Quinn. See Local R. 56(h) R., Attach. 5, Aff. of Anjali Race Quinn ¶¶ 1-33 (ECF
No. 68). The Court overrules Nappi’s hearsay objection because it is also apparent that the content is
not being introduced for its truth.
60
Nappi interposed a qualified response, noting that Ms. Quinn had little contact with Ms. Hale
and would not be able to opine about Ms. Hale’s beliefs. DRPSAMF ¶ 366. The Court declines to
accept Nappi’s qualified response because the extent of Ms. Quinn’s familiarity with Ms. Hale goes to
the weight, not the admissibility, of her opinion.
58

20

C.

Helena Donovan’s Work Duties

Ms. Donovan was managing the inventory and the purchasing at Nappi, 61
PSAMF ¶ 68; DRPSAMF ¶ 68, which had organizational issues. 62 PSAMF ¶ 69;
DRPSAMF ¶ 69. As Wine Buyer for Nappi, Ms. Donovan was tasked with inventory
control and placing orders. DSMF ¶ 54; PRDSMF ¶ 54. Ms. Donovan’s position was
a “big one” with a lot of “moving parts.” 63 PSAMF ¶ 69; DRPSAMF ¶ 69. Ms. Donovan
testified that she was responsible for negotiating the costs of the wine she ordered
but that she had “no idea” the approximate annual cost of the total wine she ordered
because that was something Ms. Hale monitored. 64 DSMF ¶ 50; PRDSMF ¶ 50. Ms.
61
PSAMF ¶ 68 states that “[Ms.] Donovan was managing the inventory and the purchasing at
Nappi.” Nappi qualifies PSAMF ¶ 68, saying “[t]he factual assertion is misleading in that it plucks
one statement out of the quoted testimony without context. In the entirety of the response to the
question, Ms. Fox explained that although Ms. Donovan was expected to manage inventory and
purchasing in her role, she was not effective because her system was not dynamic enough.” DRPSAMF
¶ 68. Having reviewed the relevant record, the Court slightly alters PSAMF ¶ 68 to reflect the full
record more accurately.
62
PSAMF ¶ 69 provides that “[Ms.] Donovan’s position was a “big one” with a lot of “moving
parts.” Nappi had organizational issues with inventory and purchasing, but “it wasn’t specifically
Helena issues.” Nappi qualifies PSAMF ¶ 69, saying “[t]he factual assertion is not in context. Ms. Fox
testified that the purchasing role was a big position, and that Mr. Carr was trying to manage despite
Ms. Donovan’s system of conducting it. Later, when specifically asked about note-taking, Ms. Fox
testified that in 2016 or 2017, she started to ask specific questions about the disconnect and noted that
multiple sides of the organization had issues that seemed to originate from Ms. Donovan’s purchasing
role.” DRPSAMF ¶ 69. Having reviewed the relevant record, the Court slightly alters PSAMF ¶ 69 to
accurately reflect the record and its relevant context.
63
Nappi asserted a qualified response to PSAMF ¶ 69, saying that the statement was taken out
of context. DRPSAMF ¶ 69. The Court reviewed Ms. Fox’s deposition and disagrees with Nappi. The
Court, therefore, does not accept Nappi’s qualified response.
64
DSMF ¶ 50 states that “Ms. Donovan had ‘no idea’ the approximate annual cost of the wine
she ordered, and instead relied upon Ms. Hale, the administrative assistant, for that information,
although Ms. Donovan was responsible for negotiating the costs.” Ms. Donovan qualifies DSMF ¶ 50,
saying she “negotiated the cost, but Hale monitored the annual costs and the invoicing that came in
from purchases.” PRDSMF ¶ 50. Ms. Donovan testified:

Q. What were the approximate total average value of the wine inventory levels during
your tenure?
A. Approximately, it changed from between 4 and 7 million.
Q. And what was the approximate annual cost to Nappi of the wine you purchased on
an annual basis?

21

Donovan could not give a daily or even weekly average number of purchase orders
that she issued because it was heavily dependent on Nappi’s changing need. 65 DSMF
¶ 51; PRDSMF ¶ 51. She did not monitor inventory on a daily or weekly basis and
instead worked through a list of suppliers alphabetically and determined what to
order in that way. 66 DSMF ¶¶ 48, 54; PRDSMF ¶¶ 48,54.
D.

Helena Donovan’s Medical History

Ms. Donovan has been prescribed medication for years to treat depression,
anxiety, and Post Traumatic Stress Disorder (PTSD). PSAMF ¶ 12; DRPSAMF ¶ 12.
Prior to 2014, Ms. Donovan was diagnosed with depression, but she cannot recall
exactly when she was first diagnosed. 67 PSAMF ¶ 13; DRPSAMF ¶ 13. Ms. Donovan

A. I have no idea.
Q. Do you have an understanding as to what the approximate annual freight costs for
the wine you were ordering?
A. No. That would be Valarie. She has or she had spreadsheets on those costs. It was
something that she monitored.
Q. Were those cost[s] part of your job?
A. I was responsible for negotiating the cost, yes.
Q. So to that extent, the work that Valarie was doing had a certain amount of overlap
with what you were doing?
A. No, she was monitoring the invoicing that came in.
Donovan Dep. at 76:11-77:4. The Court accepts Ms. Donovan’s qualification and alters PRDSMF ¶ 50
to reflect the record.
65
DSMF ¶ 51 provides that “Ms. Donovan could not give a daily or even weekly average number
of purchase orders that she issued.” Ms. Donovan qualifies DSMF ¶ 51, saying she “testified that she
could not give a daily or weekly average because it fluctuated according to the needs of Nappi on a
particular day or week.” PRDSMF ¶ 51. The Court accepts Ms. Donovan’s qualification and adds to
DSMF ¶ 51 to reflect the full record.
66
DSMF ¶ 54 provides that “[a]s Wine Buyer for Nappi, Ms. Donovan was tasked with placing
orders and inventory control, but she did not monitor inventory and instead worked through a list of
suppliers alphabetically.” Ms. Donovan denies “that she did not monitor inventory because she
ordered from suppliers alphabetically—the two are not mutually exclusive,” and she “testified that the
amount she ordered on a daily or weekly basis depended on the needs of Nappi at any given time.”
PRDSMF ¶ 54. The Court accepts Ms. Nappi’s denial as a qualification and slightly alters DSMF ¶
54 to reflect the full record.
67
Nappi qualifies PSAMF ¶ 13, saying “Ms. Donovan testified that she was diagnosed with
depression when she lived in England, and also testified that she moved from England in 2005.”

22

first attempted suicide in August of 2014, DSMF ¶ 15; PRDSMF ¶ 15, which she
attributes in part to bullying at Nappi from Valerie Hale (formerly Valerie Ellis). 68,
69

PSAMF ¶ 21; DRPSAMF ¶ 21.
Joshua Altschule is a licensed psychologist in the state of Maine, PSAMF ¶

31; DRPSAMF ¶ 31, who began treating Ms. Donovan for posttraumatic stress
disorder, panic disorder, and major depressive disorder recurrent (moderate at the
time) on November 14, 2016, PSAMF ¶¶ 14, 33; DRPSAMF ¶¶ 14, 33; DSMF ¶ 1617; PRDSMF ¶ 16-17, because of a combination of issues, including her daughter, her
marriage, and years of difficulty in her work life from intimidation and bullying by
Ms. Hale. 70 PSAMF ¶ 32; DRPSAMF ¶ 32. Major depressive disorder recurrent
means there’s a history of major depressive episodes with varying degrees of mild,

DRPSAMF ¶ 13. Nappi’s objection misrepresents Ms. Donovan’s testimony. In her deposition, Ms.
Donovan was asked if she knew when she was first diagnosed with depression and she responded, “I
honestly don’t.” Donovan Dep. 22:2-4. Nappi’s counsel then asked:
Q. Were you first diagnosed with depression when you were here in the states of back
in England?
A. I guess in England, but it wasn’t a consistent issue.
Id. 22:5-8. Ms. Donovan guessed or speculated that she was first diagnosed with depression in
England, which - without more - is not admissible evidence. The Court overrules Nappi’s qualified
response.
68
PSAMF ¶ 21 provides that “[i]n 2014, Ms. Donovan attempted suicide which she attributes to
bullying at Nappi Distributors from Hale (formerly Ellis).” Nappi qualifies PSAMF ¶ 21, saying
“[w]hile Ms. Donovan did testify to this assertion, her own medical records, which discuss myriad
contributing factors such as her marital separation, discord with her daughter, a break-up with a
romantic partner, chronic pain, and recent triggers of childhood sexual abuse, directly refute this
assertion. These records do not contain references to work stressors, bullying, or Ms. Hale.”
DRPSAMF ¶ 21. Having reviewed the relevant record, the Court slightly alters PSAMF ¶ 21 to reflect
the record.
69
PSAMF ¶ 22 duplicates the information provided in PSAMF ¶ 21, and the Court therefore
omits PSAMF ¶ 22.
70
Nappi qualifies PSAMF ¶ 32, saying “Ms. Donovan testified that work stresses were not the
number one factor ‘immediately’ that she discussed with Dr. Altschule.” DRPSAMF ¶ 32. The Court
finds Nappi’s objection beyond the scope of the fact and admits PSAMF ¶ 32.

23

moderate, and severe—at that time Ms. Donovan’s depressive episode was moderate
so the focus of treatment was on posttraumatic stress disorder and panic disorder. 71
PSAMF ¶ 34; DRPSAMF ¶ 34.
Dr. Altschule identifies a decade of neglect coupled with physical and sexual
abuse as the traumatic events directly leading to Ms. Donovan’s PTSD. 72 PSAMF ¶
35; DRPSAMF ¶ 35. Ms. Donovan was subjected to physical and sexual abuse by her
stepfather as a child. DSMF ¶ 18; PRDSMF ¶ 18. As a result of her stepfather’s
abuse, Ms. Donovan was diagnosed with PTSD and suffered flashbacks. DSMF ¶ 19;
PRDSMF ¶ 19. Ms. Donovan’s diagnosed depression, PTSD, panic disorder, and
major depressive disorder manifested themselves in the form of nightmares, panic
attacks, flashbacks, hopelessness, anhedonia, sleep challenges, intense fear of being
harmed or losing control, heightened anxiety, problems breathing, and temporary
vision issues. PSAMF ¶ 36; DRPSAMF ¶ 36. Ms. Donovan saw Dr. Altschule for a
variety of issues, and there was a time before June 2018 when her sessions focused
primarily on PTSD and other trauma rather than work stressors. 73 DSMF ¶ 20;

71
Nappi objects to Ms. Donovan’s PSAMF ¶ 34 as unsubstantiated by the cited record.
DRPSAMF ¶ 34. The Plaintiff erred in her citation to the Altschule Deposition at 5:9-18, but the Court
finds the relevant supporting record at 5:14-25 and admits PSAMF ¶ 34.
72
Nappi qualifies PSAMF ¶ 35, saying “[i]n the record citation, Dr. Altschule clarified that Ms.
Donovan suffered childhood abuse and neglect.” DRPSAMF ¶ 35. Nappi’s objection is beyond the
scope of the fact, and the Court admits PSAMF ¶ 35.
73
DSMF ¶ 20 states that “Ms. Donovan saw Dr. Altschule for a variety of issues, and there were
extended periods of time where she did not mention work as a stressor.” Ms. Donovan denies DSMF
¶ 20, saying “Work stressors was a recurrent and ongoing discussion between Donovan and Altschule
but it became the dominant topic of the sessions in June of 2018 and continued through September of
2019.” PRDSMF ¶ 20.
Dr. Altschule testified “So, you know, early – prior to [June 2018] earlier on there really wasn’t
– it was really focused, as I mentioned, on PTSD, panic disorder, her depression. But, you know, as
we – as time went on and the work kind of progressed, those became less significant . . . She started
to experience – to talk about a lot of stress at work with this woman, Valerie, and it was one person

24

PRDSMF ¶ 20. During her treatment with Dr. Altschule, Ms. Donovan regularly
discussed stressors surrounding marital issues, divorce, starting new romantic
relationships, and financial stressors, such as being the sole earner in her household
and struggling to pay bills. 74 DSMF ¶¶ 21, 23; PRDSMF ¶ 21, 23. Ms. Donovan also
spent a fair amount of her time with Dr. Altschule discussing her difficult
relationship with her adult daughter, who had substance abuse issues. 75 DSMF ¶
22; PRDSMF ¶ 22.
The long-term trauma that Ms. Donovan had endured impacted every aspect
of her life, including work, 76 PSAMF ¶ 37; DRPSAMF ¶ 37, making it very difficult
for her to develop trust, and leading much of the focus of Ms. Donovan’s treatment to
be developing, maintaining, and managing relationships. 77 PSAMF ¶ 38; DRPSAMF

and then with her supervisor.” Nappi R., Attach 17, Dep. of Joshua Altschule at 16:1-14 (Altschule
Dep.). When asked “It’s fair to say, Doctor, that there were extended periods of time where you were
meeting with her when she did not mention work as a stressor, correct?”, Dr. Altschule responded:
“Yeah. In the beginning – it was always – I mean, all my clients when they’re working talk about their
work experience. For Helena, you know, she – you know, she had stress around work. There were
things that came up . . . in the beginning at this stage, it was – the bigger priority was not the work
issue. It was – it was the PTSD ultimately and the trauma.” Id. at 49:17-50:4. The Court accepts Ms.
Donovan’s denial as a qualification and modifies DSMF ¶ 20 to reflect the full record.
74
Ms. Donovan qualifies DSMF ¶ 21, saying she “discussed these issues in addition to work
stressors.” PRDSMF ¶ 21. Ms. Donovan’s qualification is beyond the scope of the fact and the Court
admits DSMF ¶ 21.
75
Ms. Donovan qualifies DSMF ¶ 22, saying she “discussed these issues in addition to work
stressors.” PRDSMF ¶ 22. Ms. Donovan’s qualification beyond the scope of the fact and the Court
admits DSMF ¶ 22.
76
PSAMF ¶ 37 states that “[t]he long term trauma that Donovan had endured impacted almost
every aspect of her life including work.” Nappi qualifies PSAMF ¶ 37, saying “[t]he cited testimony
does not include the word ‘almost.’” DRPSAMF ¶ 37. The Court removes “almost” from the fact and
admits PSAMF ¶ 37.
77
PSAMF ¶ 38 provides that Ms. Donovan’s “history of trauma made it very difficult for her to
develop trust in others and much of the focus of [Ms.] Donovan’s treatment was on developing,
maintaining, and managing relationships.” Nappi qualifies PSAMF ¶ 38, saying “[t]he record citation
supports the assertion that it was difficult for Ms. Donovan to view Dr. Altschule as a safe person upon
whom she could rely, but does not discuss her ability to develop trust in others.” DRPSAMF ¶ 38.
Having reviewed the relevant record, the Court removes “in others” from PSAMF ¶ 38 and otherwise
admits the fact.

25

¶ 38. The PTSD affected Ms. Donovan’s relationships, leading her to not advocate for
herself and to allow others to taken advantage of her. 78 PSAMF ¶ 39; DRPSAMF ¶
39.
Ms. Donovan testified that her depression and anxiety were worsening as of
mid-2018 and that she felt it was obvious to those around her. 79 PSAMF ¶ 40;
DRPSAMF ¶ 40. In June of 2018, the focus of Ms. Donovan’s sessions with Dr.
Altschule shifted towards issues she was having at work—first with coworker Ms.
Hale and then with Ms. Watson. 80 PSAMF ¶ 41; DRPSAMF ¶ 41. Dr. Altschule
testified that Ms. Donovan spoke to him about trying to discuss these issues with her
supervisor and the HR person but that she didn’t feel like it was helpful, and it didn’t
end up working for her. 81 PSAMF ¶ 42; DRPSAMF ¶ 42. Dr. Altschule worked with
Ms. Donovan on how to deescalate the situations as they arose and to manage herself
in a way where she didn’t absorb as much, given that Ms. Donovan perceived that
she clearly could not change what was happening after having gone to HR, talked to

Nappi qualifies PSAMF ¶ 39, saying “[t]he rest of Dr. Altschule’s response discussed that Ms.
Donovan was able to pursue a divorce during therapy, indicating that her marriage was the
relationship that was impacted by her PTSD.” DRPSAMF ¶ 39. Nappi’s qualification is beyond the
scope of the fact, and the Court, therefore, concludes that the relevant record generally supports
PSAMF ¶ 39 and admits the fact.
79
Nappi qualifies PSAMF ¶ 40, saying “[t]he record citation does not support the assertion that
Ms. Donovan’s condition was ‘obvious to those around her.’” DRPSAMF ¶ 40. Having reviewed the
relevant record, the Court alters PSAMF ¶ 40 to indicate that the fact reflects how Ms. Donovan felt
people would perceive her condition.
80
Nappi admits PSAMF ¶ 41 but objects to the fact as inadmissible hearsay. The Court rejects
Nappi’s hearsay objection because what Ms. Donovan or Dr. Altschule may testify to regarding the
contents of her therapy sessions is not hearsay under Federal Rule of Evidence 801(d)(2)(D).
81
Nappi admits PSAMF ¶ 42 but objects to the fact as inadmissible hearsay. The Court rejects
Nappi’s objection for the same reason explained in the previous footnote.
78

26

people, and having done everything she could at work to make it better. 82 PSAMF ¶
43; DRPSAMF ¶ 43. In December of 2018, Ms. Donovan again discussed her issues
at work with Dr. Altschule and described being singled out by Ms. Hale, who had
influence over people in authority, which exacerbated her anxiety and made her feel
her efforts were met with a negative response. 83 PSAMF ¶ 44; DRPSAMF ¶ 44.
Although she continues to receive mental health medications from her primary
care physician, Ms. Donovan has not had specialized mental health counseling since
February of 2020 and has no plans to return. 84 DSMF ¶ 25; PRDSMF ¶ 25. Ms.

Donovan completed treatment with Dr. Altschule in September of 2019 because she

PSAMF ¶ 43 states that “[Dr.] Altschule worked with [Ms.] Donovan on how to deescalate the
situations as they arise and to manage herself in a way where she doesn’t absorb it as much because
you can’t change what’s happening clearly after going to HR, after trying to talk to people, after doing
everything she could.” Nappi qualifies PSAMF ¶ 43, saying “[t]he factual assertion summarizes Dr.
Altschule’s testimony but omits that he testified that the situation was ‘according to [Ms. Donovan],’”
and further submits that “[t]he factual assertion misrepresents Dr. Altschule’s testimony, who twice
clarified that he provided that advice based on what she told him.” DRPSAMF ¶ 43. Having reviewed
the relevant record, the Court alters PSAMF ¶ 43 to reflect the full record.
83
Nappi admits PSAMF ¶ 44 but objects to the fact as inadmissible hearsay. The Court rejects
Nappi’s objection for the same reason explained in footnote 17.
84
DSMF ¶ 25 states that “Ms. Donovan has not had any mental health counseling since February
of 2020 and has no plans to return.” Ms. Donovan denies DSMF ¶ 25, saying she “continues to receive
treatment from her [primary care physician], Dr. Gallo, for her mental health diagnoses.” PRDSMF
¶ 25. Ms. Donovan testified:
82

Q. So since February of 2020, you obviously continued to receive the medications we
talked about at the outset of the deposition, correct?
A. Yes.
Q. And that’s been through Dr. Gallo and not Dr. Burton, correct?
A. Correct.
Q. Have you had any counseling for mental health issues since February of 2020?
A. No.
Q. Do you feel like you ever needed counseling for mental health issues since February
of 2020?
A. No.
Q. Do you have any current plans to get counseling for mental health issues?
A. No.
Donovan Dep. at 67:18-68:8. The Court accepts Ms. Donovan’s denial as a qualification and slightly
alters DSMF ¶ 25 to reflect the record.

27

“got to a place in her life in a lot of ways that were—that led to her feeling truer to
herself and self-actualized,” and Dr. Altschule was winding down his private
practice. 85 DSMF ¶ 189; PRDSMF ¶ 189. Ms. Donovan did not explicitly identify
discrimination based on sex, sexual orientation, or disability as a work stressor
during sessions with Dr. Altschule. 86 DSMF ¶ 190; PRDSMF ¶ 190.
E.

Helena Donavan’s Suicide Attempt in 2017

Ms. Donovan attempted suicide a second time at approximately 10:00 pm on
September 23, 2017 in her car in the Nappi parking lot by ingesting drugs prescribed
to her by her physician. 87 DSMF ¶ 26; PRDSMF ¶ 26. Because it was a weekend,
Ms. Donovan was not at Nappi for work and instead was in the parking lot to drop
off a co-worker after she gave her a ride from the bus station. DSMF ¶ 27; PRDSMF
¶ 27. Ms. Donovan testified that she attempted suicide by taking the prescribed

DSMF ¶ 189 states that “Ms. Donovan completed treatment with Dr. Altschule in September
of 2019 because she ‘got to a place in her life in a lot of ways that were – that led to her feeling truer
to herself and self-actualized.’” Ms. Donovan denies DSMF ¶ 189, saying “Altshule stopped treating
Donovan in September of 2019 because he was winding down his practice and Donovan was his last
patient.” PRDSMF ¶ 189. Dr. Altschule testified that Ms. Donovan “kind of got to a place with her
trauma where she – and she changed her life in a lot of ways that were – that led to her feeling more
true to herself and self-actualized. The work that we had just kind of naturally come to an end, even
though she was still feeling distressed and symptoms from the issues at work. It just wasn’t something
that was going to change in therapy.” Altschule Dep. at 29:3-10. Dr. Altschule also testified that he
was winding down his practice and that Ms. Donovan was his “last private practice client.” Id. at
29:18-22. The Court accepts Ms. Donovan’s denial as a qualification and adds to DSMF ¶ 189 to reflect
the record.
86
DSMF ¶ 190 provides that “Ms. Donovan did not identify discrimination on the basis of sex,
sexual orientation, or disability as a work stressor with Dr. Altschule.” Ms. Donovan denies DSMF ¶
190, saying that “[m]uch of Altschule’s treatment of Donovan focused on work related issues, feeling
isolated, ostracized, set up for failure, and not being supported.” PRDSMF ¶ 190. Having reviewed
the relevant record, the Court accepts Ms. Donovan’s denial as a qualification and slightly alters
DSMF ¶ 190 to reflect the record.
87
DSMF ¶ 26 states that “Ms. Donovan attempted suicide a second time on September 23, 2017,
by ingesting drugs in her car in the Nappi parking lot at approximately 10:00 p.m.” Ms. Donovan
qualifies DSMF ¶ 26, saying she “attempted suicide by taking too much of a medication that was
prescribed to her by a medical provider.” PRDSMF ¶ 26. Having reviewed the relevant record, the
Court slightly alters PRDSMF ¶ 26 to reflect the record.
85

28

drugs because of issues with her daughter, marital problems, dealing with trauma
from her childhood abuse, and issues at work. 88 DSMF ¶ 28; PRDSMF ¶ 28. Ms.
Donovan’s history of sexual abuse at the hands of her stepfather also contributed to
her 2017 suicide attempt. 89 DSMF ¶ 34; PRDSMF ¶ 34.
That same day, Nappi learned that Ms. Donovan attempted suicide when Mr.
Brown, who at the time was the acting interim Wine Director, received an email sent
by Ms. Donovan. DSMF ¶ 29; PRDSMF ¶ 29. Ms. Donovan’s email had the subject
line “Thank you,” and stated: “Dear [Mr. Brown], I wish I could have been the
successful Buyer that you needed, I am so sorry that I failed you. I thank you so very
much for your kindness, patience and support. I wish you the very best that life has
to offer. . . . PS…please tell Patty, Gerry, Carol, Katurah, Mike Hale and Todd
Levesque that I wish them all happiness in their life. They have all been kind to me
and for that I am so very grateful.” PSAMF ¶ 108; DRPSAMF ¶ 108.
Ms. Masters, who was aware of Ms. Donovan’s message to Mr. Brown, testified
that even though she might have been reading too much into it, she said something
to him, even though Mr. Brown didn’t think the message was an issue. 90 PSAMF ¶
88
DSMF ¶ 28 provides “Ms. Donovan testified that she took the drugs because of issues with her
daughter, marital problems, dealing with trauma from her childhood abuse, and issues at work.” Ms.
Donovan qualifies DSMF ¶ 28, saying she “did not ‘take drugs’ . . . [she] attempted suicide by taking
too much of a medication that was prescribed to her by a medical provider.” PRDSMF ¶ 28. The Court
slightly alters DSMF ¶ 28 to clarify that these are the reasons she took the prescribed drugs to commit
suicide.
89
Ms. Donovan qualifies DSMF ¶ 34, saying “Donovan’s history of sexual abuse contributed to
her suicide attempt, but it was also brought on by the bullying from Val Hale at Nappi.” PRDSMF ¶
34. Ms. Donovan’s qualification is beyond the scope of the fact and the Court admits DSMF ¶ 34.
90
PSAMF ¶ 109 provides that “Masters was aware of the message from Donovan to Brown.
Masters testified that Brown didn’t think the message was an issue, but Masters said something to
Brown even though she might have been reading too much into it, and that’s when Brown reached out
to Fox about the concern.”

29

109; DRPSAMF ¶ 109. Mr. Brown then forwarded the September 23, 2017 email to
Ms. Fox, the Director of Human Resources, who in time attempted to locate Ms.
Donovan, 91 DSMF ¶ 30; PRDSMF ¶ 30, because he was concerned that it read like a
suicide note. 92 PSAMF ¶¶ 109-110; DRPSAMF ¶¶ 109-110.
Earlier on the day of September 23, 2017, a work issue arose where there was
frustration among some of the stakeholders with Ms. Donovan. 93 PSAMF ¶ 111;
Nappi objects to PSAMF ¶ 109 as inadmissible hearsay and further denies the fact, saying
“[t]he record citation indicates that Ms. Masters was aware of a text message and does not discuss the
e-mail referenced in [PSAMF ¶] 108. Further, Mr. Brown testified that he interpreted the e-mail as a
suicide note and became ‘very concerned,’ and reached out to Ms. Fox ‘immediately’ because it was the
weekend and he did not know how to find Ms. Donovan or which police department to notify.”
DRPSAMF ¶ 108.
Ms. Master’s testimony about her reaction to Ms. Donovan’s note is not hearsay. Her
testimony explains her comment to Mr. Brown and, in turn, why Mr. Brown reached out to Ms. Fox.
Furthermore, the contents of the Donovan email are not being offered or admitted for the truth of what
Ms. Donovan wrote.
91
DSMF ¶ 30 states that “[u]pon receipt of the email, Mr. Brown forwarded it to Christine Fox,
the Director of Human Resources, who immediately attempted to locate Ms. Donovan.” Ms. Donovan
denies DSMF ¶ 30, saying “[t]here is no record of communication from Fox to Donovan until after
Donovan’s second attempted suicide two days later.” PRDSMF ¶ 30.
Ms. Fox testified:
Q. So I am going to share with you – so we can mark this as Exhibit 2. Have you seen
this document before?
A. Yes.
Q. What is this?
A. It was an e-mail that [Ms. Donovan] sent to Ian Brown on September 23, 2017.
...
A. I think at that time, we were trying to locate her, is what – I think we were trying
to reach her, is what we were, we were trying to contact her. After he got that, he was
trying to contact her.
Fox Dep. at 86:12-87:6. The record indicates that Ms. Fox sent an email to Ms. Donovan on September
25, 2017, two days after her third suicide attempt. Although Ms. Fox could have attempted to contact
Ms. Donovan before sending her an email, the cited record does not support Nappi’s assertion that she
did so “immediately.” The Court has removed the temporal assertion from DSMF ¶ 30.
92
Nappi admits PSAMF ¶ 110 but objects to the fact as inadmissible hearsay. The Court rejects
Nappi’s objection for the same reason explained in footnote 17.
93
Nappi objects to PSAMF ¶ 111 as inadmissible hearsay. DRPSAMF ¶ 111. The Court
disagrees. Whether there was in fact stakeholder frustration is not offered for the truth of the matter.
It only explains the context of Ms. Donovan’s question to Mr. Brown as to whether she was effective
at her job and his response to her, which is not hearsay. Furthermore, it may explain a work-related
link to Ms. Donovan’s suicide attempt.

30

DRPSAMF ¶ 111.

According to Ms. Fox, Mr. Brown and Ms. Donovan had a

conversation in which Ms. Donovan asked Mr. Brown if he thought she was effective
at her job. Id. Mr. Brown expressed uncertainty about whether Ms. Donovan enjoyed
what she was doing at Nappi. Id. Before Ms. Donovan’s attempted suicide in 2017,
she had indicated to Mr. Brown that she was struggling and bothered by comments
made about her work performance. 94 Id. In response, Mr. Brown told Ms. Donovan
that “maybe this wasn’t the position for [her]” because there were going to be a lot of
people firing at her—Ms. Donovan understood he meant she did not have thick
enough skin for the position. PSAMF ¶ 383; DRPSAMF ¶ 383.
Ms. Donovan was hospitalized immediately following the suicide attempt, but
she left the hospital the next day on September 24, 2017. DSMF ¶ 31; PRDSMF ¶
31. She then returned to the hospital the following day, the 25th, after attempting to
slit her wrists at home with a lightbulb. Id. After this third suicide attempt, Ms.
Donovan’s medical team arranged for her to be hospitalized at Spring Harbor
Hospital. DSMF ¶ 32; PRDSMF ¶ 32.
Before the third attempt, Ms. Donovan sent Mr. Brown an email at 3:41 a.m.
on September 25, 2017 that Mr. Brown understood to mean she intended to kill

PSAMF ¶ 383 states that “[b]efore Donovan attempted suicide in 2017 in Nappi’s parking lot,
Donovan had confided in Brown that she was bothered by comments made about her work performance
and she was struggling. Brown told Donovan in response that ‘maybe this wasn’t the position for [her]’
because there are going to be a lot of people firing at you—Donovan understood he meant she did not
have thick enough skin for the position.”
Nappi qualifies the fact, saying “[t]he record citation does not support that assertion that Ms.
Donovan, ‘had confided in Brown that she was bothered by comments made about her work
performance and she was struggling.’” DRPSAMF ¶ 383. Having reviewed the relevant record, the
Court changes “confided in” to “indicated to” and admits PSAMF ¶ 383.
94

31

herself. 95 PSAMF ¶¶ 112-114, 368, 370; DRPSAMF ¶¶ 112-114, 368, 370. The email
reads:
No need to stress. Life has its ups and downs. I have tried so very hard
to be good at what I do but with the constant negative opinion from the
warehouse, suppliers, sales team, the back stabbing bitches in the office,
it became too much. Having my title taken away by Val [Hale] and Paul
[Carr] (although Paul [Carr] blamed it on Elmer [Alcott]) was the
beginning of the end. If only one of you understood for half a second just
what I am going through in my life it may have allowed you to look a
little deeper into your hearts and find some empathy.
Failing that, I have finally given up hope and can no longer cope
anymore. Add to that, losing my house without a paycheck, my
daughter[’]s mental illnesses that I can do nothing to control and I
seemingly only maker her unhappier, a broken marriage and my
constant go around with the therapist to cope with 9 years of violent
sexual abuse suffered when I was young and you might just be able to
understand why that added daily pressure (from the people that only
care about their own reputation and pay increases (Al/Val… admitted
freely) at the expense of all others, might get to be overwhelming.
Ultimately. I have come to the end of my rope as I see no end in sight
that allows me to keep my job and ever hope to find any kind of respect
(I don’t have it now so what’s the point?) Despite my life, I have always
done everything I can to be a good person with kindness and genuine
empathy in my heart . . . only for it to be trampled on at every available
opportunity without any kind of back-up!
If you could please contact Rick . . . When it is convenient for him to pick
up my belongings and my final check I would appreciate it . . . Also if
Becky would help him with clearing my 401k as quickly as possible for
funeral expenses as I know he has no money once I’m going, I would be
SO very grateful to you. All the best, always. Helena. 96

95
Nappi qualifies PSAMF ¶ 114, saying “[t]he record citation refers to an email that was sent on
September 24, 2017.” DRPSAMF ¶ 114. The Court rejects Nappi’s qualification as beyond the scope
of the fact because PSAMF ¶ 114 accurately states that the email was sent “[b]efore Donovan
attempted suicide on September 25, 2017” and does not state the date Ms. Donovan sent the email.
96
Nappi objects to PSAMF ¶ 115 as hearsay and qualifies the fact, saying Nappi “admits only
that the document speaks for itself. The factual assertion is not an accurate word-for-word recitation
of the email in question.” DRPSAMF ¶ 115.
Having reviewed the record containing the email, the Court determines that PSAMF ¶ 115
includes only extremely minor punctuation differences from the original email, such as the

32

PSAMF ¶ 115; DRPSAMF ¶ 115. Ms. Fox cannot recall whether she asked Ms.
Donovan what she was referring to in her emailed suicide note when she wrote “back
stabbing bitches in the office.” 97 PSAMF ¶ 123; DRPSAMF ¶ 123. Mr. Carr testified
that he knew Ms. Donovan had attempted suicide while she was employed at Nappi
Distributors, but he doesn’t recall who he learned that from. PSAMF ¶ 23; DRPSAMF
¶ 23.
At 4:59 a.m. that very dawn, Ms. Donovan wrote another email saying: “Please
ignore” and letting Nappi know that she was “Off to the hospital!” 98 PSAMF ¶ 116;
DRPSAMF ¶ 116. Neither Ms. Fox nor Mr. Brown called Ms. Donovan between the
23rd and the 25th of September in 2017 until after Ms. Donovan was brought to the

capitalization of the letter “I,” and the Court overrules the punctuation objection. See Nappi R.,
Attach. 34, Sept. 25, 2017 email.
The Court also overrules Nappi’s hearsay objection. The email is not admitted for its truth,
such as whether there were in fact “back-stabbing bitches” at Nappi, but rather to demonstrate Nappi’s
awareness of Ms. Donovan’s circumstances in September 2017 and her allegation that her mental
health issues were in part caused by her treatment by some employees at Nappi.
97
PSAMF ¶ 123 states that “Fox never asked Donovan what she was referring to in her emailed
suicide note when she said ‘back stabbing bitches in the office.’” Nappi denies PSAMF ¶ 123, saying
“[t]he record citation actually states that Ms. Fox does not recall if she asked to whom Ms. Donovan
was referring.” DRPSAMF ¶ 123. Ms. Fox testified:
Q: Did you ask her -- you know, I saw in that e-mail she made a reference to the back
stabbing bitches in the office. Did you ask her who they -- who she was referring to
there?
A: I -- I don’t know if I specifically asked her who. She again was sharing information
with me. I thought her reference to it was Mary Johnson. But I -- I didn’t -- I mean,
she -- she quickly was telling me, you know, she wasn't thinking right, it was not -- not
a -- work wasn’t a factor. And I didn't ask a lot of questions. She was clearly feeling
better, I wasn’t going to bring her back to what, you know, she was writing in a suicide
note.
Fox Dep. at 103:11-24. The Court accepts Nappi’s denial as a qualification and slightly alters PSAMF
¶ 123 to reflect the record.
98
Nappi admits PSAMF ¶ 116 but objects to the fact as inadmissible hearsay. The Court rejects
Nappi’s objection.

33

hospital. 99 PSAMF ¶ 369; DRPSAMF ¶ 369. Ms. Fox responded to the 4:59 a.m.
email at 6:45 a.m. and said: “Helena – Thank you so much for your messages and for
sharing some of what you have been going through. We are so very glad you have
reached out for help. Please let me know how we can assist and please let me know
when you are ready to talk so I can better understand what you are going through.”
PSAMF ¶ 117; DRPSAMF ¶ 117.
Ms. Fox testified that Ms. Donovan talked to her about ongoing treatment and
counseling after she was released from the hospital, but that Ms. Donovan “didn’t
characterize it as depression.” 100 PSAMF ¶ 119; DRPSAMF ¶ 119. Dr. Altschule
testified that Ms. Donovan’s suicide attempt was the result of a global issue, and that
she “felt pretty hopeless about everything . . . in her life.” DSMF ¶ 33; PRDSMF ¶
33. After the 2017 suicide attempts, Dr. Altschule continued to treat Ms. Donovan
for marital issues, issues with her daughter, issues stemming from the abuse she
suffered from her stepfather, and work-related issues, as she recalls that “work was
discussed” but not the timing of those discussions. 101 DSMF ¶ 46; PRDSMF ¶ 46.

Nappi denies PSAMF ¶ 369, saying “[t]he record citation indicates that Mr. Brown and Ms.
Fox worked in concert to get aid to Ms. Donovan.” DRPSAMF ¶ 369. Although the record indicates
that Mr. Brown and Ms. Fox attempted to “get[] somebody to her house and make[] sure that she was
all right” because that was their “number one and only concern,” the record does not indicate that
either Mr. Brown or Ms. Fox reached out to Ms. Donovan in any capacity over the weekend. The Court
therefore finds PSAMF ¶ 369 supported by the record and admits the fact.
100
Nappi admits PSAMF ¶ 118 but objects to the fact as inadmissible hearsay. DRPSAMF ¶ 119.
The Court rejects Nappi’s objection for the same reason explained in footnote 17.
101
Ms. Donovan qualifies DSMF ¶ 46, saying she “may not be able to recall the dates they were
discussed, [but t]he notes reflect that Donovan regularly discussed work issues with Altschule and
they became the focus of their sessions beginning in June of 2018.” PRDSMF ¶ 46. The Court finds
Ms. Donovan’s qualification beyond the scope of the fact and admits DSMF ¶ 46.
99

34

Ms. Donovan never discussed her suicide attempt, depression, or anxiety with
Ms. Hale. 102, 103 DSMF ¶ 39; PRDSMF ¶ 39. Immediately upon returning to work

Ms. Donovan qualifies DSMF ¶ 39, admitting that she “did not discuss it,” but noting that Ms.
Hale “testified she was aware of the suicide attempt as it was common knowledge at Nappi and she
was generally aware [Ms.] Donovan was depressed.” PRDSMF ¶ 39. The Court finds Ms. Donovan’s
qualification beyond the scope of the fact and admits DSMF ¶ 39.
103
DSMF ¶ 40 states that “Nappi was not aware that Ms. Donovan was struggling with
depression following her return to work.” Ms. Donovan denies DSMF ¶ 40, saying she “specifically
told Fox she was struggling with depression. Fox observed Donovan was struggling with her mental
health and told Watson of her observation. Donovan’s coworkers understood she was struggling with
depression.” PRDSMF ¶ 40.
When asked whether “it [is] fair to say . . . [shortly after Ms. Donovan returned to Nappi after
attempting suicide multiple times] in September of 2017, you understood that Helena was struggling
with depression?”, Ms. Fox responded “[n]o, not struggling. That she had had . . . had an incident, she
had gotten the treatment, and she had gotten things, you know, under control and – like any medical
condition, and that was it. I didn’t have any impression she was still struggling.” Fox Dep. at 91:311.
Mr. Hale, however, testified:
102

Q. . . . You talked about covering for an extended period of time for [Donovan] while
she was out of work. Do you know why she was out of work?
A. I don’t remember exactly. I know Ian had come to be one morning and said, you
know, do you think you would be able to – to do some ordering for a little while? And I
said, yeah, why, is everything okay? And he said yup, it’s – and then I – later it was
just kind of common knowledge in and around the office.
Q. Okay. And did you ever have any conversations with [Donovan] about that suicide
attempt?
A. No.
Q. Did you ever have any conversations with [Donovan] about her depression or
anxiety or anything like that?
A. Not specifically, no.
Q. Did you generally know that [Donovan] struggled with depression?
A. Yes.
Nappi R., Attach 18, Dep. of Valerie Hale at 49:16-50:10 (V. Hale Dep.). Ms. Donovan testified that
Nappi “knew [her] situation . . . that it was obvious [her] mental health was declining, i.e. sitting in
[her] office in tears, not being able to perform in certain requirements for [Watson]. It was just so
obvious.” Donovan Dep. at 92:24-93:4. Paul Carr testified:
Q. Where do you – okay. What were the difficulties that she had?
A. She had problems with her husband. She had – she had, you know, domestic
relation problems and she had migraines. And she would be out of work fairly often,
not a long-term or anything like that, a day or two call in sick, but she had problems
at home. And also she had problems doing the job that John did.
...
Q. Okay. Did you ever learn that [Ms. Donovan] had depression or anxiety or anything
of that nature?
A. I sensed it, though.

35

after her 2017 suicide attempt, she indicated to Ms. Fox on one occasion that her
mental health conditions were under control. 104 DSMF ¶ 41; PRDSMF ¶ 41.
Because Ms. Donovan attempted suicide on Nappi premises, the third-party
Workers’ Compensation administrator required that Nappi file a First Report of
Injury with the Workers’ Compensation Board. DSMF ¶ 42; PRDSMF ¶ 42. When
Ms. Donovan learned about the report she was mortified, did not pursue a Worker’s
Compensation claim, and did not report to Ms. Fox that her suicide attempt was work-

related. 105 DSMF ¶ 43; PRDSMF ¶ 43. According to Ms. Donovan, she declined

Donovan R., Attach 1, Dep. of Paul Carr at 85:24-86:6; 87:10-13. Taking the facts in the light most
favorable to the non-moving party, as the Court it required to do, the Court finds sufficient evidence
in the record that Nappi or at least multiple employees at Nappi knew of Ms. Donovan’s depression
during the period that she returned to Nappi in September 2017 after attempting to commit suicide
on multiple occasions. The Court therefore accepts Ms. Donovan’s denial and omits DSMF ¶ 40.
104
DSMF ¶ 41 states that “[w]hen Ms. Donovan returned to work after her 2017 suicide attempt,
she assured Ms. Fox that her mental health conditions were under control. Ms. Donovan qualifies
DSMF ¶ 41, saying that she “said this to Fox in November 2017” but denies “that she gave further
assurances. Donovan specifically told Fox she was struggling with depression. Fox observed Donovan
was struggling with depression. Donovan’s coworkers understood she was struggling with depression.”
PRDSMF ¶ 41. Although the Court finds Ms. Donovan’s qualification largely beyond the scope of the
fact, it slightly alters DSMF ¶ 41 to reflect that Ms. Donovan indicated to Ms. Fox on only one occasion,
shortly after returning to the office, that her mental health conditions were under control.
105
DSMF ¶ 43 provides: “[w]hen Ms. Donovan learned about the report, she was mortified and
told Ms. Fox that her suicide attempt was not work related, and she did not pursue a Worker’s
Compensation claim.” Ms. Donovan denies DSMF ¶ 43, saying she denies “that the suicide attempt
was not work related. Donovan declined Workers’ Comp benefits despite believing it was caused by
work because she wasn’t mentally in a space where she could take on any questioning and told Fox
she didn’t want to make waves.” PRDSMF ¶ 43.
Ms. Fox testified: “[Donovan] was saying that work wasn’t the dominant – I mean, she wasn’t
saying work was the cause.” Fox. Dep. at 102:17-18. Ms. Donovan testified:
Q. It’s my understanding that you weren’t requesting Workers’ Comp benefits with
regard to the suicide attempt in 2017; is that correct?
A. I didn’t take up Workers’ Comp benefits, no.
Q. During your treatment after the suicide attempt in 2017, did you ever tell anyone
that the attempt was due to your relationship with Val[a]rie Hale?
A. Likely.
Q. Who did you say that to?
A. I don’t recall.

36

Workers’ Compensation benefits despite believing the attempted suicide was caused
by work because she wasn’t mentally in a space where she could take on any
questioning and, as she told Ms. Fox, she didn’t want to make waves. 106 PSAMF ¶
384; DRPSAMF ¶ 384.
After her attempted suicides, Ms. Donovan took a leave of absence from Nappi
pursuant to the FMLA and short-term disability. DSMF ¶ 35; PRDSMF ¶ 35. While
Ms. Donovan was hospitalized at Spring Harbor and on medical leave in September
2017, Ms. Fox helped Ms. Donovan apply for short-term disability benefits. PSAMF
¶ 120; DRPSAMF ¶ 120. At this point, Ms. Fox knew that Ms. Donovan had been
diagnosed with major depression. PSAMF ¶ 121; DRPSAMF ¶ 121. In October of
2017, Ms. Donovan also visited Ms. Fox in person and handed Ms. Fox a form signed
by her physician on October 18, 2017, which listed PTSD and major depressive
disorder (severe, recurrent) as Ms. Donovan’s diagnoses. PSAMF ¶ 122; DRPSAMF
¶ 122. Ms. Fox admitted she understood these were Ms. Donovan’s diagnoses. Id.
Even though Ms. Donovan was hospitalized in September of 2017 after she
attempted suicide, Ms. Fox denied knowing that Ms. Donovan was struggling with
Q. Is there a reason why you didn’t pursue a Workers’ Comp claim for the suicide
attempt?
A. Yes.
Q. Why is that?
A. At the time, I wasn’t mentally in a space where I could take on any questioning. I
had told Christine Fox that I just didn’t want to make any waves.
Donavan Dep. at 62:22-63:13. Taking the facts in the light most favorable to Ms. Donovan, the record
does not clearly indicate that she specifically told Ms. Fox that her suicide attempt was not workrelated. The Court modifies DSMF ¶ 43 to reflect the record.
106
Nappi qualifies PSAMF ¶ 384, saying it “denies that the cited record testimony states that Ms.
Donovan believed the suicide attempt was caused by work.” DRPSAMF ¶ 384. Having reviewed the
relevant record, the Court concludes that Ms. Donovan’s alleged belief that work had contributed to
her mental health issues is sufficiently supported by the record and admits PSAMF ¶ 384.

37

depression when she returned to work because she understood Ms. Donovan to have
told her that she was better and that her medication had helped. 107 PSAMF ¶ 118;
DRPSAMF ¶ 118.
Ms. Donovan returned to work at Nappi on November 6, 2017, DSMF ¶ 36;

PRDSMF ¶ 36, and the only accommodation Ms. Donovan requested immediately upon
her return was to be allowed to attend regular therapy appointments. 108 DSMF ¶ 37;

PRDSMF ¶ 37. Thereafter, Ms. Donovan was told that she was permitted to attend

PSAMF ¶ 118 states that “[e]ven though Donovan was hospitalized in September of 2017 after
she attempted suicide, Fox denied knowing that Donovan was struggling with depression at the time
of her hospitalization.” Nappi qualifies PSAMF ¶ 118, saying that “Ms. Fox testified that when Ms.
Donovan returned to work, Ms. Donovan told Ms. Fox that the suicide attempt was because of a
medication problem, and that upon her return she was not still struggling with depression.”
DRPSAMF ¶ 118. Ms. Fox testified:

107

Q. Okay. Did you have a followup conversation with [Donovan] at any point about
what she discussed in this e-mail?
A. Yes, when she had returned to work – when she returned to work several weeks
later, we – we – we did.
Q. And what did she tell you?
A. That she was not thinking straight, she didn’t mean any of it, she – she was I think
kind of embarrassed by what had happened and was, you know, profusely apologize –
apologizing for – I – it was – she said that, you know, she needed to have medication
and it had helped her, and that – that basically she didn’t have any intent of it. She
just didn’t – she said she wasn’t – you know, she just wasn’t functioning or thinking
straight.
Fox Dep. at 90:4-20. The Court accepts Nappi’s qualification and slightly alters PSAMF ¶ 118 to reflect
the record.
108
DSMF ¶ 37 states “[w]hen Ms. Donovan returned to her employment at Nappi, the only
accommodation she requested was to be allowed to attend regular therapy appointments.” Ms.
Donovan denies DSMF ¶ 37, saying she “wanted FMLA for protected leave so that she was not
scrutinized for her attendance . . . testif[ying] she did not know what kind of leave her provider would
recommend, she just knew she needed help.” PRDSMF ¶ 37 (citing PSAMF ¶¶ 190-202, 210, 311, 312,
371-75).
When asked whether she returned to work with accommodation requests, Ms. Donovan
testified “Yes, I needed to have therapy appointments.” Donovan Dep. at 63:22-25. When asked if
there were “[a]ny other accommodations [she] requested when [she] returned on the 6th of November,”
Ms. Donovan responded “No.” Id. at 64:4-6. Ms. Fox’s deposition also indicates that Ms. Donovan
requested FMLA leave in January 2019. Fox Dep. at 149:15-25. The Court accepts Ms. Donovan’s
denial as a qualification and slightly alters DSMF ¶ 37 to clarify that it was only immediately upon
her return to work at Nappi in 2017 that she requested an accommodation to attend therapy.

38

regular therapy appointments; however, she was required to use flex time to do so.109

DSMF ¶ 38; PRDSMF ¶ 38.
After Ms. Donovan’s suicide attempt in 2017, Ms. Donovan’s then-husband
Richard Stump called Ms. Fox and met with her. PSAMF ¶ 389; DRPSAMF ¶ 389.
Mr. Stump conveyed to Ms. Fox that Ms. Donovan had attempted suicide because of
the bullying at work.

Id.

Ms. Fox told Mr. Stump that Ms. Donovan was a

professional, in management, and needed to “grow thicker skin.” 110 Id.

DSMF ¶ 38 provides that “[t]hereafter, Ms. Donovan was, in fact, permitted to attend regular
therapy appointments.” Ms. Donovan qualifies DSMF ¶ 38, saying Ms. Fox told her she was “able to
attend additional appointments, but was expected to flex her time so that she made up the hours. Fox
refused to provide Donovan the FMLA paperwork that would have enabled her to have a discussion
with her provider about what kind of treatment would best help.” PRDSMF ¶ 38. Having reviewed
the relevant record, the Court slightly alters DSMF ¶ 38 to reflect the record and indicate that there
were some restrictions on Ms. Donovan’s leave to attend appointments.
110
PSAMF ¶ 389 states that “[a]fter Donovan’s suicide attempt in 2017, Donovan’s husband
Richard Stump called Fox and met with her. Stump conveyed to Fox that Donovan attempted suicide
because of the bullying at work. Fox told Stump that Donovan was a professional, in management,
and needed to ‘grow thicker skin’ when [Mr.] Stump conveyed that Donovan was struggling because
Donovan felt disrespected, looked down upon, and harassed.” Nappi denies PSAMF ¶ 389, saying “Mr.
Stump testified that after Ms. Donovan’s suicide attempt, he spoke with Fox and told her that Ms.
Donovan felt depressed, disrespected, and bullied at work. Mr. Stump did not state that he told Ms.
Fox that Ms. Donovan ‘attempted suicide because of the bullying at work.’ Mr. Stump further testified
that any understanding he might have had concerning the reasons for Ms. Donovan’s suicide attempt
were just assumptions on his part.” DRPSAMF ¶ 389.
109

Mr. Stump testified:
Q. So a moment ago I had asked you about emails. Let me move to my next
question here. At any point in the hours and days after that that you became
aware of her suicide attempt in 2017, did you contact her employer at Nappi
Distributors?
A. Yes.
Q. Who did you speak with?
A. I spoke with the HR director.
Q. Christine Fox?
A. Yes.
Q. Do you recall if you called her or she called you?
A. I believe I called her.
Q. What did you speak with Christine about?

39

F.

Coverage of Helena Donovan’s 2017 Medical Leave

While Ms. Donovan was out on leave after her 2017 suicide attempt, Mr.
Brown, who was serving as the interim wine sales manager, and Ms. Hale covered
her job duties. DSMF ¶ 55; PRDSMF ¶ 55. Mr. Brown asked Ms. Hale to fill in for
Ms. Donovan during her leave post-attempted suicide. 111 PSAMF ¶ 191; DRPSAMF
¶ 191. Ms. Donovan does not know who covered for her while she was out on leave
following her suicide attempts but was not surprised to learn that Ms. Hale had taken
over most of her tasks. DSMF ¶ 56; PRDSMF ¶ 56. As part of this process, Ms. Hale

created, with Ms. Donovan’s input upon her return, an ordering guide and formulas
to help Ms. Donovan predict and populate subsequent orders, in order to facilitate
more accurate ordering of necessary inventory. DSMF ¶ 57; PRDSMF ¶ 57.

A. Several things actually. I’m sure I told her about the suicide attempt and I
know I spoke to her about Helena had felt depressed, disrespected, bullied at
work.
Q. Do you recall what Christine -- what she said in that conversation?
A. Yes, I do.
Q. What did she say?
A. That Helena is management. She should grow a thicker skin.
Nappi R., Attach 15, Dep. of Richard Stump at 30:1-23 (Stump Dep.). Having reviewed the relevant
record, the Court overrules Nappi’s objection. It is a logical inference that Mr. Stump was telling Ms.
Fox that Ms. Donovan’s depression was due to being disrespected and bullied at work and that the
depression was a cause of Ms. Donovan’s suicide attempt.
111
PSAMF ¶ 191 states that “Brown asked Hale to fill in for Donovan during an extended leave
of absence because of her attempted suicide.” Nappi qualifies the fact, saying “[t]he record citation
does not support the assertion that Mr. Brown asked Ms. Hale for coverage.” DRPSAMF ¶ 191. Nappi
is clearly wrong. During her deposition, while discussing the fact she had covered for Ms. Donovan for
an extended period because of her suicide attempt, Ms. Hale testified: “I know Ian [Brown] had come
to me one morning and said, you know, do you think you would be able to – to do some ordering for a
little while? And I said, sure, why is everything okay? And he said, yup, it’s - - and then I - - later it
was just kind of common knowledge in and around the office.” V. Hale Dep. at 49:17-50:1. The Court
finds Nappi’s objection to be frivolous; PSAMF ¶ 191 is amply supported by the record and the Court
admits the fact.

40

While helping to handle Ms. Donovan’s tasks during her mental health leave, Mr.
Brown felt that he had been misled by Ms. Donovan and that after he and Ms. Hale “had
to dig into it significantly,” he learned “that the way she was structuring her job was
completely inept.” 112, 113 DSMF ¶ 58; PRDSMF ¶ 58; PSAMF ¶ 90; DRPSAMF ¶ 90.

Ms. Donovan left purchase order information on her computer, not on a shared drive,
which precluded others from accessing the information. DSMF ¶ 59; PRDSMF ¶ 59.
Mr. Brown testified that Ms. Donovan’s performance deficiency was displayed by her
practice of ordering wine in alphabetical order by supplier, which he described as
“completely absurd.” 114 PSAMF ¶ 91; DRPSAMF ¶ 91.
While Ms. Donovan was on leave, Ms. Fox went through Ms. Donovan’s computer
to ascertain what she was using for business processes and purchase orders, at which
time it became apparent that Ms. Donovan was doing things manually. 115 DSMF ¶ 60;

Ms. Donovan admits that Mr. Brown “testified as such” but denies that she “was completely
inept [because] she was performing her job without issue until suddenly in January of 2019.” PRDSMF
¶ 58. The Court overrules Ms. Donovan’s objection to DSMF ¶ 58. The fact does not assert that Mr.
Brown’s opinion is in fact true but only that he felt this way.
113
Nappi qualifies PSAMF ¶ 90, saying “Mr. Brown testified that Ms. Donovan’s job performance
was in the back of his mind prior to her leave, but that he did not understand the severity of the
situation until he had ‘to dig into her system of doing things . . ..’” DRPSAMF ¶ 90. Nappi’s
qualification is beyond the scope of the fact and the Court admits PSAMF ¶ 90.
114
Nappi qualifies PSAMF ¶ 91, saying “Mr. Brown testified that ‘one’ deficiency he noticed early
on was Ms. Donovan’s alphabetical system. He further clarified that her alphabetical system
demonstrated that Ms. Donovan did not have a handle on what the company did.” DRPSAMF ¶ 91.
Nappi’s qualification is beyond the scope of the fact and the Court admits PSAMF ¶ 91.
115
DSMF ¶ 60 states that “[w]hile Ms. Donovan was on leave, Ms. Fox was forced to go through
Ms. Donovan’s computer to ascertain what she was using for business processes and purchase orders,
at which time it became apparent that Ms. Donovan was doing things manually.” Ms. Donovan admits
that she was performing the work manually but denies that this was singular to Donovan. PRDSMF
¶ 60. She submits that “Nappi as a whole was doing things manually because Nappi had not invested
in the tools for inventory software implementation” and Ms. Fox “did not need to go through Donovan’s
computer because Hale and Brown were involved in assuming Donovan’s duties while out on leave.”
Id. Ms. Fox testified:
112

41

PRDSMF ¶ 60. Ms. Fox testified that Nappi’s business volume is too big to efficiently
do purchase orders manually. 116 DSMF ¶ 61; PRDSMF ¶ 61. Mr. Carr testified that
Ms. Donovan initially was expected to perform all the same job functions as her
predecessor with the exception of slotting the wine in the warehouse. 117 PSAMF ¶
15; DRPSAMF ¶ 15. Nonetheless, Mr. Carr testified that at one point during his
tenure as the Director of Wine Sales he did the ordering because the ordering for the
wine department was massive, wasn’t being done right, and had left “out of stocks.”
PSAMF ¶ 16; DRPSAMF ¶ 16.

Q. Okay. Do you agree with – I – I think you told me that you were in [Donovan]’s
computer, and – while she was on a leave of absence, and during that time, you learned
what her processes were for her wine purchasing role, right?
A. I don’t think I learned what they were. I observed what they appeared to be. And
at that point, I made the assessment that this was – she was pretty much doing it just
manually, and in fact was overriding – I mean, I was looking for one document, I was
looking for the Purchase Order. And I expected to see like more of a – a system or
some kind of automated, you know, spreadsheet that was feeding, you know, when you
order something, that it would log. And it was strictly manual being done.
Fox Dep. at 28:6-20. The Court concludes that the record does not support the fact that Ms. Fox was
forced to go through Ms. Donovan’s computer. The Court alters DSMF ¶ 60 to reflect the record. Ms.
Donovan’s objection regarding how other people at Nappi tracked inventory is beyond the scope of the
fact, but the Court otherwise admits DSMF ¶ 60.
116
DSMF ¶ 61 states that “Nappi’s business volume is too big to do purchase orders manually.”
Ms. Donovan admits that she “was performing the work manually” but denies “that this was singular
to Donovan [since] Nappi as a whole was doing things manually because Nappi had not invested in
the tools for inventory software implementation. PRDSMF ¶ 61. Ms. Fox testified that “it was obvious
at that point she was still using a like manual like an either Excel or Word document for every single
Purchase Order and didn’t really have, you know, something automated to – you know, to – to
efficiently order. We’re just – you know, the volume is way too big to be doing it manually.” Fox Dep.
at 25:5-11. Ms. Donovan’s objection regarding how other people at Nappi tracked inventory is beyond
the scope of the fact, but the Court slightly alters DSMF ¶ 61 to reflect that this is Ms. Fox’s view of
inventory practice.
117
PSAMF ¶ 15 states that “Carr testified that Donovan performed all of the same job functions
as her predecessor with the exception of slotting the wine in the warehouse.”
Nappi denies PSAMF ¶ 15, saying the “record citation indicates that Mr. Carr testified that
Mr. Houle had ‘a lot more expectations than we had of Helena.’ He described the warehouse set up,
but also notes that Ms. Donovan was always behind, so they took away ordering responsibilities from
her, and she was not ordering for several brands.” DRPSAMF ¶ 15.
Having reviewed the relevant record, the Court accepts Nappi’s denial as a qualification and
alters PSAMF ¶ 15 to reflect the record.

42

While covering during Ms. Donovan’s leave, Ms. Fox learned that Ms.
Donovan, since starting at Nappi, had not introduced new methods or evolved
existing ones while performing her job. 118, 119 DSMF ¶ 62; PRDSMF ¶ 62. Mr. Brown
testified that Ms. Donovan performed her job with no organization or urgency, and
he realized that her job was more than she could handle. 120 DSMF ¶ 64; PRDSMF ¶
64. During Ms. Donovan’s 2017 medical leave, Mr. Brown and Ms. Hale worked
together to revamp the entire way Nappi ordered and prioritized Ms. Donovan’s job

Ms. Donovan objects to DSMF ¶ 62 for the same reasons as DSMF ¶ 61, and the Court
overrules the objections and admits DSMF ¶ 62 for the reasons explained in the footnote 117.
119
DSMF ¶ 63 provides that “[i]n Ms. Donovan’s role, she was expected to implement process
improvements.” Ms. Donovan denies DSMF ¶ 63, saying the “entire Nappi team was doing things
manually [and a]fter Donovan’s return to work, [she] spoke to Fox about new inventory management
software but Fox said it would have to wait for the new Wine Director.” PRDSMF ¶ 63. Ms. Fox
testified:
118

Q. When you say somebody working at that level, the Wine Purchaser, that’s an
administrative role, right?
A. No. No, it wasn’t an administrative role.
Q. What level was that role?
A. It was a mid management level.
Q. Okay.
A. It was definitely not just administrative.
Q. And in this management level, did [Donovan] have any ability to make decisions
about purchasing new technology or making changes to the processes at Nappi
Distributors?
A. Absolutely. In fact, I even understood from Paul Carr that’s why she was selected.
She had come from a much larger distributor and had presented as – as I understood
from him, you know, the ability to implement improvements.
Fox Dep. at 29:18-30:8. The Court finds that the cited testimony does not support that Ms. Donovan
was expected to implement process improvements. Instead, the record reveals that she was hired with
the understanding that she may possess the skills necessary to do so. The Court therefore omits DSMF
¶ 63.
120
Ms. Donovan denies “that the job was more than she could handle” because she “testified that
she was capable of performing her tasks, but she was told to trust the numbers and not make
independent judgment, and then told to make independent judgment but she knew that would get her
in trouble.” PRDSMF ¶ 64. Ms. Donovan’s objection is beyond the scope of the fact, which asserts
what Mr. Brown testified to be his opinion, not its truth. The Court overrules Ms. Donovan’s objection
and admits DSMF ¶ 64.

43

duties and created formulas to order what was needed more accurately. PSAMF ¶
89; DRPSAMF ¶ 89.
Neither issues with Ms. Donovan’s performance nor Nappi’s wine inventory
management were a “focal point” of Ms. Fox until Ms. Donovan took her leave of
absence in 2017, at which point Ms. Fox began focusing on what Ms. Donovan was
using for “business processes” and “how the job was being done.” 121 PSAMF ¶ 84;
DRPSAMF ¶ 84. Mr. Brown testified that towards the end of her time at Nappi, Ms.
Donovan had become completely incompetent, incapable of thinking outside of the
box, paralyzed, and incapable of really doing much. 122 PSAMF ¶ 92; DRPSAMF ¶ 92.
When Ms. Donovan returned from leave in 2017, she and Ms. Fox discussed
whether Nappi should find new technology or an inventory management system so
that purchase orders were not done manually; Ms. Fox suggested that Ms. Donovan
work with IT and her team to develop process improvements and move towards a
more automated system, but the wine department was under the leadership of Mr.

Nappi qualifies PSAMF ¶ 84, saying “[t]he factual assertions in this paragraph take two
separate lines of testimony out of context. Ms. Fox testified that when Mr. Carr was on board, she did
not focus on the issues surrounding Ms. Donovan’s job performance because Mr. Carr was handling it
in his capacity as Wine Director. She further testified that when Ms. Donovan took a leave of absence
in 2017, Ms. Fox had to go through Ms. Donovan’s computer to ‘find what she was using for business
processes so that in her absence the wine purchasing operations could continue. And that's when a lot
of the sort of fuzzy questions about what was -- how the job was being done became apparent to me
that we were doing things very manually.’” DRPSAMF ¶ 84 (quoting Fox Dep. at 24:10-21). Nappi’s
qualification is beyond the scope of the fact and the Court admits PSAMF ¶ 84.
122
PSAMF ¶ 92 states that “Brown testified that Donovan had become completely incompetent,
incapable of thinking outside of the box, paralyzed, and incapable of really doing much.” Nappi
qualifies PSAMF ¶ 92, saying “[t]he factual assertion is misleading in that Mr. Brown made that
statement referring to Ms. Donovan’s performance ‘toward the end of her time here . . ..’” DRPSAMF
¶ 92. Having considered the relevant record, the Court slightly alters PSAMF ¶ 92 to reflect the
record.
121

44

Brown as Interim Wine Director at that point. 123 PSAMF ¶ 93; DRPSAMF ¶ 93;
DSMF ¶ 68; PRDSMF ¶ 68. Mr. Brown testified that the Wine Purchaser role is
“definitely a complex role and there are a lot of moving parts.”

PSAMF ¶ 99;

DRPSAMF ¶ 99. Ms. Fox did not know whether the volume of sales within the wine
department increased during the period when Mr. Brown and Ms. Masters were
Interim Wine Directors. 124 PSAMF ¶ 100; DRPSAMF ¶ 100.
G.

Helena Donovan’s Work Performance and the Inventory Issues

From 2013 to 2015, wine sales representative Mr. Brown did not have any
issues with how Ms. Donovan was performing her job. PSAMF ¶ 82; DRPSAMF ¶
82.

From 2015 until Mr. Carr retired in 2017, Mr. Brown did not have any

considerable issues with Ms. Donovan’s job performance. PSAMF ¶ 83; DRPSAMF ¶
83. From 2017 through August of 2018, Mr. Brown did not have any issues with how
Ms. Donovan was performing her job. 125 PSAMF ¶ 87; DRPSAMF ¶ 87. Prior to
PSAMF ¶ 93 provides that “[w]hen Donovan returned from leave in 2017, she and Fox
discussed whether Nappi should find new technology or an inventory management system so that
purchase orders were not done manually, but the wine department was without a director at that
point.” Nappi qualifies PSAMF ¶ 93, saying “Ms. Fox testified that she encouraged Ms. Donovan to
work with IT to find business solutions to automate ordering. Further, Mr. Brown served as Interim
Wine Director during that time period.” DRPSAMF ¶ 93. Having reviewed the relevant record, the
Court slightly alters PSAMF ¶ 93 to indicate that Mr. Brown was serving as Interim Wine Director at
the time.
124
PSAMF ¶ 100 provides that “Fox did not know whether the volume of sales within the wine
department was increasing during the time period referenced above.” Nappi qualifies PSAMF ¶ 100,
saying “[i]t is unclear what time period the factual assertion is referencing. Ms. Fox testified that after
Mr. Watson was hired, Nappi was able to carry much less inventory because they were able to order
produce on an as-needed basis so it was not sitting in the warehouse and aging.” DRPSAMF ¶ 100.
Having reviewed the relevant record, the Court adds “when Mr. Brown and Ms. Masters were Interim
Wine Directors” to the fact and admits PSAMF ¶ 100.
125
PSAMF ¶ 87 states that “[f]rom 2017 through August of 2018, Brown did not have any issues
with how Donovan was performing her job.” Nappi denies PSAMF ¶ 87, saying “Mr. Brown testified
that although he initially did not have understanding of logistics and ordering, when Ms. Donovan
was on a leave of absence in 2017, he covered her position along with Valarie Hale, and he felt that he
had been misled by Ms. Donovan and understood that there were serious issues with the way she was
123

45

January 2019, no one told Ms. Donovan that there were any significant jobthreatening issues with her job performance, and if an occasional issue arose, her
manager would ask her to try to avoid it. 126 PSAMF ¶ 315; DRPSAMF ¶ 315.
When Ms. Fox started working at Nappi in September of 2015, the company
was just introducing the GUI interface with its beverage industry-specific software—
to be used in conjunction with the already-existing Legacy system. PSAMF ¶ 72;
DRPSAMF ¶ 72. Prior to that, Nappi used only the Legacy system that Ms. Fox
described as the “green screen” that some people at Nappi still use. 127 Id. When Ms.
Fox first became aware that Nappi had ongoing issues with inventory and wine
purchasing, the wine department was without a director because Mr. Carr had retired

performing her job, categorizing her performance as ‘completely inept.’” DRPSAMF ¶ 87. When asked:
“[a]nd then during that period of time when [Donovan] was the wine purchaser and you were the
interim director, did you have any issues with how [Donovan] was performing her job?”, Mr. Brown
testified: “No, no.” Brown Dep. at 5:22-6:1. Taking the facts in the light most favorable to Ms. Donovan,
PSAMF ¶ 85 is supported by the record and the Court admits PSAMF ¶ 85 over objection.
126
PSAMF ¶ 315 provides that “[p]rior to January 2019 no one had told Donovan that there were
any significant issues with her job performance, if an occasional issue arose her manager would ask
her to try to avoid it.”
Nappi objects to PSAMF ¶ 315 on the ground that the record citation is to “an impermissible
leading question.” DRPSAMF ¶ 315 (citing Robbins v. Small, 371 F.2d 793, 796 (1st Cir. 1967)). In
Robbins, the question was whether in a criminal trial, a state prosecutor’s leading questions to a
witness after the witness had claimed his Fifth Amendment privilege deprived the defendant of his
Sixth Amendment right of confrontation. Robbins has virtually nothing to do with leading questions
by counsel at a deposition in a civil action. The Court overrules the objection pursuant to Federal Rule
of Evidence 611.
Nappi denies PSAMF ¶ 315, saying “Ms. Fox, Nick Nappi, Ian Brown, Ms. Masters, Paul Carr,
Matt Watson, and Valarie Hale all observed significant issues with Ms. Donovan’s performance prior
to 2019 and discussed their concerns with her at length.” DRPSAMF ¶ 315. The Court, having
reviewed the relevant record, accepts Nappi’s denial as a qualification and slightly alters PSAMF ¶
315 to reflect the record.
127
Nappi qualifies PSAMF ¶ 72, saying “Ms. Fox testified that the GUI interface with the VIP
software is used in conjunction with the Legacy system.” DRPSAMF ¶ 72. The Court adds “used in
conjunction with the already-existing Legacy system” and admits PSAMF ¶ 72.

46

and Nappi expected to have a new Wine Sales Director—not Ms. Donovan—
implement new systems. 128 PSAMF ¶ 73; DRPSAMF ¶ 73.
Nappi had “so many issues” within the wine purchasing department aside from
Ms. Donovan that the way the inventory systems were run was not Ms. Donovan’s
“fault.” 129 PSAMF ¶ 74; DRPSAMF ¶ 74. In 2016, Nappi did not have a receiving
manager helping Ms. Donovan track what inventory came into the warehouse; nor
did Nappi have a manager overseeing or tracking which wines were selected for
orders—other than Nick Nappi, the director of operations. 130

PSAMF ¶ 78;

DRPSAMF ¶ 78. Nappi did not have a permanent Wine Sales Director, whom Nappi
expected to implement new inventory management systems, for over a year, PSAMF

Nappi denies PSAMF ¶ 73, saying “[t]he record citation does not support the assertion that a
new Wine Sales Director was expected to implement new systems . . . [and] Ian Brown was acting as
interim Wine Sales Director upon Carr’s retirement.” DRPSAMF ¶ 73. Ms. Fox testified: “You know,
I think we were looking to, you know, have new systems as part of when we hired a new Wine Sales
Director.” Fox Dep. 17:5-8. The Court concludes that the fact is supported by the record, finds Nappi’s
qualification beyond the scope of the fact, and admits PSAMF ¶ 73.
129
PSAMF ¶ 74 provides that “Nappi had ‘so many issues’ within the wine purchasing
department, aside from [Ms.] Donovan, and the inventory systems were not [Ms] Donovan’s ‘fault.’”
Nappi qualifies PSAMF ¶ 74, saying “Ms. Fox testified that Ms. Donovan had not adopted her
processes at all, which Ms. Fox found surprising given that Ms. Donovan had been in the position for
four years at that point. Ms. Fox further testified that Ms. Donovan’s system demonstrated why there
were so many issues in the wine purchasing department.” DRPSAMF ¶ 74. The Court finds Nappi’s
qualifications largely beyond the scope of the fact, but slightly alters PSAMF ¶ 74 to reflect the
relevant record.
130
Nappi qualifies PSAMF ¶ 78, saying “Ms. Fox testified numerous times in the record citation
that she does not recall the exact inventory management processes in place in 2016. Further, she
stated that Ms. Donovan was tasked with monitoring inventory. When asked whether there is a
current member of management working in the warehouse to track inventory, Ms. Fox responded no.”
DRPSAMF ¶ 78. Nappi’s qualification is beyond the scope of the fact and the Court admits PSAMF ¶
78.
128

47

¶ 79; DRPSAMF ¶ 79, as Mr. Carr left in June of 2017 and Mr. Watson joined Nappi
in August of 2018. 131 Id.
Before he retired in 2017, Wine Sales Director Mr. Carr was working together
with Ms. Donovan and “the whole team” to improve inventory processes; Mr. Carr
referred to the operations people complaining about inventory as “drama queens.” 132
PSAMF ¶ 80; DRPSAMF ¶ 80. However, when Mr. Carr retired, his absence revealed
obvious inventory issues in the wine department. 133 DSMF ¶ 53; PRDSMF ¶ 53.
Mr. Brown determined that Ms. Donovan was performing all ordering
alphabetically, which in his view, meant that it might be quite some time before an
out-of-stock order was addressed. 134 DSMF ¶ 65; PRDSMF ¶ 65. While Nappi was
transitioning into a new program to track wine inventory and sales, Mr. Brown
thought that Ms. Donovan and the wine department’s method of by-the-glass

PSAMF ¶ 79 provides that “Nappi did not have a full time Wine Sales Director, which the
company expected to implement new inventory management systems, for over a year. Carr left in
June of 2017 and Watson joined Nappi in August of 2018.”
Nappi qualifies PSAMF ¶ 79, saying “Brown served as Interim Wine Director after Carr
retired up until Watson was hired.” Having reviewed the relevant record, the Court adds to PSAMF
¶ 79 to reflect the full record.
132
Nappi qualifies PSAMF ¶ 80, saying “Ms. Fox testified that Mr. Carr was working with Ms.
Donovan to try to fix issues, and that he used the term “drama queens” privately out of frustration to
refocus people on problem solving.” DRPSAMF ¶ 80. Nappi’s qualification is beyond the scope of the
fact and the Court admits PSAMF ¶ 80.
133
Ms. Donovan qualifies DSMF ¶ 53, saying she “[a]dmit[s] there were inventory issues that
were department wide and not singularly attributable to Donovan” and that “Nappi has since invested
in inventory management software.” PRDSMF ¶ 53. Ms. Donovan’s qualification is beyond the scope
of the fact and the Court admits DSMF ¶ 53.
134
DSMF ¶ 65 states “Mr. Brown determined that Ms. Donovan was performing all ordering
alphabetically, which meant that it would be quite some time before an out-of-stock order was
addressed.” Ms. Donovan denies DSMF ¶ 65, saying she “testified her old ordering process forced her
to look at the entire portfolio and the number of orders she placed daily or weekly depended on the
needs at the time.” PRDSMF ¶ 65. The Court accepts Ms. Donovan’s denial as a qualification and
slightly alters DSMF ¶ 65 to confirm that this fact reflects Mr. Brown’s opinion, not a fact, and to
indicate that it might have been, not necessarily was, quite some time before an out-of-stock order was
addressed.
131

48

ordering was outdated and was creating impossible tasks for salespeople as Nappi
sometimes did not have the product they needed to sustain supplier programs leading
to out of stocks. 135 DSMF ¶ 66; PRDSMF ¶ 66. The out-of-stock issues that existed
DSMF ¶ 66 provides that “Ms. Donovan’s method of by-the-glass ordering was outdated and
was creating impossible tasks for salespeople, as it sometimes meant that Nappi did not have the
product they needed to sustain supplier programs and led to out of stocks.”
Ms. Donovan denies DSMF ¶ 66, saying “[i]n 2020 Nappi implemented a new program in the
wine department called iDig through VIP that was previously used by the beer department that allows
sales representatives to see what product has been ordered, when it is expected to arrive, the quantity
they can allocate to a customer, which makes it easier for the sales team to have visibility into the
inventory.” PRDSMF ¶ 66. Ms. Donovan “testified that one of the issues the sales team had was
generated because they didn’t have access to the correct system to give them visibility into inventory
for out of stock items, special order items etc.” Id.
135

Mr. Brown testified:
Q. Okay. Did you understand with respect to forecasting by the glass notifications,
that [Hale] thought [Donovan] should be doing it by running sales reports as opposed
to the way she was doing it currently?
A. Yes, I mean [Hale] had much more efficient or had ideas about much more efficient
processes to do forecasting and by the glass notifications. [Donovan]’s by the glass
specifically was archaic. It was impossible -- it was an impossible ask for the
salespeople. It would have been really difficult even for the best purchaser to go
through and she was creating a task for herself that really accomplished nothing and
made no sense to anybody.
Q. Okay. So you understand that [Hale] felt [Donovan]’s use of the allocate program
was not efficient, and instead, she should be generating sales reports?
A. Yes, yeah, and that was really just the beginning of what we were starting to
develop, but yes, that we had to start somewhere because what was in place was not
working at all.
Q. Okay. And then the received item notifications, [Hale] provided that [Donovan]
was sending out a generalized list that she was just typing out each day and she
thought that it should be replaced with a simple report. Did you understand that?
A. Yes. Well, we wanted to see not only received items, but also ETAs on particular
items. We were looking to flesh it out more and to get more information that was
valuable. Items received is important. It’s important to know as a salesperson what
comes in on any given day or week, but we also thought more information regarding
ETAs, what was on order, when it was ordered, to help with salespeople forecasting to
their accounts was important as well.
Q. My understanding is that this system VIP would have provided visibility into all of
these things such as received items, ETAs, what's been ordered, what’s out of stock,
that sort of thing. If salesmen had visibility into VIP, wouldn’t it have made it so that
nobody -- so that this was a void function?
A. Well, it definitely has now and that’s a tool that the salespeople possess. I can’t
really speak to the evolution of VIP and what was available and when. It’s definitely
something that I don’t think [Donovan] was very capable at navigating. Her VIP and
Excel skills paled in comparison to what [Hale] was able to generate. You are correct,

49

when Ms. Donovan was Wine Buyer were not caused exclusively by supply issues,
but rather in part by her ordering methods. 136 DSMF ¶ 67; PRDSMF ¶ 67. Ms. Fox
does not know whether the alphabetical system Ms. Donovan used to manage

salespeople do have more tools at their disposal, but I think that was part of an
evolution within VIP. I don’t remember at that time what was and what was not
available, but like any industry, we have evolved with what we have been able to
provide to our salespeople. And there is also an expense to it that you have to consider
as well, so -Brown Dep. 62:18-64:20. Joline Masters testified that the Nappi wine department implemented iDig
software through VIP in 2020. Nappi R., Attach 16, Dep. of Joline Masters at 18:19-19:4 (Masters
Dep.).
Having reviewed the relevant record, the Court finds that the cited record does not show that
Ms. Donovan was using more “outdated” methods to generate sales reports than others in the wine
department. Instead, it indicates that the entire wine department was relying on outdated methods
until Nappi implemented the use of iDig through VIP in 2020. The Court accepts Ms. Donovan’s denial
as a qualification and slightly alters DSMF ¶ 66 to reflect the full record.
136
DSMF ¶ 67 states that the “out-of-stock issues that existed when Ms. Donovan was Wine Buyer
were not caused by supply issues, but rather by Ms. Donovan’s ordering methods.” Ms. Donovan denies
DSMF ¶ 67, saying “[o]ut of stocks occurred intermittently and continue to occur at Nappi with [Ms.]
Hale purchasing,” and Mr. Watson “testified that out-of stocks are not a good measure of performance
for a job like [Ms.] Donovan’s because there are so many variables that are mostly attributable to the
supplier.” PRDSMF ¶ 67
When asked whether there was “an issue with supply at the time or was is simply that [Ms.
Donovan] didn’t order enough,” Ms. Masters testified: “I think it was more that it wasn’t ordered
enough.” Masters Dep. at 14:11-14. Mr. Carr testified that “[i]n fact, we ran out of certain wines many
times because of her lack of experience.” Additional Nappi R., Attach 1, Decl. of Paul Carr ¶ 12 (Carr
Decl.). Ms. Fox testified:
Q. . . . You understand that there is some out of stock that is not in [Ms. Donovan]’s
control, some that are not.
A. Correct.
Q. – because the supplier doesn’t have the product or doesn’t deliver it?
A. There’s a lot of variables, yes.
Okay. And the out of stock that is in [Ms. Donovan]’s control, there’s a way for
management to kind of look at what is and what isn’t in her control, right?
A. Situationally, I think. There’s not like a report that you can run that shows a
distinction between the two.
Q. Is there a way to run a report that shows you what the out of stocks are and then
you can kind of individually go through and work out what is and is not in [her] control?
A. Well, I think that’s what the department was doing on a regular basis, and you
know, one of the reasons they developed some new tools to – so that she could try, you
know, ordering differently than what she had been doing . . ..
Masters Dep. at 165:22-166:17. Based on a complicated factual background, the Court concludes that
the record does not support the fact that the stock issues were caused exclusively by Ms. Donovan’s
ordering methods, accepts Ms. Donovan’s denial as a qualification, and alters DSMF ¶ 67 to reflect the
record.

50

inventory and purchasing was the same system that Mr. Houle had used when he
worked in Ms. Donovan’s role. 137 PSAMF ¶ 71; DRPSAMF ¶ 71. However, Mr. Brown
testified that Ms. Donovan was ordering excessively on direct import containers that
were unnecessary, meaning that Nappi had hundreds, and sometimes thousands, of
unnecessary inventory items while other products were out of stock. 138 DSMF ¶ 70;
PRDSMF ¶ 70.

Ms. Donovan’s alphabetical system was not saving Nappi any

money. 139 DSMF ¶ 71; PRDSMF ¶ 71. In Mr. Brown’s opinion, Ms. Donovan’s
method of alphabetical ordering was “completely absurd and it explained really the
lack of urgency and ability to prioritize.” 140 DSMF ¶ 75; PRDSMF ¶ 75. Ms. Fox
testified that she did not think that the continuous improvement projects within the
wine department were the result of issues with Ms. Donovan’s performance; instead,
they were just frustrations that the department needed to work on. 141 PSAMF ¶ 81;

Nappi qualifies PSAMF ¶ 71, saying “Ms. Fox testified that she did not know because she was
not at Nappi when Mr. Houle conducted the purchasing.” DRPSAMF ¶ 71. Nappi’s objection is beyond
the scope of the fact and the Court admits PSAMF ¶ 71.
138
Ms. Donovan qualifies DSMF ¶ 70, saying “[i]nventory levels were not a good measure of
performance.” PRDSMF ¶ 70. Ms. Donovan’s objections are beyond the scope of the fact and the Court
admits DSMF ¶ 70.
139
Ms. Donovan denies DSMF ¶ 71, saying “[t]he manual ordering process was not [Ms.]
Donovan’s fault [, and Mr.] Brown testified that Nappi did not update its inventory system because of
cost.” PRDSMF ¶ 71. Ms. Donovan’s objections beyond the scope of the fact and the Court admits
DSMF ¶ 71.
140
DSMF ¶ 75 states that “Mr. Brown emphasized that Ms. Donovan’s method of alphabetical
ordering was ‘completely absurd and it explained really the lack of urgency and ability to prioritize.’”
Ms. Donovan admits that Mr. Brown “testif[ied] as such,” but “den[ies] that it was a reflection of [Ms.]
Donovan’s performance.” PRDSMF ¶ 75. The Court accepts Ms. Donovan’s denial and alters DSMF
¶ 75 to clarify that this fact reflects Mr. Brown’s opinion.
141
PSAMF ¶ 81 provides that “Nappi did not view the continuous improvement projects within
the wine department (including ordering, receiving, and selecting) as issues with Donovan’s
performance, it was just a matter of frustrations that the department needed to work on.” Nappi
qualifies PSAMF ¶ 81, saying “[t]he record citation does not support the factual assertion that the
continuous improvement projects to which Ms. Fox was referring were ordering, selecting, and
receiving. Further, Nappi says that the record citation does not support any contention about Nappi’s
views, as Ms. Fox testified: ‘I don’t think so.’” DRPSAMF ¶ 81.
137

51

DRPSAMF ¶ 81. Nappi never looked into having a consultant come in to create a
new inventory management system because “it wasn’t a huge issue at that point.”142
PSAMF ¶ 70; DRPSAMF ¶ 70.
Before Matt Watson joined Nappi and for a time thereafter, Ms. Masters would
frequently sit with Ms. Donovan ahead of incentive programs and instruct her on
what to stock. 143 DSMF ¶ 69; PRDSMF ¶ 69. According to Ms. Masters, Ms. Donovan

Ms. Fox testified:
Q. Okay. That one that you're referring to there on the wine on the -- on the floor, was
that an issue related to Helena’s performance?
A. I'm sorry, the one on the floor? Oh, the point of sale? I don't think so. You know,
I don’t -- I don’t think it was -- again, this -- I -- I don’t think we were looking at any of
these continuous improvement projects as her performance; it was just frustrations
that we needed to work on.
Fox Dep. at 80:23-81:7. The Court concludes that the record supports PSAMF ¶ 81 only in part, alters
PSAMF ¶ 81 to reflect the record, and admits the fact.
142
Nappi denies PSAMF ¶ 70 as unsupported by the record. DRPSAMF ¶ 70. To the contrary,
the asserted fact is substantially supported by the cited record and the Court admits PSAMF ¶ 70.
143
DSMF ¶ 69 states that “Joline Masters, who is the key account wine manager at Nappi, would
frequently sit with Ms. Donovan ahead of incentive programs and instruct her on what to stock.” Ms.
Donovan denies DSMF ¶ 69, saying “the communications stopped . . . gradually with Masters, but
there was a definite shift where Masters no longer gave any guidance.” PRDSMF ¶ 69.
Ms. Masters testified that she and Ms. Donovan “had the conversations about multiple
different wines, you know, in general based on the programming.” Masters Dep. at 14:4-6. She further
testified:
Well, like I said, if there’s a program . . . we would try to sit down with her and say,
hey, Helena, we have this Cupcake program coming on, you know, in the next month
or so, and you might want to look at – we literally would go through and look at, okay,
there’s four different types of varietals of wine . . . let’s go heavy on those . . . I think,
you know, it definitely was something that, you know, we tried to help her as much as
possible to give her that information that she needed because I think at first it was
starting out as emails . . . [a]nd then we were going to her physically and sitting down
with her.
Id. at 14:18-15:11. Ms. Donovan testified:
Q. Did – in terms of Joline [Masters], did she – as soon as Matt Watson came on board,
did she cut you out of communications at that point as well?
A. No. I’d say Joline [Masters] was not quite as instant. There was a definite shift
with the monthly meeting where she would previously talk to me about inventory

52

was unable to think outside of the box, took frequent smoke breaks, and did not put
in extra hours during peak seasons. 144 DSMF ¶ 72; PRDSMF ¶ 72. On one occasion,
Ms. Donovan and the wine team failed to put in a purchase order in a timely manner
on an exciting program for Nappi’s largest independent retailer; as a result, the
product did not arrive in time, and the substitute was insufficient leading Nappi to
lose the program. 145 DSMF ¶ 73; PRDSMF ¶ 73. Ms. Masters testified that from
June of 2017 to June of 2018, she observed Ms. Donovan doing her job, but it was
later during that period that she figured out that Ms. Donovan could have done things

issues, previously give me guidance on certain things, and from one very specific
meeting on had nothing to say to me, no guidance, no conversation, nothing. And that’s
pretty much the way it stayed with Joline.”
Donovan Dep. at 218:9-18. The Court accepts Ms. Donovan’s denial as a qualification and slightly
alters DSMF ¶ 69 to reflect that the regular meetings between Ms. Masters and Ms. Donovan took
place only until Mr. Watson joined the wine department.
144
Ms. Donovan denies DSMF ¶ 72, saying Hale took frequent smoke breaks as well, but her
performance was not criticized for doing so. Ms. Donovan’s objections are beyond the scope of the fact
and the Court admits DSMF ¶ 72.
145
DSMF ¶ 73 states that “[o]n one occasion, Ms. Donovan failed to put in a purchase order in a
timely manner on an exciting program for Nappi’s largest independent retailer; as a result, the product
did not arrive in time, and the substitute was insufficient causing Nappi to lose the program.”
Ms. Donovan denies DSMF ¶ 73, saying:
Brown testified that he had given Donovan notice of the need months in advance
because there was a wait time to get wine from California because Nappi didn’t have
any of the wine in inventory because they didn’t regularly sell it. After looking at the
email document, Brown changed his testimony to reflect that Nappi did have wine for
the RSVP program but needed to order additional wine because Nappi sells 9-12 cases
regularly. He also changed his testimony that it took four weeks to get in as he told
[Donovan] it would take 5 weeks. [Donovan] also did not receive notice months in
advance, she needed to order the product that day to hopefully get it in in time.
PRDSMF ¶ 73. Having reviewed the record, the Court finds there is some ambiguity surrounding
when Ms. Donovan was instructed to order the wine and how many weeks the wine would take to
arrive. Taking the facts in the light most favorable to Ms. Donovan, the Court accepts her denial as a
qualification and alters DSMF ¶ 73 to reflect the full record.

53

a little differently as the wine purchaser. 146 PSAMF ¶ 102; DRPSAMF ¶ 102. Ms.
Masters provided, as an example of Ms. Donovan’s deficiencies during that time, that
rosés were a big issue because the wine type had gone from being a seasonal, summer
thing to more of an annual-type varietal, so Ms. Donovan should not have looked to
history from the prior year to determine ordering. 147 PSAMF ¶ 103; DRPSAMF ¶
103. During that period, Ms. Masters does not recall anyone specifically stating they
were unhappy with Ms. Donovan’s job performance, an issue they were all trying to
work on together. 148 PSAMF ¶ 104; DRPSAMF ¶ 104. Ms. Masters believes Ms.

PSAMF ¶ 102 provides that “[Ms.] Masters testified that from June of 2017 to June of 2018
she observed [Donovan] was doing her job and it was not until later that she figured out that [Donovan]
could have done things a little differently as the wine purchaser.” Nappi denies PSAMF ¶ 102, saying
“[t]he record citation states that Ms. Masters determined within that time period from June 2017
through June 2018 that there were areas in which Ms. Donovan could have done her job differently to
improve.” DRPSAMF ¶ 102.
When asked whether Ms. Donovan was doing her job from June 2017 to June 2018, Ms.
Masters testified: “So, yeah, I mean I definitely did see some things that, you know, she – you know,
seeing her how – some parts of how she was doing her job. But it really was not until probably a lot
later within the year did I figure out as far as, you know, some things that maybe she could have done
a little differently to help her position, and, you know – yes.” Masters Dep. at 10:13-19. The Court
alters PSAMF ¶ 102 to reflect the record.
147
Nappi qualifies PSAMF ¶ 103, saying “Ms. Masters testified that ordering rosés required an
understating of the programs, and that despite Ms. Master[s] advising Ms. Donovan on what to order,
she still did not order sufficient quantities or would order too much, so Nappi ended up with excess
product or out-of-stocks. This left Nappi with another problem: determining how to move excess
product.” DRPSAMF ¶ 103. Nappi’s qualification are beyond the scope of the fact and the Court
admits PSAMF ¶ 103.
148
PSAMF ¶ 104 provides that “[d]uring the June 2017 to June 2018 period, Masters does not
recall anyone stating they were unhappy with Donovan’s job performance.” Nappi denies PSAMF ¶
104, saying “[t]he record citation indicates that Ms. Masters heard from the entire management team
that Ms. Donovan’s performance was an issue to solve, but could not remember specific conversations
from somebody who was not in management.” DRPSAMF ¶ 104. Ms. Masters testified:
146

Q. Okay. In that first year did you hear from anybody in management that they
weren’t happy with [Ms. Donovan]’s performance?
A. Did I hear from anybody? I think, you know, it definitely was something we all
were trying to work together to make sure the team was, you know, being as efficient
as possible. So I think we were -- there was definitely comments that people were like,
you know, how can we help her, you know -- you know, maybe we need to sit down.
That was something that would transpire from -- from the issues that we were seeing.

54

Donovan struggled with her job performance because of deficiencies in Excel, 149
PSAMF ¶ 148; DRPSAMF ¶ 148, and believes Ms. Hale was the one who helped Ms.
Donovan with Excel. PSAMF ¶ 149; DRPSAMF ¶ 149.
Mr. Brown believed that Ms. Donovan did not have a good handle on industry
trends. 150 DSMF ¶ 74; PRDSMF ¶ 74. In early 2018, Mr. Brown, then the interim
wine director, had meetings with Ms. Donovan on a near-daily basis to address what
he considered to be issues around purchasing and out-of-stocks and to discuss the
need, in his view, for Ms. Donovan to use tools to grow her role and improve. 151 DSMF
¶¶ 76-77; PRDSMF ¶¶ 76-77.
When Mr. Watson was hired as the Director of Wine Sales at Nappi on August
1, 2018, DSMF ¶ 78; PRDSMF ¶ 78, Ms. Donovan’s daily meetings with Mr. Brown

Q. Okay. And did you hear anybody that wasn't a member of management but was
an employee at Nappi say they were unhappy with [Ms. Donovan]'s job performance
in that first year?
A. I don't remember that part. I don't remember anybody specifically.
Masters Dep. at 15:25-16:16. The Court accepts Nappi’s denial as a qualification and alters PSAMF ¶
104 to reflect the record.
149
Nappi objects to PSAMF ¶ 148, saying: “Ms. Masters also testified that Ms. Donovan was
absent from her desk a lot, that she was not able to think outside of the box, and that she did not seem
to put in extra work during busy times.” DRPSAMF ¶ 148. Nappi’s objection is beyond the scope of
the fact and the Court admits PSAMF ¶ 148.
150
Ms. Donovan admits that Mr. Brown “testified as much” but “den[ies] that it was true.”
PRDSMF ¶ 74. Ms. Donovan’s objection is beyond the scope of the fact, which asserts what Mr. Brown
testified to be his opinion, not the truth of his opinion. The Court overrules Ms. Donovan’s objection
and admits DSMF ¶ 74.
151
DSMF ¶ 76 provides that “[i]n early 2018, Mr. Brown had discussions with Ms. Donovan
concerning the need for Ms. Donovan to improve and utilize tools to grow her role.” DSMF ¶ 77
provides that “Mr. Brown, who was then the interim wine director, was meeting with Ms. Donovan on
a near-daily basis to address issues around purchasing and out-of-stocks.” Ms. Donovan admits that
these meetings occurred but denies DSMF ¶¶ 76-77, saying “[Ms.] Fox testified that the lack of systems
was not an issue with [Ms.] Donovan’s performance and was an issue for the entire department.”
PRDSMF ¶¶ 76-77. The Court accepts Ms. Donovan’s denials as qualifications and slightly alters
DSMF ¶¶ 76-77 to indicate that the statement reflects Mr. Brown’s opinion as to why he was holding
the meetings.

55

stopped as Mr. Watson worked directly with purchasing. DSMF ¶ 79; PRDSMF ¶ 79.
Ms. Hale changed Nappi’s ordering process from an alphabetical system to an asneeded system soon after Mr. Watson’s hiring. 152 DSMF ¶ 80; PRDSMF ¶ 80. Shortly
after he started, Mr. Watson noted issues with Ms. Donovan’s performance and the
wine department’s performance more generally; namely, overstock product and a lot
of out-of-stock inventory, causing him to become concerned about Ms. Donovan’s
ability to perform her job duties. 153 DSMF ¶ 81; PRDSMF ¶ 81. Mr. Watson could
tell that there were significant operational issues and discussed with Mr. Brown how
to improve things and help Ms. Donovan improve her work performance. 154 DSMF ¶
82; PRDSMF ¶ 82. Mr. Watson, the new—as opposed to old—Sales Director, was the
person responsible for “driving” process improvements within that department and

DSMF ¶ 80 states that “Mr. Watson changed Nappi’s ordering process from an alphabetical
system to an as-needed system soon after he was hired.” Ms. Donovan denies DSMF ¶ 80, saying
“Hale changed the system . . . [and] testified Donovan provided all of the information for the formulas
used in the new system.” PRDSMF ¶ 80.
Ms. Donovan testified that the system “got changed – timewise it would have been 2018. No
specific month I could give you. Basically after Watson had joined.” Donovan Dep. at 78:1-3. Ms. Hale
testified that “[w]hile Helena [Donovan] was out, I crafted a spreadsheet that could get me to the
information I need – needed at the time to be able to order product in her absence. So when she
returned, she opted to use my version rather than going back to the one that she was using previously
. . . [and later] we got together as a group and put some time and effort into rethinking that process
and making it much more efficient.” V. Hale Dep. at 31:23-32:12. The Court accepts Ms. Donovan’s
denial as a qualification and changes DSMF ¶ 80 to indicate that Ms. Hale, not Mr. Watson, changed
Nappi’s ordering process.
153
DSMF ¶ 81 provides that “[s]hortly after he started, Mr. Watson noted issues with Ms.
Donovan’s performance; namely, overstock product and a lot of out-of-stocks, causing him to become
concerned about Ms. Donovan’s ability to perform her job duties.” Ms. Donovan qualifies DSMF ¶ 81,
admitting “that there were inventory issues,” but saying the “issues were not specific to Donovan and
were department wide.” PRDSMF ¶ 81. Having reviewed the relevant record, the Court slightly alters
DSMF ¶ 81 to reflect the full record.
154
Ms. Donovan qualifies DSMF ¶ 82, saying “[t]here were operational issues but Fox testified
that the lack of systems was not an issue with Donovan’s performance and was an issue for the entire
department.” PRDSMF ¶ 82. Ms. Donovan’s qualification is beyond the scope of the fact and the Court
admits DSMF ¶ 82.
152

56

automated multiple business processes in his role as a “leader” at Nappi. 155 PSAMF
¶ 106; DRPSAMF ¶ 106. Nappi still hasn’t determined the “right direction” for
automating inventory management and purchase orders; it’s not something that
“happens overnight,” and Nappi is “still exploring” the issue with the “whole division”
of wine sales. 156 PSAMF ¶ 107; DRPSAMF ¶ 107.
Ms. Donovan initially attended sales meetings after Mr. Watson joined
Nappi, 157 DSMF ¶ 104; PRDSMF ¶ 104, and was initially expected to attend the wine
team management meetings. 158 DSMF ¶ 105; PRDSMF ¶ 105. In time, however, Ms.
Donovan was either told not to come to the monthly management meetings or her
attendance was discouraged by Nappi. 159 PSAMF ¶ 396; DRPSAFM ¶ 396. In Mr.

Nappi qualifies PSAMF ¶ 106, saying the “Defendant objects to the use of the word, ‘new.’ Mr.
Watson has been the Director of Wine Sales at Nappi since August of 2018.” DRPSAMF ¶ 106. The
Court overrules Nappi’s objection, noting that “new” is in reference to the former director having left,
and the facts already include when Mr. Watson started his employment at Nappi, which will prevent
any confusion as to what “new” means here. Nevertheless, the Court slightly amended PSAMF ¶ 106
to clarify that “new” is as opposed to the “old” director.
156
Nappi qualifies PSAMF ¶ 107, saying “[t]he testimony is taken out of context. The record
citation does not support the assertion that Nappi has not ‘figured out’ what the right direction is for
automating inventory.” DRPSAMF ¶ 107. To the contrary, the relevant record supports the asserted
fact and the Court admits PSAMF ¶ 107.
157
DSMF ¶ 104 states that “Ms. Donovan attended sales meetings after Mr. Watson joined
Nappi.” Ms. Donovan qualifies DSMF ¶ 104, saying she “was excluded from these meetings and
reported it to Fox in January of 2019.” PRDSMF ¶ 104. Having reviewed the relevant record, the
Court slightly alters DSMF ¶ 104 to reflect the record.
158
Ms. Donovan denies DSMF ¶ 105, saying she “was excluded from these meetings and reported
it to Fox in January of 2019.” PRDSMF ¶ 105. Again, the Court accepts Ms. Donovan’s denial as a
qualification and slightly alters DSMF ¶ 105 to reflect the record.
159
PSAMF ¶ 396 states that “[a]fter Watson became Wine Director, the wine department held
monthly management meetings that Donovan was told not to attend.” Nappi denies the fact, saying
“Mr. Brown testified that he was not aware of anyone telling Ms. Donovan she was not allowed to
attend the monthly management meetings. He went on to state that he ‘can’t imagine Matt [Watson]
would have said that [she wasn’t] allowed to come.’” DRPSAMF ¶ 396. Although Nappi accurately
quotes a portion of Mr. Brown’s deposition testimony, Nappi omits Mr. Brown’s acknowledgement that
Ms. Donovan was not present at the monthly management meetings and his statement that the reason
she was not there was “more that she just wasn’t bringing any useful information to those meetings,”
that she “wasn’t coming prepared,” and “it wasn’t necessary that she was there because she wasn’t
proving any information that was useful.” Brown Dep. 93:7-16. There are two problems with Nappi’s
155

57

Brown’s opinion, Ms. Donovan did not come to monthly management meetings
prepared, nor did she contribute to the meetings in a useful way. PSAMF ¶ 397;
DRPSAMF ¶ 397.
altogether. 160,

161

By January 2019, she was excluded from the meetings

DSMF ¶ 106; PRDSMF ¶ 106. Ms. Donovan did not attend the

monthly management meetings because the team felt her presence was not necessary
and that she was not bringing anything to the table. PSAMF ¶ 396; DRPSAMF ¶
396.

Although Nappi states that information discussed during meetings was

conveyed to Ms. Donovan through other communications, Ms. Donovan states that
communication from Mr. Watson, Mr. Brown, and Ms. Masters stopped beginning
January 2019. 162 DSMF ¶ 107; PRDSMF ¶ 107.

denial. First, Mr. Brown said that the conversation would have been between Matt Watson and Ms.
Donovan and, second, the remainder of his answer assumes that someone either told Ms. Donovan not
to come or that she received a strong message that she was not wanted at the monthly meeting. The
Court declines to accept Nappi’s denial.
160
Ms. Donovan denies DSMF ¶ 106, saying she “was excluded from these meetings and reported
it to Fox in January of 2019.” PRDSMF ¶ 106. The Court accepts Ms. Donovan’s denial as a
qualification and slightly alters DSMF ¶ 106 to confirm that DSMF ¶ 106 reflects Mr. Brown’s opinion
about the reason she was not present at the management meetings.
161
DSMF ¶ 102 provides that “Ms. Donovan’s performance issues were still present in January
2019, and therefore Mr. Watson began regular (weekly, sometimes daily) meetings with Ms. Donovan
to go over inventory.” Ms. Donovan denies DSMF ¶ 102, saying “[o]n January 16, 2019, Donovan
reported to Fox that she had been excluded from team meetings, no one goes to her about inventory,
and that she infrequently meets with Watson,” and “[o]n March 15, 2019 Donovan reported to Fox
that there was no communication from Watson besides hello and goodbye, she was excluded from team
meetings, that there was no communication from Watson, Brown or Masters.” PRDSMF ¶ 102.
Ms. Donovan’s cited record shows that as of January 16, 2019, Ms. Donovan was being
excluded from team meetings and had minimal communication with her team. Fox Dep., Ex. 8,
January 16, 2019 Notes (Page ID #928). As the Court is required to view contested facts in the light
most favorable to Ms. Donovan, the Court finds that DSMF ¶ 102 is not supported by the record and
omits the asserted fact.
162
DSMF ¶ 107 states that “[i]nformation discussed during meetings was conveyed to Ms.
Donovan through other communications.” Ms. Donovan denies DSMF ¶ 107, saying she “reported to
Fox that communication from Watson, Brown and Masters had stopped beginning in January of 2019
and again in March of 2019.” PRDSMF ¶ 107.
Mr. Brown testified that the information discussed in the meetings “was definitely
communicated to [Donovan]. By no means were those meetings the only time at which those issues
were discussed.” Brown Dep. at 94:4-10. Ms. Donovan reported to Ms. Fox in January and March of

58

The staff and management of the Wine Department became frustrated with
Ms. Donovan’s performance and the lack of visibility into the inventory system. 163
DSMF ¶ 98; PRDSMF ¶ 98. Ms. Donovan received what she considered unwarranted
complaints about her performance from Mr. Watson, John Kiely, Terry O’Brien, Nick
Nappi, and other salespeople. 164 DSMF ¶ 99; PRDSMF ¶ 99. Ms. Donovan admitted
that she made mistakes at work and could have performed her job better. DSMF ¶
100; PRDSMF ¶ 100. Despite this, she testified that none of the criticism she received
was valid. DSMF ¶ 101; PRDSMF ¶ 101. Nappi’s management ultimately chose to
offload some of Ms. Donovan’s work. 165 DSMF ¶ 103; PRDSMF ¶ 103.

2019 that she was receiving little to no communication from her team. Fox Dep., Ex. 6, March 15,
2019 Notes, (Page ID # 928); id., Ex. 8, January 16, 2019 Notes (Page ID #930). Taking the facts in
the light most favorable to Ms. Donovan, the Court accepts Ms. Donovan’s denial as a qualification
and alters DSMF ¶ 107 to conform to the record.
163
DSMF ¶ 98 provides that “[t]he staff and management of the Wine Department became
frustrated with Ms. Donovan’s performance.” Ms. Donovan denies DSMF ¶ 98, saying “[Ms.] Donovan
provided that the difficulty with sales representatives is they didn’t have visibility into the inventory
system which caused frustration for them.” PRDSMF ¶ 98. The Court accepts Ms. Donovan’s denial
as a qualification and slightly alters DSMF ¶ 98 to reflect the record.
164
DSMF ¶ 99 states that “Ms. Donovan admitted that she received complaints about her
performance from Mr. Watson, Mr. Brown, John Kiely, Terry O’Brien, Nick Nappi, and other
salespeople.” Ms. Donovan denies DSMF ¶ 99, saying that she “provided that the difficulty with sales
representatives is they didn’t have visibility into the inventory system which caused frustration for
them.” PRDSMF ¶ 99. When asked whether people other than Mr. Watson and Ms. Hale “made
unwarranted criticisms about [her] job performance,” Ms. Donovan testified “some of the sales team .
. . [s]pecifically, the on-premise salespeople which was John Kiely and Terry O’Brien . . . and I would
say Nick Nappi.” Donovan Dep. at 187:12-19; 189:6-10. DSMF ¶ 99 is partially supported by the
record and the Court alters DSMF ¶ 99 to reflect the record.
165
DSMF ¶ 103 provides that “Nappi’s management had to offload quite a bit of Ms. Donovan’s
work for her, at Ms. Donovan’s request.” Ms. Donovan denies DSMF ¶ 103, saying “[i]t was not at
Donovan’s request.” PRDSMF ¶ 103. Ms. Donovan testified:
Q. During the time period that Watson was your supervisor, was there ever a sort of
shifting of job responsibilities to take some things off your plate?
A. Yes.
...
Q. And the things that were moved off your plate to sort of give you some room to do
some of the things you needed to get done, who took on those responsibilities?
A. There were two suppliers that were moved over to [Hale].

59

Ms. Donovan struggled with effective communication, particularly with
stakeholders, supplier representatives, and the warehouse operations manager. 166
DSMF ¶ 88; PRDSMF ¶ 88. Ms. Donovan regularly asked Ms. Hale for assistance in
performing her job duties. 167 DSMF ¶ 89; PRDSMF ¶ 89. Ms. Hale was frustrated
with the reactive way that Ms. Donovan generated purchasing orders, because it was
cumbersome, disorganized, and difficult to manage. 168 DSMF ¶ 90; PRDSMF ¶ 90.
At times, many of Ms. Donovan’s regular work responsibilities were reallocated to
allow Ms. Donovan to “get her head above water.” 169 DSMF ¶ 91; PRDSMF ¶ 91. Ms.
...
Q. And did you welcome that sort of reassignment of those two suppliers?
A. No, I didn’t welcome it. I – it had a benefit, but, no, I wasn’t happy about it.
Donovan Dep. at 143:13-144:6. Taking the facts in the light most favorable to Ms. Donovan, the Court
finds that PRDSMF ¶ 103 is only partially supported by the record and alters the fact to reflect the
full record.
166
Ms. Donovan denies DSMF ¶ 88, saying “Hale described the communication difficulty Donovan
had related to updating the wine sales team, specifically Nick Nappi and Ashley Day, of an estimated
time of arrival for out of stocks by failing to regularly update the information in Nappi’s operating
software, Vermont Information Processing (‘VIP'),” and “Donovan testified that one of the issues the
sales team had was generated because they didn’t have access to the correct system to give them
visibility into inventory for out of stock items, special order items etc.” Having reviewed the relevant
record, the Court finds DSMF ¶ 88 generally supported by the record.
167
Ms. Donovan denies DSMF ¶ 89, saying “Brown testified that Hale would take it upon herself
to complete Donovan’s work if she thought she could do it better, ‘to her own detriment.’” PRDSMF ¶
89. When asked if “anybody ever [told her] that [she] was overstepping [her] role into [Ms. Donovan]’s
role,” Ms. Hale testified: “Overstepping, no, nope. [Ms. Donovan] actually asked me on a regular basis,
and that was one of the things identified here was, you know, she wanted me to help do things for her
and that I needed to stop doing that so much, so.” V. Hale Dep. at 90:13-19. Against this testimony,
Ms. Donovan cites Mr. Brown’s deposition testimony that Ms. Hale would take it upon herself to
complete Ms. Donovan’s work if she thought she could do it better, “to her own detriment.” PRDSMF
¶ 89. Ms. Donovan’s denial rests on evidence that it too oblique to be credited.
As DSMF ¶ 89 is supported by the record and Ms. Donovan’s denial is both beyond the scope
of the fact and based on a tenuous reference to the record, the Court admits DSMF ¶ 89.
168
Ms. Donovan denies DSMF ¶ 90, saying “[o]ne of the reasons Hale didn’t like Donovan because
Hale wanted Donovan’s job.” PRDSMF ¶ 90. Ms. Donovan’s objection beyond the scope of the fact
and the Court admits DSMF ¶ 90.
169
DSMF ¶ 91 states that “[a]t times, many of Ms. Donovan’s regular work responsibilities were
reallocated to allow Ms. Donovan to ‘get her head above water.’” Ms. Donovan objects to DSMF ¶ 91,
saying “[i]n May of 2019, Watson reassigned Donovan’s work related to suppliers Wine Group and
Constellation to Hale, which Donovan was not happy about.” PRDSMF ¶ 91. Mr. Brown testified:

60

Hale tried to suggest ideas and tools to help Ms. Donovan succeed at Nappi. 170 DSMF
¶ 92; PRDSMF ¶ 92.
Despite the efforts of management and staff to assist Ms. Donovan, the
inventory issues persisted. 171 DSMF ¶ 93; PRDSMF ¶ 93. The out-of-stocks were a
significant issue that was discussed regularly at management meetings. 172 DSMF ¶
94; PRDSMF ¶ 94. When present at these meetings, Ms. Donovan often did not have

As I understand it or know it to be, I mean what this shows is that [Ms. Donovan] was
completely in over her head. I mean the fact that one person would need four
additional people to help her do her job, that is the lengths this company has gone to
help her succeed and that’s more tools in my experience than anybody has been given
in the wine department in the 20 years that I have worked here . . . [t]hat speaks to
assisting her to improve and to hopefully at some point take the ball, run with it and
not have to depend on all of those people.”
Brown Dep. at 66:7-17. When asked if there was anything wrong with Ms. Donovan having other
employees do her more administrative tasks, specifically receiving, Mr. Brown testified:
There is nothing wrong with it, but Ashley [Day] had her own distinct role and I don’t
believe that was part of it. That was to help – help [Ms. Donovan] get her head above
the water, just like Nicole [Nappi] filing her paperwork, I mean that amounts to
basically having her own private secretary or admin in her office, you know, filing for
her, which seems unimaginable to me, but it was something that we needed to do. No,
I mean currently all of the responsibilities are done by one person.
Brown Dep. at 66:25-67:8. DSMF ¶ 91 is supported by the record and whether Ms. Donovan was happy
about any specific reassignment of work is beyond the scope of the fact asserted. The Court therefore
overrules Ms. Donovan’s objections and admits DSMF ¶ 91.
170
DSMF ¶ 92 provides that “Mr. Watson and Ms. Hale tried to suggest tools and ideas to help
Ms. Donovan succeed at Nappi.” Ms. Donovan denies DSMF ¶ 92, saying “Watson told Donovan to
come up with her own ideas on how to do her job differently.” DSMF ¶ 92. Having reviewed the
relevant record, the Court finds DSMF ¶ 92 supported in part and slightly alters DSMF ¶ 92 to reflect
the record.
171
Ms. Donovan denies DSMF ¶ 93, saying “Fox testified that the lack of systems was not an issue
with Donovan’s performance and was an issue for the entire department.” PRDSMF ¶ 93. Ms.
Donovan’s objection is beyond the scope of the fact and the Court admits DSMF ¶ 93.
172
Ms. Donovan denies DSMF ¶ 94, saying “ Fox testified that the lack of systems was not an
issue with Donovan’s performance and was an issue for the entire department.” PRDSMF ¶ 94. Ms.
Donovan’s objection is beyond the scope of the fact and the Court admits DSMF ¶ 94.

61

a response about the out-of-stock problem. 173 DSMF ¶ 95; PRDSMF ¶ 95. Ms.
Donovan characterized the out-of-stocks and her inability to answer questions about
them as a “minor issue” for which she received what she perceived as unwarranted
criticism. 174 DSMF ¶ 96; PRDSMF ¶ 96. Ms. Donovan also perceived complaints
about her inability to answer questions about incorrect product size, incorrect pricing,
and other stock information as unwarranted and minor. 175 DSMF ¶ 97; PRDSMF ¶
97.

Ms. Hale testified that Mr. Carr, who was then the wine sales manager,

reassigned some of Ms. Donovan’s tasks to her because Nappi was having a hard time
guiding Ms. Donovan in how to set them up properly. 176 DSMF ¶ 52; PRDSMF ¶ 52.
Ms. Fox first became generally aware of possible performance issues with Ms.
Donovan because her office was located close to Ms. Donovan’s, and she could
overhear the frustrated tones people used when trying to solve problems with her. 177

DSMF ¶ 95 states that “Ms. Donovan was present at these meetings but often did not have a
response about the out-of-stock problem.” Ms. Donovan denies DSMF ¶ 95, saying at times she was
“excluded from the meetings.” PRDSMF ¶ 95. Nappi’s assertion that Ms. Donovan was present at the
management meetings is contradicted by Mr. Brown’s deposition testimony that he was aware Ms.
Donovan was not present at the meetings. Brown Dep. 93:17-20 (“Yes, obviously I was aware if she
wasn’t in a meeting”). The Court accepts Ms. Donovan’s denial as a qualification and slightly alters
DSMF ¶ 95 to reflect the record.
174
Ms. Donovan denies DSMF ¶ 96, saying she “testified that the supplier would not have
provided her with the information when the product would be in stock, but for Watson that wasn’t
acceptable [and he] expected her to have an answer even if it was information she could not get.”
PRDSMF ¶ 96. Ms. Donovan’s objection beyond the scope of the fact and the Court admits DSMF ¶
96.
175
Ms. Donovan denies DSMF ¶ 97 for the same reason as DSMF ¶ 96. The Court overrules her
objection for the same reason explained in the previous footnote and admits DSMF ¶ 96.
176
DSMF ¶ 52 states that “Paul Carr, who was then the wine sales manager, reassigned Ms.
Donovan’s tasks to Ms. Hale because Ms. Donovan was consistently doing them incorrectly.” Ms.
Donovan denies DSMF ¶ 52, saying “Carr testified that when Hale complained about Donovan he told
Hale to stop.” PRDSMF ¶ 52. Although Ms. Donovan’s denial is largely beyond the scope of the fact,
having reviewed the relevant record, the Court accepts Ms. Donovan’s denial as a qualification and
slightly alters DSMF ¶ 52 to reflect the record.
177
DSMF ¶ 47 states that “Ms. Fox initially became aware of Ms. Donovan’s performance issues
because her office was located close to Ms. Donovan’s, and she could overhear the frustrated tones
173

62

DSMF ¶ 47; PRDSMF ¶ 47. Ms. Fox heard a lot of “noise” from Nappi employees and
sales representatives about Ms. Donovan, but the conversations “weren’t really
complaints.” 178 PSAMF ¶ 65; DRPSAMF ¶ 65. Ms. Fox first received a formal
complaint related to the wine department, including Ms. Donovan’s role, on or about
June 14, 2016, when she met with Nick Nappi to discuss his frustrations with
purchasing, inventory, logistics, and out-of-stock issues. 179 DSMF ¶ 49; PRDSMF ¶
49. Ms. Fox saw Mr. Hale spending a lot of time in Ms. Donovan’s office and she was
aware that things were not running smoothly with Ms. Donovan. PSAMF ¶ 66;

people used when speaking with her.” Ms. Donovan denies DSMF ¶ 47, saying “[t]he citation provides
Fox testified the conversations she overhead weren’t really complaints, just trying to problem solve,”
and Ms. Fox “further testified that it was not until Donovan was out on medical leave that [her] job
performance became a ‘focal point,’” addressed with Ms. Donovan for the first time in January 2019.
Ms. Fox testified:
Q. When was the first time you recall getting a complaint or a report about [Ms.
Donovan]’s job performance?
A. I don’t remember specifically. I think I was probably about six or eight months into
the role and there was a lot of noise. I don’t remember from where, but a lot of noise
on how wine inventory was being managed.
I think I was hearing some from Operations; definitely, you know, Sales.
Because my office was directly across from Helena’s; and on occasion, I would, you
know, hear some conversations that obviously people were pretty frustrated with it
sounded like lack of communication, and I – I’m not sure what it was at that point.
But it was – they weren’t really complaints, it was more just trying to problem solve
what the – what the rising in what seemed to be recurrent issues were.
Fox Dep. at 11:5-21. Having reviewed the relevant record, the Court accepts Ms. Donovan’s denial as
a qualification and slightly alters DSMF ¶ 47 to reflect the record.
178
Nappi qualifies PSAMF ¶ 65, saying “Ms. Fox testified that she was aware of ongoing
frustration with Ms. Donovan’s performance due to recurring issues.” DRPSAMF ¶ 65. Nappi’s
qualification is beyond the scope of the fact and is contained in DSMF ¶ 47; the Court admits PSAMF
¶ 65.
179
DSMF ¶ 49 provides that “Ms. Fox first received a formal complaint concerning Ms. Donovan’s
work performance on or about June 14, 2016, when she met with Nick Nappi to discuss purchasing,
inventory, logistics, and out-of-stock issues.” Ms. Donovan denies DSMF ¶ 49, saying Ms. Fox
“testified these were problems ‘all around’ the wine sales department, not specific to Donovan.”
Having reviewed the relevant record, the Court concludes that the testimony does not indicate
that the purchasing, inventory, logistics, and out-of-stock issues were attributed solely to Ms.
Donovan. The Court therefore accepts Ms. Donovan’s denial as a qualification and slightly alters
DSMF ¶ 49 to reflect the record.

63

DRPSAMF ¶ 66. Ms. Fox assumed that Mr. Hale was assisting Ms. Donovan, but
she did not actually see that happen. Id. 180 Ms. Fox believed that recurrent issues
started “accelerating” with Ms. Donovan in 2017 because although she was
performing, it was differently than how Mr. Houle managed things. 181 PSAMF ¶ 67;
DRPSAMF ¶ 67.
The complaints Ms. Fox received, which were discussed during a meeting on
June 14, 2016, were about problems arising from the purchasing role—ordering,
scheduling, inventory— and problems “all around” in the wine sales department. 182
PSAMF ¶ 163 reads “Brown discussed ‘a little bit’ of Hale being disrespectful to Tourangeau
and after viewing the email from Hale to Tourangeau, Masters agreed the email was unprofessional
and it is the first time she’s seen email to salesm[e]n like that.” The Court does not understand the
relevance to Ms. Donovan’s case of Ms. Hale’s being disrespectful to Michele Tourangeau, and it
declines to include PSAMF ¶ 163 in its recitation of uncontested material facts.
181
PSAMF ¶ 67 states that “[t]hings started ‘accelerating’ with Donovan in 2017. She was
performing but differently than how Houle managed things.” Nappi qualifies PSAMF ¶ 67, saying the
fact is “vague” and “Ms. Fox testified that the recurrent issues, and particularly communication issues,
were accelerating in 2017.” DRPSAMF ¶ 67. Ms. Fox testified:
180

Q. Okay. And how about – I think you mentions Carr having conversations with [Ms.
Donovan]. Do you know what those conversations were about?
A. Well, [Carr] . . . I think it was starting in 2017 when things were – definitely seemed
to be accelerating, I had asked him, you know, what – what’s going on, it seems like
we’re having recurrent issues and, you know, there’s – there’s communication issues.
He said that, you know, [Donovan] wasn’t – you know, basically she was performing
but sort of at a – a middle level, a midlevel, not – it was different than apparently how
Houle managed things.
Donovan Dep. at 13:1-13. The Court adds “recurrent issues” to PSAMF ¶ 67 to reflect the full record.
182
PSAMF ¶ 75 states that “[t]he complaints that Fox received, which were discussed during a
meeting on June 14, 2016 were about ordering, scheduling, inventory, and problems ‘all around' in the
wine sales department.” Nappi qualifies PSAMF ¶ 75, saying “Ms. Fox testified that she received
complaints specifically about the frequency of problems arising from Ms. Donovan’s purchasing role.”
DRPSAMF ¶ 75. Ms. Fox testified:
Q. What was [Nick Nappi] frustrated about?
A. The frequency of problems that he felt were arising from the – the purchasing role.
Q. What problems?
A. You know, he was – looking at my notes, he was describing problems all around
with Sales which would probably be – have been the out of stocks. He was talking
about Operations, and then he – that would have been more the logistics of when it’s

64

PSAMF ¶ 75; DRPSAMF ¶ 75. During the June 14, 2016 meeting, Nick Nappi was
very frustrated with the inventory issues in the wine department, although he did
not specifically say it was “all because of” Ms. Donovan; it was more just that “this
isn’t working.” 183 PSAMF ¶ 76; DRPSAMF ¶ 76. And yet Nick Nappi may not have
even questioned whether Ms. Donovan could handle her job; that may have just been
Ms. Fox’s observation or assumption. 184 PSAMF ¶ 77; DRPSAMF ¶ 77.

showing up to be delivered, not having notice so that slotting could be determined,
coming in batches versus sort of spread out, no visibility on when it was, no
management of the freight cost. Just all the way around, it just – issues.
Donovan Dep. at 48:21-49:9. In addition to clarifying that the asserted fact is Ms. Fox’s opinion, the
Court adds “problems arising from the purchasing role” to PSAMF ¶ 75 to reflect the record and admits
PSAMF ¶ 75.
183
Nappi qualifies PSAMF ¶ 76, saying “[t]he record citation is to Ms. Fox’s testimony that she
could not remember if Nick Nappi specifically said the issues were because of Ms. Donovan. Further,
Ms. Fox testified that Mr. Nick Nappi’s complaints were about issues arising specifically from the
purchasing role.” DRPSAMF ¶ 76. Nappi’s qualification is beyond the scope of the fact, and the Court
admits PSAMF ¶ 76.
184
PSAMF ¶ 77 states that “[i]n fact, Nick Nappi may not have even said the inventory issues
were Donovan’s fault at all during the June 14, 2016 meeting; that may have just been Fox’s
observation or assumption.” Nappi qualifies PSAMF ¶ 77, saying “Ms. Fox testified that Mr. Nick
Nappi’s complaints were about issues arising specifically from the purchasing role.” DRPSAMF ¶ 77.
Ms. Fox testified:
Q. . . . Going back to this exhibit, what do you recall being discussed in this meeting
with respect to [Ms. Donovan]’s performance issues?
A. That there were some frequent issues that related to how Nick [Nappi] felt she was
doing her job.
Q. Okay. Who – who said this comment: Can she handle the job?
A. I don’t remember if that's my observation or if Nick stated that. I think -- I think
it’s actually my observation, you know, based on what I was getting for inputs that -I don’t remember if Nick actually said that or if -- if I just made that observation. It’s
kind of off to the side, so I -- I think that just may be sort of me making that assumption,
you know, is it -- is this a case of somebody -- is --you know, at that point, I didn’t know
if it was a process’s or system’s lack of or inadequate or – I didn't know what it was, or
if it was somebody who was -Q. Okay.
A. -- unable to handle the job. I -- I see in the margin here, I have two and a half years
in the role. And I think that was what was starting to become apparent, that, you
know, like we were still doing things the same way we had been, and -- and it needed
to evolve with what the challenges were.

65

During the June 14, 2018 meeting, Ms. Fox and Mr. Brown discussed an
incident between Ms. Hale and Ms. Donovan. PSAMF ¶ 164; DRPSAMF ¶ 164. In
her notes, Ms. Fox wrote that Ms. Hale was raising her voice, and her gestures toward
Ms. Donovan were aggressive. Id. Ms. Fox also wrote: “Something about [Donovan]
not doing what job is” and that Ms. Donovan was frustrating Ms. Hale. 185 Id. Mr.
Brown testified that the disciplinary action toward Ms. Hale was based on a
culmination of things with respect to her treatment of Ms. Donovan. 186, 187 PSAMF ¶
140; DRPSAMF ¶ 140. Ms. Hale admitted that she yelled at Ms. Donovan and that
she was frustrated about how inventory moved; Ms. Hale was then told that her
Donovan Dep. at 60:15-61:16. The Court concludes that what Ms. Fox could not recall was whether
the question “Can she handle her job?” was her own note in the margin or what Nick Nappi said at the
meeting. The Court therefore alters PSAMF ¶ 77 to reflect the record and admits the fact.
185
PSAMF ¶ 164 states that “Fox met with Brown and Frank Ma[io]rino on June 14, 2018 to
discuss the incident with Hale. Fox wrote that Hale was raising her voice, and her gestures toward
Donovan were aggressive. Fox also wrote: ‘Something about Donovan not doing what job is,’ and
Donovan was frustrating Hale.”
Nappi objects to PSAMF ¶ 164 as a reference to “handwritten notes which offer out-of-court
statements for the truth of the matter asserted” and are “therefore, hearsay” and further qualifies the
fact, saying “[t]here is no indication that Frank Maiorino attended that meeting, and the initials on
the page are ‘IB’ and ‘JM.’” DRPSAMF ¶ 164. The Court overrules Nappi’s hearsay objection. The
notes are apparently contemporaneous, handwritten notes by Ms. Fox of a business meeting at Nappi
and the notes are admissible as an exception to rule against hearsay under Federal Rule of Evidence
803(6). As Nappi notes, however, the Court finds no reference to Mr. Maiorino in the cited record, and
therefore the Court omits references to Mr. Maiorino. The Court otherwise admits the fact.
186
PSAMF ¶ 139 states that “Brown testified that the language in Hale’s August 28, 2017,
warning which states ‘reprimanding others, making them feel disparaged, nonvalued or offended’ was
part of the warning because Brown was also aware of Hale’s issues with Donovan.” Nappi objects to
PSAMF ¶ 139 as unsupported by the record citation and denies the fact, saying “The actual testimony
in the record citation is: ‘Honestly, I don’t remember what kind of was the ultimate straw, but, you
know, that disciplinary action regarding Valarie Hale and Helena was a culmination of things, so this
may have been, but I don’t remember specifically.’” DRPSAMF ¶ 139. Having reviewed the relevant
record, the Court agrees with Nappi that the record citation does not support the asserted fact. The
Court accepts Nappi’s denial and omits PSAMF ¶ 139.
187
Nappi objects to PSAMF ¶ 140 as unsupported by the record but otherwise admits the fact.
DRPSAMF ¶ 140. The Court reviewed the cited deposition testimony and notes that Nappi is correct
that the cited record, Brown Dep. 26:15-28:3, does not support the asserted fact.
However, in reviewing PSAMF ¶ 139, the Court came upon the correct citation in Brown Dep.
at 29:17-23, which Ms. Donovan properly provided in PSAMF ¶ 139. Although the Court has no
obligation to search the record, as it has come upon an obvious mistake by Plaintiff’s counsel, the Court
admits PSAMF ¶ 140.

66

behavior was unacceptable and unprofessional. 188 PSAMF ¶ 171; DRPSAMF ¶ 171.
Ms. Donovan testified she reported the incident of Ms. Hale screaming at her in her
office to Mr. Brown via email, text message, and phone call but that it was ignored
until she reported it to Ms. Masters. PSAMF ¶ 309; DRPSAMF ¶ 309.
Ms. Donovan described the incident as Ms. Hale screaming and flailing at Ms.
Donovan while Ms. Donovan was stuck in her office and shocked. PSAMF ¶ 310;
DRPSAMF ¶ 310. Ms. Donovan described the encounter as traumatic and said that
she felt physically threatened and trapped as Ms. Hale attacked her. 189 Id. Ms. Fox’s
notes from June 18, 2018 reflect that Michelle Apt told Ms. Fox that she saw Ms. Hale
make several gestures toward Ms. Donovan that were “very confrontational and
aggressive”; another employee named Ms. Kroot “was bothered by it.” 190 PSAMF ¶
PSAMF ¶ 171 provides that “Hale admitted that she yelled at Donovan and said that she was
frustrated about how inventory moved; in response, Fox told Hale that her behavior was unacceptable
and unprofessional.”
Nappi objects to PSAMF ¶ 171 as a reference to “handwritten notes which offer out-of-court
statements for the truth of the matter asserted” and are “therefore, hearsay” and further denies the
fact, saying “[t]he handwritten notes do not indicate who told whom that they were unacceptable and
unprofessional.” DRPSAMF ¶ 171. The Court overrules Nappi’s hearsay objection for the reason
explained in footnote 17. Because the cited record says only “Told unacceptable unprofessional” and
does not identify who made the comment to Ms. Hale, the Court accepts Nappi’s denial as a
qualification and alters PSAMF ¶ 171 to reflect the record.
189
Nappi objects to PSAMF ¶ 310 because Ms. Donovan “does not cite to a particular part of the
record, but instead cites generally to twenty-seven pages of deposition testimony” but otherwise admits
the fact. DRPSAMF ¶ 310. Nappi has a point. For support, Ms. Donovan cited her deposition at
241:2-268:9 and 311:1-25. The Court found her description of the incident at 267:2-20 and 311:1-4.
Exclusion of this evidence would be an excessive sanction and the Court therefore admits
PSAMF ¶ 310. Nevertheless, the Court admonishes Ms. Donovan that PSAMF ¶ 310 is not in
compliance with Federal Rule of Civil Procedure 56(c)(1)(A) and Local Rule 56(h), which require
citations to particular parts of materials in the record.
190
PSAMF ¶ 165 provides that “Fox’s notes from June 18, 2018 reflect that Michelle Apt told Fox
that she saw [Hale make several gestures toward Donovan that were ‘very confrontational and
aggressive,’ and another employee named Patty ‘was bothered by it.’” Nappi objects to PSAMF ¶ 165
as inadmissible hearsay and further denies the fact, saying “Ms. Fox testified that Ms. Apt was not
present the day of the incident between Ms. Donovan and Ms. Hale.” DRPSAMF ¶ 165. Although Ms.
Fox testified that she thought Ms. Apt was out of work the day of the incident, Fox Dep. at 119:17-18,
her notes from June 18, 2018, indicate that Ms. Apt told her about the incident. Taking the facts in
188

67

165; DRPSAMF ¶ 165. Ms. Fox’s notes reflect that Ms. Donovan said Ms. Hale’s tone
and physical demeanor toward her were both threatening and intimidating. 191
PSAMF ¶ 166; DRPSAMF ¶ 166. Ms. Fox wrote in her notes that Ms. Donovan told
Ms. Kroot “she had sent an email to [Mr. Brown]” and Ms. Donovan was “bothered”
that she got no response. 192 PSAMF ¶ 167; DRPSAMF ¶ 167.
Additional notes from June 14, 2018 reflect that an employee with the initials
“AN” said Ms. Hale definitely wants to tell Ms. Donovan how to do her job and wants
things her way “or no way with all work.” 193 PSAMF ¶ 168; DRPSAMF ¶ 168. Ms.
Fox wrote that Ms. Donovan said the issues with Ms. Hale had been going on
“forever,” but Mr. Brown had not observed the tension between them. PSAMF ¶ 175;
DRPSAMF ¶ 175. Ms. Fox also wrote that according to Mr. Brown, Ms. Donovan said

the light most favorable to the non-moving party, as the Court must do at the summary judgment
stage, the Court admits PSAMF ¶ 165 over objection and overrules Nappi’s hearsay objection for the
reason explained in footnote 17. See Mancini v. City of Providence ex rel. Lombardi, 909 F.3d 32, 37
(1st Cir. 2018) (The Court states the facts “in the light most hospitable to [non-movants] consistent
with record support . . ..”) (citing Ahern v. Shinseki, 629 F.3d 49, 51 (1st Cir. 2010); and Gillen v. Fallon
Ambulance Serv., Inc., 283 F.3d 11, 17 (1st Cir. 2002)).
191
Nappi objects to PSAMF ¶ 166 as a reference to “handwritten notes which offer out-of-court
statements for the truth of the matter asserted” and are “therefore, hearsay” and further denies the
fact, saying “[t]he document does not indicate to whom Ms. Donovan referred when she said that.”
DRPSAMF ¶ 166. Having reviewed the relevant record, the Court admits PSAMF ¶ 166 over objection
because the context of the notes indicates to the Court that Ms. Donovan was in fact referring to Ms.
Hale. The Court overrules Nappi’s hearsay objection for the reason explained in footnote 17.
192
Nappi objects to PSAMF ¶ 167 as a reference to “handwritten notes which offer out-of-court
statements for the truth of the matter asserted” and are “therefore, hearsay” and further denies the
fact, saying “Ms. Fox testified that she did not meet with Patty, but that the notes reflect a meeting
that Michelle Apt represented that she had had with Patty.” DRPSAMF ¶ 167. The Court overrules
Nappi’s hearsay objection for the reason explained in footnote 17, finds Nappi’s content objection
beyond the scope of the fact, and admits PSAMF ¶ 167.
193
Nappi objects to PSAMF ¶ 168 as a reference to “handwritten notes which offer out-of-court
statements for the truth of the matter asserted” and are “therefore, hearsay” and further denies the
fact, saying “Ms. Fox testified that the notes reflect a conversation she has with Alex Nowinski to
specifically ask about the incident wherein Ms. Hale had raised her voice.” DRPSAMF ¶ 168. The
Court overrules Nappi’s hearsay objection for the reason explained in footnote 17, finds Nappi’s content
objection beyond the scope of the fact, and admits PSAMF ¶ 168.

68

that Ms. Hale was a bully to her and others in the office and got away with too
much. 194 Id. Ms. Fox’s notes also say that when Mr. Brown spoke with Ms. Kroot,
she said that Ms. Hale was very physical and aggressive toward Ms. Donovan. Id.
Ms. Hale described that Ms. Donovan’s communication difficulty concerned failing to
regularly update the information in Nappi’s operating software in order to update the

PSAMF ¶ 175 provides that “Fox also wrote that Donovan said issues with Hale had been
going on ‘forever,’ but Brown had not observed the tension between them. Donovan said Hale is a
bully to her and others in the office, and she gets away with too much. When Brown spoke with Patty,
she said Hale was very physical and aggressive toward Donovan.” Nappi objects to PSAMF ¶ 175 as
inadmissible hearsay and further qualifies the fact as unsupported by the record, specifying that “Ms.
Fox testified that Ms. Donovan was not present for the meeting discussed in the notes. Rather, she
testified that she was ‘trying to understand from [Mr. Brown] what had happened . . ..” DRPSAMF ¶
175. Ms. Fox testified:

194

Q. Okay. And then this June 18, 2018 note, are these still your handwritten notes?
A. Yes.
Q. Okay. And is this a meeting between yourself and [Mr.] Brown?
A. Correct.
Q. Was [Ms. Donovan] present in this meeting?
A. No.
Q. Oh, so you were just talking to [Mr. Brown] about the issue that -- . . .
A. Yes.
Q. Okay.
A. I think -- what I recall was I think I had -- I had spoken with [Ms. Donovan] at that
point. So then I was trying to understand from [Mr. Brown] what had happened with
-- she had reached out to [Mr. Brown], and, -- and [Ms. Donovan] was pretty upset that
[Mr. Brown] had had the day off or something and didn’t respond to her.
Fox Dep. at 120:18-121:10. The Court finds that the testimony in conjunction with the cited exhibit
partially supports PSAMF ¶ 175, overrules Nappi’s hearsay objection for the reason explained in
footnote 17, and supplements the fact to reflect the cited record.

69

wine sales team, specifically Nick Nappi and Ashley Day, of an estimated time of
arrival for out-of-stock inventory. 195, 196 PSAMF ¶ 176; DRPSAMF ¶ 176.
Ms. Hale testified that she was disciplined for how she treated Ms. Donovan
as she expressed her frustration to Ms. Donovan in the summer of 2018, but that she
was never disciplined or spoken to on any other occasion for treating her coworkers
poorly. PSAMF ¶ 174; DRPSAMF ¶ 174.
On April 16, 2019, Mr. Watson and Ms. Fox met with Ms. Donovan and
encouraged her to ask for help when she fell behind rather than let work tasks fall in
arrears. 197 DSMF ¶ 108; PRDSMF ¶ 108. Ms. Donovan struggled to communicate

Nappi qualifies PSAMF ¶ 176, saying “[t]he factual assertion understates and oversimplifies
Ms. Donovan’s communication failures. Ms. Hale testified that Ms. Donovan struggled to
communicate with ‘the entire team,’ specifically operations, warehouse, sales representatives,
management, Ms. Hale, administration, and the receptionist. Ms. Hale testified that the failure to
communicate, which she described as not getting estimated times of arrival from Ms. Donovan, forced
employees to constantly call around trying to figure out what products were where, and that the
operations manager would be tied up throughout the day fielding phone call from delivery drivers,
because out-of-stocks would not show up on invoices, so the product would simply be omitted from an
order.” DRPSAMF ¶ 176. Nappi’s objections are beyond the scope of the fact, and the Court admits
PSAMF ¶ 176.
196
PSAMF ¶ 177 states that “Hale had conversations with members of management about her
frustration with Donovan’s job performance in 2018 and 2019 during monthly team meetings.” Nappi
qualifies PSAMF ¶ 177, saying “[t]he record citation does not state to which deposition it is referring;
therefore, it is not properly supported and should be disregarded or stricken. To the extent Plaintiff
is referring to Ms. Hale’s deposition testimony, the citation does not support the factual assertion. Ms.
Hale testified that it was, ‘never me having a meeting about my issues with Helena’s performance.
That was identifying an issue that was happening and trying to figure out the root cause.’ To the
extent the citation is to any other deposition, it is hearsay and should be disregarded.” DRPSAMF ¶
177 (quoting Hale Dep. at 29:3-11).
Having reviewed the record, the Court confirms that record citation to “28:12-29:20, ECF Doc.
52-18” does not support the statement and the Plaintiff’s citation to “PageID # 1151” does not exist
within the cited document. Because the Court is under no obligation to independently search the
record for the correct supporting citation which has not been provided here, the Court omits the fact.
See D. ME. LOC. R. 56(f).
197
Ms. Donovan qualifies DSMF ¶ 108, saying she admits “that they said this” but “den[ies] that
they meant it.” PRDSMF ¶ 108. Ms. Donovan’s qualification is beyond the scope of the fact and the
Court admits DSMF ¶ 108.
195

70

with suppliers and warehouses. 198 DSMF ¶ 109; PRDSMF ¶ 109. But Ms. Donovan
has no direct information of Mr. Watson instructing a supplier to cease
communications with her. 199 DSMF ¶ 110; PRDSMF ¶ 110.
After Ms. Fox reviewed how Ms. Donovan was handling purchase orders, while
Ms. Donovan was out on leave, she expressed “shock” that the processes were still
being conducted manually. PSAMF ¶ 86; DRPSAMF ¶ 86. Ms. Fox was surprised
and found it “very odd” that someone at Ms. Donovan’s “level,” which Ms. Fox
described as “mid management,” had neither made changes to the manual
purchasing and inventory processes for wines sales at Nappi nor improved what her

DSMF ¶ 109 provides that “Ms. Donovan struggled to communicate with suppliers, rarely
visited the warehouse, and as a result key industry stakeholders began to bypass her entirely.” Ms.
Donovan denies DSMF ¶ 109, saying “Steve Stults told Donovan [that] Hale directed suppliers not to
go to Donovan.” PRDSMF ¶ 109. Having reviewed the record, the Court finds Ms. Donovan’s objection
beyond the scope of the fact, finds DSMF ¶ 109 only partially supported by the record, and alters
DSMF ¶ 109 to reflect the record.
199
DSMF ¶ 110 states that “Ms. Donovan has no direct information of anyone at Nappi
instructing a supplier to cease communications with her.” Ms. Donovan denies DSMF ¶ 110, saying
“Steve Stults told Donovan [that] Hale directed suppliers not to go to Donovan.” PRDSMF ¶ 110. Ms.
Donovan testified:
198

Q. Okay. So on the warehouse thing, though, it was my understanding that Mr.
Watson never went to the warehouse and said I want you to deal with [Ms. Hale] and
not – not [Ms. Donovan].
A. [Ms. Hale] went to Steve Stults, yes.
Q. I know [Ms. Hale] did, but I’m just saying, are you aware of Mr. Watson ever doing
that?
A. No, but [Ms. Hale] wouldn’t have done that under her own –
...
Q. You’re speculating as to whether or not Mr. Watson was even aware, never mind
had anything to do with [Ms. Hale] going down to [Mr. Stults]?
Donovan Dep. at 247:8-19. The Court accepts Ms. Donovan’s denial as a qualification and alters DSMF
¶ 110 to reflect the record.

71

predecessor Mr. Houle was doing. 200, 201 PSAMF ¶ 85, 94; DRPSAMF ¶ 85, 94. Ms.
Fox, though, did not discuss her concerns about Ms. Donovan’s manual purchase
order processing system with Mr. Watson, the new Sales Director in the wine
department, when he was hired. 202 PSAMF ¶ 95; DRPSAMF ¶ 95.
Frustrations within the wine department were not exclusively about Ms.
Donovan, “it was just we as an organization were still doing it very manually.” 203
200
PSAMF ¶ 85 states that “[e]ven though Nappi did not give Donovan the same ‘Purchasing
Manager’ title as Houle, Fox expected that someone at Donovan’s ‘level’ would have made changes to
improve on what her predecessor (Houle) was doing for inventory and purchasing management. Houle
was doing these things manually, which Fox was critical of Donovan for continuing to do.”
Nappi objects to PSAMF ¶ 85 as argument, not fact, and denies PSAMF ¶ 85 as unsupported
by the record, saying “[t]he record citation does not support any assertion about Ms. Donovan’s title,
how Mr. Houle was processing purchasing orders, or that Ms. Fox expected Ms. Donovan to ‘improve'
on what her predecessor was doing. Further, the statement that Ms. Fox was ‘critical’ of Ms. Donovan
is argument, as should be stricken.” DRPSAMF ¶ 85.

Ms. Fox testified:
My impression at that time looking at the – her systems is that she had not made any
changes to the processes since taking over from Houle, which was surprising to me
that somebody at that level wouldn't have made any changes to what her predecessor
was doing. And she had been there for about three years, three or four years at that
point. And so it also was demonstrating, you know, what I thought was why there
were so many issues, you know, aside from [Ms. Donovan], but they -- we just – our
wine purchasing department was just too big to -- or -- or the inventory levels are too
big to be managing it manually like she was.
Donovan Dep. at 25:12-24. The Court finds PSAMF ¶ 85 partially supported by the record and alters
PSAMF ¶ 85 to reflect the facts included in the relevant record.
201
Nappi qualifies PSAMF ¶ 94, saying “[i]n the record citation, Ms. Fox explained that it was
‘very odd for somebody being in a role at that level for so long to not have made some changes to the –
to a process.’” DRPSAMF ¶ 94. Nappi’s qualification is beyond the scope of the fact, and the Court
admits PSAMF ¶ 94.
202
PSAMF ¶ 95 provides that “Fox did not discuss her concerns with Donovan’s manual system
of processing purchase orders when Matt Watson, the new Sales Director in the wine department, was
hired.”
Nappi denies PSAMF ¶ 95, saying “[t]he first part of the record citation discusses whether Ms.
Fox discussed inventory management systems updates with Mr. Watson” and “[t]he second part of the
record citation is largely Plaintiff’s attorney’s question, to which there was a form objection.”
DRPSAMF ¶ 95. Having reviewed the relevant record, the Court overrules Nappi’s objection and
admits the asserted fact.
203
PSAMF ¶ 96 provides that “[f]rustrations within the wine department were not about [Ms.]
Donovan, ‘it was just we as an organization were still doing it very manually.’” Nappi qualifies PSAMF

72

PSAMF ¶ 96; DRPSAMF ¶ 96. Ms. Fox admitted that wine purchasing and inventory
process decisions were made as part of a team, not by Ms. Donovan alone, and that
team included Mr. Brown and Ms. Masters—as interim wine directors—along with
Ms. Hale and the sales representatives. 204 PSAMF ¶ 97; DRPSAMF ¶ 97. Ms. Fox
talked to Mr. Brown about the fact that Nappi needed to improve a lot of things within
the wine department, which still did not have a full-time director; Mr. Hale had left
Nappi as well, so it was “sort of a new group” that was trying to make improvements
within the wine department. 205 PSAMF ¶ 98; DRPSAMF ¶ 98. Along with Mr. Brown
and Ms. Masters, Ms. Fox convened a meeting with Ms. Donovan, Ms. Hale, and an
IT department employee to “take the manual Purchase Order and semi automate
it.” 206 PSAMF ¶ 101; DRPSAMF ¶ 101. Ms. Donovan would not have been able by
herself to accomplish the transition from manual to automated purchase orders. Id.

¶ 96, saying “[t]he record citation is taken out of context. Prior to the cited statement, Ms. Fox testified
that [Ms.] Donovan was doing all the ordering manually, without even recording the date, and it was
not an automated system or even logged on a spreadsheet.” DRPSAMF ¶ 96. Having reviewed the
relevant record, the Court slightly alters PSAMF ¶ 96 to reflect the record.
204
PSAMF ¶ 97 provides that “Fox admitted that wine purchasing and inventory process
decisions were made as part of a team, not by Donovan alone, and that team included Brown, Hale,
and Masters as interim wine sales directors at the time.” Nappi qualifies PSAMF ¶ 97, saying “[t]he
record citation does not support the assertion that Ms. Fox testified that Ms. Hale was an interim wine
sales director. Further, Ms. Fox testified that she gave Ms. Donovan a directive to work with IT and
her ‘team’ (which included Mr. Brown, Ms. Masters, Ms. Hale, and all the sales reps), to improve
purchasing processes.” DRPSAMF ¶ 97. Having reviewed the relevant record, the Court slightly
alters PSAMF ¶ 97 to reflect the record and admits the fact.
205
Nappi qualifies PSAMF ¶ 98, saying “Mr. Brown, Ms. Masters, and Ms. Hale have been with
Nappi for twenty-one, six, and twenty-three years, respectively.” DRPSAMF ¶ 98. Nappi’s
qualification is beyond the scope of the fact, and the Court admits PSAMF ¶ 98.
206
PSAMF ¶ 101 states that “[a]long with Brown and Masters, Fox convened Donovan, interim
director Hale, and an IT department employee to ‘take the manual Purchase Order and semi automate
it’; this was not a process that Donovan could automate by herself. Other than the employee from IT
and Hale, all individuals involved in this ‘semi’ automation process were superior to Donovan within
the organization.” Nappi qualifies PSAMF ¶ 101, saying “[t]he record citation does not support the
assertion that Ms. Fox testified that Ms. Hale was an interim wine sales director. Further, the record
citation does not support the assertion that the process was one that Ms. Donovan could not automate

73

Ms. Hale testified that out of stocks were rampant in 2018 and 2019, so she
was trying to facilitate information received from sales representative to Ms.
Donovan. 207 PSAMF ¶ 169; DRPSAMF ¶ 169. Ms. Hale testified that previously Ms.
Donovan had intermittent difficulty with out-of-stocks but not as consistently as she
did in 2018 and 2019. PSAMF ¶ 170; DRPSAMF ¶ 170.

Mr. Brown testified out of

stocks have continued to be an issue for Nappi. 208 PSAMF ¶ 385; DRPSAMF ¶ 385.
Ms. Hale does not know what the cause of the out-of-stocks was in 2018 and
2019. 209 PSAMF ¶ 172; DRPSAMF ¶ 172. Mr. Brown testified that the 2018 wildfires

herself, rather, Ms. Fox testified that she gave Ms. Donovan a directive to work with IT and her ‘team’
(which included Mr. Brown, Ms. Masters, Ms. Hale, and all the sales reps), to improve purchasing
processes. Finally, the factual assertion does not identify the titles or hierarchy of Ms. Hale or Mr.
Terrano [the IT employee].” DRPSAMF ¶ 101. The Court overrules Nappi’s objection to the portion
of PSAMF ¶ 101 that states that Ms. Donovan would not have been able to automate the process by
herself. It is obvious that as Ms. Fox convened a meeting to address the transition among Mr. Brown,
Ms. Masters, Ms. Donovan, Ms. Hale, an IT employee, and herself that Ms. Donovan would not have
been able to accomplish the transition alone. Having reviewed the relevant record, the Court alters
PSAMF ¶ 101 to reflect the record.
207
Nappi qualifies PSAMF ¶ 169, saying “[t]he record citation indicates that Ms. Hale testified
that the sales representatives were asking her to help with the situation, and that because of those
requests she tried to facilitate and would pass along the requests to Ms. Donovan.” DR PSAMF ¶ 169.
Nappi’s qualification is beyond the scope of the fact, and the Court admits PSAMF ¶ 169.
208
Nappi qualifies PSAMF ¶ 385, saying “[w]hile Mr. Brown did testify that out of stocks are still
an issue at Nappi, he went on to explain that the cause of the current out of stocks is the pandemic,
which is completely different from the causes Nappi was running into when Ms. Donovan was the wine
purchaser.” DRPSAMF ¶ 385. Nappi’s objection is beyond the scope of the fact, and the Court admits
PSAMF ¶ 385.
209
PSAMF ¶ 172 states that “Hale does not know what the cause of the out of stocks was in
2018/2019.” Nappi denies PSAMF ¶ 172, saying “Ms. Hale testified that the out-of-stocks were
rampant because Ms. Donovan was not doing her job well.” DRPSAMF ¶ 172.
Ms. Hale testified:
Q. Do you know what was causing the out-of-stocks [in 2018-2019]?
A. No, not specifically. I’m speaking on a large scale basis, you know. I’m sure there
are one-off situations that, you know, maybe I was aware of but there were a lot.
V. Hale Dep. at 20:3-7. Taking the facts in the light most favorable to the non-moving party, PSAMF
¶ 172 is supported by the record, and the Court admits the fact over objection.

74

in California may have caused a few hiccups to inventory in the following years. 210
PSAMF ¶ 388; DRPSAMF ¶ 388. From an inventory standpoint, out-of-stock items
may not be a good measure of performance for a job like Ms. Donovan’s because there
are many variables related to out of stock items, mostly having to do with the
supplier. 211 PSAMF ¶ 208; DRPSAMF ¶ 208.
Ms. Hale also believes that Ms. Donovan struggled in her communication with
stakeholders (the wine sales team). PSAMF ¶ 173; DRPSAMF ¶ 173. Ms. Donovan
testified that one of the issues the sales team had was that they didn’t have access to
the correct system to give them insight into inventory for out-of-stock items, special
order items, etc. 212 PSAMF ¶ 296; DRPSAMF ¶ 296.
Ms. Johnson testified that Nick Nappi complained or spoke negatively about
Ms. Donovan’s job performance and that Ms. Hale spoke negatively about Ms.
Donovan in the smoking room. PSAMF ¶ 246; DRPSAMF ¶ 246. Ms. Johnson

PSAMF ¶ 388 states that “Brown testified in 2018 the wildfires in California may have caused
a few hiccups to inventory.”
Nappi denies the fact, saying “Mr. Brown testified that the wild fires in 2018 did not affect
inventory in 2018, only the years after that. He further testified that he is not aware of any issues
with obtaining products and ‘while there might have been a few hiccups,’ as far as he knows, wineries
were able to get their inventory to warehouses to ship out of state.” DRPSAMF ¶ 388. The Court
accepts Nappi’s denial as a qualification and slightly alters PSAMF ¶ 388 to reflect the record.
211
PSAMF ¶ 208 states that “[f]rom an inventory standpoint, out of stock items are not a good
measure of performance for a job like Donovan’s, because there are many variables related to out of
stock items, mostly having to do with the supplier.”
Nappi qualifies the fact, saying “[t]he assertion that ‘out of stock items are not a good measure
of performance’ is argument, and not a statement of fact; therefore, it should be stricken or disregarded
. . . [and i]n any event, Ms. Fox testified only that ‘some’ of the out-of-stocks were not in Ms. Donovan’s
control. Further, Mr. Watson specifically testified that he was reviewing Ms. Donovan’s performance
to see an improvement in the out-of-stock numbers.” DRPSAMF ¶ 208. Nappi’s content objection is
beyond the scope of the fact. The Court changes “are” to “may not be” and admits the PSAMF ¶ 208.
212
Nappi qualifies PSAMF ¶ 296, saying “Ms. Donovan testified that she had access to that
information and that she could have provided it to the sales team.” DRPSAMF ¶ 296. Nappi’s
objection is beyond the scope of the fact, and the Court admits PSAMF ¶ 296.
210

75

believes she reported this behavior to Mr. Black. 213 Id. Ms. Johnson testified that
Ms. Hale told her directly that she was complaining to Nick Nappi of Ms. Donovan’s
job performance; Ms. Johnson believes it was to skew his opinion of her
performance. 214

PSAMF ¶ 247; DRPSAMF ¶ 247.

Mr. Black made derogatory

PSAMF ¶ 246 states that “Johnson testified Hale complained or spoke negatively to Nick
Nappi about Donovan’s job performance, to others in the smoking room about Donovan’s job
performance, and to suppliers about Donovan’s job performance. Johnson reported the behavior to
Black.”
Nappi objects to PSAMF ¶ 246 as inadmissible hearsay and qualifies the fact, saying “[i]n the
record citation, Ms. Johnson testified that she heard the complaints from Nick Nappi himself, and that
she did not witness Ms. Hale complain to Mr. Nappi. Furthermore, Ms. Johnson could not any recall
specific complaints.” DRPSAMF ¶ 246. Ms. Johnson testified:

213

A. I would -- a couple of times when I would go out into the warehouse, Nick Nappi
would complain about [Ms. Donovan] and her ability to do her job and her out of stocks.
And a lot of the complaints that he said sounded like it came directly from [Ms. Hale].
There were a couple of times in the smoking room that she had complained about
Helena's ordering.
...
Q. Did you observe [Ms. Hale] treat [Ms.] Donovan poorly?
A. Not directly except for her complaints in the smoking room. Not to me but to other
people in the smoking room, she would just complain about [Ms. Donovan] and her
work.
Johnson Dep. at 65:4-10; 65:24-66:4. The Court overrules Nappi’s hearsay objection. Ms. Johnson’s
testimony about what Mr. Nappi said is obviously not for the truth of Mr. Nappi’s criticisms. Having
reviewed the relevant record, the Court slightly alters PSAMF ¶ 246 to reflect the record and admits
the fact.
214
Nappi objects to PSAMF ¶ 248 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Johnson admitted in her deposition that the quoted citation, which is from her affidavit, is
inaccurate, and that she does not recall what Ms. Hale allegedly told her that she allegedly told Mr.
Nappi, and she was not present for any alleged conversation between Ms. Hale and Mr. Nappi.”
DRPSAMF ¶ 248. Ms. Johnson testified:
Q. When did [Ms. Hale] directly tell you that she was criticizing [Ms. Donovan] to Nick
Nappi to skew their opinion of [Ms. Donovan]’s performance?
A. Well, I think that that’s written differently than the way you’re reading it. I was
told directly by [Ms. Hale] that she was – this is not written correctly.
I was told directly by [Ms. Hale], comma, she was constantly criticizing [Ms. Donovan]
to Nick Nappi and other members of management, period. I feel as though that was
to skew their opinion of her job performance.
Johnson Dep. at 68:8-17. The Court overrules Nappi’s hearsay objection since Ms. Hale’s criticism of
Ms. Donovan is obviously not asserted for the truth of the criticism. The Court admits Ms. Johnson’s
opinion testimony pursuant to Federal Rule of Evidence 701. Having reviewed the relevant record,
the Court finds PSAMF ¶ 248 supported by the record and admits the fact.

76

comments about Ms. Donovan’s job performance to Ms. Johnson. 215 PSAMF ¶ 248;
DRPSAMF ¶ 248.
H.

Ms. Donovan’s Relationship with Ms. Hale and the 2018 Incident

Mr. Carr and Mr. Houle warned Ms. Donovan to expect Ms. Hale to be difficult
and to watch her back when she began working for Nappi. 216
DRPSAMF ¶ 17.

PSAMF ¶ 17;

Staff at Nappi characterized Ms. Donovan and Ms. Hale’s

relationship as “very warm and cold,” noting that at times they seemed close, friendly,
and professional, whereas other times they seemed distant. 217

DSMF ¶ 111;

PRDSMF ¶ 111.
Ms. Fox observed Ms. Donovan and Ms. Hale spending time together,
organizing work and non-work events, taking smoking breaks together, and confiding
in each other. DSMF ¶ 112; PRDSMF ¶ 112. Ms. Donovan and Ms. Hale had private
jokes together and occasionally socialized outside of work. 218 DSMF ¶ 114; PRDSMF
¶ 114. Ms. Hale classified her working relationship with Ms. Donovan as “really

Nappi objects to PSAMF ¶ 248 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Johnson could not remember what was allegedly said or when it was allegedly said.” DRPSAMF
¶ 248. The Court overrules Nappi’s hearsay objection because Mr. Black’s derogatory comments are
obviously not being admitted for their truth, finds Nappi’s content objection beyond the scope of the
fact, and admits PSAMF ¶ 248.
216
Nappi admits PSAMF ¶ 17 but objects to the fact on the grounds that “assertions in the
paragraph offer out of court statements for the truth of the matter asserted.” DRPSAMF ¶ 17. As Mr.
Carr was the outgoing Director of Wine Sales and Mr. Houle the outgoing wine purchasing manager,
their statements are not hearsay. See FED. R. EVID. 801(d)(2). Their opinions are admissible under
Federal Rule of Evidence 701.
217
Ms. Donovan denies DSMF ¶ 111, saying “[o]n June 1, 2018 Hale blew up on Donovan and no
one reported it because it was like any other day.” PRDSMF ¶ 111. Ms. Donovan’s objection is beyond
the scope of the fact, and the Court admits DSMF ¶ 111.
218
Ms. Donovan denied DSMF ¶ 114 on the ground that she testified that she was close to her
husband, Mike Hale, and would see Valarie when she socialized with him. PRDSMF ¶ 114. Ms.
Donovan’s objection is beyond the scope of DSMF ¶ 114, and the Court admits it.
215

77

good,” aside from one specific incident that occurred in June of 2018. 219 DSMF ¶ 113;
PRDSMF ¶ 113.
Ms. Donovan testified that Ms. Hale would come to her office, stand in the
doorway blocking Ms. Donovan in, and loudly shout about things Ms. Hale believed
Ms. Donovan had done wrong; Ms. Donovan further testified “that kind of thing
happened a lot.” 220 PSAMF ¶ 390; DRPSAMF ¶ 390. As an example of badmouthing,
Ms. Donovan testified that if Ms. Hale had an issue with her, instead of going directly
to her, Ms. Hale would speak with the director or whoever would listen who would
then speak to Ms. Donovan about the issue. 221 PSAMF ¶ 391; DRPSAMF ¶ 391.
During the end of Ms. Donovan’s employment, Ms. Hale stopped providing
administrative support that was part of her responsibilities, such as reporting,
macros, and V look ups.

PSAMF ¶ 376; DRPSAMF ¶ 376. Ms. Donovan testified

Ms. Donovan denies DSMF ¶ 113, saying she admits that Ms. Hale testified as such but denies
“that it was true.” PRDSMF ¶ 113. Ms. Donovan’s objection is beyond the scope of the fact, and the
Court admits DSMF ¶ 113. Furthermore, Ms. Hale’s testimony is admissible as lay opinion testimony
under Federal Rule of Evidence 701.
220
PSAMF ¶ 390 provides that “Donovan testified that Hale would stand at her door blocking
Donovan in her office and shout loudly about things Hale believed Donovan had done wrong stating
‘that kind of thing happened a lot.’” Nappi qualifies the fact, saying “Defendant admits all facts
asserted in this paragraph except use of the term, ‘blocking,’ which is not supported by the cited record
material.” DRPSAMF ¶ 390.
Ms. Donovan testified that Ms. Hale’s bullying entailed “her need to come to my office, for
instance, and stand at my door with absolutely nowhere for me to go other than to listen to her stand
there and shout loudly about things that she considered I had done wrong.” Donovan Dep. at 28:1418. The Court finds the word “blocking” is supported by the record and admits PSAMF ¶ 390.
221
PSAMF ¶ 391 states that “Donovan testified that if Hale had an issue with Donovan, instead
of going directly to Donovan she would speak with the director or whoever would listen who would
then tell Donovan of the issue as an example of badmouthing Donovan.”
Nappi qualifies the fact, saying Nappi “denies this assertion to the extent it is convoluted and
does not truly represent the cited record material. Ms. Donovan testified that Ms. Hale would badmouth her or critique her work, and when asked for an example of what she meant by ‘badmouthing,’
Ms. Donovan testified that Ms. Hale would learn of an issue, tell Carr or Nick Nappi, who would then
speak with Ms. Donovan about the issue.” DRPSAMF ¶ 391. The Court admits the fact over Nappi’s
objection.
219

78

that Ms. Hale was very flirty, smiley, and bubbly at work and dressed very girly, but
that Ms. Donovan was not those things, and she believes Mr. Watson preferred Ms.
Hale to her because of it. 222 PSAMF ¶ 317; DRPSAMF ¶ 317. Ms. Donovan did not
observe Ms. Hale treating men poorly yet did observe her treating females poorly,
just not to the extent she treated Ms. Donovan. PSAMF ¶ 18; DRPSAMF ¶ 18. Ms.
Donovan does not believe Ms. Hale would have gotten away with treating men as
poorly as she did women and believes Ms. Hale was “threatened” by women and Ms.
Donovan in particular because Ms. Donovan got the job as Wine Purchaser, a job Ms.
Hale unsuccessfully tried to get. 223 PSAMF ¶ 18; DRPSAMF ¶ 18; DSMF ¶ 119;
PRDSMF ¶ 119. Ms. Donovan alleges that Ms. Hale tried to get a man, Frank
Maiorino, fired because she disliked him.

DSMF ¶ 121; PRDSMF ¶ 121.

Ms.

Donovan also alleges that Ms. Hale bullied her in the way that she spoke to her—
being spoken down to constantly in a derogatory and belittling way—and by refusing
to cooperate with her. 224 DSMF ¶ 120; PRDSMF ¶ 120; PSAMF ¶ 27; DRPSAMF ¶
27. Ms. Donovan described that the bullying from Ms. Hale included using language

PSAMF ¶ 317 states that “Donovan testified that Hale was very flirty, smiley, and bubbly at
work and dressed very girly, but that Donovan was not those things and she believes Watson preferred
Hale to Donovan because Hale acted and dressed that way.”
Nappi objects to PSAMF ¶ 317, saying “Ms. Donovan’s testimony about what she believed Mr.
Watson preferred is speculative and not based on her contemporaneous perceptions” but otherwise
admits the fact. DRPSAMF ¶ 317. The Court admits Ms. Donovan’s testimony over objection pursuant
to Federal Rule of Evidence 701.
223
Nappi qualifies PSAMF ¶ 18, saying Ms. Donovan testified that “Ms. Hale did not get along
with some men.” DRPSAMF ¶ 18. Nappi’s objection is beyond the scope of the fact, and the Court
admits DRPSAMF ¶ 18.
224
Ms. Donovan qualifies DSMF ¶ 120, saying she “categorized Ms. Hale’s conduct as ‘bullying,’
‘derogatory,’ ‘belittling,’ ‘harassment,’ ‘physically threatening,’ ‘undermining,’ ‘badmouthing,’
‘intimidation.’” PRDSMF ¶ 120. Ms. Donovan’s qualification is beyond the scope of the fact, and the
Court admits DSMF ¶ 120.
222

79

such as “fuck,” “bitch,” and other curse words daily. 225 PSAMF ¶ 28; DRPSAMF ¶
28. Ms. Donovan also indicated the bullying from Ms. Hale included talking to peers
or management to undermine her any chance she got. 226 PSAMF ¶ 29; DRPSAMF ¶
29. Ms. Donovan also reported that she felt as though Ms. Hale overstepped by
speaking with suppliers. DSMF ¶ 125; PRDSMF ¶ 125. In addition to specific
bullying and harassment related to her sexual orientation, Ms. Donovan categorized
Ms. Hale’s conduct as “just a general mistreatment.” 227 DSMF ¶ 126; PRDSMF ¶
126.
Ms. Donovan complained of Ms. Hale’s conduct to Mr. Carr and Mr. Bourque
almost immediately after starting work because she was taken aback, having never

Nappi denies PSAMF ¶ 28, saying “[t]he record citation states that Ms. Donovan could not
identify any specific curse word. Further, Ms. Donovan testified that she does not recall Ms. Hale
referring to her by an expletive or derogatory name.” DRPSAMF ¶ 28.

225

Ms. Donovan testified:
Q. Okay. When you describe it as derogatory, those kind of comments, what do you
mean? Did she use any kind of foul language?
A. I think at the time was a daily use of language anyway. Yes.
Q. Okay, so what kind of foul language did she use in communicating with you?
A. It depends on the context, swearing for sure, I mean, any curse really. I can’t tell
you specifically, any curse, fuck, bitch, whatever it might be.
Q. Okay, and she used all those terms in communicating with you?
A. Absolutely. Excuse my language, I’m sorry.
Donovan Dep. at 26:3015. The Court concludes that PSAMF ¶ 28 is amply supported by the record
and admits the fact over objection.
226
Nappi qualifies PSAMF ¶ 29, saying “[w]hen asked to elaborate on this behavior, Ms. Donovan
described an example in which an incorrect wine order was received and Ms. Hale notified Mr. Carr.”
DRPSAMF ¶ 29. Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF ¶ 29.
227
DSMF ¶ 126 provides that “Ms. Donovan categorized Ms. Hale’s conduct as ‘just a general
mistreatment.’” Ms. Donovan denies DSMF ¶ 126, saying she “categorized Ms. Hale’s conduct as
‘bullying,’ ‘derogatory,’ ‘belittling,’ ‘harassment,’ ‘physically threatening,’ ‘undermining,’
‘badmouthing,’ ‘intimidation.’” PRDSMF ¶ 126. When asked “[o]ther than [the specific harassment
related to your sexual orientation] you mentioned, any other harassment that you believe [Ms. Hale]
or Becky engaged in that was specific to your sexual orientation?” Ms. Donovan responded “[i]t was
just a general mistreatment.” Donovan Dep. at 138:2-5. The Court accepts Ms. Donovan’s denial as a
qualification and alters DSMF ¶ 126 to reflect the record.

80

experienced that level of hostility in the workplace. 228 PSAMF ¶ 19; DRPSAMF ¶ 19.
Ms. Donovan testified Mr. Bourque was not very responsive to her complaint about
Ms. Hale, stating “He wasn’t really responsive. He didn’t – I would have expected
him to – I would have expected him to elaborate on my thoughts and feelings. He
didn’t. It was more like he wanted to just sweep it under the rug and, you know, hope
it goes away, you know, placate me basically.” 229 PSAMF ¶ 20; DRPSAMF ¶ 20.
When she made complaints about Ms. Hale’s conduct shortly after being hired in
December of 2013, Ms. Donovan did not explicitly tell members of Nappi management
that she believed Ms. Hale was discriminating against her. 230 DSMF ¶ 197; PRDSMF
¶ 197.
Ms. Donovan complained to Mr. Brown that she was having issues with Ms.
Hale. DSMF ¶ 127; PRDSMF ¶ 127. Mr. Brown understood that in his role as a
manager, he was responsible for documenting and referring complaints to human
resources. 231 DSMF ¶ 128; PRDSMF ¶ 128. Ms. Hale is “extremely capable” at her
Nappi denies Ms. Donovan’s PSAMF ¶ 19 as unsubstantiated by the cited record. Ms.
Donovan’s citation was: “Donovan dep. 28:8-20 ECF Doc. 51-1, PageID # 184.” As Nappi noted, Ms.
Donovan’s citation to her deposition at 28:8-20 does not substantiate PSAMF ¶ 19. However, the page
citation, PageID # 184, contains testimony that supports PSAMF ¶ 19. Thus, although a part of Ms.
Donovan’s citation does not support PSAMF ¶ 19, another part does and the Court admits PSAMF ¶
19 over objection.
229
Nappi objects to PSAMF ¶ 20, saying “Donovan testified that she has no knowledge of whether
Mr. Bourque ever followed up with Ms. Hale about Ms. Donovan’s complaints . . . [and] Mr. Carr
testified that he did speak to Ms. Hale after receiving complaints from Ms. Donovan.” DRPSAMF ¶
20. Nappi’s qualification is beyond the scope of the fact, and the Court admits PSAMF ¶ 20.
230
DSMF ¶ 197 provides that “[w]hile she made complaints about the conduct of her co-worker,
Ms. Hale, shortly after being hired in December of 2013, Ms. Donovan did not tell members of Nappi
management that she believed Ms. Hale was discriminating against her.” Ms. Donovan qualifies
DSMF ¶ 197, saying she “did not use the ‘magic words’ discriminating, but she repeatedly reported to
Fox that she was being treated differently by Hale.” PRDSMF ¶ 197. Having reviewed the relevant
record, the Court slightly alters DSMF ¶ 197 to reflect the record.
231
Ms. Donovan denies DSMF ¶ 128, saying Mr. Brown “failed to do so for weeks after Donovan
emailed and made multiple calls to him about the incident with no follow up.” PRDSMF ¶ 128. Ms.
Donovan’s denial is beyond the scope of the fact, and the Court admits DSMF ¶ 128.
228

81

job, which Mr. Brown suspected was difficult for Ms. Donovan.

DSMF ¶ 117;

PRDSMF ¶ 117. Mr. Brown testified that in his opinion, Ms. Donovan was passive
and struggled to accept tools that Ms. Hale provided to make her job more effective
because she was not at the same technical skill level as Ms. Hale. 232 DSMF ¶ 118;
PRDSMF ¶ 118.
Although she repeatedly informed management about her difficulties with Ms.
Hale, Ms. Donovan cannot specifically recall a conversation prior to leaving Nappi in
which she informed Nappi that she felt she was being harassed by Ms. Hale because
of her sex. 233 DSMF ¶ 123; PRDSMF ¶ 123. In fact, she testified that she told
management that Ms. Hale was “difficult,” and that she “didn’t understand why.”
DSMF ¶ 124; PRDSMF ¶ 124.
In March of 2017, Ms. Fox, Mr. Carr, and Mr. Brown spoke with Ms. Hale about
the need to follow directions and/or communicate proactively when unable to do
something as asked, as well as reviewed the need to get back on track towards
supporting the wine division and for her attitude to be consistently positive. 234

232
Ms. Donovan denies DSMF ¶ 118, saying she denies that she “struggled to accept tools that
Ms. Hale provided because [she] lacked technical skill level.” PRDSMF ¶ 118. Ms. Donovan’s objection
is beyond the scope of the fact, which asserts what Mr. Brown testified to be his opinion, not its truth.
The Court overrules Ms. Donovan’s objection and admits DSMF ¶ 118. The Court amended DSMF ¶
118 to clarify that the assertion is Mr. Brown’s opinion.
233
DSMF ¶ 123 states that “Ms. Donovan was unable to identify any conversation in which she
informed Nappi that felt she was being harassed by Ms. Hale because of her sex.” Ms. Donovan denies
DSMF ¶ 123, saying she “repeatedly reported to management difficulties with Hale including [to
Brown, Masters, Fox, Carr, [and] Watson.” PRDSMF ¶ 123. Having reviewed the relevant record, the
Court accepts Ms. Donovan’s denial as a qualification and slightly alters DSMF ¶ 123 to reflect the
record.
234
Nappi objects to PSAMF ¶ 30 as containing “immaterial factual assertions that were not plead”
and further qualifies PSAMF ¶ 30, saying “Ms. Fox testified that she remembered that the meeting
was in reference to a specific supplier, and that the note about a positive attitude referred to when she
received criticism from management.” DRPSAMF ¶ 30. The Court overrules Nappi’s objection

82

PSAMF ¶ 30; DRPSAMF ¶ 30. Ms. Masters believes her meeting with Ms. Fox, Mr.
Brown, and Ms. Hale occurred after Ms. Masters and Mr. Brown tried to resolve the
conflict between Ms. Hale and Ms. Donovan. 235 PSAMF ¶ 136; DRPSAMF ¶ 136. Mr.
Brown does not recall whether this meeting happened, but he understands that Ms.
Masters felt that Ms. Hale was treating her poorly and he agreed that the March 5,
2018 email written by Ms. Hale was disrespectful of Ms. Masters. 236 PSAMF ¶ 137;
DRPSAMF ¶ 137.
In August of 2017, Ms. Donovan had issues with Ms. Hale that resulted in a
workplace memorandum. PSAMF ¶ 125; DRPSAMF ¶ 125. In the August 28, 2017
written workplace memorandum, Mr. Brown wrote that Ms. Hale had engaged in
unprofessional communications with suppliers, customers, and co-workers. 237 Id.
regarding materiality, noting that Ms. Hale’s prior disciplinary interactions may be material to Ms.
Donovan’s claims as they relate to her disciplinary proceedings at Nappi with Ms. Hale. Furthermore,
Nappi’s qualification is beyond the scope of the fact, and the Court admits PSAMF ¶ 30.
235
PSAMF ¶ 136 states that “Masters believes this meeting with Masters, Fox, Brown and Hale
occurred after Masters and Brown were trying to resolve the conflict between Hale and Donovan.”
Nappi qualifies the fact, saying “Ms. Masters testified that the meetings with Ms. Donovan
were to understand how she was doing the ordering, and the tension was secondary.” DRPSAMF ¶
136. Nappi’s qualification is beyond the scope of the fact, and the Court admits PSAMF ¶ 136.
236
PSAMF ¶ 137 provides that “Brown denies this meeting happened, but understood that
Masters felt Hale was treating her poorly and agrees the email written by Hale was disrespectful of
Masters.”
Nappi qualifies PSAMF ¶ 137, saying “[t]he record citation does not support the factual
assertion [because] Mr. Brown testified that he does not recall that the meeting occurred [and f]urther,
the factual assertion does not identify the email to which Mr. Brown allegedly referred.” DRPSAMF
¶ 137. The cited testimony refers to the email “marked as Exhibit 3 in [Ms. Master]’s deposition and
this is an e-mail string that started with you calling out of work.” Brown Dep. at 25:16-18. Having
reviewed the entire relevant record, the Court slightly alters PSAMF ¶ 137 to reflect the record and
clarify which email is referenced.
237
PSAMF ¶ 125 states that “[s]hortly before Donovan attempted suicide, she had issues with
Hale that resulted in employee discipline on August 28, 2017. In the written warning on that date,
Brown wrote that Hale had engaged in unprofessional communications with suppliers, customers, and
co-workers.”
Nappi denies PSAMF ¶ 125, saying “[t]he record citation is to a workplace memorandum, not
employee discipline, that was issued to Ms. Hale as the result of an interaction that Ms. Hale had with
a supplier. Ms. Donovan was not involved in conduct that led to that memorandum in any way.

83

That month, Ms. Fox documented a meeting with Ms. Hale in which she
communicated that Ms. Hale and Mary Johnson needed to work together to restore
their relationship because it had been very strained for at least the entire time Ms.
Fox had been at Nappi. 238 PSAMF ¶ 126; DRPSAMF ¶ 126. Mr. Brown is also aware
of a time that Mary Bridges, a female supplier, reported that she had an encounter
with Ms. Hale in which Ms. Hale was disrespectful and unprofessional to her and
made her feel disparaged, unvalued, or offended. 239 PSAMF ¶ 133; DRPSAMF ¶ 133.
On August 28, 2017, Ms. Hale was spoken to by Mr. Brown, Ms. Masters, and Mr.
Maiorino because of her interactions with Santa Margharita supplier representative,
Further, the factual assertions attempt to link the memorandum to Ms. Donovan’s suicide attempt is
impermissible argument and must be stricken.” DRPSAMF ¶ 125.
Having reviewed the relevant record, the Court accepts Nappi’s denial as a qualification and
alters PSAMF ¶ 125 to reflect the record. First, in view of Nappi’s representation that the August 28,
2017 memorandum is not discipline, but a workplace memorandum, the Court altered the language to
reflect this distinction. Second, although Nappi is correct that the memorandum expressly mentioned
Ms. Hale’s interaction with two suppliers, the memorandum also mentions Ms. Hale’s issues with
coworkers. Third, although there is no direct link between this memorandum and Ms. Donovan,
viewing the memorandum in the light most favorable to Ms. Donovan, the Court concludes that such
an inference could be drawn, given Ms. Hale’s other issues with Ms. Donovan and the timing of this
memorandum.
238
PSAMF ¶ 126 states that “[i]n August of 2017 Fox documented a meeting with Hale in which
Fox communicated that Hale and Johnson need to work together to restore their relationship as it’s
been very strained for at least the entire time Fox had been at Nappi. Nappi admits that the meeting
occurred but objects to the contents of the meeting as inadmissible hearsay.” DRPSAMF ¶ 126. The
Court rejects Nappi’s objection for the same reason explained in footnote 190 and admits the fact.
239
PSAMF ¶ 133 states that “Masters and Brown are aware of a time that Hale was disrespectful
and unprofessional to a female supplier, Mary Bridges, with conduct that made her feel disparaged,
nonvalued, or offended.”
Nappi objects the PSAMF ¶ 133 as inadmissible hearsay and further denies the fact, saying
that “[t]he record citations indicate that Ms. Masters was not involved, and Mr. Brown testified that
he does not remember the specifics.” DRPSAMF ¶ 133. The Court accepts Nappi’s objection as to Ms.
Masters since she testified that she “did hear something.” Masters Dep. 40:19. But she said that she
was “not involved or was not around it to know exactly how it was tran - - how it transpired.” Id.
40:19-21. By contrast, Mr. Brown acknowledged that he recalled a meeting among Valarie Hale and
Jolene Masters where the issue about Ms. Hale’s conduct with two suppliers was discussed. Brown
Dep. 26:16-23. Although Mr. Brown testified that he did not have an exact memory of the incidents,
he testified at some length about them. Id. 26:24-27:18. The Court rejects Nappi’s denial of Mr.
Brown’s involvement as unsupported by his testimony. The Court overrules Nappi’s hearsay objection
because the asserted fact does not involve the truth of Mary Bridge’s allegation but her complaint and
Nappi’s response. The Court has reframed PSAMF ¶ 133 to clarify what is being asserted.

84

Mary Bridges—the memo states “It is not within the boundaries of your role to
reprimand others, make them feel disparaged, non-valued, or offended.” PSAMF ¶
138; DRPSAMF ¶ 138. Three days prior, on August 25, 2017, Ms. Masters, Ms. Fox,
Mr. Brown, and Ms. Hale had a meeting about acting more professionally, including
no longer being disrespectful to Ms. Bridges and Ms. Masters. PSAMF ¶¶ 134-35;
DRPSAMF ¶¶ 134-35. This meeting, however, did not address how Ms. Hale was
treating Ms. Donovan. 240 Id.
On March 5, 2018, less than one year after being spoken to about being
disrespectful to Ms. Masters, Ms. Hale forwarded an email chain involving a message
from Mr. Brown and Ms. Masters’ responding to Ms. Donovan and said “I just think
she’s stupid and she usually replies to everyone, so they are also aware she’s stupid.
And [Mr. Brown] is out today as a side note.” Ms. Hale was referring to Ms. Masters
being stupid; Ms. Masters is sure Ms. Hale thought she was stupid and treated her
as such given how she questioned her at times. 241 PSAMF ¶ 142; DRPSAMF ¶ 142.

240
PSAMF ¶ 134 states that “[s]ubsequent to Masters speaking to Fox about the bullying from
Hale, Masters, Fox, Brown and Hale had a meeting about acting more professionally, including being
disrespectful to a female supplier, Mary Bridges, and being disrespectful to Masters—This meeting
did not address how Ms. Hale was treating Ms. Donovan.”
Nappi first objects on the ground that the record citations do not establish that Ms. Hale was
disrespectful to a supplier. DRPSAMF ¶ 134. Nappi’s objection on this basis is wholly frivolous. In
the cited portion of Ms. Masters’ deposition, she confirms that the August 25, 2017 meeting contained
notes that referred to Ms. Hale’s interaction with the supplier, Santa Margherita, whose broker was
Mary Bridges. Masters Dep. 44:5-18.
Nappi also objects to PSAMF ¶ 134 as inadmissible hearsay and qualifies the fact, saying “[t]he
record citations do not support the assertion that Ms. Hale was disrespectful to a supplier.” DRPSAMF
¶ 134. The Court rejects Nappi’s hearsay objection for the same reason explained in footnote 17 and
228 and admits the fact over Nappi’s qualification, noting that PSAMF ¶ 133 points the Court to the
correct record citation at Brown Dep. at 26:16-27:18.
241
PSAMF ¶ 142 provides that “[o]n March 5, 2018, less than one year after being spoken to about
being disrespectful to Masters, Hale forwarded an email chain involving a message from Brown and
Masters’ response to Donovan and said ‘I just think she’s stupid and she usually replies to everyone,

85

Mr. Brown testified that Ms. Hale made statements to him that portrayed Ms.
Donovan in a bad light, not daily, but often, and it was Ms. Hale who told Mr. Brown
of Ms. Donovan’s technical deficiencies. 242 PSAMF ¶ 147; DRPSAMF ¶ 147. Mr.
Brown understood that Ms. Donovan was struggling with Ms. Hale because Ms.
Donovan told him that Ms. Hale was bullying her and because it’s something he had
to take disciplinary action on. 243, 244 PSAMF ¶ 146; DRPSAMF ¶ 146.
In June of 2018, Ms. Hale became frustrated when Ms. Donovan ran an invoice
incorrectly because she felt that she had already gone over the process of how to run

so they are also aware she’s stupid. And Ian is out today as a side note.’ Donovan was referring to
Masters being stupid and Masters is sure Hale thought Masters was stupid and treated her in such a
way by how she questioned her at times.”
Nappi qualifies PSAMF ¶ 142, saying “[t]he record citation does not establish when the first
meeting occurred. Further, Ms. Masters clarified that she interpreted Ms. Hale’s frustration as
thinking she was not capable.” DRPSAMF ¶ 142. Noting that the date of the email is printed on the
email exhibit, Masters Dep., Attach 3 (3/15/18 email), rather than the record citation, the Court
admits PSAMF ¶ 142 over objection. The Court rejects Nappi’s qualification because Ms. Masters
agreed that Ms. Hale thought she was stupid, even though she later used the phrase “not capable.”
242
Nappi objects to PSAMF ¶ 147 as hearsay and further qualifies the record, saying “[t]he record
citation indicated that Mr. Brown noticed Donovan’s performance deficiencies on his own, and that the
conversations with Hale were collaborative.” DRPSAMF ¶ 147. Nappi’s content objection is beyond
the scope of the fact, and the Court overrules Nappi’s hearsay objection because the statements are
not being offered for their truth.
243
PSAMF ¶¶ 143-45 refer to the contents of notes Ms. Fox took of her meeting with Mr. Brown
on September 25, 2017. For each statement, Ms. Donovan’s record citation is merely to “EXHIBIT.”
PSAMF ¶¶ 143-45. Nappi objects to each statement because the record citation is inadequate. The
Court agrees with Nappi and strikes the contents of PSAMF ¶¶ 143-45. See D. Me. Loc. Civ. R. 56(f)
(“An assertion of fact set forth in a statement of material facts shall be followed by a citation to the
specific page or paragraph of identified record material supporting the assertion. The court may
disregard any statement of fact not supported by a specific citation to record material properly
considered on summary judgment”).
244
PSAMF ¶ 146 states that “Brown understood Donovan was struggling with Hale because it’s
something he had to take disciplinary action on and Donovan told Brown that Hale was bullying her.”
Nappi objects to PSAMF ¶ 146 as hearsay and further qualifies the fact, saying “[i]n the record
citations, Mr. Brown testified that both Donovan and Hale reported issues to him, and Mr. Brown
characterized the relations as ‘unusual’ in that they at times were friendly and professional, and other
times were cold and distant.” DRPSAMF ¶ 146. The Court finds Nappi’s content objection beyond the
scope of the fact. Nappi’s hearsay objection is frivolous; PSAMF ¶ 146 is clearly directed to whether
Mr. Brown was aware of allegations of Ms. Hale’s bullying of Ms. Donovan, not for the truth. The
Court therefore overrules Nappi’s hearsay objection.

86

an invoice with her on more than one occasion. 245 DSMF ¶ 129; PRDSMF ¶ 129. On
June 1, 2018, after once again coming across an incorrect invoice from Ms. Donovan,
Ms. Hale went to the hallway outside Ms. Donovan’s office and asked her in a raised
voice to run the invoices correctly. 246,

247

DSMF ¶ 130; PRDSMF ¶ 130. Ms. Fox

admitted that Ms. Donovan had an issue with Ms. Hale in the summer of 2018 where
Ms. Hale stood in Ms. Donovan’s doorway and questioned her aggressively. PSAMF
¶ 151; DRPSAMF ¶ 151. Ms. Fox denied that Ms. Hale “yelled” but admitted that

DSMF ¶ 129 states that “[i]n June of 2018, Ms. Hale became frustrated when Ms. Donovan
was continuously running an invoice incorrectly, despite being taught the correct way dozens of times.”
Ms. Donovan denies DSMF ¶ 129, saying she “testified that in [an] effort to get a supplier to make
payment to Nappi for a product there had been an issue with, Donovan said something, pointed out
something, or asked something about the transaction which resulted in Hale going to Donovan’s office
and flailing and screaming at Donovan,” and Ms. Hale “was frustrated with how inventory moves.”
PRDSMF ¶ 129. Having reviewed the relevant record, the Court accepts Ms. Donovan’s denial as a
qualification and alters DSMF ¶ 129 to reflect the record.
246
Ms. Donovan denies DSMF ¶ 130 for the same reason as DSMF ¶ 129. Ms. Donovan’s denial
is beyond the scope of the fact, and the Court admits DSMF ¶ 130.
247
DSMF ¶ 131 provides that “Ms. Hale did not swear at Ms. Donovan or make any gestures.”
Ms. Donovan denies DSMF ¶ 131, saying that “[d]uring the investigation into the incident between
Hale and Donovan on June 1, 2018, Fox, Brown, and Masters interviewed employees that witnessed
the incident. During the interview with Patty Kroot, Fox’s notes reflect that Kroot stated Hale’s
gestures were more aggressive than tone and that [she] reported that Hale ma[de] several gestures,
very confrontational and aggressive, and [she] was bothered by it. Donovan reported to Fox that the
tone and physical demeanor was threatening. Brown reported to Fox a conversation he had with Kroot
in which Kroot reported the incident was very physical/aggressive.” PRDSMF ¶ 131.
Having reviewed the relevant record, the Court finds that Ms. Fox’s notes indicate that reports
of aggressive tones and movements were made. See Fox Dep., Exh. 25, Notes from June 14, 2018 (Page
ID # 912-13); id, Notes from June 18, 2018 (Page ID # 914-916). Viewing the facts in the light most
favorable to Ms. Donovan, the Court omits DSMF ¶ 131.
245

87

Ms. Hale raised her voice aggressively and publicly so that others overheard.

248, 249

Id.
Ms. Donovan emailed Mr. Brown the day that Ms. Hale confronted her and
told Mr. Brown she had been “shouted at for the entire office to hear.” 250 PSAMF ¶
152; DRPSAMF ¶ 152. Ms. Hale testified that she was frustrated with Ms. Donovan
in the summer of 2018 because Ms. Donovan incorrectly entered a transaction as a
sale instead of a transfer which created some additional work for Ms. Hale—Ms. Hale
testified this was the first time she had been frustrated with Ms. Donovan to the point
of expressing her frustration to that degree. 251 PSAMF ¶ 153; DRPSAMF ¶ 153. Ms.
Donovan spoke to Ms. Masters about the incident with Ms. Hale, explaining she did

PSAMF ¶ 150 provides that “Fox’s September 25, 2017 notes reflect that Donovan told Brown
she may look for other employment, and Brown asked her for a proper notice period then: ‘Told her
didn’t think was good fit for her.’ EXHIBIT. The bottom of the page on Exhibit ___ is cut off, but it
appears as though Brown told Fox that Donovan “seemed relieved” when Brown told her she was not
a good fit for the job.”
Nappi objects to PSAMF ¶ 150 as hearsay and denies the fact because “[t]here is no record
citation for the factual assertion.” DRPSAMF ¶ 150. The Court omits PSAMF ¶ 150 because Ms.
Donovan provides no record citation and appears to be citing to an exhibit with the bottom of the page
“cut off” and speculating as to what is contained in the exhibit. The Court will not admit facts based
only on speculation and without a record citation and is under no obligation to independently search
the record for the correct supporting citation. See D. ME. LOC. R. 56(f).
249
Nappi objects to PSAMF ¶ 151 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Fox testified she was not there when the incident occurred, she did not use the term ‘confronted’
but rather said Ms. Hale ‘questioned’ Ms. Donovan, and she did not deny yelling, but stated that what
was described to her was not yelling. But rather raised voices.” DRPSAMF ¶ 151. Nappi’s content
objection is largely beyond the scope of the fact, but the Court alters “confronted” to “questioned” to
reflect the cited record. The Court overrules Nappi’s hearsay objection because Ms. Fox is testifying
about the results of an investigation about the incident she carried out on behalf of Nappi.
250
Nappi objects to PSAMF ¶ 152 as inadmissible hearsay but otherwise admits the fact. The
Court overrules Nappi’s hearsay objection and admits the fact because the fact that Ms. Hale was
shouting is not offered for the truth of what was said.
251
Nappi qualifies PSAMF ¶ 153, saying “[t]he factual assertion understates Ms. Donovan’s error.
Ms. Hale testified that the error had occurred dozens of times before, and Ms. Hale had explained it
to Ms. Donovan repeatedly, and that each time Ms. Donovan entered it incorrectly it created ‘a
nightmare of paperwork,’ which was left to Ms. Hale to fix.” DRPSAMF ¶ 153. Nappi’s qualification
is beyond the scope of the fact, and the Court admits PSAMF ¶ 153. Furthermore, the Court is required
to view contested facts in the light most favorable to Ms. Donovan.
248

88

not want to go to a concert with Ms. Masters if Ms. Hale was going to be there, but
nobody specifically followed up with Ms. Donovan on the issue because it was just Ms.
Donovan and Ms. Hale’s “up and downs” or “hot and cold days.” 252 PSAMF ¶ 154;
DRPSAMF ¶ 154. Ms. Masters testified that Ms. Donovan may have complained to
Ms. Masters that Ms. Hale was “overstepping,” but she did not understand what Ms.
Donovan meant by that. 253 PSAMF ¶ 155; DRPSAMF ¶ 155.
252
PSAMF ¶ 154 states that “Donovan spoke to Masters about the incident with Hale, explaining
she did not want to go to a concert with Masters if Hale was going to be there, but Hale did nothing to
follow up on the issue because it was just Donovan and Hale’s ‘up and downs’ or ‘hot and cold days.’”
Nappi objects to PSAMF ¶ 154 as hearsay and further qualifies the fact, saying “[t]he record
citation does not support the assertion that Hale ‘did nothing to follow up on the issue.’ The record
citation discusses that Ms. Masters met with Mr. Brown and Ms. Donovan to discuss the issue and
how to handle it.” DRPSAMF ¶ 154. Ms. Masters testified:

Q. Okay. Okay. First indication this is still an issue is when Joline went to get Zac
Brown tickets with Helena Stump and spoke in detail. And I also just want to show
you, just to kind of refresh your recollection on this, right here we're looking at Helena's
notes from some -- like a timeline of issues that she was dealing with. So it indicates
on June 8th, Val shouted and flailed at her. This is kind of the incident that sparked
the interviews and the discussions with Val.
And then it says on 6/13: Joline came into my office to ask if I would like to go
to the Zac Brown concert on the 15th. I asked if Val would be attending and declined
when Joline confirmed that she would. Joline asked if there was an issue. I explained
what had happened and that it was ignored and that I didn't feel it was acceptable.
Joline and Ian spoke with me at the gazebo to understand my side of the events.
Does that refresh your recollection at all as to -A. How could it have been ignored if we spoke with her in the gazebo?
Q. Because she had already contacted Ian Brown the week before when it had
happened.
A. Oh, so you -- I thought you meant I had ignored her. Okay.
Q. No, that she felt that Ian had ignored her.
A. Oh, oh, oh. Okay. I was going to say I don’t -- yeah, again, I don’t remember. It could
have been after the fact when -- I think it came out when we actually sat in the gazebo
that she was, you know -- it might have been because of her saying she didn't want to
go that I might have been the one saying let's have another meeting with her because
I knew that there was something happening. And again that might have been at the
beginning. I don’t remember.
Masters Dep. at 54:13-55:22. Having reviewed the relevant record, the Court alters PSAMF ¶ 154 to
reflect the record.
253
PSAMF ¶ 154 provides that “Masters testified that Donovan complained to Masters that Hale
was ‘overstepping' but Masters did not ascertain what Donovan meant by that.” Nappi objects to
PSAMF ¶ 154 as inadmissible hearsay and further qualifies the fact, saying “[t]he record citation

89

As a result of the growing interpersonal issues between Ms. Hale and Ms.
Donovan, a disciplinary meeting was held with Mr. Brown, Ms. Fox, Ms. Hale, Ms.
Donovan, and Ms. Masters on June 14, 2018 to discuss the June 1, 2018 incident
between Ms. Hale and Ms. Donovan. 254 PSAMF ¶ 156; DRPSAMF ¶ 156; DSMF ¶
132; PRDSMF ¶ 132. Ms. Hale testified that during this interaction her conduct was
limited to saying “can you please, please run these correctly” with a raised voice.
PSAMF ¶ 180; DRPSAMF ¶ 180. During the meeting, Mr. Brown told Ms. Donovan
that “the emotional rollercoaster needs to stop,” and Ms. Fox told Ms. Donovan to

indicated that Ms. Masters testified that Ms. Donovan ‘may have said something like’ overstepping,
but Ms. Masters interpreted it as Ms. Hale trying to help Ms. Donovan.” DRPSAMF ¶ 154. The Court
overrules Nappi’s hearsay objection. Ms. Donovan’s statements are admitted not for their truth but
for Ms. Donovan’s prior consistent statements and notice to Nappi. Having reviewed the relevant
record, the Court slightly alters PSAMF ¶ 154 to reflect the record.
254
Nappi objects to PSAMF ¶ 156 as a reference to “handwritten notes which offer out-of-court
statements for the truth of the matter asserted” and are “therefore, hearsay,” but otherwise admits
the fact. DRPSAMF ¶ 156. The Court overrules Nappi’s hearsay objection because contemporaneous
handwritten notes by an employee of a business meeting fit within the business records exception to
the rule against hearsay and admits PSAMF ¶ 156.

90

discontinue the “minion attitude.” 255, 256, 257 PSAMF ¶¶ 158, 185; DRPSAMF ¶¶ 158,
185.

During that meeting, Nappi issued Ms. Hale a warning, and issues were

discussed to “clear the air and move forward in a productive and professional
manner.” DSMF ¶ 133; PRDSMF ¶ 133. Those present reviewed issues within the
department that needed to get fixed. 258 DSMF ¶ 134; PRDSMF ¶ 134. Mr. Brown

PSAMF ¶ 185 states that “[d]uring a meeting with Fox, Brown and Donovan on June 21, 2018,
Brown told Donovan that ‘the emotional rollercoaster needs to stop' and Fox told Donovan to
discontinue the ‘minion attitude.’ This meeting occurred in conjunction with Donovan’s complaints of
Hale and of Brown’s failure to respond to her complaint.”
Nappi qualifies PSAMF ¶ 185, saying “Mr. Brown does not recall saying ‘the emotional roller
coaster needs to stop,’ further, he testified it does not sound like something he would say. Further, Mr.
Brown does not know to what the ‘minion attitude’ is in reference. Finally, the record citation does not
support the assertion that the meeting occurred in conjunction with any complaint of Brown’s failure
to respond to the complaint.” DRPSAMF ¶ 185. Having reviewed the relevant record, the Court finds
that Mr. Brown’s testimony in conjunction with Ms. Fox’s notes that Plaintiff cites at “ECF Doc. 5219, PageID # 1249” substantiate the first sentence of the fact. The Court finds no support in the cited
record to indicate that the meeting occurred in conjunction with Ms. Donovan’s complaints of Ms. Hale
and of Mr. Brown’s failure to respond to her complaint. The Court thus omits the second sentence of
PSAMF ¶ 185 and otherwise admits the fact.
256
PSAMF ¶ 157 provides that “[p]rior to the incident where Hale yelled at Donovan, Hale was
spoken to about being disrespectful in an email to Michele Tourangeau.”
Nappi objects to PSAMF ¶ 157 as inadmissible hearsay and further denies the fact as
unsupported by the record. DRPSAMF ¶ 157. Ms. Masters testified:
255

Q: And then it says over here that this is the second time since last year has spoken of
issues, same with MT last month. Did Valarie Ellis have an issue where she was
disrespectful to Michele Tourangeau?
A. I don't know.
Masters Dep. at 58:10-15. The Court concludes that PSAMF ¶ 156 is unsupported by the cited record
and is under no obligation to independently search the record for the correct supporting citation. See
D. ME. LOC. R. 56(f). The Court omits PSAMF ¶ 156.
257
PSAMF ¶ 158 states that “[d]uring the meeting, Hale expressed that she knew she needed to
approach Donovan differently because . . . Donovan is fragile, emotional and because of her suicide
attempt.”
Nappi objects to PSAMF ¶ 158 as inadmissible hearsay and further qualifies the fact, saying
“[t]he factual assertion refers to Ms. Masters’ perception of Ms. Donovan and does not indicate what
Ms. Hale understood.” DRPSAMF ¶ 158. The Court agrees with Nappi that the cited record does not
support the assertion in PSAMF ¶ 158. Although counsel quoted Ms. Hale’s comment about the need
to approach Ms. Donovan differently, Ms. Masters answered the question by explaining her, not Ms.
Hale’s perceptions of Ms. Donovan. The Court omits PSAMF ¶ 158 as unsupported by the cited record.
258
DSMF ¶ 134 states that “[d]uring the meeting, those present reviewed multiple deficiencies in
Ms. Donovan’s performance and discussed how she could improve in her role.” Ms. Donovan denies
DSMF ¶ 134, saying Mr. Brown “testified that they discussed issues within the department as a whole

91

felt that the meeting was very productive, that Ms. Donovan and Ms. Hale laid out
their feelings, and that the meeting ended in a good place. 259 DSMF ¶ 135; PRDSMF
¶ 135. Ms. Hale took responsibility for her actions, was emotional, and understood
that her behavior was unacceptable and that she needed to change her approach. 260
DSMF ¶ 138; PRDSMF ¶ 138. In Ms. Hale’s view, she worked very hard to repair
her relationship with Ms. Donovan, both professionally and personally. 261 DSMF ¶
139; PRDSMF ¶ 139. Mr. Brown was proud of Ms. Hale’s development of selfawareness in her approach after the disciplinary action. 262, 263 DSMF ¶ 140; PRDSMF
¶ 140.

that needed to get fixed that were not specific to Hale or Donovan—they were refining procedures
within administrative work, within purchasing to make the department better as a whole.” PRDSMF
¶ 134. Referring to what was discussed at this meeting, Mr. Brown testified that he “wouldn’t
characterize them as issues specifically that [Ms. Hale] was having an issue with. I think I would
characterize them as issues that were – that were issues within department that needed to get fixed.
These don’t just apply to – they don’t apply to [Ms. Hale] and [Ms. Donovan] at all. These are refining
procedures within administrative work, within purchasing, these are all things that are geared at
making our department better and more efficient, more effective.” Brown Dep. 56:20-57:3. The Court
accepts Ms. Donovan’s denial as a qualification and alters DSMF ¶ 134 to reflect the record.
259
Ms. Donovan denies DSMF ¶ 135, saying “Hale stated she was not as emotional as [Ms.]
Donovan and didn’t think the event was significant.” PRDSMF ¶ 135. Ms. Donovan’s denial is beyond
the scope of the fact, and the Court admits DSMF ¶ 135.
260
Ms. Donovan denies DSMF ¶ 138, saying “Hale’s behavior did not change [and l]ess than one
year after receiving that disciplinary action Hale sent an email referring to Masters as stupid . . . [t]he
bullying from Hale was continuous throughout Donovan’s employment.” PRDSMF ¶ 138. Ms.
Donovan’s denial is beyond the scope of the fact, and the Court admits DSMF ¶ 138.
261
DSMF ¶ 139 states that “Ms. Hale worked very hard to repair her relationship with Ms.
Donovan, both professionally and personally.” Ms. Donovan denies DSMF ¶ 139, saying “[t]he bullying
from [Ms.] Hale was continuous throughout [Ms.] Donovan’s employment.” PRDSMF ¶ 139. The
Court accepts Ms. Donovan’s denial as a qualification and slightly alters DSMF ¶ 139 to reflect the
record.
262
Ms. Donovan objects to DSMF ¶ 140, admitting that Mr. Brown testified as such but denying
“that it changed Hale’s behavior.” PRDSMF ¶ 140. Ms. Donovan’s objection is beyond the scope of the
fact, and the Court admits DSMF ¶ 140.
263
DSMF ¶ 141 states that “Ms. Donovan never reported to Mr. Brown that Ms. Hale was
withholding information that was necessary to be able to perform her job effectively.” Ms. Donovan
denies DSMF ¶ 141, saying “[o]n June 21, 2018, Donovan told Brown and Fox that Hale won’t let
Donovan in the BTG (by the glass) files.” PRDSMF ¶ 141. On June 21, 2018, the record notes indicate
that in a meeting among Ms. Fox, Mr. Brown, and Ms. Donovan, Ms. Donovan reported that Ms. Hale

92

Ms. Hale also met with Ms. Fox, Mr. Brown, and Ms. Masters on June 18, 2018,
and stated she was not as emotional as Ms. Donovan and didn’t think it was a
significant event. PSAMF ¶ 162; DRPSAMF ¶ 162. Management also told Ms. Hale
that this was maybe the second time since last year that Ms. Hale was spoken to
about these issues. 264 Id.
Around June 20, 2018, Mr. Brown solicited a list of the top three
priorities/frustrations Ms. Hale had about Ms. Donovan. 265

PSAMF ¶ 182;

DRPSAMF ¶ 182. Mr. Brown either provided the list of issues to Ms. Fox or discussed
it point by point with her. 266 PSAMF ¶ 183; DRPSAMF ¶ 183. That same day, Mr.
Brown sent an email to Ms. Donovan asking to meet the following day and forwarded
the email to Ms. Fox. PSAMF ¶ 184; DRPSAMF ¶ 184.

would not let her into the BTG files. See Brown Dep., Exh. 25, June 21, 2018 Notes (Page ID # 1249).
When asked whether Ms. Donovan ever told him that “she felt like [Ms. Hale] was withholding
information from her that was necessary for [her] to do her job effectively,” Mr. Brown testified “No,
absolutely not.” Brown Dep. at 92:24-93:2. Taking the facts in the light most favorable to Ms.
Donovan, the Court finds that the record does not support DSMF ¶ 141 and omits the fact.
264
PSAMF ¶ 162 states that “Hale also met with Fox, Brown, and Masters on June 18, 2018, and
stated she was not as emotional as Donovan and didn’t think it was a significant event. Management
also told Hale that this was maybe the second time since last year Hale was spoken to of these issues
including once with Michele Tourangeau in the past month.”
Nappi objects to PSAMF ¶ 162 as inadmissible hearsay and denies the fact as unsupported by
the record. DRPSAMF ¶ 162. The Court overrules Nappi’s hearsay objection and, having reviewed
the relevant record, omits the portion of the fact that refers to Michelle Tourangeau because it is not
supported by Ms. Master’s testimony.
265
PSAMF ¶ 182 provides that “[a]round June 20, 2018, Brown solicited a list of issues Hale had
about Donovan.” Nappi qualifies PSAMF ¶ 182, saying “[t]he record citation does not support that
Mr. Brown solicited a list of ‘issues’ but rather he asked for a list ‘top three priorities/frustrations.’”
DRPSAMF ¶ 182. The Court slightly alters PSAMF ¶ 182 to reflect the record.
266
PSAMF ¶ 183 states that “Brown provided the list of issues Hale had with Donovan’s
performance to Fox.” Nappi objects to PSAMF ¶ 183 as unsupported by the record and qualifies the
fact, saying “[t]he record citation appears to be incomplete and only supports that Mr. Brown ‘perhaps’
provided the first page of an unidentified document created by Ms. Hale to Ms. Fox.” DRPSAMF ¶
183. Having reviewed the relevant record, the Court slightly alters PSAMF ¶ 183.

93

On June 21, 2018, Nappi issued a formal written warning to Ms. Hale citing
inappropriate conduct that occurred on June 1, 2018 “with a co-worker.” PSAMF ¶¶
178-79; DRPSAMF ¶¶ 178-79. The co-worker was Ms. Donovan. Id. Nappi wrote
that Ms. Hale behaved in a “disparaging, hostile, and intimidating” manner toward
Ms. Donovan and “[f]urther, we expect that you will take the necessary steps to
transform the dysfunctional relationship you have with this co-worker.” Id. She was
told that additional disciplinary action would be taken if she made retaliatory
comments or behavior towards others. 267 DSMF ¶ 136; PRDSMF ¶ 136.
On June 22, 2018, Ms. Fox held a meeting with Ms. Donovan and others about
the incident with Ms. Hale. PSAMF ¶ 186; DRPSAMF ¶ 186. The meeting notes

DSMF ¶ 137 states that “Ms. Hale has not received any other disciplinary action or coaching
aside from that one incident.” Ms. Donovan denies DSMF ¶ 137, saying Ms. Hale was “previously
disciplined for bullying Masters and being rude and unprofessional to a supplier representative, Mary
Bridges, and was spoken to for how she communicated about incentives with Michele Tourangeau.”
PRDSMF ¶ 137. Ms. Hale testified:

267

Q. Okay. Have you ever had any disciplinary action or performance issues while at
Nappi Distributors?
A. The incident we talked about where I showed [Ms. Donovan] my frustration, I was
written up for that.
Q. Aside from the June 2018 issue between you and [Ms. Donovan], did you have any
disciplinary action or coaching related to your performance at Nappi Distributors?
A. No.
Q. Has anybody in management at Nappi Distributors ever spoken to you about how
you’re treating some of your coworkers?
A. No.
Q. Have any of your coworkers ever expressed to you that they felt like you were
treating them poorly?
A. No.
V. Hale Dep. at 35:13-36:7. On August 28, 2017, Ms. Hale received a memo from Mr. Brown, Ms.
Masters, and Mr. Maiorino regarding Nappi’s expectations on her communications with others, in
which Nappi wrote: “Your interactions with two of our major suppliers . . . were inappropriate.
Unprofessional communications of this nature, even in a joking manner, is damaging to your own
reputation within the industry, and also reflects negatively upon everyone at Nappi . . ..” Fox. Dep.,
Attach 25, August 28, 2017 Email (Page ID # 920). The Court accepts Ms. Donovan’s denial and omits
DSMF ¶ 137.

94

reflect that Ms. Donovan felt her job title should be “manager.”

Id.

After the

altercation that Ms. Donovan perceived as threatening, Ms. Donovan suggested to
Mr. Brown that he communicate directly with Ms. Hale instead of her having to do
so. PSAMF ¶ 187; DRPSAMF ¶ 187. This suggestion frustrated Mr. Brown, and
Nappi did not grant Ms. Donovan’s request to no longer work in direct communication
with Ms. Hale. 268 Id. In 2019, Ms. Donovan told Ms. Fox that Ms. Hale was trying
to undermine her and that Ms. Hale had formed a close alliance with new Wine Sales
Director Mr. Watson, which Ms. Donovan did not feel a part of. 269 PSAMF ¶ 124;
DRPSAMF ¶ 124.
Ms. Masters testified that she sat down with Ms. Hale and spoke to her about
her approach and that the way she was dealing with things needed to change because
her approach can rub people differently. PSAMF ¶ 127; DRPSAMF ¶ 127. Ms.
Masters testified that she previously went to Ms. Fox because she felt that Ms. Hale
was bullying her and that Ms. Hale needed to be spoken to by the whole management

PSAMF ¶ 187 provides that “[a]fter the threatening altercation that occurred on June 1, 2018,
Donovan suggested to Brown that he communicate directly with Hale instead of Donovan having to do
so. This suggestion frustrated Brown and Nappi denied Donovan’s request to no longer work in direct
communication with Hale.” Nappi objects to PSAMF ¶ 187 as hearsay and qualifies the fact, saying
that “using of the word ‘threatening’ is argument and not a statement of fact; therefore, it should be
stricken or disregarded.” DRPSAMF ¶ 187. The Court overrules Nappi’s hearsay objection and
slightly alters PSAMF ¶ 187 to be fact rather than argument.
269
PSAMF ¶ 124 states that “[t]he year after Donovan’s suicide attempt, she told Fox that Hale
was trying to undermine her, and Hale had formed a close alliance with new Wine Sales Director
Watson, which Donovan did not feel a part of.” Nappi objects to PSAMF ¶ 124 as inadmissible hearsay
and further qualifies the fact, saying “[i]n the record citation, Ms. Fox testified that in January or
February of 2019, Ms. Donovan told Ms. Fox that she felt as though Ms. Hale and Mr. Watson were
working well together and that Ms. Donovan did not feel a [part] of that. The argument that this
occurred ‘the year’ after Ms. Donovan’s suicide attempt is inaccurate, as those occurred in 2017.”
DRPSAMF ¶ 124. Having reviewed the relevant record, the Court changes “the year after Ms.
Donovan’s suicide attempt” to “in 2019” and otherwise admits the fact, rejecting Nappi’s hearsay
objection.
268

95

team. PSAMF ¶ 128; DRPSAMF ¶ 128. Ms. Masters testified that the bullying she
experienced from Ms. Hale consisted of her being quiet around her and giving her the
cold shoulder because Ms. Hale was frustrated that Ms. Masters’ knowledge of the
systems did not match her expectations. PSAMF ¶ 129; DRPSAMF ¶ 129. Ms.
Masters testified that at times during private meetings, Ms. Hale was disrespectful
and Ms. Masters had to tell her not to speak to her that way. PSAMF ¶ 130;
DRPSAMF ¶ 130.
Ms. Masters agrees that Ms. Hale treated Ms. Donovan in the same way that
Ms. Hale treated her. 270 PSAMF ¶ 131; DRPSAMF ¶ 131. Ms. Masters is aware that
Ms. Kroot and Ms. Murray may have complained to her about how Ms. Hale also
treated them disrespectfully. 271 PSAMF ¶ 132; DRPSAMF ¶ 132. Ms. Masters is not
aware of Ms. Hale being disrespectful to Mr. Brown, Mr. Watson, or any other male
employee at Nappi. 272 PSAMF ¶ 141; DRPSAMF ¶ 141.
Ms. Hale testified that Ms. Donovan’s suicide attempt became common
knowledge in and around the office. PSAMF ¶ 159; DRPSAMF ¶ 159. Ms. Hale
generally knew Ms. Donovan struggled with depression. PSAMF ¶ 160; DRPSAMF
PSAMF ¶ 131 states that “Masters agrees that Hale treated Donovan in the same disrespectful
way that Hale treated Masters.” Nappi qualifies PSAMF ¶ 131, objecting “to the phrase ‘disrespectful’
as it is argumentative and not supported by the record.” DRPSAMF ¶ 131. The Court slightly alters
PSAMF ¶ 131 to state a fact.
271
PSAMF ¶ 132 states that “Masters is also aware of Patty Kroot and Carol Murray making
complaints to Ms. Masters of how Ms. Hale treated them disrespectfully.” Nappi objects to PSAMF ¶
132 as inadmissible hearsay and qualifies the fact, saying that “[i]n the record citation, Ms. Masters
testified that, ‘…they may have said things to me.’” DRPSAMF ¶ 132. The Court rejects Nappi’s
hearsay objection and, having reviewed the relevant record, slightly alters the fact the reflect the
record.
272
Nappi objects to PSAMF ¶ 141, saying “[t]he record citation indicates that Ms. Masters would
not have been privy to those conversations, which would have occurred behind closed doors.”
DRPSAMF ¶ 141. The Court finds Nappi’s objection beyond the scope of the fact and admits PSAMF
¶ 141.
270

96

¶ 160.

Ms. Hale had conversations with members of management about her

frustration with Ms. Donovan’s job performance in 2018 and 2019 during monthly
team meetings. PSAMF ¶ 177; DRPSAMF ¶ 177. Ms. Masters recalls Ms. Hale and
Mr. Brown making comments about disapproving of Ms. Donovan’s job performance
because they were frustrated. PSAMF ¶ 181; DRPSAMF ¶ 181.
Ms. Fox met with Ms. Donovan on January 16, 2019.

PSAMF ¶ 188;

DRPSAMF ¶ 188. Her notes reflect that Ms. Donovan was being excluded from team
meetings and she wanted to take intermittent FMLA leave. 273

Id.

That same

meeting, Ms. Donovan told Ms. Fox that decisions were being made by Ms. Hale that
should have been made by Ms. Donovan, saying: “no one comes to me anymore.”
PSAMF ¶ 189; DRPSAMF ¶ 189. Sales representatives, Mr. Brown, and Ms. Masters
all “go to [Ms. Hale]” instead. 274 Id. Mr. Brown testified that Ms. Donovan was
excluded from general sales meetings where they had suppliers present and discussed
inventory, industry trends, and products Nappi was trying to push. 275 PSAMF ¶ 190;
DRPSAMF ¶ 190.

Nappi objects to PSAMF ¶ 188 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Fox’s notes indicate that Ms. Donovan requested leave to attend an additional appointment, and
that her performance issues were not the result of poor attendance.” DRPSAMF ¶ 188. The Court
overrules Nappi’s hearsay objection, finds Nappi’s content objection beyond the scope of the fact, and
admits PSAMF ¶ 188.
274
Nappi objects to PSAMF ¶ 189 as inadmissible hearsay but otherwise admits the fact.
DRPSAMF ¶ 189. The Court overrules Nappi’s hearsay objection.
275
PSAMF ¶ 190 states that “Brown testified that Donovan was excluded from General Sales
Meetings (GSM) where they had suppliers present on wine, discussed inventory and industry trends
and products Nappi was trying to push.” Nappi qualifies PSAMF ¶ 190, saying “[t]he use of the word
‘excluded’ is argumentative. Mr. Brown testified that Ms. Donovan stopped attending the meeting for
a period of time because she was unprepared and unproductive.” DRPSAMF ¶ 190. Having reviewed
the relevant record, the Court finds that the word “excluded” appropriately describes the situation and
admits PSAMF ¶ 190 over objection.
273

97

Ms. Donovan testified that she reported to Mr. Carr many times throughout
her employment at Nappi—until Mr. Carr retired—that she was having issues with
Ms. Hale. PSAMF ¶ 292; DRPSAMF ¶ 292. When asked if Mr. Carr was aware of
any issues between Ms. Hale and Ms. Donovan, Mr. Carr provided: “This is hard.
Valarie [Hale] is still working there, and she’s in Helena [Donovan]’s position.
Valarie [Hale] wanted Helena [Donovan]’s—she wanted John Houle’s position when
John Houle was there. So she would always try to claim that these two people weren’t
doing their job or were incompetent. Valarie [Hale] is a whiz on the computer.
Valarie [Hale] can get you a report. She can do stuff using the computer. She’s very
adept at what she does, and she’s probably great in the position she’s at. But Valarie
[Hale] has always been aggressive and looking for more.” PSAMF ¶ 24; DRPSAMF
¶ 24. When asked if Mr. Carr was aware of any conflict between Ms. Hale and Ms.
Donovan because of Ms. Hale’s desire to be in the position Ms. Donovan had, Mr. Carr
testified “Yeah. Helena [Donovan] always felt like she had a knife in her back from
Valarie [Hale]. And I’d always try to console Helena [Donovan] and say, I don’t care,
just tell me and I’ll tell Valarie [Hale] to stop. I told Valarie [Hale] at points to stop
badgering Helena [Donovan] about her performance and stuff.”

PSAMF ¶ 25;

DRPSAMF ¶ 25. Ms. Hale denies Mr. Carr ever speaking to her about how she
treated Ms. Donovan. PSAMF ¶ 26; DRPSAMF ¶ 26.
Prior to 2017, Ms. Hale met with Allan McInnis, Warehouse Supervisor, Nick
Nappi, Frank Nappi, and Mr. Carr to discuss inventory, but Ms. Donovan was not

98

invited to the meeting. After the meeting Ms. McInnis told Ms. Donovan that Ms.
Hale’s aim was to get Ms. Donovan fired. 276 PSAMF ¶ 297; DRPSAMF ¶ 297.
I.

Donovan’s Issues with Management

Ms. Donovan testified that she was receiving unwarranted criticism from Mr.
Watson that increased five to six months after he began working at Nappi in August
of 2018. PSAMF ¶ 293; DRPSAMF ¶ 293. Ms. Donovan alleges that she faced
criticism of her work by other members of the wine sales team beginning after Mr.
Watson joined Nappi and that she was not included in certain wine sales team
activities during that same period out of hostility. 277 DSMF ¶ 83; PRDSMF ¶ 83.
Even though Ms. Donovan was supposed to be responsible for inventory, she was not
getting information that she needed, and Mr. Watson had no respect for or confidence
in Ms. Donovan. 278 PSAMF ¶ 192; DRPSAMF ¶ 192. Mr. Watson never explicitly
told Ms. Donovan that he would not give her any specific information she

Nappi objects to PSAMF ¶ 297 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Donovan admits she was not present for the meeting and has no first-hand
knowledge of it.” DRPSAMF ¶ 297. The Court overrules Nappi’s hearsay objection, overrules Nappi’s
materiality objection, and admits PSAMF ¶ 297.
277
DSMF ¶ 84 states that “[t]here was a time period when Ms. Donovan did not attend general
sales meetings because she was unable to answer questions posed by salespeople, she showed up
unprepared, she would discuss irrelevant topics, and it was wasting time.”
Ms. Donovan denies DSMF ¶ 84, saying “[a]s early as January 16, 2019, Donovan reported to
Fox that she was excluded from sales meetings,” and “Brown and Masters both testified that Donovan’s
performance was as expected until 2019.” PRDSMF ¶ 84. There are two issues with Nappi’s
paragraph 84. First, it only describes a “time period” without saying when. Second, the absence of a
specified time requires that the Court view disputed matters in the light most favorable to Ms.
Donovan, which in light of her denial that describes her performance in 2019, the Court must credit.
278
Nappi denies PSAMF ¶ 192 as unsupported by the record citation. DRPSAMF ¶ 192. Having
reviewed the relevant record, the Court finds that PSAMF ¶ 192 is amply supported by the record
citation to “Doc. 52-14, [Fox Dep.] PageId # 930” and admits the fact over objection.
276

99

requested. 279 DSMF ¶ 143; PRDSMF ¶ 143. Ms. Donovan testified that she was not
invited to and excluded from meetings Mr. Watson held in his office with the entire
team and once he implemented monthly meetings, he would go over inventory and
then dismiss her from the meeting despite much information that would have a direct
impact on her job being discussed. 280

PSAMF ¶ 300; DRPSAMF ¶ 300.

The

information discussed at the monthly meetings were incentives, inventory needs, and
activities in chain and on-premises accounts—all information that would have been
helpful to Ms. Donovan in her role as the wine purchaser. PSAMF ¶ 398; DRPSAMF
¶ 398.

The information discussed at these meetings was communicated to Ms.

Donovan later, meaning at times she only became aware of the information when it
was critical. 281 Id. Ms. Donovan participated in team lunches before Mr. Watson
DSMF ¶ 143 provides that “Mr. Watson never told Ms. Donovan that he would not give her
information she needed, and she was never refused information after she requested it.”
Ms. Donovan denies DSMF ¶ 143, saying Mr. Watson “dismissed Donovan from every Wine
Management meeting when information that was necessary for Donovan to have to perform her job
was discussed [and Ms.] Donovan testified that Watson stopped speaking to her.” PRDSMF ¶ 143.
In the Court’s view, Ms. Donovan’s denial does not respond to the proposed fact. Nappi is asserting
that Mr. Watson never told Ms. Donovan that he would not give her certain information; the fact that
he held team meetings without her and that at one point he stopped speaking to her are not
contradictory. The Court rejects PRDSMF ¶ 143’s denial, but it slightly amended the fact to emphasize
that the paragraph asserts that Mr. Watson never explicitly refused to give Ms. Donovan information
she requested.
280
Nappi qualifies PSAMF ¶ 300, saying “Ms. Donovan testified that she received the information
relayed during monthly meetings, and that Mr. Watson never refused to provide her with information.
Further, Ms. Donovan admitted that she never approached Mr. Watson to discuss a lack of pertinent
information.” DR PSAMF ¶ 300. Nappi’s objection beyond the scope of the fact, and the Court admits
PSAMF ¶ 300.
281
PSAMF ¶ 398 provides that “[t]he information discussed at the monthly meetings were
incentives, inventory needs, and activities in chain and on premise accounts which is all information
that would have been helpful to [Ms.] Donovan in her role as the wine purchaser. The information
discussed at these meetings was withheld from her until the information became crucial, meaning she
could not anticipate purchasing needs preemptively and only became aware of the information when
it was critical.”
Nappi qualifies the fact, saying it “denies that this information was withheld from Ms.
Donovan, as the very next sentence in Mr. Brown’s testimony was that such information ‘was definitely
communicated to [Ms. Donovan].’ Mr. Brown testified that those meetings were by no means the only
279

100

arrived, but after Mr. Watson arrived she was, except for one work-related lunch,
excluded from the lunches while Mr. Watson, Mr. Brown, Ms. Masters, Mr. Wells,
and Ms. Hale would leave for two to three hours for a team lunch. 282 PSAMF ¶ 302;
DRPSAMF ¶ 302.
Ms. Donovan told Ms. Fox on March 15, 2019 that she had been excluded from
a team wine tasting meeting and that in other meetings Mr. Brown and Ms. Masters
refused to even make eye contact with her; Ms. Donovan felt she had “zero
communication” with these individuals who should have been working as a team with
her. 283 PSAMF ¶ 204; DRPSAMF ¶ 204. Ms. Donovan also told Ms. Fox that she had
been backed into a corner with no place to turn and that Mr. Watson and Ms. Masters
wanted her out of Nappi. She further said to Ms. Fox: “Just tell me”; “[Management]
has no confidence in me”; that she was “taking it personally,” and it could not be “any
clearer it’s personal.” PSAMF ¶ 205; DRPSAMF ¶ 205. Ms. Donovan also told Ms.

time at which those issues were discussed.” DRPSAMF ¶ 398. Having reviewed the relevant record,
the Court slightly alters PSAMF ¶ 398 to reflect the record and admits the fact.
282
PSAMF ¶ 302 provides that “Donovan participated in team lunches before Watson arrived, but
after Watson arrived she was excluded from the lunches, whereas Watson, Brown, Masters, Wells, and
Hale would leave for 2-3 hours for a team lunch.”
Nappi qualifies the fact, saying “Ms. Donovan testified that she did attend a work-related
lunch after Mr. Watson arrived.” DRPSAMF ¶ 302. Having reviewed the relevant record, the Court
adds “except for one work-related lunch” to the fact and admits PSAMF ¶ 302.
283
PSAMF ¶ 204 provides that “Donovan told Fox on March 15, 2019 that she had been excluded
from a team meeting to do a wine tasting and in other meetings Brown and Masters refused to even
make eye contact with her; Donovan had ‘zero communication’ with these individuals who should have
been working as a team with her.”
Nappi objects to PSAMF ¶ 204 as inadmissible hearsay and further qualifies the fact, saying
“[t]he record citation does not support the assertion that Donovan had ‘zero communication’ with these
individuals who should have working as a team with her.” DRPSAMF ¶ 204. The Court overrules
Nappi’s hearsay objection and slightly alters PSAMF ¶ 204 to indicate that the fact reflects Ms.
Donovan’s perception.

101

Fox that Ms. Hale was “bullying” her. 284 Id. After Mr. Watson began working at
Nappi, Mr. Stultz told Ms. Donovan that Ms. Hale instructed him to bring issues
directly to Ms. Hale, not to Ms. Donovan. 285 PSAMF ¶ 301; DRPSAMF ¶ 301.
Ms. Donovan testified that toward the end of her employment, Mr. Watson was
coming to her office daily with issues she perceived were not legitimate and with
unwarranted criticisms, often blaming her for issues that were out of her control or
Ms. Hale’s responsibility. 286 PSAMF ¶ 294; DRPSAMF ¶ 294. Ms. Donovan also
testified that toward the end of her employment, Mr. Watson required her to come up

PSAMF ¶ 205 states that “[d]uring the March 15, 2019 meeting, Donovan told Fox that she
had been backed into a corner with no place to turn; Watson and Masters wanted her out of Nappi and
Donovan said to Fox: ‘Just tell me’; ‘[Management] has no confidence in me’; Ms. Donovan was ‘taking
it personally,’ and it could not be ‘any clearer it’s personal.’ Donovan also reiterated that Hale was
‘bullying’ her.”
Nappi objects to PSAMF ¶ 205 as inadmissible hearsay and further qualifies the fact, saying
“[t]he record citation does not support the assertion that Ms. Donovan told Ms. Fox that she was
‘backed into a corner with no place to turn.’ Further, the record citation does not support the assertion
that Ms. Donovan ‘reiterated’ that Ms. Hale was bullying her, as Ms. Fox testified this was the first
time that Ms. Donovan said as much.” DRPSAMF ¶ 205. Ms. Fox testified:

284

Q. Okay. And in this meeting with [Ms. Donovan] in March of ’19, she told you [Ms.
Hale] was bullying her?
A. Yes, that was the first time she had actually said – said that, or implied that it was
even at that level.
Fox Dep. at 141:12-15. The Court overrules Nappi’s hearsay objection and having reviewed both the
cited testimony and exhibit record, the Court finds PSAMF ¶ 205 largely supported by the record
citation but slightly alters the fact.
285
Nappi objects to PSAMF ¶ 301 as inadmissible hearsay and immaterial but otherwise admits
the fact. The Court overrules Nappi’s hearsay objection for the reason explained in footnote 17,
overrules Nappi’s materiality objection, and admits PSAMF ¶ 301 at the summary judgment stage.
286
PSAMF ¶ 294 provides that “[t]oward the end of her employment, Watson was going to
Donovan’s office daily with issues that were not legitimate and unwarranted criticisms often blaming
Donovan for issues that were out of her control or that were Hale’s responsibility.”
Nappi denies the fact, saying “Ms. Donovan testified that Mr. Watson was dissatisfied that she
did not know when a product was arriving, but she indicated she did not have an answer for him.
Further, Mr. Watson testified that his primary concern was the ‘major out-of-stocks,’ and that he had
expectations for someone in her position.” DRPSAMF ¶ 294. Nappi’s objection is largely beyond the
scope of the fact, but the Court accepts Nappi’s denial as a qualification and adds to PSAMF ¶ 294 to
reflect that this fact is based on Ms. Donovan’s testimony and how she perceived her interactions with
Mr. Watson.

102

with a new way of doing her job without any parameters or guidelines on how that
should happen or what it would look like. 287 PSAMF ¶ 295; DRPSAMF ¶ 295. Ms.
Hale thought that Ms. Donovan did her job deficiently at times, and Ms. Hale took it
upon herself to fulfill Ms. Donovan’s duties. 288 DSMF ¶ 85; PRDSMF ¶ 85. Ms. Fox
admitted that Nappi “offloaded” quite a bit of work from Ms. Donovan so she could
get caught up, and the timing of when work was offloaded was not left to Ms.
Donovan’s discretion. 289 PSAMF ¶ 206; DRPSAMF ¶ 206. When Ms. Donovan

PSAMF ¶ 295 states that “[t]oward the end of Donovan’s employment, Watson required
Donovan to come up with a new way of doing her job without any parameters or guidelines on how
that should happen or what it would look like.”
Nappi denies PSAMF ¶ 295, saying “Mr. Watson testified that he was asking Ms. Donovan to
do things that she should have been able to do based on the level of her position.” DRPSAMF ¶ 295.
Nappi’s objection is largely beyond the scope of the fact, but the Court accepts Nappi’s denial as a
qualification and adds to PSAMF ¶ 294 to confirm that this fact reflects Ms. Donovan’s testimony.
288
DSMF ¶ 85 provides that “Ms. Donovan had deficiencies in her job performance, which at times
fell to Ms. Hale to complete.” Ms. Donovan denies DSMF ¶ 85, saying “Brown testified that Hale
would take it upon herself to complete Donovan’s work if she thought she could do it better, ‘to her
own detriment.’” PRDSMF ¶ 85.
Ms. Donovan denied DSMF ¶ 85, noting that Mr. Brown testified that Ms. Hale would take it
upon herself to complete Donovan’s work if she thought she could do it better. For support, Ms.
Donovan cites portions of Mr. Brown’s deposition testimony. Id. In his deposition, Mr. Brown testified
that Ms. Donovan and Ms. Hale “had two distinctive roles and that, you know, Valarie [ Hale] did have
her own responsibilities and that it was important that she continue those and kind of stay within her
role. Like I said when we first began, Valarie [Hale] is very capable and if she sees an opportunity
where she can be helpful and provide something, she’s going to do it, I think sometimes to her
detriment because it just creates more than I think one person should have to deal with.” Brown Dep.
at 55:23-56:6. The Court accepts Ms. Donovan’s denial as a qualification and slightly alters DSMF ¶
85 to reflect the full record.
289
PSAMF ¶ 206 provides that “Fox admitted that Nappi ‘offloaded’ quite a bit of work from
Donovan, and the timing of when work was offloaded was not left to Donovan’s discretion.”
Nappi qualifies PSAMF ¶ 206, saying “[t]he record citation indicates that the tasks were
reassigned at Ms. Donovan’s request.” DRPSAMF ¶ 206. Ms. Fox testified that “[a]t this point, we
had offloaded quite a bit of work for her at her request.” Fox Dep. at 137:24-25. Nappi’s objection is
not directly responsive to PSAMF ¶ 206. PSAMF ¶ 206 asserts that the timing of when the work was
offloaded was not left to Ms. Donovan’s discretion, but Nappi has objected by asserting that the
reassignment itself was done at Ms. Donovan’s request. Viewing disputed facts in the light most
favorable to Ms. Donovan, she could have requested the offloading but had no discretion as to the
timing.
The Court therefore rejects Nappi’s qualified response as beyond the scope of PSMAF ¶ 206.
287

103

reported mistreatment from Ms. Hale to Ms. Fox, Ms. Fox responded in part by telling
Ms. Donovan to “rise above it.” 290 PSAMF ¶ 313; DRPSAMF ¶ 313.
Ms. Donovan testified that her job performance was not scrutinized harshly
until Mr. Watson arrived, before that her job performance was as expected. 291
PSAMF ¶ 298; DRPSAMF ¶ 298. Ms. Donovan never directly told her supervisor Mr.
Watson that she was suffering from depression. 292 DSMF ¶ 24; PRDSMF ¶ 24. Yet
Ms. Donovan testified the scrutiny she was under from Mr. Watson was because of
her mental health and sexual orientation. 293 PSAMF ¶ 299; DRPSAMF ¶ 299.
Ms. Donovan testified that during a meeting with Ms. Fox and Mr. Watson,
she disclosed that she began maintaining notes at work and she brought them with
her to the meeting. PSAMF ¶ 314; DRPSAMF ¶ 314. After Ms. Donovan disclosed
that she was taking notes, Ms. Fox became defensive, changed her tone and outlook,

PSAMF ¶ 313 states that “[w]hen Donovan reported mistreatment from Hale to Fox, Fox
responded by telling Donovan to ‘rise above it.’”
Nappi denies PSAMF ¶ 313, saying “Ms. Fox met with Ms. Hale and members of management
and Ms. Hale was issued a warning after Ms. Donovan complained. As part of her response to that
complaint, Ms. Fox conducted an investigation and spoke with multiple Nappi employees to determine
what occurred.” DRPSAMF ¶ 313. Nappi’s objection is largely beyond the scope of the fact, but the
Court accepts Nappi’s denial as a qualification and slightly alters PSAMF ¶ 313 to reflect the record.
291
PSAMF ¶ 298 provides that “Donovan testified that her job performance was not scrutinized
harshly until Watson arrived, before that her job performance was as expected.”
Nappi denies the fact, saying “Ms. Donovan testified that she has been criticized for her
performance since before 2017. Mr. Watson joined Nappi in 2018.” DRPSAMF ¶ 298. As there is an
obvious difference between being criticized and scrutinized harshly, the Court rejects Nappi’s denial
on the ground that the denial is beyond the scope of PSMF ¶ 298. Furthermore, viewing contested
facts in the light most favorable to Ms. Donovan, the Court viewed “job performance . . . as expected”
as entailing the level of routine criticism reflected in the cited record.
292
DSMF ¶ 24 states “Ms. Donovan never told her supervisor, Matt Watson, that she was
suffering from depression.” Ms. Donovan qualifies DSMF ¶ 24, saying “did not specifically tell Watson
this information. However, Watson learned of Donovan’s depression and mental health diagnoses
from Christine Fox, Human Resources on September 13, 2018.” PRDSMF ¶ 24. The Court accepts
Ms. Donovan’s qualification and slightly alters DSMF ¶ 24 to reflect the record.
293
Nappi denies PSAMF ¶ 299, saying “Ms. Donovan testified that Mr. Watson did not say or do
anything the led her to think his criticisms were based on her sexual orientation.” DRPSAMF ¶ 299.
Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF ¶ 299.
290

104

and told Ms. Donovan that her taking notes was “combative.”

PSAMF ¶ 314;

DRPSMAF ¶ 314. From that point forward, it was very clear that she was siding
with Mr. Watson and did not have any interest in helping Ms. Donovan with her
situation. PSAMF ¶ 382; DRPSAMF ¶ 382.
Ms. Donovan testified that on multiple occasions she spoke in detail with Ms.
Fox about her mental health diagnoses, treatment, and severity. 294 PSAMF ¶ 312;
DRPSAMF ¶ 312. Ms. Donovan believes she was deliberately treated poorly by Nappi
to ensure that her mental health worsened, eventually reaching the point where she
was sitting in her office crying, unable to perform work requirements. 295 PSAMF ¶
377; DRPSAMF ¶ 377. Ms. Donovan testified that she did not go to Ms. Fox to speak
about her issues on the day she resigned because at that point Ms. Fox “was clearly
not a course for [her] to actually go to. That was very clear.” 296 PSAMF ¶ 381;
DRPSAMF ¶ 381.

Nappi qualifies PSAMF ¶ 312, saying “[t]he record citation only discusses conversations that
Ms. Donovan had with Ms. Fox when she returned to work in 2017. Ms. Donovan admitted that when
she discussed needing an additional therapy appointment in 2019, she did not give Ms. Fox any
specifics.” DRPSAMF ¶ 312. Nappi’s objection is beyond the scope of the fact, and the Court admits
PSAMF ¶ 312.
295
PSAMF ¶ 377 states that “Donovan believes she was treated poorly by Nappi as a deliberate
decision to ensure that her mental health worsened to the point where she was sitting in her office
crying, unable to perform work requirements.”
Nappi denies the fact, saying “Ms. Donovan testified that she believed that, while she never
told anyone at Nappi that she was being discriminated against because of her disability, that it was
deliberate to ensure that her mental health got worse and that it was obvious that her mental health
was declining because she was sitting in her office in tears, unable to perform certain requirements
for Mr. Watson.” DRPSAMF ¶ 377. Nappi’s objection is largely beyond the scope of the fact, and
having reviewed the relevant record the Court accepts Nappi’s denial as a qualification and slightly
alters PSAMF ¶ 377.
296
Nappi qualifies PSAMF ¶ 381, saying “[t]he cited portion of the deposition does not state that
Ms. Donovan did not speak with Ms. Fox about her issues on the day she resigned, only that she did
not speak to Ms. Fox at all on ‘that day.’ Nappi also objects because in its view, the cited deposition
testimony also does not state that Ms. Donovan ‘resigned’ as represented.” DRPSAMF ¶ 381.
294

105

Ms. Donovan referred to Mr. Watson as “Twatson” with one colleague at
Nappi. 297

DSMF ¶ 115; PRDSMF ¶ 115.

Mr. Watson never shouted or used

vulgarities when speaking with Ms. Donovan. DSMF ¶ 116; PRDSMF ¶ 116. Mr.
Watson told Ms. Donovan “let’s communicate” but then when she attempted to
communicate with him he was too busy or would look at the clock and say “I’ve got
five minutes.” PSAMF ¶ 379; DRPSAMF ¶ 379. Ms. Donovan testified that Mr.
Watson insisted on finding something negative daily and that he would communicate
hostilely. PSAMF ¶ 380; DRPSAMF ¶ 380. On one occasion, Mr. Brown said to Ms.
Donovan “haha, you’re not part of the team.” 298 PSAMF ¶ 378; DRPSAMF ¶ 378.
Mr. Brown was aware of Ms. Donovan regularly attending appointments with
her therapist, PSAMF ¶ 386; DRPSAMF ¶ 386, and observed Ms. Donovan appearing
depressed at work. PSAMF ¶ 387; DRPSAMF ¶ 387. Ms. Fox sent an email to Mr.
Watson referring to Ms. Donovan’s mental health on September 13, 2018, providing
in part:

The Court considers Nappi’s objection to be frivolous. If Ms. Donovan did not speak to Ms. Fox
at all the date Ms. Donovan resigned, it follows that she did not speak to Ms. Fox about her issues that
day. As for the cited testimony not demonstrating that Ms. Donovan resigned, Ms. Donovan’s
testimony immediately prior to the cited testimony confirms that she was discussing her date of
resignation. Finally, Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF
¶ 381.
297
DSMF ¶ 115 provides that “Ms. Donovan referred to Mr. Watson as ‘Twatson’ with colleagues
at Nappi.” Ms. Donovan qualifies DSMF ¶ 115, saying she “did not refer to Watson as Twatson . . .
[her] former coworker referred to Watson as Twatson in a text message after Donovan left Nappi.”
PRDSMF ¶ 115. However, when asked whether “Twatson” was a “nickname used by you?”, Ms.
Donovan testified “Yup.” Donovan Dep. at 107:14-20. She then testified that she used the nickname
“[o]nly between [her colleague Ms. Ottawa] and [herself].” Id. at 107:21-23. Based on her testimony,
the Court overrules Ms. Donovan’s general objection. In addition, the Court slightly alters DSMF ¶
115 to reflect the record.
298
Nappi qualifies PSAMF ¶ 378, saying “Ms. Donovan testified that Brown said this in jest.”
DRPSAMF ¶ 378. Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF ¶
378.

106

She stated she just wanted to let me know that she had to put her house
on the market . . . She was pretty emotional and seems very fragile so I
spent some time with her to encourage her to take things step by step so
she doesn’t overwhelm herself (which she clearly is doing!!)
FYI: I’m not certain but I believe putting the house on the market is due
to a foreclosure process. Most importantly, I wanted you to be aware
that I am now definitely seeing [Ms. Donovan] display some of the issue
she had last year and hope that she is still under treatment as her
anxiety seems to be escalating over the past 3+ months. I’m certain that
the stress of going thru a potential foreclosure process is very
significant. At the same time, it’s imperative that she get the help/tools
she needs to cope with all her stressors and at the same time, keep on
doing what Nappi needs her to be doing. She did tell me that she is still
under treatment. 299
PSAMF ¶ 367; DRPSAMF ¶ 367.
In March of 2019, Ms. Donovan reported to Ms. Fox that things at work had
deteriorated and the exclusion at work had escalated. 300 PSAMF ¶ 316; DRPSAMF
¶ 316. Ms. Fox met with Ms. Donovan on April 16, 2019 and told her: “Don’t fall
behind again; wave white flag.” 301 PSAMF ¶ 209; DRPSAMF ¶ 209. In May of 2019,
Mr. Watson reassigned Ms. Donovan’s work related to suppliers Wine Group and

Nappi objects to PSAMF ¶ 367, saying Ms. Donovan “has not laid a proper foundation for the
admissibility of this document, and therefore it should not be considered on summary judgment” and
further qualifies the fact because “[t]he assertion is not an accurate re-typing of the email and contains
misspellings . . . [and] does not place the e-mail in context, which is that Ms. Fox started the email by
indicating that Ms. Donovan had advised that her work schedule would be erratic due to her housing
situation.” DRPSAMF ¶ 367. The Court overrules Nappi’s foundation objection, slightly alters
PSAMF ¶ 367 to reflect the record, and admits the contents of the email.
300
Nappi objects to PSAMF ¶ 316 as citing “an impermissible leading question” but otherwise
admits the fact. DRPSAMF ¶ 316. Acting within its discretion under Federal Rule of Evidence 611,
the Court overrules the leading question objection.
301
PSAMF ¶ 209 provides that “Fox met with Donovan on April 16, 2019 and told her: ‘Don’t fall
behind again; waive white flag.’” Nappi qualifies the fact, saying “[t]he record citation cites to the
question.” DRPSAMF ¶ 209. Nappi correctly states that the phrase “wave the white flag” appears in
the question, but the questioner is quoting from Exhibit 9, which are Ms. Fox’s handwritten and
contemporaneous notes of the April 16, 2019 meeting and are separately admissible as business
records. See FED. R. EVID. 803(6).
299

107

Constellation to Ms. Hale, which Ms. Donovan was not happy about. 302 PSAMF ¶
291; DRPSAMF ¶ 291.
On May 15, 2019, Ms. Fox emailed Becky Douglass, who handled the software
program that tracks when employees enter the building, to determine what time Ms.
Donovan had come to work because her boss, Mr. Watson, had informed Ms. Fox that
she had not shown up for a wine group management team meeting. 303 PSAMF ¶ 211;
DRPSAMF ¶ 211.
On October 18, 2019, Mr. Watson sent an email to Ms. Donovan criticizing her
for notifying suppliers for FOBs [Free On Board] and for not copying supplier sales
on POs [Purchase Order]. 304

PSAMF ¶ 307; DRPSAMF ¶ 307.

Ms. Donovan

explained that FOBs were Ms. Hale’s duty and she had been waiting for weeks for
Ms. Hale to put supplier sales contact info into the database so that she could copy
them on POs but Ms. Hale still had not done so, an example of both Ms. Hale

Nappi qualifies PSAMF ¶ 290, saying “Ms. Donovan testified that she benefited from the
reassignment because she was overloaded and it was a good idea.” DRPSAMF ¶ 290. Nappi’s objection
is beyond the scope of the fact, and the Court admits PSAMF ¶ 290.
303
PSAMF ¶ 211 states that “[o]n May 15, 2019, Fox emailed Becky Douglass who handled the
software program that tracks when employees enter the building. The purpose of the email was to
determine what time Donovan had come to work that day because her boss, Watson, was asking.”
Nappi qualifies PSAMF ¶ 211, saying “Ms. Fox testified that she asked Ms. Douglass because Mr.
Watson informed her that Ms. Donovan had not shown up for a wine group Management Team
meeting.” DRPSAMF ¶ 211. Having reviewed the relevant record, the Court slightly alters PSAMF
¶ 211.
304
The parties use the initials FOB and PO without defining them. The Court assumes F.O.B.
refers to free on board, a contract where “the seller’s duty is fulfilled by placing the goods aboard the
carrier.” BRYAN A. GARNER, GARNER’S DICTIONARY OF LEGAL USAGE AT 367 (3rd ed. 2011). In this
context, the Court assumes PO refers to Purchase Order.
302

108

purposefully making it impossible for Ms. Donovan to do her job and Mr. Watson
criticizing Ms. Donovan for something that wasn’t part of her job. 305 Id.
J.

VIP Software at Nappi

Vermont Information Processing (VIP) is an operating system used at Nappi
for inventory management that Nappi started using for semi-automated purchase
orders sometime in 2017, before Mr. Watson arrived in 2018. 306 PSAMF ¶ 105;
DRPSAMF ¶ 105; PSAMF ¶ 407; DRPSAMF ¶ 407. According to Ms. Fox, Nappi
began using VIP software in 2017 for the purchase order process. 307 PSAMF ¶ 404;
DRPSAMF ¶ 404. Until 2017 it was not important for her job that Ms. Donovan be
adept with the software. Id. However, while she was out on a medical leave of
absence Ms. Hale began implementing new processes that required advanced
knowledge of VIP, which Ms. Donovan did not possess. 308 Id. Ms. Hale testified that

Nappi denies PSAMF ¶ 307, saying “Mr. Watson testified that the tasks outlined in the email
were Ms. Donovan’s job and it was within her role.” DRPSAMF ¶ 307. Nappi’s objection is beyond the
scope of the fact and, taking the fact in the light most favorable to the Plaintiff, the Court admits
PSAMF ¶ 307.
306
PSAMF ¶ 105 states that “Nappi did not start using the VIP system for semi-automated
purchase orders until shortly before or shortly after the new Wines Sales Director, Matt Watson,
arrived in 2018.” Nappi qualifies PSAMF ¶ 105, saying “[t]he factual assertion is misleading with the
use of the word ‘shortly.’ The record citation indicates that Nappi began using the VIP system for
semi-automated purchase order ‘sometime’ in 2017. Mr. Watson was hired at Nappi in August 2018.”
DRPSAMF ¶ 105. Having reviewed the relevant record, the Court alters PSAMF ¶ 105 to reflect the
record and admits the fact.
307
PSAMF ¶ 404 states that “Nappi began using VIP software in 2017 for the purchase order
process.” Nappi objects to the fact, saying “[t]he record citation indicates that Ms. Fox testified that
she believes Nappi began using the VIP software for the purchase order process in 2017.” DRPSAMF
¶ 404. The Court slightly alters PSAMF ¶ 404 and admits the fact.
308
PSAMF ¶ 407 states that “VIP is an operating system used at Nappi for inventory
management. Until 2017 it was not important for Donovan’s job to be familiar with the software.
However, while she was out on a medical leave of absence Hale began implementing new processes
that required advanced knowledge of VIP but which Donovan did not possess.” Nappi denies the fact,
saying “[i]t was very important to the wine purchasing role to use VIP, or some type of software system
to automate purchase orders.” DRPSAMF ¶ 407. Nappi’s qualification is beyond the scope of PSAMF
¶ 407, and the Court admits ¶ 407.
305

109

Ms. Donovan provided the necessary input for the Excel formula used to order wine
sometime in 2019. 309 PSAMF ¶ 405; DRPSAMF ¶ 405.
Ms. Donovan was not as skilled in VIP or Excel as Ms. Hale and those tasks would
often fall to Ms. Hale to perform. 310 DSMF ¶ 86; PRDSMF ¶ 86. Nappi offered VIP

and Excel training to some employees but not to Ms. Donovan. 311 DSMF ¶ 87;
PRDSMF ¶ 87. Mr. Brown is aware of training services offered by VIP and of Ms.
Hale, Nick Nappi, Paglio, and Gupta attending VIP trainings in Vermont, but he is
not aware of anyone suggesting Ms. Donovan attend a VIP training. PSAMF ¶ 393;
DRPSAMF ¶ 393. Mr. Brown is not aware of Ms. Donovan taking an excel training
course. PSAMF ¶ 394; DRPSAMF ¶ 394. At no point did anyone at Nappi offer to
send Ms. Donovan to the annual training at VIP nor did Nappi offer to set her up
with online or on-site training with VIP. PSAMF ¶ 409; DRPSAMF ¶ 409. Ms. Hale,
on the other hand, was sent every year for a three-day training in Vermont. 312 Id.
Since Ms. Donovan left Nappi, Nappi management discussed and budgeted for

PSAMF ¶ 405 provides that “Hale testified that Donovan provided all of the input for the Excel
formula used to order wine in early 2019.” Nappi qualifies the fact, saying “Ms. Hale testified that
Ms. Donovan provided all of the input for the Excel formula used to purchase wine sometime in 2019.
She did not testify that this occurred specifically in ‘early 2019.’” DRPSAMF ¶ 405. The Court changes
“in early” to “sometime in” and admits PSAMF ¶ 405.
310
DSMF ¶ 86 states that “Ms. Donovan was not very skilled in VIP or Excel, and those tasks
would often fall to Ms. Hale to perform.” Ms. Donovan qualifies DSMF ¶ 86, saying “Donovan was
capable of using VIP, but Hale was sent to an annual training every year [while] Donovan was never
offered the training.” PRDSMF ¶ 86. Having reviewed the relevant record, the Court slightly alters
DSMF ¶ 86.
311
DSMF ¶ 87 states that “Nappi has offered VIP and Excel training to employees.” Ms. Donovan
qualifies DSMF ¶ 87, saying she admits “that they were offered to some, but never to [Ms.] Donovan.”
Having reviewed the relevant record, the Court accepts Ms. Donovan’s qualification and alters DSMF
¶ 87 to reflect the record.
312
Nappi qualifies PSAMF ¶ 409, saying “Ms. Donovan declined Excel training and insisted she
was at an intermediate level.” DRPSAMF ¶ 409. Having reviewed the record, the Court finds record
support for the fact, and taking the facts in the light most favorable to the Plaintiff, the Court overrules
Nappi’s objection and admits PSAMF ¶ 409.
309

110

expansion of budgeting to improve the inventory systems in place at Nappi. PSAMF
¶ 395; DRPSAMF ¶ 395.
When Nappi changed the wine ordering process, Mr. Watson told Ms. Donovan
to “trust the numbers.” PSAMF ¶ 401; DRPSAMF ¶ 401. Mr. Brown testified that
the formulas created to generate orders were not foolproof and required the purchaser
to monitor them because trends change and there were moving parts, but he was not
aware of Mr. Watson telling Ms. Donovan to just trust the numbers. 313 PSAMF ¶
402; DRPSAMF ¶ 402. Mr. Brown did not have an understanding that Ms. Donovan
felt paralyzed when she was told to “trust the numbers” while also being expected to
make independent work judgments while under scrutiny. 314

PSAMF ¶ 392;

DRPSAMF ¶ 392.
On one occasion, Ms. Donovan used the information generated by the formula
created for ordering, assessed variances from what the formula generated and what
she thought needed to be ordered, and raised it to Mr. Watson—which is what Mr.
Brown hoped and expected Ms. Donovan would do—yet neither Mr. Brown nor Mr.

Nappi qualifies PSAMF ¶ 402, saying “Plaintiff left out Mr. Brown’s testimony contained
within that cited testimony that indicates that ‘the formulas worked very well.’” DRPSAMF ¶ 402.
Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF ¶ 402.
314
PSAMF ¶ 392 provides that “Brown does not agree that Helena [Donovan] would have felt
paralyzed because she was told to ‘trust the numbers’ but also expected to make independent judgment
while under scrutiny.” Nappi denies the fact, saying “[t]he cited record material indicates that Mr.
Brown stated that he did not know or have an understanding (not that he does not agree with the
assertions made, assertions which, notably, lack foundation) that Ms. Donovan felt paralyzed because
she understood that she was under scrutiny and did not know what to do one way or the other because
she was told to trust the numbers, but then also told to make independent judgments.” DRPSAMF ¶
392. Having reviewed the relevant record, the Court slightly alters PSAMF ¶ 392 and admits the fact.
313

111

Watson thought Ms. Donovan could think independently. 315

PSAMF ¶ 403;

DRPSAMF ¶ 403.
In 2019 after Mr. Watson became the Wine Director, he implemented more
processes that required advanced knowledge of VIP than Ms. Donovan possessed. 316
PSAMF ¶ 408; DRPSAMF ¶ 408. In 2020 Nappi implemented a new program in the
wine department through VIP, iDig, which the beer department previously used; iDig
allows sales representatives to see what product has been ordered, when it is expected
to arrive, and the quantity they can allocate to a customer, which makes it easier for
the sales team to track inventory. 317 PSAMF ¶ 286; DRPSAMF ¶ 286.
One of Mr. Brown’s criticisms of Ms. Donovan was that she was manually
generating reports as inventory arrived and didn’t provide ETAs on other items even

PSAMF ¶ 403 provides that “Donovan used the information generated by the formula created
for ordering, made an assessment of variances from what the formula generated and what she thought
needed to be ordered and raised it to Watson, which is what Brown hoped and expected Donovan would
do, but Brown believes Watson did not think Donovan was capable of thinking independently to do
so.”
Nappi qualifies the fact, saying “Defendant objects to this assertion to the extent it suggests
this occurred on more than one occasion. The cited record material indicates that Ms. Donovan raised
questions with Matt Watson about what the formula generated for orders and what she believed
should be ordered on one occasion. Moreover, the record reflects that neither Mr. Brown nor Mr.
Watson believed Ms. Donovan was capable of thinking independently. The cited record materials
indicates that Mr. Brown believed Ms. Donovan was ‘completely incompetent,’ ‘not capable of making
any decisions outside the box,’ and ‘incapable of really doing much,’ and that instead of raising this
issue with Matt [Watson], Mr. Brown thought Ms. Donovan ‘should have just made these decisions.’”
DRPSAMF ¶ 403. Although the Court finds Nappi’s objection largely beyond the scope of the fact,
having reviewed the relevant record, the Court slightly alters PSAMF ¶ 403 to reflect that Ms.
Donovan is discussing one, not multiple occasions, and the Court otherwise admits the fact.
316
Nappi qualifies PSAMF ¶ 408, saying “Mr. Watson testified that Ms. Donovan was expected
to learn and utilize the new processes, and that she did do it, but did not seem to do it efficiently.”
DRPSAMF ¶ 408. Nappi’s qualification is beyond the scope of the fact, and the Court admits PSAMF
¶ 408.
317
Nappi objects to PSAMF ¶ 286 as immaterial and further qualifies the fact, saying “[t]he iDig
system has not changed how communication channels change when a there is an increased need for a
product.” DRPSAMF ¶ 286. The Court overrules Nappi’s materiality objection, finds Nappi’s content
objection beyond the scope of the fact, and admits PSAMF ¶ 286.
315

112

though it is important for a salesperson to know what was on order to forecast their
accounts; this, however, is theoretically no longer an issue because salespeople
possess this information through VIP. 318 PSAMF ¶ 249; DRPSAMF ¶ 249. Mr.
Brown testified that Ms. Donovan’s VIP skills paled in comparison to Ms. Hale’s.
PSAMF ¶ 250; DRPSAMF ¶ 250.
Ms. Johnson testified that VIP is a program Ms. Donovan would use in her
work at Nappi, but that on the occasions Ms. Johnson attended VIP trainings, Ms.
Donovan was not present. 319 PSAMF ¶ 251; DRPSAMF ¶ 251. Ms. Johnson also
testified that almost every year Nappi sent some employees to a VIP training program
and that Ms. Hale always attended; on an occasion Ms. Johnson was not informed of
the training date, Ms. Hale told her “that’s on [Ms. Fox].” 320

PSAMF ¶ 252;

DRPSAMF ¶ 252. Prior to Ms. Fox assigning who went to VIP trainings, it was Peter

Nappi qualifies PSAMF ¶ 249, saying “Mr. Brown testified that Ms. Donovan was not capable
of navigating VIP. Further, he testified that VIP tools evolved, and that Nappi salespeople and
administration had to evolve with it.” DRPSAMF ¶ 249. Having reviewed the relevant record, the
Court adds “theoretically” to the fact to indicate that Nappi’s adoption of VIP, in theory, when used
correctly would eliminate the need to generate sales reports.
319
Nappi qualifies PSAMF ¶ 251, saying “Ms. Johnson testified that she did not know if Ms.
Donovan was invited, stating, ‘I usually didn’t involve with who was going or ask who was going.’”
DRPSAMF ¶ 251. Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF ¶
251.
320
Nappi objects to PSAMF ¶ 252 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Johnson testified that she was told about the training beforehand but could not attend because
of a medical appointment and a second job.” DRPSAMF ¶ 252. Ms. Johnson testified: “[s]o I went by
[Ms. Hale]’s cubicle and I had said, you’re going to the training at VIP this week? And she says yup.
And I said, well, I don’t understand why I wasn’t told about it. And she goes, well, that’s on [Ms.] Fox.”
Johnson Dep. at 71:25-72:4. The Court overrules Nappi’s hearsay objection, finds the fact supported
by the record, and admits PSAMF ¶ 252.
318

113

Paglio and Frank Nappi, Jr.’s decision who attended. 321 PSAMF ¶ 253; DRPSAMF ¶
253. Mr. Paglio is Ms. Hale’s uncle. 322 PSAMF ¶ 254; DRPSAMF ¶ 254.
K.

Ms. Donovan’s 2019 FMLA Request

By January of 2019 the conversation between Ms. Donovan and Dr. Altschule
continued to focus on her increased distress due to work causing increased anxiety
and depression. 323 PSAMF ¶ 45; DRPSAMF ¶ 45. Dr. Altschule testified that as of
January 7, 2019, Ms. Donovan expressed feeling hopelessness, that she felt “damned
if she did, damned if she didn’t,” and that no matter what she did it would result in a
negative reaction—which was not her experience with her previous supervisor. 324
PSAMF ¶ 46; DRPSAMF ¶ 46. Dr. Altschule testified that as of January 14, 2019,
his sessions with Ms. Donovan continued to focus on increased workplace distress
and feeling singled out and isolated. PSAMF ¶ 47; DRPSAMF ¶ 47. Dr. Altschule

PSAMF ¶ 253 states that “[p]rior to Fox assigning who went to VIP trainings it was Peter
Paglio and Frank Nappi Jr.’s decision who attended the VIP training.” Nappi qualifies PSAMF ¶ 253,
saying “[t]he record citation does not support the assertion that Ms. Fox was in charge of assigning
who went to VIP trainings.” DRPSAMF ¶ 253. Having reviewed the relevant record, the Court slightly
alters PSAMF ¶ 253 and admits the fact.
322
Nappi objects to PSAMF ¶ 254 as immaterial and otherwise admits the fact. DRPSAMF ¶
254. The Court overrules Nappi’s materiality objection and admits PSAMF ¶ 254 over objection.
323
Nappi objects to PSAMF ¶ 45 as inadmissible hearsay. The Court rejects Nappi’s hearsay
objection. Nappi qualifies PSAMF ¶ 45, saying “Dr. Altschule testified that Ms. Donovan reported
increased anxiety, but he did not testify to an increase in depression.” DRPSAMF ¶ 45.
The following interchange took place at Dr. Altschule’s deposition:
321

Q. Did Helena express to you that her depression and anxiety were increasing at this time?
A. Yes. I think - - I think there was more of her anxiety, you know. . ..
Stip. R.. Attach. 17, Dep. of Joseph Altschule, Phy.D., 19:17-20 (ECF No. 52) (Altschule Dep.). Viewing
Dr. Altshule’s testimony in the light most favorable to Ms. Donovan, the Court overrules Nappi’s
objection in part, clarifying that she reported both anxiety and depression but emphasized anxiety.
324
Nappi objects to PSAMF ¶ 46 as inadmissible hearsay. The Court rejects Nappi’s objection.
Nappi qualifies PSAMF ¶ 46, saying “Dr. Altschule testified that it ‘seemed to [him] when she talked
about work, she was damned if she did, damned if she didn’t in a lot of ways.’” DRPSAMF ¶ 46. Having
reviewed the relevant record, the Court slightly alters PSAMF ¶ 46 to indicate that the quoted
language reflects how Ms. Donovan told Dr. Altschule that she felt.

114

described his perception of Ms. Donovan’s workplace environment as being akin to an
abusive relationship where no matter what you do you can’t please the person you’re
with. 325 Id.
Ms. Donovan told Ms. Fox on January 16, 2019, that she needed intermittent
FMLA leave so she could add an extra therapy session each week. PSAMF ¶ 193;
DRPSAMF ¶ 193. Ms. Fox wrote in her notes: “FMLA resolves attendance for 12
weeks but not underlying relationship issues, Performance.” 326 Id. Ms. Fox admitted
that Ms. Donovan asked for FMLA leave on January 16, 2019, to attend additional
counseling appointments and that “she said she needed it because she had no sick
leave.” PSAMF ¶ 194; DRPSAMF ¶ 194. Ms. Fox explained that sick leave had been
allotted as of January 1st, but Ms. Donovan told her she needed to save her sick
time. 327 Id. Ms. Fox asked Ms. Donovan why she needed FMLA leave, and Ms.
Donovan said it was for additional appointments. PSAMF ¶ 195; DRPSAMF ¶ 195.
Ms. Fox told Ms. Donovan to just take the time she needed and to let her boss (Mr.
Watson) know by leaving a note on “your office door or something.” 328 Id.

PSAMF ¶ 47 states that “[Dr.] Altschule testified that as of January 14, 2019, his sessions with
Donovan continued to focus on increased workplace distress, feeling singled out and isolated. [Dr.]
Altschule described Donovan’s workplace environment as being akin to an abusive relationship where
no matter what you do you can’t please the person you’re with.” Nappi qualifies PSAMF ¶ 47, saying
“[t]he record citation indicates that Dr. Altschule testified that ‘[his] experience of the situation was
like an abusive relationship.’” DRPSAMF ¶ 47. Having reviewed the record, the Court slightly alters
PSAMF ¶ 47 to indicate that the fact reflects Dr. Altschule’s perception of the situation.
326
Nappi objects to PSAMF ¶ 193 as inadmissible hearsay but otherwise admits the fact.
DRPSAMF ¶ 193. The Court overrules Nappi’s hearsay objection and admits PSAMF ¶ 193.
327
Nappi objects to PSAMF ¶ 194 as inadmissible hearsay but otherwise admits the fact.
DRPSAMF ¶ 194. The Court overrules Nappi’s hearsay objection and admits PSAMF ¶ 194.
328
Nappi qualifies PSAMF ¶ 195, saying “[t]his statement is misleading in that it does not include
the entirety of Ms. Fox’s answer. Ms. Fox went on to say, ‘just communication – you don’t have to
communicate what you’re doing, but just communication, you know, that you’re not going to be there
if it’s when you’re normally there.’” DRPSAMF ¶ 194. Nappi’s qualification is beyond the scope of the
fact, and the Court admits PSAMF ¶ 194.
325

115

During the January 16, 2019 meeting, Ms. Donovan told Ms. Fox that Mr.
Watson told her, “I feel like you want this to fail.” PSAMF ¶ 196; DRPSAMF ¶ 196.
Ms. Donovan said Mr. Watson had not been critical of her for attendance issues, but
he probably would be if she needed more time off for a second therapy appointment
each week. PSAMF ¶ 196; DRPSAMF ¶ 196. Ms. Donovan felt “weird” leaving early
for therapy appointments without having FMLA leave approved. 329 PSAMF ¶ 196;
DRPSAMF ¶ 196.
Dr. Altschule testified that a few days later, on January 21, 2019, Ms. Donovan
presented with increased anxiety and mild to moderate depressive symptoms.
PSAMF ¶ 48; DRPSAMF ¶ 48. Dr. Altschule, who was actively treating Ms. Donovan,
never recorded in his notes that Ms. Donovan would benefit from two sessions per
week, FMLA leave, or a leave of absence from work. 330 DSMF ¶ 45; PRDSMF ¶ 45.

Nappi objects to PSAMF ¶ 196 as inadmissible hearsay and further qualifies the fact, saying
“[t]he record citation combines separate sections of notes out of context to create an assertion that is
not actually supported by the record.” DRPSAMF ¶ 196. The Court overrules Nappi’s hearsay
objection. Having reviewed the relevant record, the Court finds the fact supported by the record but
adds a citation between each sentence to indicate that each sentence is a statement of fact not
necessarily connected to the prior sentences.
330
DSMF ¶ 45 provides that “Dr. Altschule, who was actively treating Ms. Donovan, never
suggested that she would benefit from two sessions per week, FMLA leave, or a leave of absence from
work.” Ms. Donovan denies DSMF ¶ 45, saying “Altschule testified he would have recommended a
continuous leave had Donovan presented him with FMLA paperwork to remove her from the hostile
work environment.” PRDSMF ¶ 45. Dr. Altschule testified:
329

Q. Having reviewed your notes at some point, it’s fair for me to say that nowhere in
these notes do you recommend that Ms. Donovan attend two sessions with you a week,
correct?
A. I didn’t – I never wrote that in the notes, yeah.
Q. And if you thought it would be helpful for her to have two sessions a week, you
would have included that in your notes, correct?
A. You know what, I don’t think I would have, and that would have been an error on
my behalf. You know, there – it’s hard for me to remember, but sometimes I have a
client who just is struggling a lot more, I’m a little concerned about them, or they just
need – we’re at a point in therapy where a little extra contact is important. But that

116

However, Dr. Altschule testified that if Ms. Donovan had presented him with FMLA
paperwork on January 21, 2019, he would have agreed that she needed leave and
would have recommended a continuous leave of absence, as opposed to intermittent
leave, due to the history of attempted suicide coupled with the ongoing stressor
increasing Ms. Donovan’s anxiety and feelings of hopelessness. 331 PSAMF ¶¶ 49, 5455; DRPSAMF ¶ 49.
In February of 2019, Ms. Donovan expressed to Dr. Altschule that she felt
undermined and set up to fail due to her supervisor not being an advocate for her and
instead joining in on the criticism, likely resulting in more feelings of hopelessness. 332
PSAMF ¶ 50; DRPSAMF ¶ 50. On March 4, 2019, Ms. Donovan expressed to Dr.
Altschule that she continued to have difficulty in the workplace, reporting an increase
in depressive and anxious symptoms. PSAMF ¶ 51; DRPSAMF ¶ 51. Dr. Altschule
noted that he was worried due to Ms. Donovan’s increased anxiety and depressive

wouldn’t have been something that would have been an ongoing, long-term thing ever
with her.
Q. It’s fair for me to say, Doctor, that nowhere in your notes do you recommend that
she take FMLA leave, correct?
A. That’s correct.
Q. And there’s nowhere in your notes do you recommend that she take a leave of
absence from work, correct?
A. That’s correct.
Altschule Dep. at 41:8-42:6. The Court accepts Ms. Donovan’s denial as a qualification and slightly
alters DSMF ¶ 45 to reflect the record.
331
Nappi admits PSAMF ¶ 49, but objects to the fact as speculative, saying “Dr. Altschule has not
been designated to testify about what he would have recommended if certain factors had been
presented to him.” DRPSAMF ¶ 49. The Court concludes that at the summary judgment stage, Dr.
Altschule’s testimony regarding his professional impressions of Ms. Donovan garnered from therapy
sessions with Ms. Donovan are admissible without specific designation. The Court admits PSAMF ¶
49 over objection.
332
Nappi objects to PSAMF ¶ 50 as inadmissible hearsay. The Court rejects Nappi’s objection.
Nappi qualifies PSAMF ¶ 50, saying “Dr. Altschule testified that more feelings of hopelessness ‘would
likely have’ resulted, but that that ‘didn’t quite happen.’” DRPSAMF ¶ 50. Having reviewed the
record, the Court adds “likely” to PSAMF ¶ 50 and admits the fact.

117

symptoms and her history of suicide attempts. 333 Id. Dr. Altschule also noted,
though, that Ms. Donovan denied feeling suicidal when he specifically asked her
about it. PSAMF ¶ 51; DRPSAMF ¶ 51. On March 18, 2019, Ms. Donovan reported
to Dr. Altschule that she was experiencing panic attacks at work. 334 PSAMF ¶ 52;
DRPSAMF ¶ 52.
Dr. Altschule stopped treating Ms. Donovan in September of 2019 because
their work together naturally came to an end, Dr. Altschule was winding down his
private practice, Ms. Donovan was his last patient, and even though she was still
feeling distressed and experiencing symptoms from the issues at work, he believed
he had done what he could for her in the therapeutic environment. 335 PSAMF ¶ 53;
DRPSAMF ¶ 53. Dr. Altschule had previously suggested to Ms. Donovan that she
consider leaving her employment at Nappi and looking for other jobs. 336 PSAMF ¶

Nappi objects to PSAMF ¶ 51 as inadmissible hearsay and partially unsupported by the record.
The Court rejects Nappi’s hearsay objection. Nappi qualifies PSAMF ¶ 51, saying “Dr. Altschule
testified that he ‘vaguely’ recalled discussions surrounding difficulty in the workplace.” Nappi’s
objection is beyond the scope of the fact; the Court finds the fact supported by the record and admits
PSAMF ¶ 51.
334
Nappi objects to Ms. Donovan’s PSAMF ¶ 52 as unsubstantiated by the cited record.
DRPSAMF ¶ 52. The Plaintiff erred in her Altschule Deposition at 25:19-26:16 citation, but the cited
Page ID pointed the Court to the relevant supporting record at 27:16-23, and the Court admits PSAMF
¶ 52.
335
PSAMF ¶ 53 states that “Altschule stopped treating Donovan in September of 2019 because
Altschule was winding down his private practice, Donovan was his last patient, and he believed he
had done what he could for Donovan in the therapeutic environment even though she was still feeling
distressed and experiencing symptoms from the issues at work.”
Nappi denies PSAMF ¶ 53, saying “Dr. Altschule testified that the work he was doing with
Ms. Donovan naturally came to an end, and that there was nothing more to be done in a therapeutic
environment.” DRPSAMF ¶ 53. Having reviewed the relevant record, the Court amends PSAMF ¶
53 to reflect the full record and admits the fact.
336
PSAMF ¶ 54 provides that “Altschule had previously suggested to Donovan [to] leave
employment at Nappi and look for other jobs.” Nappi objects to PSAMF ¶ 54 as non-responsive and
qualifies the fact, saying “Dr. Altschule testified that he said, ‘. . . have you thought about other jobs.’”
DRPSAMF ¶ 54. Dr. Altschule testified:
333

118

54; DRPSAMF ¶ 54. Dr. Altschule testified that Ms. Donovan repeatedly discussed
feeling isolated and ostracized with him, as well as feeling she was treated differently
than others at work and poorly by her coworkers and manager. 337 PSAMF ¶ 55;
DRPSAMF ¶ 55.
On January 18, 2019, Ms. Donovan met with Ms. Fox and asked for leave
pursuant to the FMLA because she needed additional help. DSMF ¶ 144; PRDSMF ¶
144; PSAMF ¶ 371; DRPSAMF ¶ 371. Ms. Donovan was specific that she was unwell

because of her depression. 338 PSAMF ¶ 371; DRPSAMF ¶ 371. Ms. Fox asked if Ms.
Q. Is that something – is Helena [Donovan] leaving work something that you had ever
discussed with her, leaving her job at Nappi?
A. Yeah, in that, you know, I – I suggested if this dynamic in the workplace is such a
hardship for you or challenging, have you thought about other jobs.
Altschule Dep. at 30:13-18. The Court finds Dr. Altschule’s testimony responsive to the question asked,
slightly alters PSAMF ¶ 54 to reflect the record, and admits the fact.
337
Nappi admits PSAMF ¶ 55 but objects to the fact as inadmissible hearsay. The Court rejects
Nappi’s objection.
338
PSAMF ¶ 371 provides that “[o]n January 18, 2019, Donovan met with Fox specifically to
request FMLA as an accommodation for her depression because she needed additional help, but Fox
refused to give Donovan FMLA paperwork, despite Donovan being eligible. Donovan was specific that
she was unwell because of her depression.”
Nappi qualifies the fact, saying “[t]he cited testimony does not state that Ms. Donovan met
with Ms. Fox specifically to discuss an ‘accommodation’ for her depression. Ms. Donovan testified that
the meeting with Ms. Fox was to discuss that Ms. Donovan felt unwell, meaning depressed, and needed
further treatment. Ms. Donovan later testified that no one at Nappi ever told her she could not take
time for an additional therapy appointment each week.” DRPSAMF ¶ 371.
Ms. Donovan cited her deposition about her January 18, 2019 meeting with Ms. Fox:
Q. So I understand at some point you spoke to Ms. Fox about FMLA leave, correct?
A. Yes.
Q. Okay. And when did you have that discussion with her?
A. It was January 18th, I believe, 2019.
Q. Okay, And do you remember where the discussion took place?
A. In Christine’s office.
Q. Was there anyone else present?
A. No.
Q. Okay. So what do you remember being discussed during that meeting?
A. I discussed that I was unwell and needed further treatment and that I wanted to,
as I was eligible, to go back on to FMLA.

119

Donovan had been advised to be out of work, and Ms. Donovan explained that the
leave was necessary for an additional weekly or bi-weekly appointment because she
wanted to save her yearly allotted sick leave. 339 DSMF ¶ 145; PRDSMF ¶ 145. Ms.
Donovan did not tell Ms. Fox exactly what the additional counseling appointments
were for, although Ms. Fox knew Ms. Donovan had previously been diagnosed with
depression and had attempted suicide. 340 DSMF ¶ 146; PRDSMF ¶ 146; PSAMF ¶
373; DRPSAMF ¶ 373. She indicated that she at least needed an additional therapy
session per week. 341 PSAMF ¶ 373; DRPSAMF ¶ 373.
The leave Ms. Donovan was requesting was not based on a doctor’s
recommendation, and she admitted that she had not even spoken to her medical
providers about requesting leave. 342 DSMF ¶ 147; PRDSMF ¶ 147. Ms. Fox told Ms.
Donovan that because she was salaried, there was no reason she couldn’t flex her
schedule and she therefore did not need to take leave and fill out the FMLA

Donovan Dep. 152:4-19. The record confirms that PSAMF ¶ 371 is fully supported by the record, and
the Court rejects as frivolous Nappi’s qualified response.
339
Ms. Donovan qualifies DSMF ¶ 145, admitting that she “said she needed to attend additional
appointments, but [explaining she] also needed the intermittent FMLA leave because she had no
remaining sick time.” PRDSMF ¶ 145. Having reviewed the relevant record, the Court accepts Ms.
Donovan’s qualification and slightly alters DSMF ¶ 145 to reflect the record.
340
Ms. Donovan denies DSMF ¶ 146, saying she “did discuss these details during the meeting,
and Fox knew that [she] struggled with depression and needed additional counseling appointments.”
PRDSMF ¶ 146. Having reviewed the relevant record, the Court accepts Ms. Donovan’s denial as a
qualification and alters DSMF ¶ 146 to reflect the full record.
341
PSAMF ¶ 373 states that “[w]hen Donovan requested FMLA she did not specify whether she
needed inpatient care or additional visits, she just stated she needed more therapy.” Nappi qualifies
the fact, saying “[w]hile Ms. Donovan did testify at the cited pages that she did not specify at the
meeting with Ms. Fox whether she needed inpatient care or additional appointments, Ms. Donovan
later testified that she told Ms. Fox at that meeting that she was ‘looking at definitely a second
appointment a week.’” DRPSAMF ¶ 373. Having reviewed the relevant record, the Court slightly
alters PSAMF ¶ 373 and admits the fact.
342
Ms. Donovan denies DSMF ¶ 147, saying Ms. Fox “knew that Donovan struggled with
depression and needed additional counseling appointments . . . [and] that Donovan had been
hospitalized and taken short term disability leave for these conditions in the past.” PRDSMF ¶ 147.
Ms. Donovan’s denial is beyond the scope of the fact, and the Court admits DSMF ¶ 147.

120

paperwork for an additional weekly appointment. 343 DSMF ¶¶ 148-150; PRDSMF
¶¶ 148-150. Ms. Fox told Ms. Donovan she was just “looking for a life raft”; Ms.
Donovan understood Ms. Fox to imply that she was requesting FMLA leave to be able
to take additional time off without being penalized. 344 PSAMF ¶ 372; DRPSAMF ¶
372. Ms. Fox denied telling Ms. Donovan that she was just looking for a “life raft” by
asking for FMLA leave, but Ms. Fox admitted that she asked Ms. Donovan “why she
was so focused on asking for FMLA leave.”

PSAMF ¶ 210; DRPSAMF ¶ 210.

Pursuant to Nappi policy, Ms. Donovan did not need formal approval to attend weekly
medical appointments, but Ms. Fox encouraged her to talk to Mr. Watson, not an HR
employee, about needing time off for appointments. 345 DSMF ¶ 44; PRDSMF ¶ 44;
PSAMF ¶ 200; DRPSAMF ¶ 200.
Ms. Donovan indicated that she understood the arrangement regarding using
flex time instead of FMLA leave for the appointments. DSMF ¶ 152; PRDSMF ¶ 152.

DSMF ¶ 148 states that “Ms. Fox told Ms. Donovan that there was no reason that she would
not be able to take leave.” Ms. Donovan denies DSMF ¶ 148, saying Ms. Fox wanted her “to ‘flex’ her
time rather than take intermittent FMLA leave, which Nappi did not provide paperwork for or advise
employees of their rights and responsibilities regarding intermittent leave.” PRDSMF ¶ 148. Having
reviewed the relevant record, the Court accepts Ms. Donovan’s denial as a qualification and slightly
alters DSMF ¶ 148 to reflect the record.
344
Nappi objects to PSAMF ¶ 372, saying it is “based upon inadmissible speculation of which Ms.
Donovan has no personal knowledge” but admits that “Ms. Donovan testified to the assertion.”
DRPSAMF ¶ 372. The Court overrules Nappi’s objection and admits the fact because it is limited only
to what Ms. Donovan understood Ms. Fox to be implying.
345
Ms. Donovan denies DSMF ¶ 44, saying that Ms. Fox “instructed [her] to discuss her need for
time off for additional appointments with Watson.” PRDSMF ¶ 44. Ms. Donovan’s denial is beyond
the scope of the fact and included in the statement of facts at PSAMF ¶ 200. The Court admits DSMF
¶ 44.
Nappi qualifies its response to PSAMF ¶ 200, stating that the record citation does not support
the assertion that Ms. Fox told Ms. Donovan to talk to Mr. Watson about needing time off for
counseling. DRPSAMF ¶ 200. Nappi says that Ms. Fox testified that she told Ms. Donovan just to
communicate that she needed extra time. Id. The Court reviewed the cited portion of Ms. Fox’s
deposition testimony and concludes that PSAFM ¶ 200 is fully supported by Ms. Fox’s testimony. The
Court rejects Nappi’s qualified response.
343

121

Although Ms. Fox thought that Ms. Donovan seemed relieved after this conversation,
Ms. Donovan was not relieved and instead understood that Ms. Fox was not going to
be a resource for her. 346, 347 DSMF ¶ 152; PRDSMF ¶ 152. Ms. Donovan continued to

DSMF ¶ 152 states that “Ms. Donovan indicated that she understood the arrangement and
seemed relieved after the conversation.” Ms. Donovan denies DSMF ¶ 152, saying she “was not
relieved after the conversation in which Fox denied her FMLA” and she “testified that she understood
Fox was no longer a resource for her.” PRDSMF ¶ 152. Having reviewed the relevant record, the
Court accepts Ms. Donovan’s denial as a qualification and alters DSMF ¶ 152 to reflect the full record.
347
DSMF ¶ 151 provides that “Ms. Donovan was not expected to make up the appointment time
if she worked less than 40 hours in a week.” Ms. Donovan denies DSMF ¶ 151, saying Ms. Fox “told
her to flex her work and make it up at another time.” PRDSMF ¶ 151. Ms. Fox testified:
346

Q. How many hours a week were -- was [Ms. Donovan] expected to work?
A. Based on until the job was – you know, when you’re salary exempt, it’s based on
what the job requires. It – it fluctuates.
Q. Was she expected to work a minimum of 40 hours a week?
A. I mean generally, yes, for full time. But there’s – there’s flexibility here and in most
salary – you know, where I’ve worked before, when you’re salary exempt, you – you
flex your schedule based on both your – you know, your personal and your business
needs to make you – you know, to have that work like balance.
Q. And do you know – was it your expectation that if she was taking additional time
to go to these appointments, that she make up for it at the other end somehow?
A. No, not if – absolutely not.
Q. Is that – I’m sorry. I don’t mean to cut you off there.
A. I mean, not for an exempt level. I mean, if she needed to because of, you know,
urgent business needs, then – but it – there wasn’t an expectation that she make up
the time.
Q. So when you say you can flex your time, typically my understanding of that is that,
you know, if you want to start later and work later or start earlier, end earlier, or take
a break in the day and then finish it off a little later, that that’s something that you
can do for the flex time. Is that kind of what you were suggesting to [Ms. Donovan] at
that time?
A. Yes.
Q. Okay. And did you follow up with [her] about whether because of what she was
going through she did not have the capacity to do that, to make up for it at the other
end?
A. In the conversation that we had on January 16, she – she definitely seemed to
understand it, yes.
Donovan Dep. at 152:1-153:14. Based on the record and on a lack of clarity, the Court finds it unclear
whether Ms. Donovan was expected to flex the time off for appointments if she worked under forty
hours per week. As the Court is required to view contested factual matters in the light most favorable
to Ms. Donovan, the Court omits DSMF ¶ 151.

122

do her job even after her meeting with Ms. Fox. 348 DSMF ¶ 153; PRDSMF ¶ 153. No
one at Nappi explicitly told Ms. Donovan that she could not attend an additional
weekly therapy session. 349 DSMF ¶ 155; PRDSMF ¶ 155.
Ms. Donovan did not receive additional therapy because her FMLA was
denied. 350 PSAMF ¶ 374; DRPSAMF ¶ 374. Ms. Donovan felt like she could not take

DSMF ¶ 154 states that “Ms. Donovan never suggested to Ms. Fox or management that the
deficiencies in her job performance were due to any mental health condition or disability.” Ms.
Donovan denies DSMF ¶ 154, saying “[d]uring a meeting in which Fox discussed Donovan’s
performance issues, Donovan provided to Fox that she needed FMLA time off because of her worsening
mental health . . . Fox provided the FMLA would take care of attendance but not performance” and
she “understood that Donovan’s mental health impacted her job performance.” PRDSMF ¶ 154.
On September 13, 2018, Ms. Fox sent an email to Mr. Watson referring to Ms. Donovan’s
mental health, stating in part:

348

She was pretty emotional and seems very fragile so I spent some time with her to
encourage her to take things step by step so she doesn’t overwhelm herself (which she
clearly is doing!!) FYI: I’m not certain but I believe putting the house on the market is
due to a foreclosure process. Most importantly, I wanted you to be aware that I am now
definitely seeing Helena display some of the issues she had last year and hope that she
is still under treatment as her anxiety seems to be escalating over the past 3+ months.
I’m certain that the stress of going thru a potential foreclosure process is very
significant. At the same time, it’s imperative that she get the help/tools she needs to
cope with all her stressors and at the same time, keep on going what Nappi needs her
to be doing. She did tell me that she is still under treatment.
Pl.’s R., Attach 6, September 13, 2018 Email (Page ID 1582). The Court concludes that the record
demonstrates that Ms. Fox was generally aware of Ms. Donovan’s mental health issues and the impact
they may have on her work at Nappi. The Court accepts Ms. Donovan’s denial and omits DSMF ¶ 154.
349
DSMF ¶ 155 states that “[n]o one at Nappi told Ms. Donovan that she could not attend an
additional weekly therapy session.” Ms. Donovan qualifies DSMF ¶ 155, saying that Ms. Fox “told
Donovan she could take the appointments, but told Donovan to flex her time and make up missed
hours at another time [even though] Fox understood that Donovan was concerned about missing work
and scrutiny from Watson.” PRDSMF ¶ 155. Having reviewed the relevant record, the Court slightly
alters DSMF ¶ 155 to reflect the record.
350
Nappi qualifies PSAMF ¶ 374, saying “[w]hile Ms. Donovan did testify that she was denied
FMLA leave . . . she then testified (repeatedly) that no one at Nappi ever told her that she could not
take the time for the additional therapy, which was the sole reason she requested FMLA leave” and
that “she told Ms. Fox that she wanted to take intermittent FMLA leave related to an additional
therapy appointment each week . . . [and] Ms. Fox told her, ‘there’s no reason [she] wouldn’t be able to
take leave.’” DRPSAMF ¶ 375. Nappi’s objection is beyond the scope of the fact, and the Court admits
PSAMF ¶ 374 because regardless of whether Ms. Donovan was told she could attend an additional
weekly appointment without obtaining FMLA leave, viewing the facts in the light most favorable to
Ms. Donovan, the denial of her request to pursue FMLA leave led her to forego the additional weekly
therapy appointment.

123

time to attend additional appointments because Ms. Fox had denied her FMLA at a
time when she was already attending once-a-week appointments and was under
scrutiny at work. 351 PSAMF ¶ 375; DRPSAMF ¶ 375. Ms. Donovan testified that it
was obvious to her that her depression and anxiety were exacerbated because of the
lack of sleep, the state of her mental health, and requesting FMLA, such that she
would eventually be unable to perform her duties. 352 PSAMF ¶ 311; DRPSAMF ¶
311.
Ms. Fox admitted that Ms. Donovan was concerned that Mr. Watson would be
critical of her for attendance issues if she did not get approved for FMLA. PSAMF ¶
197; DRPSAMF ¶ 197. Nonetheless, Ms. Fox did not give Ms. Donovan the FMLA
paperwork she requested. 353 Id. With intermittent FMLA leave, Nappi typically does
not provide or require paperwork.

PSAMF ¶ 198; DRPSAMF ¶ 198. Ms. Fox’s

Nappi denies PSAMF ¶ 375, saying “Ms. Donovan did not testify that she was denied FMLA
leave. Rather, she testified that she could not attend the addition[al] weekly appointment, even
though Ms. Fox told her she could, because she felt she was under scrutiny and she did not feel it
would be acceptable for her to take additional time to attend a second weekly appointment.”
DRPSAMF ¶ 375. Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF ¶
375. Viewing contested facts in the light most favorable to Ms. Donovan, she states that she felt she
could not attend the additional appointment because Ms. Fox had denied her FMLA request and
because Ms. Fox was scrutinizing her, even though Ms. Fox told her she could attend the appointment
without formal leave.
352
PSAMF ¶ 311 provides that “Donovan testified that it was obvious that her depression and
anxiety were exacerbated because of the lack of sleep and the state of her mental health and requesting
FMLA, that she would eventually be unable to perform her duties.”
Nappi denies the fact, saying “Ms. Donovan testified that she did not discuss the specifics of
her mental health with her managers at Nappi, had not discussed her treatment since 2017, and when
she discussed leave with Ms. Fox in 2017 did not give her any specifics.” DRPSAMF ¶ 311. Nappi’s
objection is largely beyond the scope of the fact and the Court refuses to accept Nappi’s denial.
However, the Court treats the denial as a qualification and slightly alters PSAMF ¶ 311 to indicate
the situation was obvious to Ms. Donovan herself.
353
Nappi denies PSAMF ¶ 197, saying “Ms. Fox testified that Ms. Donovan said Mr. Watson was
not concerned about her attendance. Further, Ms. Fox testified that she told Ms. Donovan ‘she would
definitely have the leave and she didn’t need to have paperwork to prove to us, you know, why she
needed the leave . . ..’” DRPSAMF ¶ 197. Nappi’s objection is beyond the scope of the fact, and the
Court admits PSAMF ¶ 197.
351

124

understanding is that FMLA paperwork is not necessary for intermittent FMLA
leave; the only requirement is that the employee be given leave, not paperwork. Id.
Nappi is “not focused on the administrative paperwork.” Id. Ms. Fox expected Ms.
Donovan to “flex” her time, meaning that if she needed to leave early for an
appointment, she made up the time later rather than taking sick or designated FMLA
leave. 354 PSAMF ¶ 199; DRPSAMF ¶ 199. Ms. Fox encouraged Ms. Donovan to talk
to Mr. Watson, not an HR employee, about needing time off for counseling
appointments. 355 PSAMF ¶ 200; DRPSAMF ¶ 200.

PSAMF ¶ 199 provides that “Fox expected Donovan to ‘flex’ her time, meaning that if she
needed to leave early for an appointment, she made up the time later on rather than taking sick or
designated FMLA leave.”
Nappi qualifies PSAMF ¶ 199, saying ‘[t]he record citation does not support the assertion that
Ms. Fox expected Ms. Donovan to ‘flex’ her time.” DRPSAMF ¶ 199. Ms. Fox testified:

354

Q. And do you know -- was it your expectation that if she was taking additional time
to go to these appointments, that she make up for it at the other end somehow?
A. No, not if -- absolutely not.
Q. Is that – I’m sorry. I don’t mean to cut you off.
A. I mean, not for an exempt level. I mean, if she needed to because of, you know,
urgent business needs, then -- but it -- there wasn’t an expectation that she make up
the time.
Q. So when you say you can flex your time, typically my understanding of that is that,
you know, if you want to start later and work later or start earlier, end earlier, or take
a break in the day and then finish it off a little later, that that’s something that you
can do for the flex time. Is that kind of what you were suggesting to [Ms. Donovan] at
the time?
A. Yes.
Fox Dep. at 152:15-153:8. PSAMF ¶ 199 is clearly supported by the record, and the Court admits the
fact over objection.
355
PSAMF ¶ 200 provides that “Fox encouraged Donovan to talk to her supervisor (Matt Watson),
not an HR employee, about needing time off for counseling appointments.” Nappi qualifies PSAMF ¶
200, saying “[t]he record citation does not support the assertion that Ms. Fox told Ms. Donovan to talk
to Mr. Watson about needing time off for counseling. Ms. Fox testified that she told Ms. Donovan to
just communicate that she needed extra time.” DRPSAMF ¶ 200. Viewing the record in the light most
favorable to Ms. Donovan, the Court interprets Ms. Fox’s reference to “communicate” to mean “talk
to,” and the Court rejects Nappi’s qualified response.

125

After Ms. Donovan requested an accommodation for FMLA leave in the
January 16, 2019 meeting, Nappi drafted a performance improvement plan criticizing
her performance. 356 PSAMF ¶ 201; DRPSAMF ¶ 201. 357 On March 15, 2019, Ms. Fox
met with Ms. Donovan again. PSAMF ¶ 203; DRPSAMF ¶ 203. Ms. Donovan told
her that nothing had changed in her relationship with Wine Sales Director Mr.
Watson, except that he says hello and goodbye in the morning and evening. 358
PSAMF ¶ 203; DRPSAMF ¶ 203.
L.

Helena Donovan’s Coming Out

Ms. Donovan did not come out as gay to anyone at Nappi until mid-2018 at the
earliest. DSMF ¶ 156; PRDSMF ¶ 156. Ms. Donovan was married to a man, Richard

Stump, from 2005 until 2019, PSAMF ¶ 261; DRPSAMF ¶ 261, and moved in with
her girlfriend, Kristie Donovan, in April of 2019, whom she would go on to marry in
PSAMF ¶ 201 provides that “[t]wo days after Donovan requested an accommodation for FMLA
leave in the January 16[, 2019] meeting, Nappi drafted a performance improvement plan criticizing
her performance.”
Nappi denies PSAMF ¶ 201, saying “Mr. Watson testified that the date on the initial draft was
a typo, and that he did not begin to work on the PIP until April of 2019.” DRPSAMF ¶ 201. Reviewing
the cited record at “ECF Doc. 52-3, PageID # 480,” the Court finds no mention of either January 2019
or April 2019. The Court accordingly omits any reference to the date and otherwise admits PSAMF ¶
201.
357
PSAMF ¶ 202 provides that “[t]wo days after Donovan requested an accommodation for FMLA,
Fox met with Donovan to see how [Ms.] Donovan’s conversation with Watson went regarding her need
for additional therapy appointments after Fox instructed Donovan to share with Watson her need for
additional therapy appointments.” Nappi denies PSAMF ¶ 202 as “unsupported by the record” because
“[t]here is no record citation to this factual assertion.” DRPSAMF ¶ 202.
The Court agrees with Nappi. There is no record citation to PSAMF ¶ 202. The Court is under
no obligation to independently search the record for the correct supporting citation. See D. ME. LOC.
R. 56(f). Because Ms. Donovan has provided no citation for this fact and the Court was unable to locate
it in reference to either the preceding or following facts, the Court omits PSAMF ¶ 202.
358
PSAMF ¶ 203 states that “[o]n March 15, 2019, Fox met with Donovan again. Donovan told
her that nothing had changed in her relationship with Wine Sales Director Watson, except that he
says hello and goodbye in the morning and evening.”
Nappi objects to PSAMF ¶ 203 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Fox testified that Ms. Donovan told her that some things were going well, and some were not.”
DRPSAMF ¶ 203. The Court overrules Nappi’s hearsay objection, finds Nappi’s content objection
beyond the scope of the fact, and admits PSAMF ¶ 203.
356

126

October of that year. PSAMF ¶ 262; DRPSAMF ¶ 262. She came out to Carol Murray,
Mary Johnson, Patty Kroot, Katurah Ottowah, and Nicole Nappi in May of 2018. 359
PSAMF ¶ 287; DRPSAMF ¶ 287. Upon marrying Kristie Donovan, Ms. Donovan
notified Nappi management of her marriage when she submitted her name change
form through Ms. Douglass. 360 PSAMF ¶ 263; DRPSAMF ¶ 263. Ms. Donovan also
informed Katurah Ottawa, Carol Murray, Patty Kroot, and Mary Johnson, her
friends at Nappi, of her recent marriage and name change. 361

PSAMF ¶ 264;

DRPSAMF ¶ 264.

PSAMF ¶ 287 states that “Donovan came out to Carol Murray, Mary Johnson, Patty Kroot,
Katurah Ottowah, and Nicole Nappi in May of 2018 when she began dating Kristi.”
Nappi qualifies the fact, saying “[t]he factual assertion does not accurately identify the
individual Ms. Donovan allegedly started dating in May 2018.” DRPSAMF ¶ 287. The Court agrees
with Nappi that the cited deposition does not mention Ms. Donovan’s coming out in relation to the
date she began dating her girlfriend and the Court amends PSMAF ¶ 297 to comply with the cited
record.
360
Nappi objects to PSAMF ¶ 263 as inadmissible hearsay and denies the fact, saying “Ms.
Donovan testified that she advised Ms. Douglass of her name change. The name change form does not
indicate the reason for the change.” DRPSAMF ¶ 263. Ms. Donovan testified:
359

Q. Did you advise anybody with Nappi management that you had gotten married?
A. Yes.
Q. Who did you tell?
A. Becky Douglas.
Q. When did you tell her that?
A. When I informed them of the name change.
Donovan Dep. at 16:4-10. PSAMF ¶ 263 is fully supported by the record given Ms. Donovan’s
deposition testimony, and the Court admits the fact.
361
Nappi objects to PSAMF ¶ 264 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Donovan testified that she told Katurah Ottawa, Carol Murray, Patty Kroot, and Mary Johnson.”
DRPSAMF ¶ 264. The Court overrules Nappi’s hearsay objection, and even though Nappi’s content
objection is beyond the scope of the fact, the Court notes that the addition of these names is consistent
with PSAMF ¶ 287, and the Court therefore admits PSAMF ¶ 264 and includes the previously
acknowledged names.

127

Ms. Donovan came out to Mr. Brown as gay some time before quitting but after
Mr. Carr retired from Nappi. 362 PSAMF ¶ 267; DRPSAMF ¶ 267. Mr. Brown recalls
Ms. Donovan coming out as lesbian in a conversation they had. PSAMF ¶ 266;
DRPSAMF ¶ 266. When Ms. Donovan came out to Mr. Brown and told him that she
had a same-sex partner, he was “really, really happy for her,” and hugged her and
told her that was wonderful news. 363 DSMF ¶ 157; PRDSMF ¶ 157. Mr. Brown
responded to Ms. Donovan by telling her it was best not to come out. He asked Ms.
Donovan if she knew anyone else at Nappi that was gay?

And Ms. Donovan

responded no. Mr. Brown replied why do you think that is? And that with over 200
employees there must have been gay people at Nappi that didn’t come out because it
wouldn’t be viewed positively. 364

PSAMF ¶ 267; DRPSAMF ¶ 267. Mr. Brown

testified Nappi Distributors has 250 employees, PSAMF ¶ 268; DRPSAMF ¶ 268, and
he is not aware of any other individuals at Nappi that are gay, lesbian, bisexual,
and/or transgender. PSAMF ¶ 269; DRPSAMF ¶ 269. Mr. Brown is, however, aware

PSAMF ¶ 267 states that “Donovan came out to Brown as gay some time before retiring, but
after Carr retired working at Nappi.” Nappi objects to the allegation that Ms. Donovan retired from
Nappi, noting that she quit. As the statements of material fact confirm that Ms. Donovan quit and
did not retire from Nappi, DSMF ¶ 191; PRDSMF ¶ 191, the Court alters the statement to conform
with Ms. Donovan’s admission that she quit and did not retire.
363
Ms. Donovan failed to respond to DSMF ¶ 157 and the Court has deemed the statement
admitted.
364
PSAMF ¶ 267 states that “Donovan came out to Brown as gay some time before retiring, but
after Carr retired working at Nappi. Brown responded to Donovan telling her it was best not to come
out. Asked Donovan if she knew anyone else at Nappi that was gay? Donovan responded no. Brown
replied why do you think that is. With over 200 employees there must have been gay people at Nappi
that didn’t come out because it wouldn’t be viewed positively.”
Nappi qualifies the fact, saying “Mr. Brown testified that he does not recall exactly when Ms.
Donovan came out, but that he was ‘really, really happy for her,’ and that he hugged her and thought
it was wonderful news . . ..” DRPSAMF ¶ 267. Nappi’s content objection is already reflected in DSMF
¶ 157 and is beyond the scope of the fact; the Court admits PSAMF ¶ 267.
362

128

of individuals making homophobic comments at Nappi. 365 PSAMF ¶ 270; DRPSAMF
¶ 270.
Ms. Donovan has no evidence beyond the timing of her coming out and Mr.
Brown’s ceasing to communicate readily with her to suggest that any change in his
demeanor towards her was due to her sexual orientation. 366 DSMF ¶ 158; PRDSMF
¶ 158. Ms. Donovan also never reported that Mr. Brown was excluding her or
ignoring her because she came out to him. 367 DSMF ¶ 159; PRDSMF ¶ 159.
When Ms. Donovan came out to Ms. Fox in the summer or fall of 2019, it was
the first time that Ms. Fox realized that Ms. Donovan was no longer with her exhusband. DSMF ¶ 160; PRDSMF ¶ 160. Ms. Fox congratulated her, and did not
discuss it with Ms. Donovan, or anyone else, again. DSMF ¶ 161; PRDSMF ¶ 161.
Ms. Donovan claims that Ms. Hale became aware that she was gay in March
2019. 368 DSMF ¶ 163; PRDSMF ¶ 163. Ms. Donovan never informed Nappi that Ms.
Nappi qualifies PSAMF ¶ 270, saying “Brown clarified that homophobic behavior is ‘not
pervasive at all and [he] can’t remember the last time [he] heard a comment that was in any way
degrading to somebody because of their sexual orientation.’” DRPSAMF ¶ 270. Nappi’s objection is
beyond the scope of the fact, and the Court admits PSAMF ¶ 270.
366
DSMF ¶ 158 states that “Ms. Donovan has no evidence to suggest that any change in Mr.
Brown’s demeanor towards her was due to her sexual orientation.” Ms. Donovan denies DSMF ¶ 158,
saying she “testified the temporal proximity from when she came out to Ian [Brown] to when he
stopped speaking to her was almost immediate.” PRDSMF ¶ 158. Even viewing these facts in the
light most favorable to Ms. Donovan, as the Court is required to, it is feasible that these facts can exist
simultaneously. The Court therefore treats Ms. Donovan’s denial as a qualification, updates the fact
to conform with the entire record, and otherwise admits the fact.
367
Ms. Donovan denies DSMF ¶ 159, saying she “repeatedly reported that Brown was not
communicating with her.” PRDSMF ¶ 159. Although Ms. Donovan denied ¶ 158 and asserted that
she repeatedly reported that Mr. Brown was not communicating with her, Ms. Donovan violated Local
Rule 56(c) by failing to “support each denial . . . by a record citation.” D. ME. LOC. R. 56(c). The Court
therefore accepts DSMF ¶ 159.
368
DSMF ¶ 162 states that “Ms. Hale did not learn that Ms. Donovan was a lesbian until after
Ms. Donovan had left Nappi.” Ms. Donovan denies DSMF ¶ 162, saying she “had a conversation with
[Ms.] Hale regarding her sexual orientation and [Ms.] Hale asked [Ms.] Donovan how her daughter
felt about it.” PRDSMF ¶ 162. The relevant record indicates that Ms. Donovan and Ms. Hale
365

129

Hale’s comments or behavior constituted harassment based on her sexual orientation.
DSMF ¶ 164; PRDSMF ¶ 164.
Although Ms. Masters claims she was unaware that Ms. Donovan was a
lesbian until after Ms. Donovan left Nappi, Ms. Donovan says that she had already
told Mr. Watson about her girlfriend and Mr. Brown about her same-sex sexual
orientation. 369,370 DSMF ¶ 165-166; PRDSMF ¶ 165-166. As for employees of Nappi,
Ms. Donovan testified that she came out to Mr. Brown, Katurah Ottowa, Carol
Murray, Patty Kroot, Mary Johnson, and Nicole Nappi. DSMF ¶ 169; PRDSMF ¶
169. Ms. Donovan came out to Ms. Johnson as a lesbian in Ms. Donovan’s office. 371
PSAMF ¶ 260; DRPSAMF ¶ 260. After Ms. Donovan attempted suicide, it became

conversed about same-sex sexual orientation during Ms. Hale’s employment at Nappi —including Ms.
Donovan’s daughter’s reaction to Ms. Donovan coming out. Donovan Dep. at 240:12-241:20. Although
Ms. Hale testified that this conversation did not occur and that she did not know that Ms. Donovan
had come out until after Ms. Donovan left her employment at Nappi, V. Hale Dep. at 106:3-107:16,
taking the facts in the light most favorable to Ms. Donovan, the record indicates that Ms. Hale was
aware that Ms. Donovan had come out before Ms. Donovan left her employment at Nappi. The Court
omits DSMF ¶ 162.
369
Ms. Donovan denies DSMF ¶ 165, saying she “told Watson about her girlfriend . . . [she] had
already come out to Brown and other coworkers, [and [a]fter Donovan’s suicide attempt, it became
common knowledge at Nappi despite it being confidential.” PRDSMF ¶ 165. The Court accepts Ms.
Donovan’s qualification because it is consistent with other statements of material fact that the Court
has accepted.
370
DSMF ¶ 166 states that “Mr. Watson was unaware that Ms. Donovan was a lesbian until after
Ms. Donovan had left Nappi.” Ms. Donovan denies DSMF ¶ 166, saying she “told Watson about her
girlfriend.” PRDSMF ¶ 166. Ms. Donovan testified:
Q.
A.
Q.
A.
Q.
A.

At any point after May of 2018, did you come out to any of your other co-workers?
After that time?
Uh-huh.
Yes, I came out to Matt Watson.
And when did you come out to him?
That would have been March time of ’19.

Donovan Dep. at 133:12-18. Viewing the facts in the light most favorable to Ms. Donovan, the Court
accepts Ms. Donovan’s denial and omits DSMF ¶ 166.
371
Nappi objects to PSAMF ¶ 260 as inadmissible hearsay but otherwise admits the fact. The
Court overrules Nappi’s hearsay objection and admits the fact.

130

common knowledge at Nappi that Ms. Donovan had come out as a lesbian. Id. Ms.
Masters does not know of anyone else at Nappi who is gay, lesbian, or otherwise
LGBTQ. PSAMF ¶ 265; DRPSAMF ¶ 265.
Ms. Donovan came out to Mr. Watson in March of 2019, telling him that she
needed to take the afternoon off because her girlfriend was sick. 372 PSAMF ¶ 288;
DRPSAMF ¶ 288. Ms. Donovan testified that she “implied” she was gay during a
conversation with Mr. Watson because she told Mr. Watson she needed the afternoon
off to take her girlfriend to the doctors. 373 DSMF ¶ 167; PRDSMF ¶ 167. Ms.
Donovan contends in part that because she used the term “girlfriend” with Mr.
Watson, a term she used while still married to her husband, it follows that all Nappi
management must have been aware of her orientation. 374 DSMF ¶ 170; PRDSMF ¶
170. Ms. Donovan admitted that she did not feel as though Mr. Watson’s criticism of

Nappi denies PSAMF ¶ 288, saying “Mr. Watson was unaware that Ms. Donovan was a lesbian
until the subject lawsuit.” DRPSAMF ¶ 288. Taking the facts in the light most favorable to the
Plaintiff, as the Court must, and as PSAMF ¶ 288 is supported by the record, the Court admits the
fact over objection. Whether Mr. Watson understood Ms. Donovan to be coming out in this
conversation is not at issue in PSAMF ¶ 288 and is properly included in Nappi’s own facts.
373
DSMF ¶ 167 states that “Ms. Donovan testified that she ‘implied’ she was gay during a
conversation with Mr. Watson because she used the term ‘girlfriend’ when explaining why she needed
to leave work early.” Ms. Donovan qualifies DSMF ¶ 167, saying she “testified she needed to take her
girlfriend to the doctors.” PRDSMF ¶ 167. Having reviewed the record, the Court slightly alters
DSMF ¶ 167 to reflect the record.
374
DSMF ¶ 170 provides that “Ms. Donovan contends that because she used the term ‘girlfriend’
with Mr. Watson, a term she used while still married to her husband, it follows that all Nappi
management must have been aware of her orientation.” Ms. Donovan denies DSMF ¶ 170, saying she
“had already come out to Brown and other coworkers . . . [a]fter Donovan’s suicide attempt it became
common knowledge at Nappi despite it being confidential . . . [and a]fter Donovan told Watson, Hale
came into her office asking how Donovan’s daughter felt about her being gay.” PRDSMF ¶ 170. The
Court concludes that DSMF ¶ 170 is admissible, but to correct the misimpression that this was the
only basis upon which Ms. Donovan is relying to prove that Nappi was aware of her coming out as a
lesbian, the Court amends DSMF ¶ 170 to reflect that this is one among multiple facts that
demonstrate Nappi’s knowledge of her coming out.
372

131

her job performance was entirely related to her sex or sexual orientation. 375 DSMF
¶ 168; PRDSMF ¶ 168.
Ms. Donovan came out to Ms. Hale around the same time as Mr. Watson.
PSAMF ¶ 289; DRPSAMF ¶ 289. During this conversation Ms. Hale asked Ms.
Donovan how her daughter felt about her being gay. 376 Id. Ms. Donovan believes the
entire team treated her differently after she came out, including Mr. Brown who
stopped talking to her. 377 PSAMF ¶ 271; DRPSAMF ¶ 271. Ms. Masters testified
that on an occasion she was having a conversation with Ms. Hale about family and
tough things she deals with in general and Ms. Hale shared that her mother was
gay. 378 PSAMF ¶ 272; DRPSAMF ¶ 272. Ms. Johnson testified that during the time
when Nappi maintained a smoking room, on one occasion she was in the smoking
room with Ms. Hale, and Ms. Hale confided in her that her mother had come out as a

DSMF ¶ 168 states that “Ms. Donovan admitted that she did not feel as though Mr. Watson’s
criticism of her job performance was related to her sex or sexual orientation.” Ms. Donovan denies
DSMF ¶ 168, saying she “testified it was in part related to her sex and sexual orientation.” PRDSMF
¶ 168. Having reviewed the relevant record, the Court accepts Ms. Donovan’s denial as a qualification
and slightly alters DSMF ¶ 168 to reflect the record.
376
Nappi objects to PSAMF ¶ 289 as inadmissible hearsay and denies the fact, saying “Ms. Hale
testified that she was unaware Ms. Donovan was a lesbian until after she resigned.” DRPSAMF ¶
289. The Court overrules Nappi’s hearsay objection and admits the fact.
377
Nappi qualifies PSAMF ¶ 271 as unsupported by the record and states that “Ms. Donovan
testified that Mr. Brown did not say or do anything specific to suggest that the relationship changed
because she told him she was gay.” DRPSAMF ¶ 271. Ms. Donovan testified that after she came out
to Mr. Brown, “there was a huge shift from being chitchatting in my office every day to not, basically.
It was a very sudden difference.” PSAMF ¶ 271 is supported by the record, and the Court finds Nappi’s
content objection is beyond the scope of the fact; the Court admits PSAMF ¶ 271.
378
Nappi objects to PSAMF ¶ 272 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Masters testified that she does not remember the conversation or how it transpired.” DRPSAMF
¶ 272. Faced with conflicting evidence, the Court is obligated to view contested facts in the light most
favorable to Ms. Donovan and therefore rejected Nappi’s qualified response. The Court overrules
Nappi’s hearsay objection, finds Nappi’s content objection beyond the scope of the fact, and admits
PSAMF ¶ 272.
375

132

lesbian and that she was very angry that her mother was gay. 379 PSAMF ¶ 273;
DRPSAMF ¶ 273. After Ms. Donovan came out to Ms. Hale in March 2019, Ms. Hale
and Ms. Douglas began to harass Ms. Donovan because of her sexual orientation by
telling her dirty jokes. 380 PSAMF ¶ 290; DRPSAMF ¶ 290.
M.

The Performance Improvement Plan

Sometime before January 18, 2019, Mr. Watson began to work on a PIP for Ms.
Donovan. 381 DSMF ¶ 176; PRDSMF ¶ 176. In early 2019, Nappi changed and defined
Ms. Donovan’s role into that of a “wine buyer.” PSAMF ¶ 207; DRPSAMF ¶ 207. The
change in Ms. Donovan’s job description had been contemplated since 2018, but Nappi

Nappi objects to PSAMF ¶ 273 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Johnson testified that ‘confided’ was not the right word, and that Ms. Hale only told her that her
mother had just come out as gay, and that it may impact her upcoming holiday. Ms. Johnson admitted
that she did not recall a lot of the conversation.” DRPSAMF ¶ 273. The Court overrules Nappi’s
hearsay objection. As Ms. Donovan believed that Ms. Hale was confiding this private information and
Ms. Hale viewed her statement differently, the Court is obligated to view contested facts in the light
most favorable to Ms. Donovan and retains her description: “confided.”
380
Nappi denies PSAMF ¶ 290, saying “Ms. Donovan did not come out to Ms. Hale.” DRPSAMF
¶ 290. The Court overrules Nappi’s objection for the reason explained in the previous footnote and
admits the fact.
381
DSMF ¶ 176 states that “After that initial meeting in April of 2019, Mr. Watson began to work
on a PIP for Ms. Donovan.” Ms. Donovan denies DSMF ¶ 176, saying “Watson began drafting the PIP
on January 18, 2019, two days after Donovan requested a reduced work schedule, leave for additional
appointments, and FMLA paperwork.” PRDSMF ¶ 176. Mr. Brown testified:
379

Q: Okay. I’m going to show you a document that was produced to us. It’s Nappi
Distributors 61 and we have marked this as Exhibit 15. It looks like the performance
expectation memo began January 18, 2019, according to this document. Does that
sound like the time when you all started formally addressing the performance issue
with [Ms. Donovan]?
...
A. Yeah, I mean I’m looking at the document and I’m looking at the date. I think
that’s probably when it – well, it was when it was formally written, but the
performance plan had started prior to that, not with that formal letter, but there was
clearly discussion of performance regularly. I mean Matt [Watson] and [Ms. Donovan]
were having meetings if not daily, weekly, months prior to that formal writing.
Brown Dep. at 74:17-75:8. The Court accepts Ms. Donovan’s denial as a qualification and alters DSMF
¶ 176 to reflect the record.

133

finalized the new job description in or around April 2019 in conjunction with the
discussion of putting Ms. Donovan on a performance improvement plan (PIP). 382 Id.
In April 2019, Mr. Watson called a meeting with Ms. Donovan and Ms. Fox to discuss
Ms. Donovan’s work performance and significant issues with inventory. DSMF ¶ 171;
PRDSMF ¶ 171. During that meeting, Mr. Watson and Ms. Donovan discussed
specific concerns about particular retailers and suppliers and some of Ms. Donovan’s
responsibilities were reassigned to Ms. Hale. DSMF ¶ 172; PRDSMF ¶ 172.
Ms. Donovan had multiple coaching meetings with Mr. Watson and Ms. Fox
before Nappi issued the PIP. 383 DSMF ¶ 173; PRDSMF ¶ 173. Despite months of
meetings among Mr. Watson, Ms. Fox, and Ms. Donovan centered around coaching
Ms. Donovan on ways to improve her job performance, at no point did Ms. Donovan
indicate that her deficiencies were due to any alleged harassment or discrimination.
DSMF ¶ 174; PRDSMF ¶ 174. Ms. Donovan did not feel as though the criticism of
her work performance from Mr. Watson was related to her sex. 384 DSMF ¶ 175;
PRDSMF ¶ 175.

Nappi qualifies PSAMF ¶ 207, saying “[t]he record citation does not support the assertion that
Nappi changed Ms. Donovan’s role, but rather that the job description was developed and defined.”
DRPSAMF ¶ 207. Nappi’s objection is beyond the scope of the fact, and the Court admits PSAMF ¶
207.
383
DSMF ¶ 173 states that “Ms. Donovan had more than one coaching meeting with Mr. Watson
and Ms. Fox before the Performance Improvement Plan (“PIP) was issued.” Ms. Donovan admits
DSMF ¶ 173, but objects, saying she “testified there were three coaching meetings and at the third
coaching meeting Donovan brought notes that she had prepared and Fox accused her of being
combative.” PRDSMF ¶ 173. Ms. Donovan’s objection is beyond the scope of the fact, and the Court
admits DSMF ¶ 173.
384
Ms. Donovan denies DSMF ¶ 175, saying she “testified she believed he criticized her because
of sex.” PRDSMF ¶ 175. When asked whether she thought the “scrutiny that Matt [Watson] was
engaged in had anything to do with [her] sex,” Ms. Donovan testified “No, not from Matt [Watson].”
Donovan Dep. at 194:13-15. Ms. Donovan provided no record citation to support her denial. The Court
therefore admits DSMF ¶ 175.
382

134

Ms. Donovan was then issued a formalized PIP on September 30, 2019. DSMF
¶ 177; PRDSMF ¶ 177. Ms. Donovan testified that she had sufficient experience to
address the issues raised in the PIP and that most of the action items on the PIP were
things that she was “already doing.” DSMF ¶ 178; PRDSMF ¶ 178. Ms. Donovan
testified that everything in the PIP was within the parameters of her job, she was
already performing what was asked of her in the PIP, and she was not being asked
to do anything she was not qualified to do. 385 DSMF ¶ 179; PRDSMF ¶ 179. However,
as elsewhere noted, Nappi had withdrawn administrative support for Ms. Donovan
and Mr. Watson had excluded her from the monthly wine department meeting, which
made it more difficult for her to perform her job duties. See PSAMF ¶¶ 376, 396,
398. 386 Ms. Donovan took no steps to try to meet the expectations outlined in the PIP

DSMF ¶ 179 states that “Ms. Donovan testified that everything in the PIP was within the
parameters of her job, and she was not being asked to do anything for which she was not qualified.”
DSMF ¶ 179. Ms. Donovan qualifies DSMF ¶ 179, saying she “testified she was already performing
what was asked in the PIP. However, she was entirely excluded from the team so unable to
communicate, or improve in the ways the PIP stated.” PRDSMF ¶ 179. Having reviewed the relevant
record, the Court accepts in part Ms. Donovan’s qualification and adds to DSMF ¶ 179 to reflect the
record.
386
DSMF ¶ 180 states that “[t]he PIP provides expectations for improvement but, as its terms
reflect, does not alter the terms or conditions of Ms. Donovan’s employment.” Ms. Donovan denies
DSMF ¶ 180, saying “[t]he PIP specifically states that Donovan would be asked to resign from her
position.” PRDSMF ¶ 180. The Performance Improvement Plan states in part:
385

I’ve continued the temporary reassignment of some of your key duties because I do not
have confidence yet in returning them to you given the state they were in as we were
entering our critical peak summer season.
Exhibit Dep. of Helena Donovan, Attach 3, Ex. 16 Performance Expectations – Improvement Required
Email at 1 (PIP Email).
The Court rejects DSMF ¶ 180 because on its face, the PIP changed Ms. Donovan’s “key duties”
and therefore must have changed the “terms and conditions of [her] employment.” The Court considers
DSMF ¶ 180 to be argument, not undisputed fact, and too inaccurate to include in the statement of
undisputed material facts.

135

because she was cut off from the rest of the team and instead resigned shortly after
receiving it. 387 DSMF ¶ 181; PRDSMF ¶ 181.
Mr. Brown testified that Nappi management made countless suggestions and
recommendations as to how Ms. Donovan could create a plan to improve or change
the way she did her job. 388 DSMF ¶ 182; PRDSMF ¶ 182. Mr. Brown also testified
that towards the end of Ms. Donovan’s employment, she had become “completely
incompetent” and that “she was just not capable of making any decisions outside of
the box.” 389 DSMF ¶ 183; PRDSMF ¶ 183. He further stated that Ms. Donovan was
“incapable of really doing much.” 390 DSMF ¶ 184; PRDSMF ¶ 184. Mr. Brown
testified that Ms. Donovan had been on a performance improvement plan before her
resignation for “awhile. Months, months.” PSAMF ¶ 399; DRPSAMF ¶ 399. Mr.

DSMF ¶ 181 states that Ms. Donovan took “no steps to try to meet the expectations outlined
in the PIP and instead resigned shortly after receiving it.” Ms. Donovan denies DSMF ¶ 181, saying
she “testified she was unable to do the PIP because she was cut off from the rest of the team.” PRDSMF
¶ 181. Having reviewed the relevant record, the Court accepts Ms. Donovan’s denial as a qualification
and adds to DSMF ¶ 181 to reflect the record.
388
DSMF ¶ 182 states that “Nappi management made countless suggestions and
recommendations as to how Ms. Donovan could create a plan to improve or change the way she did
her job.” Ms. Donovan denies DSMF ¶ 182, saying “[s]he was dismissed from wine meetings where
incentives would be discussed—information that was crucial to ordering, Brown, Watson, and Masters
stopped meeting with Donovan, Hale was withholding information from [her, and m]anagement told
Donovan to come up with new ways to do her job differently without providing any guidelines.”
PRDSMF ¶ 182. When asked whether anybody at Nappi made suggestions or recommendations to
Ms. Donovan on how she could improve doing her job, Mr. Brown testified: “Countless, countless. I
mean not only did we or Matt [Watson] specifically ask[] for her input into how she could improve and
obviously was not getting it and we turned to other people to help with this go forward plan, but yes,
it was very clear.” Brown Dep. at 82:4-12. Having reviewed the relevant record, the Court accepts
Ms. Donovan’s denial as a qualification and slightly alters DSMF ¶ 182 to indicate that this fact
reflects Mr. Brown’s view of the situation.
389
Ms. Donovan admits that Mr. Brown testified as such but qualifies DSMF ¶ 183, saying
“Donovan admitted that she felt paralyzed, but not because of incompetence. She felt like she was told
to do one thing, expected to do another, both were contradictory and she feared getting in trouble for
doing either.” PRDSMF ¶ 183. Ms. Donovan’s objection is beyond the scope of the fact, and the Court
admits DSMF ¶ 183.
390
Ms. Donovan admits that Mr. Brown “stated this,” but “[d]en[ies] that it was true.” PRDSMF
¶ 184. Ms. Donovan’s denial is beyond the scope of the fact, and the Court admits DSMF ¶ 184.
387

136

Brown testified that the performance plan had started prior to the formal letter
drafted on January 18, 2019. PSAMF ¶ 400; DRPSAMF ¶ 400.
Ms. Donovan was denied a raise in the summer of 2019 due to Mr. Watson’s
assessment that she was struggling with ongoing performance issues. 391, 392 DSMF
¶ 185, 187; PRDSMF ¶ 185, 187; PSAMF ¶ 303; DRPSAMF ¶ 303. Ms. Donovan
concedes that Mr. Watson explained to her that based on her performance she would
not receive a raise in the summer of 2019, and she admits that she was not surprised
by this decision. DSMF ¶ 188; PRDSMF ¶ 188. Ms. Donovan has no information to
support an allegation that she was the only employee denied an annual raise that
year and admits that she does not know whether that allegation is true. DSMF ¶
186; PRDSMF ¶ 186.
When Ms. Donovan received the PIP, it was made very clear to her that she
would be terminated in 120 days unless she met the expectations of the PIP, but the
PIP was vague because it provided no parameters to meet, such as out-of-stock

DSMF ¶ 185 states that “Ms. Donovan did not receive a raise in the summer of 2019 due to
her ongoing performance issues.” Ms. Donovan qualifies DSMF ¶ 185, saying she “[a]dmit that this is
what Watson determined” but denies “that she was having ongoing performance issues because of
performance deficiencies.” PRDSMF ¶ 185. The Court slightly alters DSMF ¶ 185 to reflect the record
and admits the fact.
392
Ms. Donovan denies DSMF ¶ 187, saying she denies that her “performance did not merit a
raise.” PRDSMF ¶ 187. Ms. Donovan’s denial is beyond the scope of the fact, and the Court admits
DSMF ¶ 187.
391

137

expectations, nor outlined specific guidelines, even though she was asked to come up
with innovative ways to do her job. 393, 394 PSAMF ¶ 304-305; DRPSAMF ¶ 304-305.
N.

Helena Donovan’s Resignation

Ms. Donovan quit her employment at Nappi on October 18, 2019, leaving a
note on her computer. DSMF ¶ 191; PRDSMF ¶ 191. Prior to resigning, Ms. Donovan
did not inform anyone at Nappi, aside from her friend Ms. Ottawa, of her intent to
resign, although she admits it might have been appropriate for her to notify Ms.
Fox. 395 DSMF ¶ 192; PRDSMF ¶ 192. Ms. Donovan did not inform anyone in
management that she was resigning because she felt there was no one she could go
to, and specifically, she did not inform Ms. Fox because at that point, she did not
believe that Ms. Fox was a source for her to go to. Id.

PSAMF ¶ 304 provides that “[w]hen Donovan received the Performance Improvement Plan it
was made very clear to her that she would be terminated in 120 days unless she met the expectations
of the PIP, but the PIP was vague in that she was given no parameters to meet such as out of stock
expectations and because she wasn’t given the information and the opportunity to meet the
expectations identified in the PIP.” Nappi objects to PSAMF ¶ 304 as immaterial and further qualifies
the fact, saying “Ms. Donovan testified that Mr. Watson expected her to come up with ideas for how to
accomplish some of the tasks on the PIP, and she further testified that most of things on the PIP were
things that she was already doing.” DRPSAMF ¶ 304. The Court overrules Nappi’s materiality
objection, finds Nappi’s content objection beyond the scope of the facts addressed, and admits PSAMF
¶ 304.
394
PSAMF ¶ 305 states that “Donovan was asked to come up with innovative ways to do her job
differently with no specifics in order to meet the expectations in the PIP.” Nappi denies the fact, saying
“Mr. Brown testified that the expectations within the plan had been discussed with Ms. Donovan
‘many, many times over months’ and that she was clearly expected to perform with urgency, followthrough, and attention to detail. Further, Mr. Watson testified that with the PIP, he expected Ms.
Donovan to take ownership, show a sense of urgency, and communicate effectively. Moreover, Mr.
Watson testified that Ms. Donovan told him that he was direct, and that she would show him she could
do the job. He testified that she was told repeatedly that the areas of improvement they were looking
for were her ongoing lack of urgency, missed orders, and overstocks.” DRPSAMF ¶ 305. The Court
accepts Nappi’s denial as a qualification and slightly alters PSAMF ¶ 305 to reflect the record.
395
Ms. Donovan denies DSMF ¶ 192, saying she “testified there was no one in management that
she [generally felt that she] could go to” and “[Ms.] Fox was clearly not a source for her to actually go
to.” PRDSMF ¶ 192. The Court amended DMF ¶ 192 to accurately reflect the cited record.
393

138

Prior to abruptly leaving, Ms. Donovan received three emails from Mr. Watson
on October 18, 2019. DSMF ¶ 193; PRDSMF ¶ 193. Ms. Donovan said that something
about the emails “pissed [her] off” because of his negative tone. 396 DSMF ¶ 194;
PRDSMF ¶ 194. Ms. Donovan did not explain her reasons for leaving prior to filing
this lawsuit. DSMF ¶ 195; PRDSMF ¶ 195.
Ms. Donovan did not tell anyone at Nappi that she left because she believed
she was being discriminated against based on her sex. 397 DSMF ¶ 196; PRDSMF ¶
196. Prior to leaving Nappi, Ms. Donovan may have told Nappi management that
she felt she was being discriminated against based on sex as far as how Ms. Hale

DSMF ¶ 194 states that “Ms. Donovan said that something about the emails ‘pissed [her] off’
but she could not recall specifically what it was.” Ms. Donovan denies DSMF ¶ 194, saying “the emails
‘pissed her off’ because of how Watson spoke to her, as it was always negative.” PRDSMF ¶ 194.
Regarding the referenced emails, Ms. Donovan testified that “[a]nything that Matt [Watson] spoke to
[her] about was negative, and it didn’t matter what came out of [her] mouth, it’s going to be wrong . .
. [so the emails were] just another situation that kind of compounded – compounded it.” Donovan Dep.
at 254:21-255:2. The Court accepts Ms. Donovan’s denial as a qualification and alters DSMF ¶ 194 to
reflect the record.
397
DSMF ¶ 198 states that “Ms. Donovan cannot recall specifically telling anyone at Nappi that
she was discriminated against in terms of compensation because of her sex.” Ms. Donovan denies
DSMF ¶ 198, saying she “testified that she reported it to Carr or Bourque.” PRDSMF ¶ 198. Ms.
Donovan testified:
396

Q. During your employment at Nappi, did you ever tell anyone with management that
you felt you were being discriminated against with regard to the terms of your
compensation?
A. Initially.
Q. Who did you talk to about that?
A. It would have been I want to say Paul [Carr] or Jim [Bourque]. I’m sorry, I don’t
remember the specific.
Q. What do you remember about that conversation?
A. Well, the fact that that title was taken away from me, that my compensation was
less than John [Houle]’s, that there was no apparent reason for it, other than the
excuse that he was grandfathered, therefore, it must be because I am a woman. I could
see no other reason for it, other than to be told that they didn’t want to provide me
with management bonuses or a car.
Donovan Dep. at 91:7-23. The Court accepts Ms. Donovan’s denial and omits DSMF ¶ 198.

139

treated women. 398 PSAMF ¶ 284; DRPSAMF ¶ 284. Ms. Donovan did not tell anyone
at Nappi or Nappi management that she resigned because she felt she was
discriminated against based on disability. DSMF ¶ 199; PRDSMF ¶ 199.
Nobody at Nappi specifically said anything to Ms. Donovan to indicate that
they wanted her to terminate her employment because of her mental health
condition; however, when Ms. Donovan told Ms. Fox that her mental health was
worsening, Ms. Fox told her she was just looking for a life raft. 399 DSMF ¶ 200;
PRDSMF ¶ 200; PSAMF ¶ 372; DRPSAMF ¶ 372. During her employment, Ms.
Donovan never used “magic words” to tell anyone at Nappi that she felt she was being
discriminated against based on a disability, but she repeatedly told Ms. Fox that she
thought she was being treated differently. 400 DSMF ¶ 201; PRDSMF ¶ 201. Ms.

PSAMF ¶ 284 provides that “[p]rior to leaving Nappi, Donovan told Nappi management that
she felt she was being discriminated against on the basis of sex as far as how Hale treated women.”
Nappi objects to PSAMF ¶ 284 as inadmissible hearsay and denies the fact as unsupported by the
record. DRPSAMF ¶ 284. Ms. Donovan testified:
398

Q: Okay, I understand your allegations in this case are that Valarie Hale bullied you,
harassed you, these types of allegations. Did you ever say to anyone at Nappi
management that you felt she was doing so because of your sex?
A. I wouldn’t say I didn’t, but I can’t specifically give you a conversation.
Donovan Dep. 90:18-24. The Court overrules Nappi’s hearsay objection, accepts Nappi’s denial as a
qualification, and alters PSAMF ¶ 284 to reflect the record.
399
DSMF ¶ 200 provides that “[n]obody at Nappi said anything to imply they wanted Ms.
Donovan to terminate her employment on the basis of her mental health condition.” Ms. Donovan
denies DSMF ¶ 200, saying she “testified that Nappi management was deliberately and consistently
ensuring that her mental health worsened each day to the point where she wouldn’t be able to perform
her job,” and when she “disclosed to Fox that her mental health was worsening Fox responded that
Donovan was just looking for a life raft.” PRDSMF ¶ 200. Having reviewed he relevant record, the
Court accepts Ms. Donovan’s denial as a qualification and slightly alters DSMF ¶ 200 to reflect the
record.
400
DSMF ¶ 201 states that “[i]n fact, during her employment, Ms. Donovan never told anyone at
Nappi that she felt she was being discriminated against on the basis of a disability.” Ms. Donovan
denies DSMF ¶ 201, saying she “did not use the ‘magic words’ on the basis of disability but she
repeatedly reported to Fox that she was being treated differently.” PRDSMF ¶ 201. The Court accepts
Ms. Donovan’s denial as a qualification and slightly alters DSMF ¶ 201 to reflect the record.

140

Donovan did not discuss the specifics of her mental health issues with Nappi
managers—other than HR Director Ms. Fox. 401 DSMF ¶ 202; PRDSMF ¶ 202.
Ms. Donovan testified that she resigned from Nappi on October 18, 2019,
because of her health as she could no longer take the mistreatment from Ms. Hale,
the hostility, toxic environment, the continual exclusion and nastiness, the talking
behind her back, and not being invited to meetings, stating “I had enough, I just
couldn’t take it anymore.” 402 PSAMF ¶ 283; DRPSAMF ¶ 283. Ms. Donovan believes
Nappi wanted her gone because of her mental health and sexual orientation, because
of how things escalated after she requested leave for her mental health, and when
she came out as lesbian. 403 PSAMF ¶ 306; DRPSAMF ¶ 306. Ms. Donovan did not
file a complaint of discrimination with the Maine Human Rights Commission until
May of 2020—seven months after she quit her employment with Nappi. DSMF ¶ 203;
PRDSMF ¶ 203.

Since Ms. Donovan left Nappi, Ms. Hale assumed all the

DSMF ¶ 202 provides that “Ms. Donovan did not discuss the specifics of her mental health
issues with her managers at Nappi.” Ms. Donovan denies DSMF ¶ 202, saying she “spoke in detail
with Human Resources Manager Christine Fox of her mental health issues.” PASMF ¶¶ 119, 121-122,
312. The Court amended DSMF ¶ 202 to reflect Ms. Donovan’s conversations with Ms. Fox.
402
PSAMF ¶ 283 provides that “Donovan testified that she resigned from Nappi on October 18,
2019, because of her mental health as she could no longer take the mistreatment from Hale, the
hostility, toxic environment, the continual exclusion and nastiness, the talking behind her back, not
invited to meetings stating ‘I had enough, I just couldn’t take it anymore.’” Nappi qualifies PSAMF ¶
283, saying “Ms. Donovan testified that she resigned because it was beneficial for her health and did
not specify that it was her mental health.” DRPSAMF ¶ 283. The Court omits “mental” from the fact
and admits PSAMF ¶ 283.
403
Nappi qualifies PSAMF ¶ 306, saying “Ms. Donovan testified that criticism for her
performance was ‘already bad’ before she came out or requested leave.” DRPSAMF ¶ 306. Nappi’s
objection is beyond the scope of the fact, and the Court admits PSAMF ¶ 306.
401

141

responsibility that Ms. Donovan had, in addition to coordinating pricing and
incentives. 404 PSAMF ¶ 285; DRPSAMF ¶ 285.
O.

Mary Johnson’s Employment at Nappi

Ms. Johnson began working for Cumberland and York Distributors in April of
2000 and became an employee of Nappi when it purchased Cumberland and York in
2002. 405 PSAMF ¶ 212; DRPSAMF ¶ 212. Ms. Johnson interviewed for a beer sales
representative position, but she was told she would be better suited for an
administrative position. 406 PSAMF ¶ 213; DRPSAMF ¶ 213. Ms. Johnson believes
it was implied that the administrative position would be better for her over the sales
representative position because she had a child. 407 PSAMF ¶ 214; DRPSAMF ¶ 214.
Ms. Johnson testified that she was paid on a salary basis as an administrative
assistant and told that she was required to work no less than 40 hours per week. 408

PSAMF ¶ 285 states that “[s]ince Donovan left Nappi, Hale became the wine purchaser.”
Nappi denies PSAMF ¶ 285, saying “Ms. Hale was promoted to Purchasing and Inventory Coordinator
in mid-2020. In that position, Ms. Hale assumed everything that Ms. Donovan was doing, in addition
to coordinating pricing and incentives.” DRPSAMF ¶ 285. The Court accepts Nappi’s denial as a
qualification and alters PSAMF ¶ 285 to reflect the record.
405
Nappi objects to PSAMF ¶ 212 as “immaterial to Ms. Donovan’s claims” but otherwise admits
the fact. The Court overrules Nappi’s objection and admits PSAMF ¶ 212.
406
PSAMF ¶ 213 provides that “Johnson interviewed for a sales representative position, but she
was told she would be better suited for an administrative position.” Nappi objects to PSAMF ¶ 213 as
inadmissible hearsay and immaterial and further qualifies the fact, saying “Ms. Johnson testified that
she applied for a beer sales position at Cumberland & York – not at Nappi.” DRPSAMF ¶ 213. The
Court overrules Nappi’s hearsay and immateriality objections and slightly alters the fact to reflect the
record.
407
Nappi objects to PSAMF ¶ 214 as inadmissible hearsay and as “based on mere speculation.”
DRPSAMF ¶ 214. Nappi further qualifies that fact, saying “Ms. Johnson testified that the events in
the factual assertion occurred while she was applying at Cumberland & York.” Id. The Court
overrules Nappi’s hearsay objection, finds Nappi’s content objection beyond the scope of the fact, and
admits PSAMF ¶ 214.
408
Nappi objects to PSAMF ¶ 215 as immaterial and qualifies the fact, saying “Ms. Johnson
testified that nobody told her what her weekly hourly expectation was.” DRPSAMF ¶ 215. The Court
overrules Nappi’s materiality objection. Finding the fact supported by the record and taking the facts
in the light most favorable to the Plaintiff, the Court admits the fact over objection.
404

142

PSAMF ¶ 215; DRPSAMF ¶ 215. Ms. Johnson testified that she was paid hourly
previously but was switched to salary without notice in January of 2003 when Nappi
purchased Cumberland and York. 409 PSAMF ¶ 216; DRPSAMF ¶ 216. Ms. Johnson
testified that she often worked 50-60 hours per week until September 15, 2020, at
which point she began working 35 hours per week, but she was reprimanded by Mr.
Black on at least one occasion in part for not working more than 40 hours per week. 410
PSAMF ¶ 217; DRPSAMF ¶ 217.
Ms. Johnson felt she could not go to Mr. Bourque with a problem because on
one occasion someone reported that an employee had made a comment about her
dress that made her feel uncomfortable and when Mr. Bourque discussed the incident
with her, he questioned whether it had really happened and told her it was a strong
statement to make. PSAMF ¶ 220; DRPSAMF ¶ 220. This response made Ms.
Johnson feel that there would be no actions taken for any reported issues. 411 Id.

Nappi objects to PSAMF ¶ 216 as immaterial but otherwise admits the fact. DRPSAMF ¶ 216.
The Court overrules Nappi’s materiality objection.
410
PSAMF ¶ 217 provides that “Johnson testified that she often worked 50-60 hours per week
until September 15, 2020, at which point she began working 35 hours per week, but she was
reprimanded by Black for not working more than 40 hours per week.” Nappi objects to PSAMF ¶ 217
as immaterial and further qualifies the fact, saying “Ms. Johnson could not specifically recall being
‘reprimanded’ aside from one incident wherein she left early without permission and was required to
use two hours of vacation time. Further, Ms. Johnson testified that although she recorded her hours
at one point, she had stopped but could not recall when.” DRPSAMF ¶ 217. The Court overrules
Nappi’s materiality objection. Having reviewed the relevant record, the Court adds to PSAMF ¶ 217
to reflect the record and admits the fact.
411
PSAMF ¶ 220 states that “Johnson felt she could not go to [Jim] Bourque with a problem
because on one occasion she reported an employee who made a comment about her dress that made
her feel uncomfortable and [Mr.] Bourque’s response was ‘Are you sure that really happened?’ ‘That’s
a very strong statement.’ This response made [Ms.] Johnson realize there would be no actions ever
taken for any issues.” Nappi objects to PSAMF ¶ 220 as immaterial and further qualifies the fact,
saying “Ms. Johnson testified that she could not remember what her complaint was, but that it was
‘something about the way I was dressed.’ Further, she admitted that she did not report the incident
to Mr. Bourque, but someone else did, and he discussed it with her while he was investigating it.”
DRPSAMF ¶ 220. The Court overrules Nappi’s materiality objection and, having reviewed the record,
slightly alters PSAMF ¶ 220 to reflect the record.
409

143

Ms. Johnson believes the environment at Nappi became toxic when Ms. Fox
began working there. 412 PSAMF ¶ 221; DRPSAMF ¶ 221. Ms. Johnson reported an
issue she was having with Ms. Hale to Ms. Fox where she felt Ms. Hale was trying to
make her look bad to the owner of the company; in response Ms. Fox told Ms. Johnson
to let it roll off her shoulders. 413 PSAMF ¶ 222; DRPSAMF ¶ 222. Ms. Johnson
testified that on an occasion she went to Ms. Fox with an issue and Ms. Fox “turned
psycho” and “went crazy.” PSAMF ¶ 223; DRPSAMF ¶ 223. Ms. Johnson explained
that she went to Ms. Fox’s office to discuss an issue that could have involved employee
performance issues when Ms. Fox held the desk and started telling Ms. Johnson that
she felt threatened by her. PSAMF ¶ 224; DRPSAMF ¶ 224. In response, Ms.
Johnson asked Ms. Fox if she was crazy and left. 414 Id. Ms. Johnson reported the
incident to managers Mr. Black and Mr. Coffee who told Ms. Johnson not to interact
with Ms. Fox further but did not provide her with an alternative individual to go to
with HR concerns. 415 PSAMF ¶ 225; DRPSAMF ¶ 225.
Ms. Johnson worked with Ms. Hale for 19 years. PSAMF ¶ 226; DRPSAMF ¶
226. Ms. Johnson testified that Ms. Hale uses her sexuality to get her way with male

Nappi objects to PSAMF ¶ 221 as immaterial but otherwise admits the fact. DRPSAMF ¶ 221.
The Court overrules Nappi’s materiality objection and admits PSAMF ¶ 221.
413
Nappi objects to PSAMF ¶ 222 as immaterial but otherwise admits the fact. DRPSAMF ¶ 222.
The Court overrules Nappi’s materiality objection and admits PSAMF ¶ 222.
414
Nappi qualifies PSAMF ¶ 224, saying “Ms. Johnson testified that she did not recall the
interaction.” DRPSAMF ¶ 224. Having reviewed the relevant record, the Court finds the fact
generally supported by the record, and, as the Court is required to view contested facts in the light
most favorable to Ms. Donovan, the Court admits PSAMF ¶ 224 over objection.
415
Nappi objects to PSAMF ¶ 225 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Johnson testified that she could go to Tim Coffee and Chris Black, both members of management.”
DRPSAMF ¶ 225. The Court overrules Nappi’s hearsay objection, finds Nappi’s content objection
beyond the scope of the fact, and admits PSAMF ¶ 225.
412

144

members of management and often engages in inappropriate behavior in the
workplace by sitting very close to male members of management, including Mr.
Watson; revealing her thong in the workplace; wearing revealing clothing such as low
cut, tight tops; flirting with Frank Nappi Jr. by catcalling him to meet her in the
smoking room; speaking vulgarly with male members; and swapping inappropriate
emails with Mr. Maiorino. 416 PSAMF ¶ 227; DRPSAMF ¶ 227. Ms. Johnson knows
Ms. Hale would exchange inappropriate emails with Mr. Maiorino because on one
occasion he accidently sent one of these emails to Ms. Johnson and apologized to her
for doing so. PSAMF ¶ 228; DRPSAMF ¶ 228. Ms. Johnson told Mr. Maiorino it was
gross and she didn’t need to be part of it, to which Mr. Maiorino explained that Ms.
Hale liked the emails and sends them to him. 417, 418 Id.

Nappi objects to PSAMF ¶ 227 as immaterial and further qualifies the fact, saying “Ms.
Johnson clarified that the conduct occurred ‘years ago,’ and that the vulgar discussions to which she
was referring were ‘implied,’ and she testified that she never spoke with Ms. Hale about an
inappropriate email, nor did she ever receive an inappropriate email from Ms. Hale. Further, in the
record citation, Ms. Johnson admits that she did the same body language she observed from Ms. Hale
to her supervisor, Chris Black. Moreover, Ms. Hale testified that she was not copied on any
inappropriate emails from Nappi employees or management.” DRPSAMF ¶ 227. The Court overrules
Nappi’s materiality objection, finds Nappi’s content objection beyond the scope of the fact, and, as the
Court is required to view contested facts in the light most favorable to Ms. Donovan, admits PSAMF
¶ 227.
417
Nappi objects to PSAMF ¶ 228 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Hale testified that she was not copied on any inappropriate emails from Nappi
employees or management.” DRPSAMF ¶ 228. The Court overrules Nappi’s hearsay and materiality
objections, finds Nappi’s content objection beyond the scope of the fact, and admits PSAMF ¶ 228.
418
PSAMF ¶ 229 provides that “Johnson also testified that Hale exchanged dirty emails with
members of management.” Nappi objects to PSAMF ¶ 229, saying “Ms. Johnson does not have the
personal knowledge to testify to emails that someone else exchanged” and denies the fact because “Ms.
Hale testified that she was not copied on any inappropriate emails from Nappi employees or
management.” Having reviewed the record, the Court finds that the extent to which Ms. Johnson has
personal knowledge of emails between Ms. Hale and members of management is captured in PSAMF
¶ 228. Otherwise, the record does not support general knowledge of members of management about
these emails. The Court therefore sustains Nappi’s objection and omits PSAMF ¶ 229.
416

145

Ms. Johnson had breast reduction surgery while employed at Nappi. PSAMF
¶ 230; DRPSAMF ¶ 230. On one occasion she could not attend a training because of
a different medical appointment and Ms. Johnson testified that when she told this to
Ms. Hale, Ms. Hale responded by grabbing her own breasts, rubbing them, and asking
“Oh is it for these.” 419 Id. On one occasion, Ms. Hale accused Ms. Johnson of
spreading a rumor that she was having an affair with Mr. Hale, one of the wine
department managers. 420 PSAMF ¶ 231; DRPSAMF ¶ 231. Ms. Hale later married
Mr. Hale. 421 PSAMF ¶ 232; DRPSAMF ¶ 232.
Ms. Johnson testified that in April of 2019 “After a beer vendor trade show, I
was with some colleagues at the Top of the East. Mr. Watson was there and very
intoxicated. As I walked to Nosh Restaurant, he asked to walk with me. He was
prying about my breast surgery in a way that made me feel uncomfortable. I told him
to drop the subject. Mr. Watson then continued on to tell me that he ‘creeped on my
Facebook’ profile and that I always smiled and looked so happy but at work I looked
like a miserable bitch. He told me that I should quit my job at Nappi and work at my

Nappi objects to PSAMF ¶ 230 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Hale testified that the only discussion she had with Ms. Johnson surrounding her
procedure was excitement because she knew Ms. Johnson was happy about it.” DRPSAMF ¶ 230. The
Court overrules Nappi’s hearsay objection for the reason explained in footnote 17, overrules Nappi’s
materiality objection, finds Nappi’s content objection beyond the scope of the fact, and admits PSAMF
¶ 230.
420
Nappi objects to PSAMF ¶ 231 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Johnson testified that she did discuss whether Ms. Hale was having an affair
with someone, but she misunderstood the ‘Michael’ to whom they were referring.” DRPSAMF ¶ 231.
Ms. Johnson testified: “[Ms. Hale] had accused me of spreading a rumor that she was having an affair
with Michael Hale which was the wine -- one of the wine managers or supervisors.” Nappi R., Attach
20, Dep. of Mary Johnson at 27:16-19 (Johnson Dep.). The Court overrules Nappi’s hearsay and
materiality objections, finds Nappi’s content objection beyond the scope of the fact, and admits PSAMF
¶ 231.
421
Nappi objects to PSAMF ¶ 232 as immaterial but otherwise admits the fact. DRPSAMF ¶ 232.
The Court overrules Nappi’s materiality objection and admits PSAMF ¶ 232.
419

146

night job.

I was very offended and believed it was sexist.” 422

PSAMF ¶ 233;

DRPSAMF ¶ 233.
On October 10, 2019, John Lambert showed Ms. Hale a picture of something
on his phone and loudly joked, so that everyone in the cubicles including Ms. Johnson
could hear, about it “not needing him to blow it up,” implying it was sexual in nature.
PSAMF ¶ 234; DRPSAMF ¶ 234. As Chris DeVinney walked by, Ms. Hale made him
stop to look at the picture. 423 Id.
Ms. Johnson testified that on one occasion the owners of Nappi required the
females working in the cubicles to watch a stripper at work, 424 PSAMF ¶ 235;
DRPSAMF ¶ 235, and that she reported the strippers to Mr. Chris Black and Mr.
Coffee. 425 PSAMF ¶ 236; DRPSAMF ¶ 236. Ms. Johnson also testified that Frank
Nappi, Sr. pulled Ms. Johnson into his office and told her to tell owner Frank Nappi,
Jr.’s wife, Venus, to not have a stripper in the place, to get rid of all the pictures on
the computer, and that “dumb-dumb” was not getting a stripper for his birthday. 426
PSAMF ¶ 237; DRPSAMF ¶ 237.

Nappi object to PSAMF ¶ 233 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “[Mr.] Watson testified that he was not aware that Ms. Johnson had breast reduction
surgery, and did not have a conversation with her about it . . . [and] denied the remainder of the
allegations in this factual assertion.” DRPSAMF ¶ 233. The Court overrules Nappi’s hearsay and
materiality objections, and, taking the facts in the light most favorable to the Plaintiff, finds that the
record citation supports the fact and admits PSAMF ¶ 231.
423
Nappi objects to PSAMF ¶ 234 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Johnson testified that she could not see what was on Mr. Lambert’s phone.”
DRPSAMF ¶ 234. The Court overrules Nappi’s hearsay and materiality objections, finds Nappi’s fact
objection beyond the scope of the fact, and admits PSAMF ¶ 234.
424
Nappi objects to PSAMF ¶ 235 as immaterial and further qualifies the fact, saying “Ms.
Johnson clarified that this occurred ‘a long time ago,’ and that it was one male stripper who was
brought to the office by a person who was not an employee of Nappi to celebrate a milestone birthday.”
DRPSAMF ¶ 235. The Court overrules Nappi’s materiality objection and admits PSAMF ¶ 235.
425
Nappi objects to PSAMF ¶ 236 and the Court overrules Nappi’s objection.
426
Nappi objects to PSAMF ¶ 237 and the Court overrules Nappi’s objection.
422

147

Ms. Johnson testified that Ms. Fox made her feel uncomfortable in part
because of sexual comments Ms. Fox made to her on three occasions. 427 PSAMF ¶
238; DRPSAMF ¶ 238. On one occasion as Ms. Johnson was walking past Ms. Fox,
Ms. Fox said to Ms. Johnson “nice ass” and then later apologized saying she should
not have made the comment, which Ms. Johnson agreed to. 428

PSAMF ¶ 239;

DRPSAMF ¶ 239. On another occasion Ms. Fox gave a “booty call whistle” to Ms.
Johnson and stated: “well, you keep looking good, I’m going to keep whistling at
you.” 429

PSAMF ¶ 240; DRPSAMF ¶ 240.

On yet another occasion Ms. Fox

approached Ms. Johnson and whispered in her ear “I don’t know what you’re doing
but you’re looking really good lately.” 430 PSAMF ¶ 241; DRPSAMF ¶ 241.
Ms. Johnson reported these incidents with Ms. Fox to Mr. Black and Mr.
Coffee, but they did nothing to address the issues. 431 PSAMF ¶ 242; DRPSAMF ¶
242. Ms. Johnson testified that on a number of occasions she reported to Mr. Black
that she was being bullied by Ms. Hale. PSAMF ¶ 243; DRPSAMF ¶ 243. Mr. Black

Nappi objects to PSAMF ¶ 238 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Johnson testified that she could not recall the day or time that these comments
allegedly occurred.” The Court overrules Nappi’s hearsay and materiality objections, finds Nappi’s
fact objection beyond the scope of the fact, and admits PSAMF ¶ 238.
428
Nappi objects to PSAMF ¶ 239 as inadmissible hearsay and immaterial and further qualifies
the fact, saying “Ms. Johnson testified only that she ‘thought [she] heard the comment.’” The Court
overrules Nappi’s hearsay and materiality objections for the reason explained in footnote 17, overrules
Nappi’s materiality objection, finds Nappi’s fact objection beyond the scope of the fact, and admits
PSAMF ¶ 239.
429
Nappi objects to PSAMF ¶ 240 as immaterial and further qualifies the fact, saying “Ms.
Johnson testified to that, but also admitted that she told people about this allegation because she
wanted to cause a stir.” DRPSAMF ¶ 240. The Court overrules Nappi’s materiality objection, finds
Nappi’s fact objection beyond the scope of the fact, and admits PSAMF ¶ 240.
430
Nappi makes the same objection to PSAMF ¶ 241 as to PSAMF ¶ 240, and the Court overrules
Nappi’s objection for the same reason explained in the prior footnote.
431
Nappi makes the same objection to PSAMF ¶ 242 as to PSAMF ¶¶ 240-41, and the Court
overrules Nappi’s objection for the same reason explained in the prior footnote.
427

148

responded that Ms. Johnson was intimidating. 432 Id. Ms. Johnson testified that Ms.
Hale maliciously withheld information to intentionally cause Ms. Johnson to struggle
with her job. 433, 434 PSAMF ¶ 244; DRPSAMF ¶ 244.
During a meeting with Ms. Fox in her last week at Nappi, having declined an
exit interview, Ms. Johnson explained to Ms. Fox that she felt very unsupported by
her as the Human Resources representative. PSAMF ¶ 255; DRPSAMF ¶ 255. Ms.
Johnson explained that when she went to Ms. Fox with work issues she left without
results and that she feared going to her office due to Ms. Fox’s attacking Ms. Johnson
and retaliating against her by saying she felt threatened. Id. Ms. Johnson testified
that in this meeting with Ms. Fox she explained that on one occasion she came to her
with an issue involving Ms. Hale and she told her that she needed to be like Teflon
and let it roll off her. PSAMF ¶ 256; DRPSAMF ¶ 256. In response, Ms. Fox accused
Ms. Johnson of lying and said, “You’re lying, I never said that to you, I said that to
[Ms. Donovan].” 435 Id.

Nappi objects to PSAMF ¶ 243 as inadmissible hearsay and further qualifies the fact, saying
“Ms. Johnson testified that Mr. Black told her that after she also reported bullying by Becky Douglass
and Sara Ouellette.” The Court overrules Nappi’s hearsay objection, finds Nappi’s content objection
beyond the scope of the fact, and admits PSAMF ¶ 243.
433
Nappi qualifies PSAMF ¶ 244, saying “Ms. Johnson testified about a specific example wherein
Ms. Hale discussed a project with her two weeks before it needed to be done, and it was not Ms. Hale’s
responsibility to tell Ms. Johnson about her job and that she should have gotten information from her
supervisor. In another example, Ms. Johnson accused someone of not giving her information she
needed, but admitted that it was not Ms. Hale but an IT person. Further, she testified that aside from
those instances, and one occurrence where she needed an organizational chart, she could not recall
any other examples.” DRPSAMF ¶ 244. The Court finds Nappi’s qualification largely beyond the
scope of the fact but omits “on numerous occasion” from PSAMF ¶ 244 and otherwise admits the fact.
434
The Court omits PSAMF ¶ 245 because the fact duplicates PSAMF ¶ 222.
435
Nappi objects to PSAMF ¶ 256 as inadmissible hearsay and denies the fact, saying “Ms. Fox
testified that she did not say that.” DRPSAMF ¶ 256. The Court overrules Nappi’s hearsay objection
and, taking the facts in the light most favorable to the Plaintiff, admits PSAMF ¶ 256 over objection.
432

149

Ms. Donovan told Ms. Johnson that she felt she was bullied by Ms. Hale. 436
PSAMF ¶ 257; DRPSAMF ¶ 257. Ms. Murray told Ms. Johnson she felt bullied by
Ms. Hale and that she reported the issue to Mr. Black. 437 PSAMF ¶ 258; DRPSAMF
¶ 258. Ms. Murray told Ms. Donovan that Ms. Hale was “particularly nasty and that
she had been bullied and intimidated by Ms. Hale for years and she was glad I had
started there because Ms. Hale would now leave her alone.” 438

PSAMF ¶ 259;

DRPSAMF ¶ 259. Ms. Johnson testified that Nappi never had an HR department
that you could go to if you needed to report an issue or to discuss a situation that
made you feel uncomfortable. 439 PSAMF ¶ 218; DRPSAMF ¶ 218.

PSAMF ¶ 257 provides that “[Ms.] Donovan reported to [Ms.] Johnson that she felt she was
bullied by [Ms.] Hale.” DRPSAMF ¶ 257. Nappi objects to PSAMF ¶ 257 as inadmissible hearsay and
qualifies the fact, saying “Ms. Johnson did not testify that she characterized these complaints as
‘reports,’ but rather that Ms. Donovan told her that Ms. Hale copied Ms. Donovan’s supervisors in
emails.” DRPSAMF ¶ 257. The Court overrules Nappi’s hearsay objection, slightly alters PSAMF ¶
257 to reflect the record, and admits the fact.
437
Nappi objects to PSAMF ¶ 258 as inadmissible hearsay but otherwise admits the fact.
DRPSAMF ¶ 258. The Court overrules Nappi’s hearsay objection and admits the fact.
438
PSAMF ¶ 259 provides that “Carol Murray told Donovan that Hale was ‘particularly nasty’
and that she had been bullied by Valarie [Hale] for years and she was glad I had started there because
Valarie [Hale] would now leave her alone.” Nappi objects to PSAMF ¶ 259 as inadmissible hearsay
and further qualifies the fact, saying “[t]he record citation is inaccurately quoted in the factual
assertion.” DRPSAMF ¶ 259.
436

The cited transcript reads:
Q. Is there anyone else who warned you when you first started about this conduct?
A. Carol Murray.
Q. What did Ms. Murray say?
A. Just that Valerie was particularly nasty and that she had been bullied and
intimidated by Val[a]rie for years and she was glad I had started there because
Val[a]rie would now leave her alone.
The Court overrules Nappi’s hearsay objection. To rectify the inaccurate citation objection, the Court
adds that Ms. Murray said she had been both bullied and intimidated by Ms. Hale for years.
439
Nappi objects to PSAMF ¶ 218 as immaterial and further qualifies the fact, saying “Ms.
Johnson could not provide specifics as to why she testified as she did, indicating that she did not recall
the interaction . . . [and] testified that she could approach Ms. Fox with issues about job performance.”
DRPSAMF ¶ 218. The Court overrules Nappi’s materiality objection, finds Nappi’s content objection
beyond the scope of the fact, and admits PSAMF ¶ 218.

150

Ms. Donovan never told Ms. Johnson that she was suffering from depression,
but Ms. Johnson could see that she was depressed from her observations of
Donovan. 440 PSAMF ¶ 274; DRPSAMF ¶ 274. Ms. Johnson was aware of Ms.
Donovan’s suicide attempts. PSAMF ¶ 275; DRPSAMF ¶ 275. Ms. Masters observed
Ms. Donovan crying at work. PSAMF ¶ 276; DRPSAMF ¶ 276. Ms. Johnson kept a
journal of work events because she felt like she was on the radar for attack. 441
PSAMF ¶ 277; DRPSAMF ¶ 277. In that journal, Ms. Johnson wrote an entry the
day after Ms. Donovan resigned from her position that states:
Day started w/ Val [Hale]’s mouth again! Swearing & cussing. Talking
dirty to anyone that will listen. By 11:45 I was informed by Kate that
[Ms. Donovan] had walked off the job. The bullying was too much.
Yesterday she showed me an email where Val [Hale] told her she was
too busy to do something & [Ms. Donovan] will now need to do it. Matt
Watson was not cc’d. Katurah informed me that [Ms. Donovan] needed
her coats & calendar. I went in and saw the note she left. “I resign” on
the screen of her PC. At approx. 1:30 Val [Hale] called Nick [Nappi] &
asked him to come to her desk. She brought him & Steve Stultz to [Ms.
Donovan]’s office by skipping & saying Nick “Ha Ha—I’ve got something
to show you—” she was thrilled she went to the conference room by fish
tank & made a call. Cornered Michelle [Tourangeau]—Ran to tell Ian
[Brown]. Went to tell Christine [Fox]. Informed Anthony to redirect [Ms.
Donovan]’s email. This girl was once again impressed with herself and
destroying another persons career. She was on the phone with someone

PSAMF ¶ 274 states that “Donovan never told Johnson she was suffering from depression, but
Johnson could see that she was depressed from her observations of Donovan.” Nappi qualifies PSAMF
¶ 274, saying “Ms. Johnson admitted that she is not a medical professional and instead relied on her
experience as a bartender to make that assumption . . . [and] Ms. Johnson does not have the foundation
to testify to medical conditions she perceived in Ms. Donovan, as it is speculative and impermissible
lay opinion.”
The Court overrules Nappi’s objection as frivolous. Ms. Johnson’s observations of Ms. Donovan
fit well within Federal Rule of Evidence 701. A lay witness does not need a medical degree to observe
that someone was depressed in the lay sense of the term.
441
Nappi objects to PSAMF ¶ 277 as immaterial and further qualifies the fact, saying “Ms.
Johnson did not call it a ‘log’ but rather a journal and admitted that it is in her regular practice to
keep journals.” The Court overrules Nappi’s materiality objection, finds Nappi’s content objection
largely beyond the scope of the fact, but changes “log” to “journal” to reflect the record.
440

151

proclaiming she will now be even busier but we’ve been through this
before! 442
PSAMF ¶ 278; DRPSAMF ¶ 278.
Ms. Johnson did not observe Ms. Hale to be devastated by Ms. Donovan’s
resignation and does not believe she was devastated because she was excited to show
Nick Nappi Ms. Donovan’s resignation. 443 PSAMF ¶ 279; DRPSAMF ¶ 279. After
Ms. Donovan left her employment with Nappi, Ms. Johnson left Ms. Donovan a
voicemail:
Hi Helena, I am so sorry you were driven to this. It is just unacceptable
and it is so wrong. I am so sorry that people didn’t listen to you and
understand what you were enduring from that evil person or all the evils
you were working with day in and day out. It is really unfair that the
toxic work environment and um you were definitely harassed, and I hope
you express that to someone um because that was your career and that
is just wrong. Um good luck. I will talk to you soon. Bye love have a
good weekend. As good as you can. 444
PSAMF ¶ 280; DRPSAMF ¶ 280. Ms. Johnson testified that the evil person she was
referring to was Ms. Hale and that her advice to Ms. Donovan to “express that to
someone” meant to seek legal counsel. 445 PSAMF ¶ 281; DRPSAMF ¶ 281. Ms.
Johnson recommended that Ms. Donovan have her attorneys subpoena Nappi’s outof-stock records because Ms. Hale was complaining about Ms. Donovan’s out of stocks
Nappi denies PSAMF ¶ 278 as unsupported by the record because “[t]he referenced journal
entry was not dated on the day that Ms. Donovan resigned.” DRPSAMF ¶ 278. Having reviewed the
relevant record, the Court confirms that Ms. Johnson’s entry is dated October 19, the day after Ms.
Donovan resigned. The Court accepts Nappi’s denial as a qualification and changes “the day” to “the
day after” to reflect the record.
443
Nappi objects to PSAMF ¶ 279 as inadmissible hearsay but otherwise admits the fact. The
Court overrules Nappi’s hearsay objection and admits the fact.
444
Nappi objects to PSAMF ¶ 280 as inadmissible hearsay but otherwise admits the fact. The
Court overrules Nappi’s hearsay objection and admits the fact.
445
Nappi objects to PSAMF ¶ 281 as inadmissible hearsay but otherwise admits the fact. The
Court overrules Nappi’s hearsay objection and admits the fact.
442

152

yet after taking over Ms. Donovan’s role she was out of stock all the time. 446 PSAMF
¶ 282; DRPSAMF ¶ 282.
P.

Other Facts

Elmer Alcott was aware of Mr. Maiorino’s sexually explicit work
communications. 447 PSAMF ¶ 319; DRPSAMF ¶ 319. Mr. Alcott and other employees
and members of management themselves received sexually explicit work emails from
Mr. Maiorino. 448 PSAMF ¶ 320; DRPSAMF ¶ 320. One email Mr. Alcott and other
Nappi employees and managers received from Mr. Maiorino joked about how men
had it easier than women and one specific reference was to how men have it easier
because they do the same work for more pay. 449 PSAMF ¶ 321; DRPSAMF ¶ 321.
Mr. Alcott agreed that emails like those contained in Alcott Ex. 1 were distributed in
the workplace. 450 PSAMF ¶ 322; DRPSAMF ¶ 322. Mr. Alcott testified that Nappi
had antidiscrimination classes at Nappi, but all he learned was that if you’re a white
man and under 50 you have no rights. 451 PSAMF ¶ 323; DRPSAMF ¶ 323.

Nappi objects to PSAMF ¶ 282 as inadmissible hearsay and further qualifies the fact, saying
“[Ms. Johnson] told Ms. Donovan to subpoena the records, not request them.” DRPSAMF ¶ 282. The
Court overrules Nappi’s hearsay objection, changes “request” to “subpoena,” and admits the fact.
447
Nappi objects to PSAMF ¶ 319 as immaterial but otherwise admits the fact. The Court
overrules Nappi’s materiality objection and admits PSAMF ¶ 319.
448
Nappi objects to PSAMF ¶ 320 as immaterial and inadmissible hearsay but otherwise admits
the fact. DRPSAMF ¶ 320. The Court overrules Nappi’s hearsay and materiality objections and
admits PSAMF ¶ 320.
449
Nappi objects to PSAMF ¶ 321 as immaterial and inadmissible hearsay but otherwise admits
the fact. DRPSAMF ¶ 321. The Court overrules Nappi’s hearsay and materiality objections and
admits PSAMF ¶ 321.
450
Nappi objects to PSAMF ¶ 322 as immaterial but otherwise admits the fact. DRPSAMF ¶ 322.
The Court overrules Nappi’s materiality objection and admits PSAMF ¶ 322.
451
Nappi objects to PSAMF ¶ 323 as immaterial but otherwise admits the fact. DRPSAMF ¶ 323.
The Court overrules Nappi’s materiality objection and admits PSAMF ¶ 323.
446

153

III.

THE PARTIES’ POSITIONS
A.

Nappi’s Motion for Summary Judgment

Nappi argues that the Court should grant summary judgment in its favor on
all of Ms. Donovan’s claims because it “did not discriminate against [Ms. Donovan]
for any reason, let alone due to her gender, sexual orientation, or disability.” Def.’s
Mot. at 1. Nappi contends that all claims are unsupported by the record.
1.

Medical Leave Claims

Nappi submits that assuming “Ms. Donovan could show that she meets the
first two requirements for FMLA interference, she cannot satisfy the other three.”
Def.’s Mot. at 3. According to Nappi, “[t]he summary judgment record does not
support an assertion that Ms. Donovan was entitled to FMLA leave for an additional
weekly therapy session” because there is “no evidence that Ms. Donovan’s alleged
mental health issues prevented her from performing the essential functions of her
position” and she “continued to do her job even after her alleged meeting with [HR]
when [she] allegedly raised the issue of intermittent FMLA leave.” Id. at 4. Nappi
further submits that “there is absolutely no evidence that a healthcare provider found
that Ms. Donovan was unable to work at all or unable to perform any one of the
essential functions of her position,” and that Ms. Donovan “acknowledges that her
alleged

request

for

intermittent

leave

was

not

based

on

any

doctor’s

recommendation.” Id.
Nappi contends that “[i]n order to prevail on the fourth element of her FMLA
claim, Ms. Donovan must demonstrate that she provided Nappi with a probable basis
for FMLA leave by giving them enough information to determine whether FMLA may
154

apply to the leave request” and that “a mere demand for leave is insufficient.” Id.
According to Nappi, it “agreed to provide Ms. Donovan with the flexibility to ensure
she could attend the extra therapy sessions” and Ms. Donovan “did not protest this
arrangement or further suggest that she needed FMLA leave,” thus failing “to provide
Nappi with sufficient information for it to determine whether the FMLA applied to
her request for intermittent leave.” Id.
Finally, Nappi insists that Ms. Donovan “cannot meet the fifth element of an
FMLA interference claim because she cannot establish that Nappi denied her benefits
to which she was entitled” because Ms. Donovan “admitted that no one at Nappi
refused to allow her to attend an extra weekly therapy appointment” and “concede[d]
that at no time did anyone from Nappi ever tell her that she was not permitted to
take time to attend any health care appointment she wished.” Id. at 5.
2.

Disability Claims

Nappi contends that it “did not discriminate against Ms. Donovan on the basis
of disability in violation of the ADA” because there is “no record evidence to
demonstrate that Ms. Donovan informed Nappi that she was disabled, that she
requested an accommodation for any alleged disability, or that she was denied the
same.” Id.
Nappi relies on Reed v. Lepage Bakeries, Inc., 244 F.3d 254 (1st Cir. 2001) to
support its contention that Ms. Donovan did not sufficiently place Nappi on notice of
her disability and, even should she have been granted specific accommodation to
attend weekly counseling, Nappi did not prevent her from exercising this reasonable
accommodation. Def.’s Mot. at 6-7. Nappi submits that “[a]lthough certain employees
155

of Nappi may have been aware of Ms. Donovan’s suicide attempt in 2017, that alone
is insufficient to properly place Nappi on notice of a disability.” Id. at 7. Nappi
moreover submits that Ms. Donovan “never suggested to Ms. Fox or management
that the deficiencies in her job performance were due to any mental health condition
or disability.” Id. at 7-8.
Lastly, Nappi argues that “Ms. Donovan was not denied a reasonable
accommodation” because “upon returning from her leave following her suicide
attempt, Ms. Donovan was permitted to attend therapy sessions.” Id. at 8. Nappi
insists that “[t]o the extent Ms. Donovan decided not to attend any additional
appointments—appointments that, notably were never recommended by a healthcare
provider—that was her decision, and not the result of any action or inaction on the
part of anyone at Nappi,” making it such that she has “failed to establish a viable
ADA claim and Nappi is entitled to summary judgment as a matter of law on Counts
III and VI.” Id.
3.

Title VII and Maine Human Rights Act Claims

Nappi contends that “even if [Ms. Donovan] could meet her prima facie case of
alleged discriminatory actions based on some of her allegations, Nappi had
legitimate, nondiscriminatory reasons for its actions.” Id. at 10. Nappi first submits
that “[i]t is undisputed that Ms. Donovan—as a gay woman—is the member of
protected classes” and “for the purpose of the summary judgment motion, Nappi will
not contest that Ms. Donovan was qualified for (but not necessarily proficient in) her
job.” Id. Nappi then submits that “while most of Ms. Donovan’s alleged ‘adverse
actions’ are either unsupported or legally inadequate to support a discrimination
156

claim, Nappi acknowledges—for the purposes of the summary judgment motion
only—that certain allegations might generate a factual issue as to whether Ms.
Donovan suffered an adverse employment action.” Id. Nappi therefore “accepts for
the purposes of summary judgment that Ms. Donovan may be able to establish a
prima facie case.” Id.
According to Nappi, however, “even if Ms. Donovan can generate an issue of
fact with regard to certain alleged ‘adverse actions’—specifically, the alleged
differential in pay from her predecessor, the alleged ‘removal’ of certain benefits, and
the lack of a raise in the summer of 2019—Nappi had a legitimate, nondiscriminatory reason for each of those actions.” Id. at 11. First, Nappi contends that
it “compensated Ms. Donovan differently than John Houle (including pay and
benefits) based on legitimate, nondiscriminatory reasons” including “experience,
seniority, and an agreement as part of Nappi’s acquisition of Mr. Houle’s previous
employer.” Id. at 11-12.
Nappi likewise submits that “assuming Ms. Donovan could show she was the
only employee who did not receive a raise in the summer of 2019, Nappi had a
legitimate, nondiscriminatory reason for that as well” because Mr. Watson
“determined that Ms. Donovan’s performance did not merit a raise.”

Id. at 12.

Finally, Nappi submits that “even if Nappi’s issuance of a PIP could constitute an
adverse action, that action was taken for legitimate, nondiscriminatory reasons”
because “noncompliance with company procedures and subsequent employees
performing tasks better than the plaintiff are both legitimate, nondiscriminatory

157

reasons for employment action.” Id. at 12-13. According to Nappi, Ms. Donovan’s
work performance was inadequate, large portions of her job were being performed by
other individuals, and she was receiving regular coaching in an effort to improve her
performance.” Id. at 13.
Regarding

Ms.

Donovan’s

hostile

work

environment

claim,

Nappi

acknowledges that Ms. Donovan is a member of protected classes and “[a]lthough
Nappi disputes [Ms. Donovan’s] allegations [that she was subjected to unwelcome
harassment], it acknowledges that Ms. Donovan’s testimony alone is likely sufficient
to establish a factual issue as to whether she experienced these conditions.” Id. at
15. Nappi contends, however, that Ms. Donovan cannot “establish that the alleged
harassment was causally related to her sex or sexual orientation” because she “has
provided no evidence of a causal relationship linking the alleged harassment by Ms.
Hale to her sex” and instead “she simply speculates that Ms. Hale is ‘threatened’ by
women.” Id. at 15-16. Likewise, Nappi asserts that “Ms. Donovan has presented no
evidence that the alleged hostile work environment was caused by her sexual
orientation” because she “did not come out as gay to anyone at Nappi until mid-2018
at the earliest,” “did not come out to Ms. Hale until around March of 2019,” and “to
Mr. Watson in March of 2019.” Id. at 16. Nappi submits that “even if Ms. Donovan
could demonstrate that Mr. Watson was aware in March of 2019 that she was gay,
his alleged increased criticisms of her job performance that started in 2018 could not
have been caused by that knowledge.” Id.

158

According to Nappi, Ms. Donovan “has alleged only that Ms. Hale was
‘difficult,’ that she was critical of her job performance, that she reported Ms.
Donovan’s job deficiencies to superiors, and that she has claimed that she wanted Ms.
Donovan’s job—all of which is insufficient to establish the type of severe and
pervasive conduct required to establish a hostile work environment.” Id. 17-18.
Nappi insists that “[i]f Ms. Donovan truly believed she was facing a hostile work
environment as a result of her status as a female or lesbian, the reasonable course of
action would have been to notify management [and h]er failure to do so suggests that
she did not believe the conduct to be subjectively offensive.” Id. at 18. Moreover,
Nappi posits that “even if Ms. Donovan can generate a factual issue with regard to
the subjective standard, the record makes clear that Ms. Donovan cannot meet the
objective standard” because “a reasonable person would not find such conduct,
including a female co-worker being ‘difficult,’ the alleged increased scrutiny of Ms.
Donovan’s work, or the alleged ‘exclusion’ from certain wine team functions, to be
hostile or abusive.” Id. at 18-19.
Finally, Nappi asserts that “to the extent Ms. Donovan’s hostile work
environment rests on the alleged conduct of her co-workers, she fails the sixth
element of the test—namely, she has not demonstrated a basis for liability on behalf
of Nappi” because she “has alleged that she was treated differently by Ms. Hale, a
non-supervisory female co-worker, because of her sex.” Id. at 19. According to Nappi,
it was “aware of one specific incident of inappropriate workplace conduct by Ms. Hale,
which was not based upon sex or sexual orientation, but rather dissatisfaction with

159

Ms. Donovan’s work performance, and Nappi promptly addressed the conduct,” and
Ms. Donovan is “unable to establish that Nappi knew or should have known of the
sexual harassment.” Id. at 20.
4.

Retaliation Claims

Nappi insists that “the record does not contain evidence to support a prima
facie case of retaliation” but that “[e]ven if it did, any adverse employment actions
she alleges are based on Nappi’s legitimate, non-discriminatory business reasons.”
Id. at 21. First, Nappi contends that the “record does not reflect that the Plaintiff
engaged in protected conduct” because although Ms. Donovan “made complaints
about the conduct of her co-worker, Ms. Hale, shortly after being hired in December
of 2013 and again in June of 2018, Ms. Donovan did not tell members of Nappi
management that she believed Ms. Hale [or other co-workers were] discriminating
against her” on the basis of her sex or her sexual orientation. Id. at 21-22. Moreover,
according to Nappi, Ms. Donovan “did not file a complaint of discrimination with the
Maine Human Rights Commission until May of 2020—seven months after she quit
her employment with Nappi” and thus “Ms. Donovan cannot establish that she
engaged in protected activity” for the purposes of retaliation. Id. at 22.
Next, Nappi contends that there is “no causal connection between the alleged
‘adverse actions’ and any protected conduct.” Id. According to Nappi, since “there is
no record evidence to suggest that Ms. Donovan ever advised any of the
decisionmakers at Nappi that she felt she was being discriminated against on the
basis of sex or sexual orientation, she cannot meet the causal connection requirement
of her prima facie case.” Id. Finally, Nappi submits that if a prima facie case is met,
160

Nappi is nonetheless entitled to summary judgment because it “had legitimate,
nondiscriminatory reasons for its actions” as outlined above under the Title VII claim.
Id. at 22-23.
5.

Equal Pay Act Claims

Nappi asserts that “Ms. Donovan’s claim under the EPA fails because, even if
she could establish that she and her predecessor performed the same job—which
Nappi disputes—it is undisputed that Ms. Donovan’s predecessor was significantly
more experienced and had more seniority at the company than she did, which
constitute legitimate non-discriminatory reasons for why he was paid more than Ms.
Donovan.” Id. at 23. Nappi submits that “[w]hen it hired Ms. Donovan . . . Nappi set
her compensation according to her level of experience as a wine buyer” and although
“Ms. Donovan had two years of previous experience as a wine buyer for another
distributor prior to her employment at Nappi, she had nowhere near the level of
experience of Mr. Houle.” Id. at 24-25. Nappi further submits that “there can be no
dispute that Mr. Houle, who had been the wine purchasing manager at Nappi for
more than ten years at the time Ms. Donovan was hired, had substantially more
seniority at Nappi than Ms. Donovan ever attained in her tenure with the company.”
Id. at 25.

Nappi therefore contends that it has “sufficiently met its burden of

establishing that any pay discrepancy between Mr. Houle and Ms. Donovan was
based on legitimate factors other than sex . . . [and] Nappi is entitled to judgment as
a matter of law on Count VII of Plaintiff’s Complaint.” Id. at 25.

161

B.

Helena Donovan’s Opposition

Ms. Donovan urges the Court to deny Nappi’s request because disputes of
material fact preclude summary judgment on all claims.
1.

Medical Leave Claims

Ms. Donovan submits that there is sufficient evidence to support her claims
under the FMLA and the MFMLR because she “requested FMLA leave on January
16, 2019, during a meeting with Human Resources Director Christine Fox” and Ms.
Fox “refused to provide [her] with the requisite forms and paperwork . . . [when Ms.]
Donovan provided that she requested leave because of her worsening depression
causing her inability to do her job, and feared that she might again attempt suicide.”
Pl.’s Opp’n at 3.

According to Ms. Donovan, “she did not attend additional

appointments because she worried about the scrutiny she’d be under for attendance
without the protection of FMLA.” Id. Ms. Donovan asserts that “[a] reasonable juror
viewing the evidence in the light most favorable to Donovan as nonmovant could find,
at the least, that the defendant interfered with her rights to FMLA leave by
discouraging and preventing her from taking such leave or making such a request.”
Id. at 4.
2.

Disability Claims

Ms. Donovan submits that while Nappi “asserts that it was not aware of Ms.
Donovan’s disability . . . th[at] assertion is false” because “[t]he record is replete with
evidence of Nappi’s knowledge of Ms. Donovan’s disability.” Id. She explains that
“she spoke at length with Ms. Fox about her diagnoses, treatment, and progress
following her suicide attempt in 2017” and “Ms. Fox also acknowledged receiving and
162

reviewing medical documentation submitted in correspondence with Ms. Donovan’s
short-term disability and FMLA in 2017 which established that Ms. Donovan suffered
from Major Recurrent Depression.” Id. Ms. Donovan further submits that if there
was “any lack of notice or understanding of Ms. Donovan’s need for accommodation,
it is due to the fact that Nappi failed to engage in the interactive process when Ms.
Donovan disclosed her worsening mental health condition and requested FMLA on
January 16 and 18 of 2019.” Id. at 5. Ms. Donovan contends that “[h]ad Nappi
granted [her] FMLA, continuous or intermittent, [Ms.] Donovan could have had time
to focus on her mental health and adjusting her medication so that she could, again,
successfully return to work full time.” Id. at 6.
In response to Nappi’s argument that it “did not fail to accommodate Ms.
Donovan because [it] never denied [her] an accommodation,” Ms. Donovan asserts
that this “statement is not accurate” because Ms. Fox “denied Ms. Donovan’s request
for FMLA and refused to provide her the paperwork” instead instructing her that “if
she needed additional appointments to tell her manager . . . and flex the time to make
up for any missed work at a different time.” Id. According to Ms. Donovan, however,
she “was not requesting to flex her time and make up the additional hours,” Nappi
did deny her request to pursue FMLA, and she “did not attend additional
appointments because she was denied FMLA,” making it such that “Nappi failed to
provide [her] a reasonable accommodation.” Id. at 6-7.
3.

Title VII and Maine Human Rights Act Claims

Ms. Donovan contends that although “Nappi asserts that the adverse actions
such as denying her raise, removing job duties, eliminating management title, paying
163

at a lower rate than predecessor, removing from communications, and PIP resulted
from Donovan’s poor performance,” when “viewing the evidence in the light most
favorable to the Plaintiff, a reasonable factfinder could conclude that [she] was
performing her duties as expected until Watson arrived and after learning of
Donovan’s disability on September 13, 2018, or after learning she was gay in March
of 2019 began to discriminate[] against Plaintiff.” Id. at 13-14.
4.

Retaliation Claims

Ms. Donovan asserts that Nappi retaliated against her because of her
disability when she “was denied FMLA despite being qualified for the benefit,” when
her “1.5% raise in 2019 was rescinded,” when she “was excluded from wine
management meetings where information was discussed that was imperative for her
to do her job successfully,” and when she “had job duties taken away.” Id. at 7.
Moreover, she submits that “[n]o one offered [her] Excel training” and she was
“provided a PIP which was vague with no measurables to determine whether she met
or did not meet the expectations of the PIP.” Id. at 8. She contends that she was
“uneventfully employed for 5 years and suffered an employer’s adverse action on the
heels of notifying her employer of her worsening mental health condition and
requesting medical leave as an accommodation.” Id. at 9.
Ms. Donovan contends that temporal proximity exists here and urges the Court
to “examine the timing between when she disclosed her disability and worsening
mental health condition and when [she] suffered an adverse employment action from
Nappi.” Id. She further contends that “[b]ased on these facts, a fact-finder could infer

164

that her managers had knowledge of [her] disability” and “[t]he documentation shows
that after this series of events, suddenly [she] was ‘inept’ and ‘incompetent.’” Id.
Regarding retaliation under Title VII and the MHRA, Ms. Donovan disagrees
with Nappi’s position that her “complaints to her supervisors, managers, and Human
Resources Director do not qualify as protected conduct under either Title VII or
MHRA because it was too vague to sufficiently identify the type of discrimination she
believed she was facing.” Id. at 14. She submits that to the contrary, she “repeatedly
made complaints of mistreatment from Hale” and “testified the mistreatment was so
intolerable that she attempted suicide in September 2017.” Id. at 15. She further
submits that she “sent an email to management about the ‘backstabbing bitches in
the office’ referring to Hale and her friends, in an email communicating her intent to
commit suicide to Brown and Fox.” Id.
She adds that she “also reported being excluded, isolated, unfairly criticized,
by . . . Watson.” Id. at 16. According to Ms. Donovan, “within four months of
beginning work at Nappi, Watson had already begun drafting the PIP on January 18,
2019 that was eventually presented to Donovan on September 30, 2019” and “[i]t is
unclear whether this was retaliatory or discriminatory motive on the part of Watson,
or through cat’s paw discrimination/retaliation based on his relationship with Hale”
because Ms. Hale “spoke poorly of Donovan to whomever would listen that had
influence.” Id.
Ms. Donovan contends that while “Nappi claims that the cause of the adverse
actions was [her] job performance . . . according to management [she] performed her

165

job well until January 2019—two days after she requested an accommodation, three
months after Fox told Watson of Donovan’s mental health, four months after Watson
begam working at Nappi, and one month after [she] came out to Brown.”
5.

Equal Pay Act Claims

Ms. Donovan submits that her EPA claim “can be summarized by Defendant’s
decision to pay her less than her predecessor, John Houle, for performing the exact
same duties” and that “Nappi achieved its disparate pay practices through different
means.” Id. at 11. She explains how she “began working at Nappi Distributors in
2013 and was paid a salary of $53,000 . . . [and b]y the time she left Nappi in 2019
she was earning a salary of $60,000” while Mr. Houle’s “income in 2013 was $70,000.”
Id. Moreover, she adds that “Nappi removed manager from Donovan’s job title which
made her ineligible for manager bonuses and a company vehicle, because Alcott did
not want [her] to be entitled to manager bonuses and a company vehicle.” Id. Ms.
Donovan further submits that “[i]t is significant that the female wine purchaser was
paid nearly $20,000 less than the male that had previously held the wine purchaser
position” and “[c]oupled with evidence that there were discriminatory hiring practices
at Nappi, the facts taken holistically are more than enough to demonstrate a violation
of the EPA.” Id. at 12.
C.

Nappi’s Reply
1.

Medical Leave Claims

Nappi submits that “to the extent Ms. Donovan suggests in her Opposition that
she told Fox about the specific reason she required an additional weekly therapy
session or that she told Ms. Fox that she would be unable to work without the
166

additional weekly session . . . Ms. Donovan’s own testimony contradicts both
assertions.” Def.’s Reply at 4. According to Nappi, “[i]t is also undisputed that Ms.
Donovan requested leave in order to attend one additional therapy appointment per
week, and she was explicitly told by Nappi management that she could attend that
appointment without taking FMLA leave.” Id. Nappi further submits that “Ms.
Donovan now attempts to distract the Court from her admission that she was granted
the flexibility to attend the requested additional appointment by arguing that she did
not know the details concerning the requested leave” when “[t]o the contrary, the
record clearly demonstrates that Ms. Donovan expressly requested leave to attend
one additional therapy appointment per week—an appointment for which her
provider never recommended taking FMLA leave—and Nappi granted her the ability
to do so without question or qualification.” Id. at 4-5.
2.

Disability Claims

Nappi contends that “Ms. Donovan’s arguments with regard to her claim under
the [ADA] are not supported by competent record evidence or law” because “assuming
Nappi managers were aware that Ms. Donovan struggled with depression and sought
counseling to address that issue, such knowledge is inadequate to place Nappi on
notice that the depression constituted a ‘disability’ under the ADA.” Id. at 5. Nappi
asserts that here “the record establishes that the only ‘accommodation’ Ms. Donovan
requested was permission to attend an additional weekly or bi-weekly therapy
appointment” and “[i]t is undisputed that Nappi management expressly granted her
permission to do so.” Id. at 6. Nappi insists that “[w]ith the information that Ms.
Fox was given, Nappi provided the accommodation that was requested and had no
167

reason to believe that alternative accommodations should have been explored.” Id.
Nappi additionally contends that “Ms. Donovan’s claim of retaliation under the ADA
cannot survive summary judgment” because she “cannot make out a prima facie case
for retaliation” and even if she could, “Nappi has articulated legitimate
nondiscriminatory reasons for the actions Ms. Donovan claims are retaliatory.” Id.
3.

Title VII and Maine Human Rights Act Claims

Nappi submits that Ms. Donovan “has not demonstrated that she was
discriminated against on the basis of sex or sexual orientation, and she has not
demonstrated that any of Nappi’s legitimate nondiscriminatory reasons for its actions
were pretextual” when in fact “the competent record evidence is clear that” the reason
she was both “issued a PIP and denied an annual raise in the summer of 2019” was
due to her “poor job performance.” Id. Nappi further submits that although Ms.
Donovan “argues that she was performing her duties as expected until Nappi hired
Mr. Watson . . . she has not refuted the record evidence that she faced criticism for
her performance well before Mr. Carr retired in 2017, and that the myriad
deficiencies in the way she managed her job responsibilities became particularly
apparent when Brown and [Ms.] Hale had to assume her job duties during her 2017
medical leave.” Id. at 8-9. Nappi insists that “[m]oreover, Ms. Donovan cannot
establish that the individuals whom she claims provided the most criticism, Ms. Hale
and Mr. Watson, were even aware that she was gay—and certainly nothing to suggest
a discriminatory animus because she was gay.” Id. at 9 (emphasis in Def.’s Reply).

168

4.

Retaliation Claims

Nappi contends that “Ms. Donovan has failed to demonstrate required
elements of her claim of retaliation under Title VII and the [MHRA]” because she
“has not demonstrated that she engaged in any protected activity” and “even if Ms.
Donovan could show that she engaged in protected activity, she cannot demonstrate
any causal connection between the alleged activity and any adverse action.” Id. at
10. Nappi asserts that Ms. Donovan herself “concedes that she cannot identify the
causal connection, instead admitting that ‘it’s unclear,’” to which Nappi retorts that
“[m]erely hypothesizing a variety of unsupported theories is insufficient to defeat a
motion for summary judgment.”

Id.

In response to Ms. Donovan’s temporal

proximity argument, Nappi submits that “Ms. Donovan admitted that the alleged
complaint about losing her title and a pay discrepancy . . . occurred nine years before
any alleged adverse action,” so “there is insufficient evidence to infer a temporal
causal connection between the protected activity and any alleged retaliation.” Id. at
12.
5.

Equal Pay Act Claims

Nappi submits that it is “entitled to judgment on Plaintiff’s EPA claim because
she failed to contest Nappi’s legitimate reasons for compensating the Plaintiff as it
did” because she “failed to address, even in part, Nappi’s affirmative defenses under
the [EPA.]” Id. at 8. Nappi asserts that “[t]o the contrary, Ms. Donovan admits that
Mr. Houle had worked at Nappi for fifteen years when she was hired and had
considerably more experience than her” and urges the Court that Ms. Donovan has
“waived any arguments she may have had concerning those defenses.” Id.
169

IV.

LEGAL STANDARD
Summary judgment is proper when “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). “Genuine issues of fact are those that a factfinder could
resolve in favor of the nonmovant, while material facts are those whose ‘existence or
nonexistence has the potential to change the outcome of the suit.’” Green Mountain
Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir. 2014) (quoting Tropigas de P.R.,
Inc. v. Certain Underwriters at Lloyd’s of London, 637 F.3d 53, 56 (1st Cir. 2011)).
When the movant “has made a preliminary showing that there is no genuine
issue of material fact, the nonmovant must ‘produce specific facts, in suitable
evidentiary form, to . . . establish the presence of a trialworthy issue.’” McCarthy v.
City of Newburyport, 252 F. App’x 328, 332 (1st Cir. 2007) (alteration in original)
(quoting Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999)).
The nonmoving party must provide “‘enough competent evidence’ to enable a
factfinder to decide in its favor on the disputed claims.” Carroll v. Xerox Corp., 294
F.3d 231, 237 (1st Cir. 2002) (quoting Goldman v. First Nat’l Bank of Bos., 985 F.2d
1113, 1116 (1st Cir. 1993)). Then, a “court views the facts and draws all reasonable
inferences in favor of the nonmoving party,” Ophthalmic Surgeons, Ltd. v. Paychex,
Inc., 632 F.3d 31, 35 (1st Cir. 2011), but disregards “[c]onclusory allegations,
improbable inferences, acrimonious invective, or rank speculation.” Mancini v. City
of Providence ex rel. Lombardi, 909 F.3d 32, 38 (1st Cir. 2018) (quoting Ahern v.

170

Shinseki, 629 F.3d 49, 54 (1st Cir. 2010)).

“[T]he plain language of Rule 56(c)

mandates entry of summary judgment . . . against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
V.

DISCUSSION
To recap, Ms. Donovan brings claims for: 1) Count I, violation of the FMLA, 2)

Count II, violation of the MFMLR; 3) Count III, disability discrimination in violation
of the ADA; 4) Count IV, sex-based and sexual orientation-based discrimination in
violation of Title VII, 5) Count V, retaliation in violation of Title VII for reporting
gender and sex-based discrimination, 6) Count VI, sex-based and retaliation
discrimination in violation of the MHRA, and, 7) Count VII, violation of the EPA .
The Court denies Nappi’s Motion for Summary Judgment as to four of Ms.
Donovan’s claims: Count I, FMLA interference, Count II, MPMLR interference,
Count III, ADA-prohibited disability discrimination, and Count VII, EPA violation,
and grants Nappi’s Motion for Summary Judgment as to three of Ms. Donovan’s
claims (sex-based and sexual orientation-based discrimination in violation of Title
VII and the MHRA; retaliation in violation of Title VII).
A.

Interference of the Family and Medical Leave Act and Violation
of Maine’s Family Medical Leave Requirements

Ms. Donovan alleges that Nappi “interfered with [her] substantive rights
under the FMLA by denying, discouraging, or restraining her request for a full
medical leave of absence.” Compl. ¶ 71. Ms. Donovan asserts that instead of granting

171

her FMLA leave, Nappi “mocked and criticized [her] when she needed time off for
mental health treatment.” Id. Ms. Donovan alleges that this same “conduct amounts
to a violation of the Maine FMLA,” known as the Maine Family Medical Leave
Requirements (MFMLR). Compl. ¶ 76.
1.

Legal Standard

Section 2615(a)(1) of the FMLA states that: “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or the attempt to exercise,
any right provided under this title.” “In order to make out a prima facie case for
FMLA interference, a plaintiff must show that (1) she was eligible for the FMLA’s
protections; (2) her employer was covered by the FMLA; (3) she was entitled to leave
under the FMLA; (4) she gave her employer notice of her intention to take leave; and
(5) her employer denied her FMLA benefits to which she was entitled.” Kempton v.
Delhaize Am. Shared Servs. Grp. LLC, No. 2:14-cv-00494-JDL, 2016 U.S. Dist. LEXIS
35621, at *4 (D. Me. Mar. 17, 2016). No showing as to employer’s intent is required.
Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir. 2005).
At issue in FMLA interference claims “is simply whether the employer provided its
employee the entitlements set forth in the FMLA . . ..” Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 159 (1st Cir. 1998). A plaintiff does not have an actionable FMLA
interference claim unless they can demonstrate that the employer took an action that
“could chill desire to take FMLA leave.” Kimes v. Univ. of Scranton, 126 F. Supp. 3d
477, 501 (M.D. Pa. 2015).
Although the burden for invoking FMLA rights is low, it is not met by merely
demanding leave. Matthys v. Wabash Nat’l, 799 F. Supp. 2d 891, 905 (N.D. Ind.
172

2011). Rather, employees must provide an employer with enough information to
determine whether FMLA would apply to the request. Id.
MFMLR protections are identical to FMLA protections, so the same analysis
will apply to both claims. Crosby v. F.W. Webb, Co., No. 2:12-cv-135-NT, 2014 U.S.
Dist. LEXIS 40065, at *31-32 (D. Me. Mar. 26, 2014).
2.

Analysis – Prima Facie Case

Nappi wisely does not contest that Ms. Donovan can establish the first two
showings required for a prima facie case of FMLA interference: 1) she was eligible for
the FMLA’s protections; (2) her employer was covered by the FMLA. The record
plainly demonstrates she has met the employment duration (at least 12 months) and
time worked (at least 1250 hours) requirements, DSMF ¶ 1; PRDSMF ¶ 1; PSAMF ¶
193; DRPSAMF ¶ 193, and that Nappi has sufficient employees to be covered by the
FMLA. 452 PSAMF ¶ 268; DRPSAMF ¶ 268; 29 C.F.R. § 825.110. Defendant Nappi
claims Ms. Donovan “cannot satisfy the other three” requirements, but to no avail.
Entitlement to leave requires Ms. Donovan to show that she had “a serious
health condition that ma[de] [her] unable to perform the functions of [her] position[.]”
29 U.S.C. Sec 2612(a)(1)(D). The relevant regulation defines five broad categories of
serious health conditions: (a) incapacity and treatment, (b) pregnancy or prenantal
care, (c) chronic conditions, (d) permanent or long-term conditions, and (e) conditions
requiring multiple treatments.

29 C.F.R. § 825.115.

“A chronic serious health

Ms. Donovan was employed by Nappi for more than five years and expected to work
approximately forty (40) hours a week. Even accounting for her leaves, she easily met these
requirements.

452

173

condition is one which: (1) Requires periodic visits (defined as at least twice a year)
for treatment by a healthcare provider, or by a nurse under direct supervision of a
health care provider; (2) Continues over an extended period of time (including
recurring episodes of a single underlying condition); and (3) May cause episodic rather
than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).” 29
C.F.R. § 825.115(c).

For years Ms. Donovan was treated for and prescribed

medication to treat her anxiety, panic disorder, Post Traumatic Stress Disorder
(PTSD), and major depressive disorder recurrent.

PSAMF ¶ 12, 14, 16-17, 33;

DRPSAMF ¶ 12, 14, 16-17, 33. Major depressive disorder recurrent means there is a
history of major depressive episodes with varying degrees of mild, moderate, and
severe. PSAMF ¶ 34; DRPSAMF ¶ 34. Given these facts and drawing all reasonable
inferences in favor of Ms. Donovan, the Court readily concludes a reasonable
factfinder could find these conditions meet the “serious health condition” standard.
The Court turns to whether these conditions made her unable to perform the
functions of employment.

The FMLA does not require this impairment to be

permanent; instead, as noted above, the impairment can be periodic. Ms. Donovan’s
mental healthcare provider, Dr. Altschule, testified that if Ms. Donovan had presented
him with FMLA paperwork as of [January 21, 2019,] he would have agreed that she
needed leave and would have recommended a continuous leave, a leave of absence, as
opposed to intermittent leave, due to the history of attempted suicide coupled with the
ongoing stressor increasing Ms. Donovan’s anxiety and feelings of hopelessness. PSAMF
¶¶ 48-49, 54-55; DRPSAMF ¶¶ 48-49. The Court finds that a reasonable factfinder could
find this to be sufficient evidence that a medical provider believed Ms. Donovan could not

174

perform the essential functions of her position and her leave was “medically necessary.”
Washington v. Honeywell Int’l, Inc., 323 F. Supp.3d 309, 315 (D.R.I. 2018) (quoting 29
U.S.C. Section 2612(b)(1)).

The fourth element of FMLA interference requires Ms. Donovan demonstrate
she gave her employer notice of her intention to take leave. On January 18, 2019,
Ms. Donovan met with Ms. Fox and asked for leave pursuant to the FMLA because
she needed additional help. DSMF ¶ 144; PRDSMF ¶ 144. Ms. Donovan was specific
that she was unwell because of her depression. PSAMF ¶ 371; DRPSAMF ¶ 371.
Moreover, she indicated that she at least needed an additional therapy session per
week. PSAMF ¶ 373; DRPSAMF ¶ 373. The Court finds a reasonable factfinder could
find these facts show Ms. Donovan gave Nappi notice of her intent to take leave.
The final element requires Ms. Donovan to show she was denied the FMLA
benefits to which she was entitled. Caselaw makes clear denial “includes ‘not only
refusing to authorize FMLA leave, but discouraging an employee from using such
leave.’” Tucker v. Town of Scarborough, No. 2:19-CV-00213-GZS, 2020 WL 3271936,
at *5 (D. Me. June 17, 2020) (citing 29 C.F.R. § 825.220(b)). While “[n]o one at Nappi
explicitly told Ms. Donovan that she could not attend an additional weekly therapy
session,” DSMF ¶ 155; PRDSMF ¶ 155, the record includes comments and
suggestions made by Nappi employees that a reasonable factfinder could find
interfered with Ms. Donovan using FMLA leave by discouraging her. First, Ms. Fox
did not give Ms. Donovan the FMLA paperwork she requested. PSAMF ¶ 197;
DRPSAMF ¶ 197. Second, Ms. Fox encouraged Ms. Donovan to talk to Mr. Watson,
not an HR employee, about needing time off for counseling appointments. PSAMF ¶
175

200; DRPSAMF ¶ 200. Further, Ms. Fox told Ms. Donovan that because she was
salaried, there was no reason she couldn’t flex her schedule and she therefore did not
need to take leave and fill out the FMLA paperwork for an additional weekly
appointment, DSMF ¶¶ 148-150; PRDSMF ¶¶ 148-150, and Ms. Fox admitted that
she asked Ms. Donovan “why she was so focused on asking for FMLA leave.” PSAMF
¶ 210; DRPSAMF ¶ 210. Taken together, all these actions other than simply handing
Ms. Donovan the requested paperwork, at the very least create a question of material
fact whether Nappi’s actions unlawfully discouraged Ms. Donovan to not take FMLA
leave.
Given there is sufficient evidence to establish all the necessary elements for a
prima facie case of FMLA and MFMLR interference, Nappi is not entitled to summary
judgment on Counts I and II of Plaintiff’s Complaint.
B.

Disability Discrimination in Violation of the ADA and the
MHRA 453

Ms. Donovan brings claims for disability discrimination in violation of the ADA
and the MHRA. Nappi contends there is “no record evidence to demonstrated that
Ms. Donovan informed Nappi that she was disabled, that she requested an
accommodation for any alleged disability, or that she was denied the same.” Def’s
Mot. at 5.

Since the MHRA generally resembles federal anti-discrimination statutes, it is appropriate to
look to federal precedent for guidance in interpreting the MHRA. See Carnicella v. Mercy Hosp., 2017
ME 161, ¶ 20 n.3, 168 A.3d 768 (“Because the MHRA generally tracks federal anti-discrimination
statutes, it is appropriate to look to federal precedent for guidance in interpreting the MHRA”) (citing
Doyle v. Dep't of Human Servs., 2003 ME 61, ¶ 14 n.7, 824 A.2d 48)).
453

176

1.

Legal Standard

The ADA imposes liability on an employer for “not making reasonable
accommodations to the known physical or mental limitations” of an employee. Reed,
244 F.3d at 260-61.

“Thus, to survive summary judgment on a failure-to-

accommodate claim, an employee must furnish evidence that she was disabled within
the meaning of the ADA; that she was a qualified individual; and that her employer
knew about her disability yet neglected to accommodate it.” Trahan v. Wayfair
Maine, LLC, 957 F.3d 54, 64 (1st Cir. 2020) (citing Pena v. Honeywell Int’l, Inc., 923
F.3d 18, 31 (1st Cir. 2019)); accord Freadman v. Metro. Prop. & Cas. Ins. Co., 484 F.3d
91, 102 (1st Cir. 2007). The ADA defines “disability” as “A) a physical or mental
impairment that substantially limits one or more of the major life activities of such
individual; (B) a record of such impairment; or (C) being regarded as having such an
impairment.” 42 U.S.C. § 12102(2).
Under the ADA, the plaintiff bears the burden of proving that the defendant
could provide a reasonable accommodation for her disability. Reed, 244 F.3d at 258.
“More specifically, the plaintiff’s burden under the ADA is ‘to show not only that the
proposed accommodation would enable her to perform the essential functions of her
job, but also that, at least on the face of things, it is feasible for the employer under
the circumstances.’” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 136 (1st Cir.
2009) (quoting Reed, 244 F.3d at 259). Additionally, the plaintiff bears the burden of
putting the employer adequately on notice “of her disability and need for
accommodation.” Reed, 244 F.3d at 260. Alternatively, the plaintiff may demonstrate
that she was prevented from invoking the request for accommodation. Id.
177

A plaintiff cannot demonstrate that she provided her employer with sufficient
notice of disability merely by introducing evidence that an employer witnessed
symptoms. Id. Similarly, “‘[t]he employer has no duty to divine the need for a special
accommodation where the employee merely makes a mundane request for a change
at the workplace,’ or simply relies on the employer’s general awareness of his need
for accommodations where the purported conflict with a medical condition in
particular situations is not obvious.” Murray v. Warren Pumps, LLC, 821 F.3d 77, 85
(1st Cir. 2016) (inline citations omitted) (quoting Reed, 244 F.3d at 261; and citing
Enica v. Principi, 544 F.3d 328, 339–40 (1st Cir. 2008)).
2.

Analysis – Prima Facie Case

“For purposes of the ADA, one is considered disabled if she (a) has a physical
or mental impairment that substantially limits one or more of her major life
activities; (b) has a record of such an impairment; or (c) is regarded as having such
an impairment.” Ruiz Rivera, 521 F.3d at 82; accord Bailey v. Georgia–Pacific Corp.,
306 F.3d 1162, 1166 (1st Cir.2002), 42 U.S.C. § 12102(1). Ms. Donovan offers evidence
of mental impairments including anxiety, panic disorder, Post Traumatic Stress
Disorder (PTSD), and major depressive disorder recurrent. PSAMF ¶ 12, 14, 16-17,
33; DRPSAMF ¶ 12, 14, 16-17, 33. Nappi does not argue whether Ms. Donovan is
disabled or a qualified individual under the ADA. In turn, this Court views the
evidence of disability in the light most favorable to Ms. Donovan and finds there is
enough evidence in the record for a reasonable factfinder to find Ms. Donovan meets
this bar. See Calero–Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 20 (1st Cir.2004)
(depression is a mental impairment that may in some circumstances constitute a
178

disability under federal law); Equal Employment Opportunity Comm'n v. Amego, Inc.,
110 F.3d 135, 141 (1st Cir.1997) (assuming for summary judgment purposes that
plaintiff's depression and post-traumatic stress disorder rendered him “a disabled
person within the meaning of the ADA”).
Nappi contends that “Ms. Donovan did not put Nappi on adequate notice of her
disability and her need for an accommodation.” Def.’s Mot. at 7. For adequate notice,
Ms. Donovan’s request had to be “‘sufficiently direct and specific,’ giving notice that
she need[ed] a ‘special accommodation.’” Reed, 244 F.3d at 260 (1st Cir. 2001) (quoting
Wynne v. Tufts Univ., 976 F.2d 791, 795 (1st Cir. 1992)). Indeed, “[t]he employer has
no duty to divine the need for a special accommodation where the employee merely
makes a mundane request for a change at the workplace, or simply relies on the
employer's general awareness of his need for accommodations where the purported
conflict with a medical condition in particular situations is not obvious.” Murray v.
Warren Pumps, LLC, 821 F.3d 77, 85 (1st Cir. 2016) (internal quotations omitted).
Instead, “the plaintiff must adduce specific facts showing that a trier of fact
reasonably could find in [their] favor.” Id. at 83 (citing Anderson, 477 U.S. at 249–
50). “Conclusory allegations, improbable inferences, and unsupported speculation
will not make the grade.” Murray, 821 F.3d 77 at 82 (citing Celotex, 477 U.S. at 323–
24; Pina v. Children's Place, 740 F.3d 785, 795–96 (1st Cir. 2014)).
Viewed in the light most favorable to her, Ms. Donovan offers evidence in the
record that she directly and specifically gave notice she needed special
accommodation. After an attempted suicide, Ms. Donovan took a leave of absence

179

from Nappi pursuant to FMLA and short-term disability. DSMF ¶ 35; PRDSMF ¶
35. Ms. Fox, the Human Resources Manager at Nappi, PSAMF ¶ 56; DRPSAMF ¶
56, knew of Ms. Donovan’s major depression diagnosis, PSAMF ¶ 121; DRPSAMF ¶
121, and helped Ms. Donovan apply for short-term disability benefits during her
medical leave in September 2017 during Ms. Donovan’s hospitalization at Spring
Harbor. PSAMF ¶ 120; DRPSAMF ¶ 120. The next month, in October of 2017, Ms.
Donovan also visited Ms. Fox in person and handed her a physician-signed form
which listed PTSD and major depressive disorder (severe, recurrent) as Ms.
Donovan’s diagnoses. Ms. Fox admitted she understood these were Ms. Donovan’s
diagnoses. PSAMF ¶ 122; DRPSAMF ¶ 122. This Court finds that a reasonable
factfinder could find these facts support Ms. Donovan’s prima facie case of having
given Nappi, through a designated representative—the HR manager—"sufficiently
direct and specific” notice of her specific disability and the “special accommodation”
needed for it. Reed, 244 F.3d at 260 (1st Cir. 2001).
With the context of the 2017 events, Ms. Donovan’s 2019 request for
intermittent FMLA leave for additional weekly therapy sessions is a far cry from
requiring Nappi to “divine the need for a special accommodation.” Murray v. Warren
Pumps, LLC, 821 F.3d 77, 85 (1st Cir. 2016). Ms. Donovan did not “merely make[] a
mundane request for a change at the workplace, or simply rel[y] on the employer’s
general awareness of [her] need for accommodations where the purported conflict
with a medical condition [] is not obvious.” Id.

To the contrary, Ms. Donovan

specifically names a special accommodation, FMLA leave, and names the purpose, an

180

extra therapy session—the very accommodation used less than a year and a half prior
for her documented disability.

Taken together, the Court finds a reasonable

factfinder could find this evidence shows Nappi knew of Ms. Donovan’s disability and
her need for an accommodation.
The final argument left then is whether Nappi denied Ms. Donovan a
reasonable accommodation. For precisely the same reasons the Court discussed in
the FMLA section, the Court concludes that Ms. Donovan has made out a prima facie
case as to whether Nappi failed to accommodate her disability.
In their reply brief on the motion for summary judgment, Nappi contends that
even if Ms. Donovan has met the burden, Nappi “has articulated legitimate
nondiscriminatory reasons for the actions Ms. Donovan claims are retaliatory.” Def.’s
Reply at 6. Nappi goes on to say that “Ms. Donovan has entirely failed to address,
even in a cursory manner, Nappi’s proffered legitimate nondiscriminatory reasons for
its actions, and has therefore waived her ADA claim as a matter of law.” Id. at 7
(citing March v Frey, 458 F. Supp. 3d 16, 39 n.28 (D. Me. 2020)).
However, Nappi seeks to blame Ms. Donovan for its own omission. Addressing
Nappi’s claim that it did not discriminate against Ms. Donovan on the basis of
disability, Nappi’s memorandum appears on pages five through eight of its original
motion under the subheading, NAPPI DID NOT DISCRIMINATE AGAINST MS.
DONOVAN ON THE BASIS OF DISABILITY IN VIOLATION OF THE ADA.
Def.’s Mot. at 5-8. Nappi states its position:
[T]here is no record evidence to demonstrate that Ms. Donovan informed
Nappi that she was disabled, that she requested an accommodation for

181

any alleged disability, or that she was denied the same. Therefore,
Nappi is entitled to summary judgment on Ms. Donovan’s disability
discrimination claims under the ADA and the MHRA.
Id. at 5.

Missing from Nappi’s formulation is any reference to its legitimate,

nondiscriminatory reasons for its actions in response to Ms. Donovan’s disability
claims. Nappi discusses its position that Ms. Donovan “did not put Nappi on adequate
notice of her disability and her need for an accommodation.” Id. at 7. However, Nappi
does not discuss any legitimate, nondiscriminatory business purpose for its actions in
this section. See id. at 5-8. Nappi does later discuss its legitimate, nondiscriminatory
reasons for its actions but only in the context of Ms. Donovan’s sex-based
discrimination claims. See id. at 10-14. But in its original filing, Nappi never asserts
that its legitimate, nondiscriminatory reasons for its actions apply to Ms. Donovan’s
disability claims.
As Nappi first raised the issue of legitimate nondiscriminatory reasons for its
actions in its reply briefing, not in its first memorandum in support of the motion for
summary judgment, it failed to give Ms. Donovan notice that the issue is being
contested, thereby requiring Ms. Donovan to anticipate Nappi’s arguments before
they are made in later briefing. “In this court, reply memoranda are to be ‘strictly
confined to replying to new matter raised in the objection or opposing memorandum’”
and “[i]ssues raised for the first time in reply memoranda will not be considered.”
Mitsubishi Caterpillar Forklift Am., Inc. v. Superior Serv. Assocs., Inc., 81 F. Supp.
2d 101, 114 (D. Me. 1999) (quoting Local Rule 7(c); and citing In re One Bancorp
Securities Litigation, 134 F.R.D. 4, 10 n.5 (D. Me. 1991)). Since Nappi first raised its

182

argument of legitimate nondiscriminatory reasons in response to a prima facie case
of failing to accommodate, this Court does not consider the issue.
Since Ms. Donovan has made a prima facie case of Nappi failing to
accommodate her disability and Nappi’s retort of legitimate nondiscriminatory
reasons was not properly presented, Nappi is not entitled to judgment as a matter of
law on Counts III and IV.
C.

Title VII and MHRA Claims

Ms. Donovan brings claims for sex-based discrimination in violation of Title
VII and the MHRA. Compl. ¶¶ 91-92, 103. Nappi argues that Ms. Donovan’s Title
VII and MHRA claims are unsupported by the record. Def.’s Mot. at 10.
1.

Legal Standard

Title VII protects against workplace discrimination on the basis of certain
protected categories, including sex and sexual orientation. 42 U.S.C. § 2000e et seq.
The Maine Human Rights Act (MHRA) similarly protects the interests of individuals
in fair employment against discrimination on the basis of sex and sexual orientation,
amongst other categories. 5 M.R.S. § 4552. Maine courts have used federal precedent
surrounding Title VII for the purposes of construing and applying the provisions of
the MHRA. Trott v. H.D. Goodall Hosp., 2013 ME 33, ¶ 15, 66 A.3d 7; Bowen v. Dep't
of Human Servs., 606 A.2d 1051, 1053 (Me. 1992); see also Knight v. O’Reilly Auto
Enters., LLC, No. 2:17-cv-300-NT, 2019 U.S. Dist. LEXIS 47018, at *8 n.2 (D. Me.
Mar. 21, 2019) (“Maine courts look to Title VII caselaw when considering MHRA
claims”) (citing Cole v. Maine Office of Info. Tech., No. 1:17-CV-00071-JAW, 2018 U.S.
Dist. LEXIS 163857, at *27 (D. Me. Sept. 25, 2018)). Accordingly, the Court will apply
183

the same legal standard in considering whether the case survives summary judgment
under both federal Title VII law and state MHRA law. See Morrison v. Carleton
Woolen Mills, Inc., 108 F.3d 429, 436 n.3 (1st Cir. 1997).
In the absence of direct evidence of discrimination, the First Circuit employs
the McDonnell Douglas burden-shifting framework to evaluate whether a plaintiff
can make out an inferential case of the alleged discrimination. See Rivera-Rivera v.
Medina & Medina, Inc., 898 F.3d 77, 88 (1st Cir. 2018) (citing McDonnell Douglas
Corp., 411 US. 792); Lockridge v. Univ. of Maine Sys., 597 F.3d 464, 470 (1st Cir.
2010)). Under this analysis, a plaintiff must first show that a prima facie case of sex
discrimination exists. Under Title VII and consequentially the MHRA, Ms. Donovan
must first demonstrate that “(1) [s]he is a member of a protected class; (2) [s]he met
[her] employer’s expectations; (3) [s]he suffered adverse employment action with
respect to compensation; and (4) similarly-situated employees outside the protected
class received more favorable treatment.” Prescott v. Higgins, 538 F.3d 32, 40 (1st
Cir. 2008). Such a showing is “not onerous and is easily made.” Kosereis v. Rhode
Island, 331 F.3d 207, 213 (1st Cir. 2003).
Moving to step two, if such a showing can be made, then there is an inference
of discrimination and “the burden of production shifts to the defendant to produce
evidence ‘that the adverse employment actions were taken for a legitimate,
nondiscriminatory reason.’” Cham v. Station Operators, Inc., 685 F.3d 87, 94 (1st Cir.
2012) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993)). If the
employer can demonstrate such a reason, the analysis then progresses to step three:

184

“[i]f the defendant carries this burden of production, [then] the plaintiff must prove,
by a preponderance, that the defendant’s explanation is a pretext for unlawful
discrimination.” Mariani-Colon v. Dep't of Homeland Sec., 511 F.3d 216, 221 (1st Cir.
2007).
“A plaintiff may also establish a violation of Title VII by showing sex
harassment based upon a hostile work environment.” Burns v. Johnson, 829 F.3d 1,
9 (1st Cir. 2016). “To prove a claim of hostile work environment sexual harassment,
a plaintiff must establish: (1) that she (or he) is a member of a protected class; (2)
that she was subjected to unwelcome sexual harassment; (3) that the harassment was
based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to
alter the conditions of plaintiff's employment and create an abusive work
environment; (5) that sexually objectionable conduct was both objectively and
subjectively offensive, such that a reasonable person would find it hostile or abusive
and the victim in fact did perceive it to be so; and (6) that some basis for employer
liability has been established.” Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir.
2002).
2.

Analysis
a.

Disparate Treatment

Nappi “acknowledges—for the purposes of summary judgment only—that
certain allegations might generate a factual issue as to whether Ms. Donovan suffered
an adverse employment action. Thus, Nappi accepts for the purposes of summary
judgment that Ms. Donovan may be able to establish a prima facie case.” Def.’s Mot.
at 10. This Court assumes for the sake of analysis that Ms. Donovan can meet her
185

modest burden of establishing a prima facie case of disparate treatment and moves
on to the real issues in this case. See, e.g., Garcia v. Bristol-Myers Squibb Co., 535
F.3d 23, 31 (1st Cir. 2008) (“On summary judgment, the need to order the
presentation of proof is largely obviated, and a court may often dispense with strict
attention to the burden-shifting framework, focusing instead on whether the evidence
as a whole is sufficient to make out a jury question as to pretext and discriminatory
animus”) (citing Fennell v. First Step Designs, Ltd., 83 F.3d 526, 535 (1st Cir. 1996)).
Nappi has identified a legitimate, non-discriminatory reason for firing Ms.
Donovan: her deficient performance. See Freadman v. Metro. Prop. & Cas. Ins. Co.,
484 F.3d 91, 100 (1st Cir. 2007) (defendant employer stated a legitimate reason for
firing employee because of her failure to follow instructions regarding a presentation
to superiors). These performance deficiencies include, but are not limited to, “Ms.
Donovan’s work performance [being] inadequate, large portions of her job [] being
performed by other individuals, and [her] receiving regular coaching in an effort to
improve her performance.” Def.’s Mot. at 13 (citing DSMF ¶¶ 52, 172-174); accord
Def.’s Mot. at 13-14 (alleging inventory, urgency, strategy, communication, and timemanagement issues) (citing DSMF ¶¶ 48, 49, 54, 60-61, 64-67, 69-73, 75, 77, 81, 84,
88, 90, 94, 96-99, 102, 106).
Thus, the Court focuses on whether Ms. Donovan has provided sufficient
evidence to demonstrate that this explanation is a pretext and that her sex or sexual
orientation were motivating factors in her alleged adverse employment actions. See
Dávila v. Corporación De P.R. Para La Difusión Pública, 498 F.3d 9, 16 (1st Cir.2007)

186

(“At summary judgment, this question reduces to whether or not the plaintiff has
adduced minimally sufficient evidence to permit a reasonable factfinder to conclude
that [she] was fired because of [her gender]”).
Ms. Donovan argues Nappi’s rationale is pretextual. Ms. Donovan first
contends that “viewing the evidence in the light most favorable to [her], a reasonable
factfinder could conclude that [she] was performing her duties as expected until
Watson arrived” and “after learning she was gay in March of 2019 began to
discriminate[] against [her].” Pl.’s Opp’n at 14. Ms. Donovan further claims that
“Brown’s statement to Donovan when she came out to him as gay heeded as a warning
that there would be consequences for doing so at Nappi,” that there were “homophobic
slurs used at Nappi,” that Hale and Douglas made “crass, sexual jokes to Donovan
after she came out,” and that Hale “expressed bias against gays and lesbians” to Ms.
Donovan. Id.
The record contains no direct evidence of gender bias by Mr. Watson. While
Ms. Donovan claims she was performing her duties as expected until Mr. Watson
arrived, the record—even taken in the light most favorable to Ms. Donovan—does not
support this assertion.
Before Mr. Watson began at Nappi, Ms. Donovan faced criticism for her job
performance. For example, Ms. Fox first received a formal complaint related to Ms.
Donovan’s role on or around June 14, 2016, when she met with Nick Nappi to discuss
his frustrations with purchasing, inventory, logistics, and out-of-stock issues. DSMF
¶ 49; PRDSMF ¶ 49. Mr. Watson’s predecessor, Mr. Carr, similarly experienced

187

issues with Ms. Donovan’s performance, reassigning some of Ms. Donovan’s tasks to
Ms. Hale because Ms. Donovan was struggling to perform them properly. DSMF ¶
52; PRDSMF ¶ 52. Additionally, while helping to handle Ms. Donovan’s tasks during
her mental health leave in 2017, Mr. Brown felt that he had been misled by Ms.
Donovan and that after he and Ms. Hale “had to dig into it significantly” he learned
“that the way she was structuring her job was completely inept,” DSMF ¶ 58;
PRDSMF ¶ 58; PSAMF ¶ 90; DRPSAMF ¶ 90, and “completely absurd,” PSAMF ¶
91; DRPSAMF ¶ 91, because she was ordering wine alphabetically instead of by
amount needed, demonstrating a “lack of urgency and ability to prioritize.” DSMF ¶
75; PRDSMF ¶ 75. In early 2018, Mr. Brown, who was then the interim wine director,
had meetings with Ms. Donovan, on a near-daily basis, to address what he considered
to be issues around purchasing and out-of-stocks. DSMF ¶¶ 76-77; PRDSMF ¶¶ 7677.
Beyond the criticism before Mr. Watson joined Nappi, Mr. Watson also
criticized Ms. Donovan’s work before learning of her sexual orientation. Sometime
before January 18, 2019, Mr. Watson began to work on a PIP for Ms. Donovan. DSMF
¶ 176; PRDSMF ¶ 176. This predates her coming out to him by several weeks.
Despite all this evidence of Ms. Donovan’s work deficiency, it is plausible for a
case to present itself where multiple supervisors worried about someone’s deficient
performance and the final supervisor, upon learning of the Plaintiff’s sexuality,
decided to discriminate against her and used her work deficiency as pretext to
discriminate. “Pretext can by such weaknesses, implausibilities, inconsistencies,

188

incoherencies, or contradictions in the employer's proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy of credence
and hence infer that the employer did not act for the asserted non-discriminatory
reasons.” Adamson v. Walgreens Co., 750 F.3d 73, 79 (1st Cir. 2014). “At summary
judgment, this question reduces to whether or not the plaintiff has adduced
minimally sufficient evidence to permit a reasonable factfinder to conclude that [she]
was fired because of [her gender]”). Dávila v. Corporación De P.R. Para La Difusión
Pública, 498 F.3d 9, 16 (1st Cir.2007) (emphasis added).
Ms. Donovan does not point to any specific weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in Nappi’s proffered legitimate
reasons. Ms. Donovan does, however, contend Ian Brown’s statement to Ms. Donovan
when she came out to him was a warning that there would be consequences for doing
so at Nappi. Pl.’s Opp’n at 14. In this discussion, Mr. Brown told Ms. Donovan it was
best not to come out and that it would not be viewed positively at Nappi. PSAMF ¶
267; DRPSAMF ¶ 267.

Taken in the light most favorable to Ms. Donovan, a

reasonable factfinder could find Mr. Brown’s statements were a warning about the
potential response at Nappi to her coming out.
The record, however, reveals that the person who created the performance
improvement plan for Ms. Donovan was Matt Watson, not Ian Brown. Furthermore,
the record confirms that Mr. Watson began creating the performance improvement
plan before Ms. Donovan came out to him. Nor is there any evidence in this record
that Mr. Watson harbored discriminatory bias against Ms. Donovan because of her

189

sexual orientation.

Looking at the evidence in the light most favorable to Ms.

Donovan, the Court is unable to find a link between Mr. Watson’s actions that led to
Ms. Donovan’s resignation and her revelation that she is a lesbian.
Similarly, any “homophobic slurs used at Nappi,” that Ms. Hale and Ms.
Douglas made “crass, sexual jokes to Donovan after she came out,” and that Ms. Hale
“expressed bias against gays and lesbians” to Ms. Donovan, Pl.’s Opp’n at 14, do not
offer evidence that Mr. Watson, the person who denied Ms. Donovan’s raise and put
her on the performance improvement plan, did so discriminatorily or pretextually.
Nor has Ms. Donovan asserted the so-called “cat’s paw” theory of liability where a
non-decisionmaker exhibited discriminatory animus and the decisionmaker became
a conduit for the non-decisionmaker’s prejudice. See Ako-Annan v. E. Me. Med. Ctr.,
1:19-cv-00544-JAW, 2021 U.S. Dist. LEXIS 157866, at *80 (D. Me. Aug. 20, 2021).
Taken together, Ms. Donovan has not provided sufficient evidence in this
record to create a jury question as to whether Nappi’s explanation for putting her on
a performance improvement plan for deficient performance was pretextual and that
the real reason for her performance improvement plan and lack of raise was
discrimination based on her sex or sexual orientation.
b.

Hostile Work Environment

Ms. Donovan alleges Nappi subjected her to a hostile work environment in
violation of Title VII. Compl. At 13, ¶ 92. Nappi contends her allegations do not
constitute a hostile work environment as a matter of law because Ms. Donovan cannot
establish five of the six elements required to succeed on a hostile work environment

190

claim. Def.’s Mot. at 14-20. Ms. Donovan did not respond to Nappi’s arguments, see
Pl.’s Opp’n at 1-21, and she has therefore waived her right to object.
Nevertheless, Nappi bears the burden at the summary judgment stage.
Therefore, with Nappi’s arguments in mind, the Court reviews the record to see if any
reasonable trier of fact could find that Ms. Donovan establishes the six required
elements: “(1) that she (or he) is a member of a protected class; (2) that she was
subjected to unwelcome sexual harassment; (3) that the harassment was based upon
sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the
conditions of plaintiff's employment and create an abusive work environment; (5) that
sexually objectionable conduct was both objectively and subjectively offensive, such
that a reasonable person would find it hostile or abusive and the victim in fact did
perceive it to be so; and (6) that some basis for employer liability has been
established.” Crowley v. L.L. Bean, Inc., 303 F.3d 387, 395 (1st Cir. 2002).
i.

Sex-based hostile workplace environment

It is undisputed that Ms. Donovan, a woman, is a member of a protected class;
she therefore has established the first element for a sex-based hostile workplace
environment claim. See Def.’s Mot. at 10.
With respect to the second element, Ms. Donovan proffered evidence that she
was yelled at by Ms. Hale and felt physically threatened by her. PSAMF ¶ 151, 310;
DRPSAMF ¶ 151, 310. She also alleges that Ms. Hale bullied her by how she spoke
to her and refused to cooperate with her. DSMF ¶ 120; PRDSMF ¶ 120; PSAMF ¶
27-28; DRPSAMF ¶ 27-28. Ms. Donovan also claims she was excluded from meetings
and other communications, loss job duties, and faced unfair criticism of her job
191

performance, including a performance improvement plan. DSMF ¶ 55, 104-105;
PRDSMF ¶ 55; PSAMF ¶ 207; DRPSAMF ¶ 207. Taken together, these allegations
at minimum establish a factual issue as to whether she experienced these conditions,
therefore meeting her burden at the summary judgment stage. See Rosario v. Dep’t
of Army, 607 F.3d 241, 248 (1st Cir. 2010) (“‘the accumulated effect’ of repeated verbal
attacks and physical intimidation in the workplace may reasonably be found to
constitute sexual harassment within the meaning of Title VII”) (citing O’Rourke v.
City of Providence, 235 F.3d 713, 729 (1st Cir. 2001)); see also O’Rourke, 235 F.3d at
729 (“where a plaintiff endures harassing conduct, although not explicitly sexual in
nature, which undermines her ability to succeed at her job, those acts should be
considered along with overtly sexually abusive conduct in assessing a hostile work
environment claim”).
The third element requires that Ms. Donovan produce sufficient facts to
indicate that the harassment was based upon her sex. Ms. Donovan, however, has
failed to connect her alleged harassment to her gender. While Ms. Donovan claims
that Ms. Hale did not treat male employees as poorly as female employees, that is
insufficient. See Rivera-Rivera v. Medina, Inc., 898 F.3d 77, 94 (1st Cir. 2018)
(“[Employee], however, has failed to connect her alleged harassment to gender at all.
Sure, she mentions that Eduardo and Pepin did not engage in the same type of
screaming and yelling at male employees. But that doesn’t tell us much. Indeed,
there is a plethora of reasons [her] superiors might have yelled and screamed at her
(and not their male employees) that have no nexus to her gender”). Much like in

192

Rivera-Rivera, Ms. Donovan “has not done enough dot connecting for us to conclude
that the harassment she alleges has as its basis her membership in a protected
class—here, being a woman. Consequently, we cannot allow a Title VII-based hostile
work environment claim to move forward.” Id.
While Nappi contends that Ms. Donovan cannot meet the other elements, this
Court need not reach those elements; Ms. Donovan failed to provide sufficient facts
to meet one of the required elements, meaning no reasonable trier of fact could rule
in her favor. Therefore, Nappi is entitled to judgment as a matter of law on Ms.
Donovan’s sex-based hostile work environment claim.
ii.

Sexual orientation-based hostile workplace
environment

It is undisputed that Ms. Donovan, a gay woman, is a member of a protected
class; she therefore has established the first element for a sexual orientation-based
hostile workplace environment claim. See Def.’s Mot. at 10.
With respect to the second and third elements, the record supports that Ms.
Donovan has experienced crass, sexual jokes from Ms. Hale and Ms. Douglas, that
Ms. Hale expressed issues with gays and lesbians directly to Ms. Donovan, and that
homophobic slurs have been used at Nappi. The sexual nature of the jokes and the
explicit mention of or allusion to sexual orientation establish that, viewed in the light
most favorable to Ms. Donovan, these accumulated facts meet her burden of
establishing these elements. See O’Rourke, 235 F.3d at 729 (“Evidence of sexual
remarks, innuendos, ridicule and intimidation may be sufficient to support a jury
verdict for a hostile work environment”).

193

The next question is whether the harassment was sufficiently severe or
pervasive to alter the conditions of Ms. Donovan’s employment and create an abusive
work environment. Quiles-Quiles v. Henderson, 439 F.3d 1, 7 (1st Cir. 2006). The
Court considers the entirety of the circumstances when making this determination.
These circumstances include but are not limited to “the frequency of the
discriminatory conduct; its severity; whether it was physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interfered
with an employee’s work performance.” Pomales v. Celulares Telefonia, Inc., 447 F.3d
79, 83 (1st Cir. 2006). However, “[s]ubject to some policing at the outer bonds, it is
for the jury to weigh those factors and decide whether the harassment was of a kind
or to a degree that a reasonable person would have felt that it affected the conditions
of her employment.” Marrero v. Goya of P.R., Inc., 304 F.3d 7, 18-19 (1st Cir. 2002)
(internal quotation marks omitted).

Here, the frequency of the discriminatory

conduct is unclear. The record does not clarify whether the conduct was humiliating
or a mere offensive utterance and whether it unreasonably interfered with Ms.
Donovan’s work performance. However, Ms. Donovan has offered enough evidence to
create a disputed questions of material fact and has met her burden to stave off
summary judgment.
The fifth element requires a showing that the sexually objectionable conduct
was both objectively and subjectively offensive.

Ms. Donovan finds it to be

subjectively offensive as evidenced by her complaint. Likewise, a reasonable person

194

could find it hostile to face crass, sexual jokes and to be told that someone has an
issue with individuals who share one of your core identities.
The sixth element to survive summary judgment is establishing some basis for
employer liability. To establish employer liability for a non-supervisory co-worker, a
plaintiff must demonstrate that the employer “knew or should have known of the
charged sexual harassment and failed to implement prompt and appropriate
corrective action.” White v. N.H. Dep’t of Corr., 221 F.3d 254, 261 (1st Cir. 2000).
While there is evidence that Ms. Donovan reported bullying from Ms. Hale, there is
no record support that Ms. Donovan ever informed anyone at Nappi that she was
facing sexual remarks, innuendos, or sexual ridicule from Ms. Hale or Ms. Douglas,
or anyone else. In turn, Ms. Donovan has not offered any evidence from which a
reasonable factfinder could find that she met the sixth element of a sexual
orientation-based hostile work environment claim – that there is some basis for
employer liability. Therefore, Nappi is entitled to judgment as a matter of law on the
hostile work environment claim.
D.

Retaliation in Violation of Title VII

Ms. Donovan alleges that she “opposed a practice made unlawful by Title VII
by making an explicit report of gender and sex-based discrimination that she suffered
from her coworkers” and “[a]s a result of [her] protected conduct, Nappi took adverse
action against her.” Compl. ¶¶ 95; 98. Ms. Donovan further alleges that she “also
came out as a lesbian at work, after which she experienced more sex-based
discrimination by coworker.” Compl. ¶ 96. Nappi responds that “the record does not
contain evidence to support a prima facie case of retaliation” and that “[e]ven if it did,
195

any adverse employment actions [Ms. Donovan] alleges are based on Nappi’s
legitimate, non-discriminatory business reasons.” Def.’s Mot. at 21.
1.

Legal Standard

To determine whether Ms. Donovan’s retaliation claim under Title VII can
survive summary judgment, the Court applies the familiar McDonnell Douglas threestep burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973); see Forsythe v. Wayfair Inc., 27 F.4th 67, 76 (1st Cir. 2022). To establish a
prima facie case of unlawful retaliation under Title VII, Ms. Donovan must show that
“(1) [s]he engaged in protected conduct; (2) [s]he suffered an adverse employment
action; and (3) that a causal nexus exists between the protected conduct and the
adverse action.” Henderson v. Mass. Bay Transp. Auth., 977 F.3d 20, 39 (1st Cir.
2020) (quoting Carlson v. Univ. of New Eng., 899 F.3d 36, 43 (1st Cir. 2018)). If Ms.
Donovan can meet this prima facie showing, the burden of production shifts to Nappi
to articulate a “legitimate, non-retaliatory reason” for the allegedly adverse action.
Ponte, 741 F.3d at 323. If Nappi succeeds, then Ms. Donovan must show that a
reasonable juror could find that Nappi’s “proffered reason was mere pretext” for
retaliation. Id.
Protected conduct under § 2000e-3(a) includes “participation activity,” or direct
engagement with Title VII proceedings, as well as “oppositional conduct,” or
“informally opposing an employment activity that might violate Title VII.” See Ray
v. Ropes & Gray LLP, 799 F.3d 99, 107–08 (1st Cir. 2015). Participation activity
includes filing a Title VII complaint, informally filing or defending a charge of
discrimination, testifying as a witness in a proceeding, or helping a coworker assert
196

her rights. Id. at 107. Oppositional conduct includes “responding to an employer's
inquiries about inappropriate behavior, writing letters protesting an employer's
allegedly unlawful actions, or picketing and boycotting an employer.” Id. at 108. To
be clear, “[p]rotected conduct includes not only the filing of administrative complaints
but also complaining to one’s superiors.”

Valentin–Almeyda v. Municipality of

Aguadilla, 447 F.3d 85, 94 (1st Cir.2006). Moreover, “the complained-of conduct need
not actually be illegal, but the employee must prove that a reasonable person might
have believed that it was.” Tripp v. Cole, 425 F.3d 5, 9 (1st Cir.2005) (cleaned up);
see also Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 262 (1st Cir.1999)
(explaining that “an employee's reasonable belief that [the conduct] crosses the line
suffices”).
2.

Analysis – Prima Facie Case

Ms. Donovan proffers no evidence that she engaged in protected activity so this
Court’s inquiry focuses on oppositional conduct. Ms. Donovan alleges she complained
to Mr. Carr and Mr. Bourque of Ms. Hale’s conduct almost immediately after starting
work because of a level of hostility in the workplace she had never experienced.
PSAMF ¶ 19; DRPSAMF ¶ 19. Ms. Donovan further testified that she reported issues
with Ms. Hale to Mr. Carr many times before his retirement. PSAMF ¶ 292;
DRPSAMF ¶ 292. Ms. Donovan later complained to Mr. Brown that she was having
issues with Ms. Hale and that Ms. Hale was bullying her. PSAMF ¶¶ 127, 146;
DRPSAMF ¶¶ 127, 146. Similarly, Ms. Donovan emailed Mr. Brown on June 18, 2018
and told him that on that very day Ms. Hale “shouted at [her] for the entire office to
hear,” PSAMF ¶ 152; DRPSAMF ¶ 152, and did so in a manner which physically
197

threatened her. PSAMF ¶ 310; DRPSAMF ¶ 310. Put simply, there is ample evidence
in the record that Ms. Donovan “repeatedly made complaints of mistreatment from
Val Hale.” Pl.’s Opp’n at 17.
The difficulty for Ms. Donovan is that “Title VII does not ban harassment
alone, no matter how severe or pervasive.” Medina-Rivera v. MVM, Inc., 713 F.3d
132, 138 (1st Cir. 2013). “‘Harassing’ and ‘harassment’ have different meanings in
different contexts, broadly covering situations involving words and actions ‘that,
being directed at a specific person, annoy[ ], alarm[ ], or cause[ ] substantial emotional
distress in that person and serve[ ] no legitimate purpose’—like when a ‘creditor uses
threatening or abusive tactics to collect a debt.’” Id. (quoting Black's Law Dictionary
784 (9th ed. 2009)). The gravamen of Nappi’s counterargument is the fact that Ms.
Donovan never reported that she was being excluded, ignored, or harassed due to sex
or sexual orientation discrimination. DSMF ¶¶ 123, 164, 197. In fact, Ms. Donovan
even told management she “didn’t understand why” Ms. Hale was so difficult toward
her. DSMF ¶ 124; PRDSMF ¶ 124.
“Of course we are not suggesting that she had to throw around buzzwords like
‘sex’ or ‘sexual’ harassment. We say only that she had to say something to put [the
employer] on notice that the complained-of harassment was sex- [or sexualorientation-] based.” Medina-Rivera, 713 F.3d at 138. While “the opposition clause
sweeps even more broadly and protects an employee for more informally opposing an
employment activity that might violate Title VII,” Ray, 799 F.3d at 108, this Circuit
requires individuals bringing Title VII retaliation claims to have indicated that the

198

law, not merely workplace decorum, was being violated. See Medina-Rivera, 713 at
138; accord Crawford v. Metropolitan Gov’t of Nashville & Davidson Cty., Tenn., 555
U.S. 271, 276 (2009) (“When an employee communicates to her employer a belief that
the employer has engaged in … a form of employment discrimination, that
communication virtually always constitutes the employee’s opposition to the
activity”) (emphasis added). Having failed to proffer evidence that she provided
notice to Nappi that she was facing discrimination, or that the harassment she faced
was due to her sex or sexual orientation, Ms. Donovan has not made a sufficient
showing that she engaged in protected activity under Title VII.
Having failed to show that she engaged in protected conduct, Ms. Donovan fails
to make a prima facie case, and therefore also fails at the first step of the McDonnell
Douglas burden-shifting framework. As follows, this Court addresses neither
whether Nappi articulated a legitimate, non-retaliatory reason for the allegedly
adverse action nor whether a reasonable juror could find that Nappi’s “proffered
reason was mere pretext.” In sum, Nappi is entitled to summary judgment on Ms.
Donovan’s Title VII retaliation claim.
E.

Equal Pay Act Claims

Ms. Donovan alleges that Nappi violated the Equal Pay Act (EPA) by
compensating her “less for a job requiring substantially equal skill, effort, and
responsibility, which was performed under similar working conditions.” Compl. ¶
108.

199

1.

Legal Standard

The EPA prohibits wage discrimination “between employees on the basis of sex
. . . for equal work on jobs the performance of which requires equal skill, effort, and
responsibility, and which are performed under similar working conditions.” 29 U.S.C.
§ 206(d)(1).
To prove a violation of the EPA, a plaintiff must first make a prima facie
showing “that the employer paid different wages to specific employees of different
sexes for jobs performed under similar working conditions and requiring equal skill,
effort and responsibility.” Ingram v. Brink’s, Inc., 414 F.3d 222, 232 (1st Cir. 2005)
(citing Corning Glass Works, 417 U.S. at 195).
Once the plaintiff establishes a prima facie case of unlawful wage
discrimination, the burden shifts to the employer to show that the differential is
justified under one of the EPA’s four exceptions: (1) the payment was made pursuant
to a seniority system, (2) a merit system, (3) a system which measures earnings by
quantity or quality of production, or (4) a differential based on any other factor other
than sex. 29 U.S.C. § 206(d)(1); see also Corning Glass Works, 417 U.S. at 196;
Ingram, 414 F.3d at 232. “At this stage, the Act's exceptions serve as affirmative
defenses on which the employer carries the burden of proof, not just production.”
Ingram, 414 F.3d at 232 (citing Corning Glass, 417 U.S. at 196).
2.

Analysis – Prima Facie Case

First, Ms. Donovan must establish a prima facie case of discrimination based
on sex. “To establish a prima-facie case under the Equal Pay Act, ‘it is appropriate
for the plaintiff to compare herself to only one male comparator to determine wage
200

differentials.’” Díaz v. Infotech Aero. Servs., No. 10-1103 (JAF), 2012 U.S. Dist.
LEXIS 6381, at *13 (D.P.R. Jan. 19, 2012) (quoting Mullenix v. Forsyth Dental
Infirmary for Children, 965 F. Supp. 120, 140 n.38 (D. Mass. 1996)).
A wage discrimination claim under the EPA is based on different pay for
substantially equal work. Ms. Donovan alleges and the record supports that Nappi
paid her a lesser salary than her predecessor throughout her tenure at Nappi and
removed manager from her title, disqualifying her for a manager bonus and a
company vehicle. 454 Ms. Donovan contends Nappi violated the EPA through these
actions because they represent lower pay for substantially equal work.
Nappi challenges Ms. Donovan’s allegation by asserting that “it is disputed
whether Mr. Houle and Ms. Donovan truly performed the same job” and that “even if
Plaintiff could meet her burden to establish that she was paid less than Mr. Houle
for ‘substantially equal work,’ Nappi is still entitled to judgment as a matter of law
because any discrepancy in pay between the two employees was based on legitimate
factors other than sex.” Def.’s Mot. at 23-24. First, Nappi submits that Mr. Houle
was significantly more experienced than Ms. Donovan and had more seniority at
Nappi than Ms. Donovan ever did. DSMF ¶ 10. Nappi also submits “Mr. Houle’s
initial compensation at Nappi was based on his extensive experience as a wine buyer
and the terms of the acquisition of Cumberland and York, and [that] eventually his
seniority with the company factored into his compensation.” Def.’s Mot. at 24; DSMF
¶ 11.

454

See supra n.6.

201

Here, the facts on the record do not make clear whether Ms. Donovan and Mr.
Houle performed substantially equal work. 455 Nonetheless, because a reasonable jury
could find they are compensated differently (lower salary and less perks) for
performing substantially equal work (overseeing wine purchasing for Nappi), Ms.
Donovan meets her burden to establish a prima facie case of wage discrimination.
3.

Analysis – Equal Pay Act Exceptions

Next, Nappi must show that the differential is justified under one of the EPA’s
four exceptions. Although Nappi does not explicitly submit under which of the EPA’s
four exceptions it seeks to justify its actions, the summary judgment record mentions
seniority, additional experience, and the terms of an acquisition as factors in the pay
differential, title change, and loss of both the manager bonus and the company
vehicle. The Court therefore considers whether Nappi’s actions are justified under
the EPA’s seniority and any other factor other than sex defenses.
Nappi offers, and the record supports, factors other than sex that can arguably
explain the difference in pay and job title between Ms. Donovan and her predecessor,
Mr. Houle.

However, “[a]t this stage, the Act’s exceptions serve as affirmative

defenses on which the employer carries the burden of proof, not just production.”
Ingram, 414 F.3d at 232 (citing Corning Glass, 417 U.S. at 196). As follows, Nappi is
not entitled to summary judgment unless they can establish these defenses by a
preponderance of evidence. FED. R. CIV. P. 56(a).

455

See Supra at n.3.

202

Nappi fails to meet this burden. Nappi aptly points to Corning Glass Works
for the proposition that the EPA “contemplates that . . . a male employee with 20
years’ seniority can receive a higher wage than a woman with two years’ seniority.”
417 U.S. 188, 204 (1974). However, while Nappi claims seniority influences the
different compensation, the record is devoid of any documentation supporting a
“seniority system” and its corresponding salary calculation.

In turn, there is

sufficient dispute of material fact for a reasonable juror to find that seniority is
merely a contributing factor, or pretext, for its compensation cuts. Similarly, Nappi
has not shown that the agreement, as part of the Cumberland and York acquisition,
and experience are more likely than not sufficient to explain the difference between
Mr. Houle and Ms. Donovan’s compensation and consequently the material facts that
would support a finding of sex-based wage discrimination are genuinely in dispute.
The Court therefore cannot conclude that summary judgment in Nappi’s favor
is warranted as a matter of law. FED. R. CIV. P. 56(a).
VI.

SUMMARY
The Court concludes that Ms. Donovan has plausibly alleged claims for FMLA

interference in violation of the FMLA and MFMLR (Counts I and II); disability
discrimination in violation of the ADA (Count III); and violation of the EPA (Count
VII).
The Court concludes Ms. Donovan has not, even viewing the facts in the light
most favorable to her as the nonmovant, plausibly alleged claims for sex-based
discrimination in violation of Title VII and the MHRA (Counts IV and VI) or
retaliation in violation of Title VII (Count V).
203

VII.

CONCLUSION
The Court partially DENIES and partially GRANTS Nappi Distributors’

Motion for Summary Judgement (ECF No. 60).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 15th day of November, 2023

204