Fiske v. MeYou Health, Inc. et al
Filing
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Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. The Court ALLOWS the motion to strike, D. 38, in part; DENIES the motion for summary judgment, D. 29; ALLOWS the motion to increase the deposition limit to 14, D. 45, in part and DENIES it in part; ALLOWS the motion in quash, D. 40, in part and DENIES it in part; and ALLOWS the motion to extend the deadline for fact discovery, D. 44. (Maynard, Timothy)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
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CHRISTINE FISKE,
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Plaintiff,
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v.
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Civil Action No. 13-10478-DJC
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MEYOU HEALTH, INC. et al.,
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Defendants.
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)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.
June 20, 2014
Introduction
Plaintiff Christine Fiske (“Fiske”) has filed this lawsuit against her former employer,
MeYou Health, Inc., (“MYH”), its parent corporation, Healthways, Inc. (“Healthways”),
Insperity PEO Services, L.P. (“Insperity”) and Chris Cartter (“Cartter,”) (collectively
“Defendants”) alleging discrimination on the basis of pregnancy in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the Pregnancy Discrimination
Act (“PDA”)’s amendment to Title VII and Mass. Gen. L. c. 151B; and a violation of her rights
under the Family Medical Leave Act (“FMLA”) and Massachusetts Medical Leave Act
(“MMLA”). D. 16. Defendants have moved for summary judgment, D. 29, to strike an affidavit
Fiske submitted in opposition to summary judgment, D. 38, and to quash two subpoenas, D. 40.
Fiske has moved to increase the limit for depositions, D. 45, and to extend the deadline for fact
discovery, D. 44. For the following reasons, the Court DENIES the motion for summary
judgment, ALLOWS the motion to strike in part, ALLOWS the motion to extend the deadline
1
for fact discovery, ALLOWS the motion to quash in part and ALLOWS the motion to increase
the deposition limit in part.
II.
Standard of Review
The Court grants a motion for summary judgment when there is no genuine dispute of
material facts and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P.
56(a). “[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In doing so, the Court “must
scrutinize the record in the light most favorable to the summary judgment [opponent] and draw
all reasonable inferences . . . to that party’s behoof.” Alliance of Auto. Mfrs. v. Gwadosky, 430
F.3d 30, 34 (1st Cir. 2005) (citation omitted).
The movant bears the burden of demonstrating the absence of a genuine issue of material
fact. Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir. 2000). If the movant meets its burden, the
non-moving party may not rest on the allegations in her pleadings, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts that
demonstrate a triable issue. Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir.
2010). Although the Court “view[s] the record in the light most favorable to the nonmovant,
drawing reasonable inferences in his favor,” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009), “conclusory allegations, improbable inferences, and unsupported speculation” proffered
by the non-movant are insufficient to create a genuine issue of material fact to survive summary
judgment. Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (citation omitted).
2
III.
Factual Background
The Court draws the facts of this case from the parties’ statements of facts and their
responses to same. D. 29-2, 33 (collectively “SOF”).1 MYH was founded in 2009 and is a
wholly-owned subsidiary of Healthways. SOF ¶¶ 2-3. Cartter is MYH’s General Manager. Id.
¶ 4. Defendants assert that Insperity is a “Professional Employer Organization that provides
outsourced human resources services and other functions to MYH,” but Fiske argues that
Insperity was Fiske’s “co-employer.” Id. ¶ 5. Fiske began working at MYH as its Online
Marketing Director on October 19, 2010. Id. ¶ 6. Her salary was $130,000. Id. ¶ 52. MYH has
a flexible hours policy and characterizes itself as “family friendly.” Id. ¶ 8. Indeed, prior to
Fiske’s termination, MYH never refused her requests to accommodate family issues and Fiske
would leave MYH’s office around 2:30 p.m. at least once per week to pick up her children from
school. Id. ¶¶ 9-10.
In September 2011, Fiske informed Cartter that she was pregnant. Id. ¶ 11. Upon
hearing the news, Cartter congratulated Fiske, but expressed concern that he would have to plan
for different circumstances because Fiske’s pregnancy may impact her decision to come back to
work. Id. ¶ 15. Cartter explained that when his partner had their third child, she opted not to
return to work. Id. Afterwards, Fiske’s conditions of employed changed at least to the extent
that Cartter became more “nitpicky” regarding Fiske’s work product, but Fiske also asserts that
her meetings became less frequent with Cartter. Id. ¶ 13. No other MYH employee has ever
taken maternity leave. Id. ¶ 35.
As Online Director of Marketing, Fiske was part of MYH’s leadership team and steering
committee and took part in at least some regular meetings to discuss company issues. Id. ¶ 18.
1
Defendants have not responded to Plaintiffs’ “further statement of material facts,” SOF
¶¶ 32-84, instead moving her supporting affidavit, D. 38.
3
Toward the end of 2011, MYH was planning on conducting clinical trials of its “core product,”
the Daily Challenge. Id. ¶ 19. The parties agree that at this time, the clinical trial budget was
under-allocated. Id. ¶ 20. MYH contends that at least some of its marketing dollars for 2012
were repurposed to fund the clinical trial, though some of these resources were used for
marketing the clinical trial itself. Id. ¶ 23. Defendants claim to have attempted to save MYH’s
marketing department and Fiske’s job. Id. ¶¶ 24-25. As part of its cost-cutting efforts, MYH
terminated its contract with its outside public relations firm at the end of 2011. Id. ¶ 26.
Against this backdrop, Fiske was terminated from her employment on January 27, 2012.
Id. ¶ 7. The position of Online Marketing Director was eliminated. Id. ¶ 28. Fiske was told that
budgetary constraints prompted the elimination of her position. Id. ¶ 29. Some of Fiske’s job
duties were shifted to other employees and to Healthways. Id. ¶¶ 64-69.
Although Cartter
asserted at his deposition that Fiske’s salary was not the only reason she was terminated, MYH’s
Seth Lawton received a $10,000 pay increase in 2012 after taking some of Fiske’s other duties.
Id. ¶¶ 49, 54.
In their position statement before the Massachusetts Commission Against
Discrimination (“MCAD”), Defendants asserted that Fiske was terminated due to cuts to the
marketing budget rendering Fiske’s services unnecessary. Id. ¶ 56.
During the relevant time, there was a three or four to one male to female ratio at MYH.
Id. ¶ 36. Of the three employees terminated from MYH since 2010, two were female and neither
was terminated for performance reasons. Id. ¶ 37.
IV.
Procedural History
Fiske commenced this action in Suffolk Superior Court on December 31, 2013. D. 16 at
1.
Defendants removed this action to this Court on March 4, 2013.
D. 1.
Defendants
subsequently moved for summary judgment, D. 29, and to strike Fiske’s affidavit filed in
4
opposition to summary judgment on January 15, 2014. D. 38. Healthways moved to quash
deposition subpoenas on January 16, 2014. D. 40. On January 24, 2014, Fiske moved to extend
the discovery deadline and to increase the deposition limit from the presumptive limit of ten to
fourteen. The Court heard oral argument on these matters on March 5, 2014, D. 52, taking them
under advisement.
V.
Discussion
A.
Defendants’ Motion to Strike
To decide Defendants’ motion for summary judgment, the Court must determine what
evidence it can consider. See Fed. R. Civ. P. 56(c). Defendants have moved to strike Fiske’s
affidavit submitted in opposition to the motion for summary judgment, arguing that “[a] party
opposing summary judgment may not manufacture a dispute of fact by contradicting earlier
sworn deposition testimony. D. 38 at 1 (citing Torrech-Hernandez v. General Electric Co., 519
F.3d 41, 47 (1st Cir. 2008)).
That is, under Torrech-Hernandez, a court, when considering the evidence in deciding
summary judgment, may disregard the non-moving party’s self-serving affidavit where it
conflicts with its own sworn deposition testimony. Id. at 47. It is also true that “[h]earsay
evidence, inadmissible at trial, cannot be considered on a motion for summary judgment.”
Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990). Nor can the Court consider sworn
allegations that are not based upon personal knowledge. Cadle Co. v. Hayes, 116 F.3d 957, 961
(1st Cir. 1997) (noting that “[s]tatements made upon information and belief, as opposed to
personal knowledge, are not entitled to weight in the summary judgment balance”). Here, Fiske
has made certain attestations that are based upon hearsay. Paragraph 26 states what a “female
contractor to MYH” told Fiske. In addition, there are statements that the Court concludes are not
5
based upon personal knowledge. For example, Fiske makes numerous attestations regarding the
responsibilities and salary of her subordinates after MYH terminated her and she was no longer
working there. D. 33-3 ¶¶ 16, 18, 20, 21, 28, 31. In addition, she made an attestation regarding
MYH’s denial of another employee’s vacation pay. Id. ¶ 25. The Court therefore STRIKES
paragraphs 16, 18, 20, 21, 25, 26 and 31 in toto and 282 to the extent it purports to provide
information outside of Fiske’s personal knowledge.3 Fiske’s affidavit otherwise stands and the
Court has considered the remainder of same in resolving the pending motion for summary
judgment.
B.
Defendants’ Motion for Summary Judgment
1.
Defendants Have Not Demonstrated an Absence of Any Genuine Issue of
Fact Precluding Summary Judgment on Fiske’s Discrimination Claims
a.
Standards for Liability Under the PDA, Title VII and Mass. Gen.
L. c. 151B
The PDA prohibits discrimination “because of or on the basis of pregnancy, childbirth or
related medical conditions.” 42 U.S.C. § 2000e(k). Where, as here, a plaintiff does not suggest
the existence of direct evidence explicitly showing intentional discrimination, i.e., a “smoking
gun,” Smith v. F. W. Morse & Co., Inc., 76 F.3d 413, 421 (1st Cir. 1996), the analytic
framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) governs claims under the PDA. Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 12 (1st
Cir. 2011) (applying McDonnell Douglas to PDA claims).
2
At oral argument, there was some suggestion that Defendants’ motion was limited to
these paragraphs. This does not compel a different result here.
3
The Court does not credit facts in Fiske’s statement of facts to the extent that they rely
on these paragraphs. As Defendants has not responded to the other facts asserted in Fiske’s
statement of facts, any remaining facts asserted by Fiske are “deemed admitted.” D. Mass. L.R.
56.1.
6
The three stages of the McDonnell Douglas analysis as applied to pregnancy
discrimination cases are “well documented.” Weston-Smith v. Cooley Dickinson Hosp., Inc.,
153 F. Supp. 2d 62, 70 (D. Mass. 2001). First, a plaintiff must establish by a preponderance of
the evidence a prima facie case that “(1) she is pregnant (or has indicated an intention to become
pregnant), (2) her job performance has been satisfactory, but (3) the employer nonetheless
dismissed her from her position (or took some other adverse employment action against her)
while (4) continuing to have her duties performed by a comparably qualified person.” Smith, 76
F.3d at 421 (1st Cir. 1996). The burden of establishing a prima facie case creates a rebuttable
presumption “that the employer unlawfully discriminated against the employee.” Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 (1981).
At the second stage, the burden shifts to the employer to produce “an explanation to rebut
the prima facie case–that the burden of ‘producing evidence’ that the adverse employment
actions were taken ‘for a legitimate, nondiscriminatory reason,’” and “‘[t]he defendant must
clearly set forth, through the introduction of admissible evidence,’ reasons for its actions which,
if believed by the trier of fact, would support a finding that unlawful discrimination was not the
cause of the employment action.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993)
(quoting Burdine, 450 U.S. at 254-55 & n.8). At this stage, the Court must determine whether
the employer has met merely its burden of production and not necessarily its burden of
persuasion. Id. at 509. If an employer carries its burden at this stage, “the presumption of
unlawful discrimination disappears.” Weston-Smith, 153 F. Supp. 2d at 70 (citation omitted).
Finally, at the third and final stage of the McDonnell Douglas analysis, the burden shifts
back to plaintiff, who has the ultimate burden of persuasion to establish by a preponderance of
the evidence “that the legitimate reasons offered by the defendant were not its true reasons, but
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were a pretext for discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
141 (2000) (internal quotations omitted). In the context of PDA claims, federal law “mandates
that an employer must put an employee’s pregnancy (including her departure on maternity leave)
to one side in making its employment decisions” but “does not command that an employer bury
its head in the sand and struthiously refrain from implementing business judgments” simply
because they affect a pregnant employee, since federal law “requires a causal nexus between the
employer’s state of mind and the protected trait (here, pregnancy),” Smith, 76 F.3d at 424-425.
The plaintiff must persuade the trier of fact that the employer was motivated by discriminatory
animus and that the employer’s assertions are pretextual. “The mere coincidence between [the
plaintiff’s pregnancy] and the employment decision may give rise to an inference of
discriminatory animus.” Id. at 425 (citing St. Mary=s Honor Ctr., 509 U.S. at 507-08). “To
survive summary judgment, of course, the plaintiff need not carry that burden entirely; she needs
to show merely that after viewing the undisputed facts in the light most favorable to her position,
one or more genuine issues of material fact remain that, if resolved in her favor, a reasonable
jury could find that the plaintiff had carried her ultimate burden.” Gervais v. Franklin Pub. Sch.,
No. 09-10719-DJC, 2012 WL 988026, at *10 (D. Mass. Mar. 23, 2012) (citing St. Mary’s Honor
Ctr., 509 U.S. at 507-08).
Fiske has also invoked the “mixed-motive” theory of liability. D. 32 at 2. Although the
First Circuit has not “definitively disentangled or reconciled” the mixed-motive approach from
McDonnell Douglas, Chadwick v. WellPoint, Inc., 561 F.3d 38, 45 n. 8 (1st Cir. 2009), the two
analyses are separate avenues of recovery. Seetharaman v. Stone & Webster, Inc., No. 0511105-RWZ, 2009 WL 1364706, at *4 (D. Mass. May 11, 2009); see also White v. Baxter
Healthcare Corp., 533 F.3d 381, 400 (6th Cir. 2008) (holding that “the McDonnell
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Douglas/Burdine burden-shifting framework does not apply to the summary judgment analysis
of Title VII mixed-motive claims”) (emphasis in original). Under this framework, codified at 42
U.S.C. § 2000e–2(m), where there is evidence of both discriminatory and non-discriminatory
animus, a “plaintiff’s burden is tempered so that she need prove only that the discriminatory
action was a motivating factor in an adverse employment decision.” Patten v. Wal–Mart Stores
East, Inc., 300 F.3d 21, 25 (1st Cir. 2002). “[T]he employer has a limited affirmative defense
that does not absolve it of liability, but restricts the remedies available to a plaintiff.” Desert
Palace, Inc. v. Costa, 539 U.S. 90, 94 (2003). To avail itself of the affirmative defense, the
employer must “demonstrate that it would have taken the same action in the absence of the
impermissible motivating factor.” Desert Palace, 539 U.S. at 94 (citation and alterations
omitted0)
Massachusetts law prohibits employers from discriminating on the basis of sex, Mass.
Gen. L. c. 151B, § 4(1). Wheelock Coll. v. Mass. Comm’n Against Discrimination, 371 Mass.
130, 138 (1976) (adopting the McDonnell Douglas framework with respect to claims arising
under chapter 151B); see also Chief Justice for Admin. & Mgmt. of the Trial Court v. Mass.
Comm’n Against Discrimination, 439 Mass. 729, 732 (2003); but see Sullivan v. Liberty Mut.
Ins. Co., 444 Mass. 34, 45 (2005) (noting that a difference between the state and federal
applications of the McDonnell Douglas framework is that the fourth element of the state law
framework “in a reduction in force case” does not require the plaintiff to show that the employer
continued to have her duties performed by a comparably qualified person; instead, the plaintiff
can satisfy the fourth element “by producing some evidence that her layoff occurred in
circumstances that would raise a reasonable inference of unlawful discrimination”).
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Courts interpreting chapter 151B “may look to” but “are not, however, bound by
interpretations of [Title VII] statute in construing [c. 151B].” College-Town, Div. of Interco,
Inc. v. Mass. Comm’n Against Discrimination, 400 Mass. 156, 163 (1987). In many respects,
the framework for resolving chapter 151B pregnancy discrimination claims is very similar to the
federal framework for resolving claims brought under the PDA:
With respect to summary judgment, it follows that, if a plaintiff has produced
evidence sufficient to support a prima facie case of discrimination, and has further
offered evidence sufficient to support a determination either that the employer’s
reason was a pretext or that the actual reason for the adverse hiring decision was
discrimination, summary judgment for a defendant is inappropriate. The ultimate
issue of discrimination, raised by the plaintiff=s and defendants’ conflicting
evidence as to the defendants’ motive, is not for a court to decide on the basis of
affidavits, but is for the fact finder after weighing the circumstantial evidence and
assessing the credibility of the witnesses.
Blare v. Husky Injection Molding Sys. Bos., Inc., 419 Mass. 437, 445 (1995). In addition,
Massachusetts courts have adopted the “mixed-motive” doctrine codified in Title VII. See
Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 112-13 (2009) (citations omitted).
b.
Fiske Has Identified Some Evidence that MYH’s Motives Were at
Least Discriminatory in Part
There is no dispute that Fiske meets the first, second and third prongs of the McDonnell
Douglas prima facie case. She was pregnant at the time of her termination, SOF ¶ 7, 11, she was
performing her job satisfactorily, id. ¶ 59, and she was nonetheless terminated, id. ¶ 7. As to the
fourth element, however, whether Fiske’s position “remained open or was filled by someone else
with similar qualifications,” Prescott v. Higgins, 538 F.3d 32, 40 (1st Cir. 2008), Fiske has
conceded that “the position of Online Marketing Director was eliminated.” SOF ¶ 28.
Fiske does not argue to the contrary in her opposition, D. 32, but instead focuses on the
ways in which MYH’s marketing operations continued after MYH terminated her, arguing that
the responsibilities were not eliminated, but merely shifted elsewhere to Seth Lawton, Eugenie
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Olson and Alicia Benjamin. Id. ¶ 49. “Yet, a position elimination defense is not defeated merely
because another employee, already on the payroll, is designated to carry out some or all of the
fired employee’s duties in addition to his own, or because those duties are otherwise reallocated
within the existing work force.” Smith, 76 F.3d at 423.
Fiske cites Kiesling v. SER-Jobs for Progress, Inc., 19 F.3d 755 (1st Cir. 1994) to support
her argument that where other employees assume the terminated employee’s responsibilities, this
is sufficient to establish the fourth prong of the McDonnell Douglas prima facie case. Id. at 760.
Although this may be true as a general matter, “[t]here is little doubt that an employer, consistent
with its business judgment, may eliminate positions during the course of a downsizing without
violating Title VII even though those positions are held by members of protected groups
(pregnant women included).” Smith, 76 F.3d at 422. The only caveat to this principle is that “an
employer who selectively cleans house cannot hide behind convenient euphemisms such as
‘downsizing’ or ‘streamlining.’” Id.
Ultimately, this is not a conflict that the Court must resolve here, for as discussed above,
Fiske has also invoked the mixed-motive theory of liability. A Title VII plaintiff can establish a
violation of Title VII under this theory by showing that discrimination on the basis of sex – and
by extension pregnancy – played a role in the plaintiff’s termination. Desert Palace, 539 U.S. at
101 (citing 42 U.S.C. § 2000e-2(m)). Few cases have analyzed the implications of Desert Palace
and the statutory language it interprets in cases where the employer has presented evidence at
summary judgment that it eliminated the plaintiff’s position. Some courts have found that
mixed-motive claims rise and fall with traditional disparate treatment claims brought under the
McDonnell Douglas framework. See Robertson v. Alltel Info. Servs., 373 F.3d 647, 652 (5th
Cir. 2004) (noting that where the plaintiff offers no evidence from which a fact finder can infer
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discriminatory intent, the result of the mixed motives inquiry established in Desert Palace is the
same as the result under the McDonnell Douglas pretext inquiry); Gonzalez v. Temple
University, No. 11-7758, 2013 WL 1482623, at *7 n.6 (E.D. Pa. Apr. 11, 2013) (discrediting
plaintiff’s argument that “his position was eliminated as part of a ‘faux’ restructuring”); Miller v.
Cleveland Cnty., No. 10-620-C, 2011 WL 2634190, at *3-4 (W.D. Okla. July 5, 2011) (allowing
summary judgment both on McDonnell Douglas and Desert Palace claims where Plaintiff
presented no evidence of discrimination other than his allegation that his performance was
satisfactory and subject to a reduction in force). Where a plaintiff presents some evidence that
the employer’s motivations for eliminating the plaintiff’s position was mixed, however, courts
have denied summary judgment. See, e.g., Pucci v. Nineteenth Dist. Court, 565 F. Supp. 2d 792,
811 (E.D. Mich. 2008), aff’d in part, rev’d in part on other grounds, 628 F.3d 752 (6th Cir.
2010).
Fiske has at least raised a genuine issue of fact regarding MYH’s motivations in
terminating her. Had Fiske only raised Cartter’s comment about whether Fiske would return to
work after her maternity leave, SOF ¶ 15, this might be a case where an employer’s “stray
remarks in the workplace . . . [are] insufficient to prove [an] employer's discriminatory animus.”
Shorette v. Rite Aid of Maine, Inc., 155 F.3d 8, 13 (1st Cir. 1998) (citation and internal quotation
marks omitted). Even so, such a remark can be indicative of discriminatory intent. Eslinger v.
U.S. Cent. Credit Union, 866 F. Supp. 491, 497-98 (D. Kan. 1994) (considering employer’s
remark expressing doubt that pregnant women return to work after giving birth as evidence of
discriminatory intent).
Here, however, Fiske has shown more than one isolated “stray remark.” There is at least
arguably some evidence that Fiske’s pregnancy played at least some role in her termination.
12
Cartter voiced concerns about Fiske’s ability to continue to serve and the company terminated
her while she was pregnant. SOF ¶¶ 7, 15. Accordingly to Fiske, Cartter also became more
critical of her work after her announcement. SOF ¶ 34. Although Defendants assert that the
entire marketing division was repurposed to pay for MYH’s clinical trial, id. ¶ 23, Fiske has
presented at least some evidence that Fiske’s former subordinates continued to perform duties
related to marketing after MYH terminated her. For example, MYH conducted its efforts to
recruit users to the clinical trial through Facebook advertising, which was at the heart of Fiske’s
job duties prior to her termination. Id. ¶ 47. Lawton, Benjamin and Olson also conducted other
marketing work after MYH terminated Fiske. Id. ¶ 49. Lawton conducted Facebook advertising,
id. ¶ 64, and Olson attended a conference for marketing purposes. Id. ¶ 66. MYH never
terminated any of these non-pregnant employees. Id. ¶ 55. In fact, Lawton a received a salary
increase after MYH terminated Fiske. Id. ¶ 54. As “rejection of the defendant's proffered
reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination,” St.
Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993) (alterations omitted), this lends support
to Fiske’s position that her pregnancy at least played a part in her termination. See 42 U.S.C. §
2000e-2(m).
In their reply, Defendants argue that Lawton and Benjamin performed different job
functions than Fiske did during her tenure. D. 37 at 6. Certainly if true, this would undercut
Fiske’s claim that her job was not eliminated. But Fiske has presented some evidence to the
contrary, and “at the summary judgment stage the judge's function is not himself to weigh the
evidence and determine the truth of the matter but to determine whether there is a genuine issue
for trial.” Anderson, 477 U.S. at 249.
13
Defendants argue that this Court’s prior decision in Gervais controls the outcome here.
In that case, however, there was a complete absence of evidence offered by the plaintiff for her
contention that “her position was not dissolved, but was subsequently filled with an individual
for whom no serious claim has been made was more or better qualified,” Gervais, 2012 WL
988026, at *12, and the employee there did not raise the mixed-motive challenge. Moreover,
unlike Fiske, Gervais was a year-to-year employee who had not been performing adequately and
whose contract her employer simply chose not to renew. Id. at *6-7. Accordingly, the Court
finds that Fiske has raised sufficient evidence to defeat summary judgment here on both her state
and federal claims.
The Court DENIES the motion for summary judgment to the extent
Defendants seek dismissal of Fiske’s claims under Title VII, the PDA and c. 151B.
2.
Defendants Are Also Not Entitled to Summary Judgment on Fiske’s FMLA
Claim
a.
Standards for Liability Under FMLA
The FMLA entitles eligible employees to twelve weeks of leave because of the birth of a
child. 29 U.S.C. § 2612. The FMLA also prohibits employers from interfering with the exercise
of this entitlement and from retaliating against any employee who exercises rights under the
FMLA. 29 U.S.C. § 2615. Department of Labor regulations require that eligible employees
“[be] employed at a worksite where 50 or more employees are employed by the employer within
75 miles of that worksite.” 29 C.F.R. § 825.110(a)(3). Similarly, a “covered employer” is “any
person engaged in commerce or in any industry or activity affecting commerce, who employs 50
or more employees for each working day during each of 20 or more calendar workweeks in the
current or preceding calendar year.” 29 C.F.R. § 825.104(a).
14
b.
Summary Judgment is Inappropriate on Plaintiff’s FMLA Claim
Defendants argue that they are entitled to summary judgment on Fiske’s FMLA claim
because it terminated her prior to her maternity leave and therefore did not deny Fiske her
benefits. D. 29-1 at 12-13. Although the First Circuit has not decided whether the fact that an
employee was not eligible for leave at the time she requested it precludes her from stating a
FMLA claim, the Eleventh Circuit recently decided that failure to hold otherwise would frustrate
the purpose of the statute. Pereda v. Brookdale Senior Living Cmty., Inc., 666 F.3d 1269, 1274
(11th Cir. 2012) (holding that “because the FMLA requires notice in advance of future leave,
employees are protected from interference prior to the occurrence of a triggering event, such as
the birth of a child”). This Court finds this reasoning persuasive and declines to grant the motion
as to the merits of this claim. Accordingly, Defendants’ argument as to the merits of Fiske’s
FMLA claim fails.
Defendants’ primary argument with respect to Fiske’s FMLA claim, however, is that
none of the defendants are covered employers under the FMLA. D. 29-1 at 12. Fiske correctly
notes, however, that Defendants’ assertion that MYH has never had more than 50 employees has
no evidentiary support. This alone warrants a finding that Defendants have not met their burden
on summary judgment on this claim.
Even if Defendants had met their burden, Fiske asserts that Defendants MYH, its parent
company Healthways and its contractor Insperity are “co-employers.” D. 32 at 14. As between
a parent company and a subsidiary, the employees of both entities may be considered a single
employer for FMLA purposes under the “integrated employer” test. Engelhardt v. S.P. Richards
Co., Inc., 472 F.3d 1, 4-5 (1st Cir. 2006) (discussing Radio & Television Broadcast Technicians
Local 1264 v. Broadcast Service of Mobile, Inc., 380 U.S. 255, 256 (1965) and 29 C.F.R. §
825.104(c)(1) and (2) which delineate common management, interrelation between operations,
15
centralized control of labor relations and common ownership as factors to consider in
determining whether there is an “integrated employer”). As of the date of Fiske’s opposition to
the motion for summary judgment, Plaintiff had not deposed any representatives or employees of
Insperity or Healthways. This additional discovery may bear on Fiske’s contention that Insperity
and/or Healthways were Fiske’s co-employer(s). Accordingly, a decision on summary judgment
on this ground is premature. The Court therefore ALLOWS the relief sought by Fiske under
Fed. R. Civ. P. 56(d) and DENIES summary judgment on Fiske’s FMLA claim without
prejudice.
3.
Defendants Are Also Not Entitled to Summary Judgment on Fiske’s
MMLA and Retaliation Claims
Defendants similarly argue that they are entitled to summary judgment on Fiske’s
MMLA and retaliation claims because she had not yet taken maternity leave at the time she was
terminated. D. 29-1 at 12-13. Just as Massachusetts courts “have often applied Federal case law
interpreting cognate Federal antidiscrimination statutes when looking to interpret [Mass. Gen. L.]
c. 151B,” the Supreme Judicial Court has followed federal courts in their application of the
FMLA when deciding issues related to the MMLA. Global NAPs, Inc. v. Awizus, 457 Mass.
489, 507-08 (2010). Just as it would frustrate the purpose of the FMLA to allow employers safe
harbor by firing employees who have stated their intent to engage in protected conduct, but who
have not yet engaged in the protected conduct, so too would it frustrate the MMLA’s purposes to
grant summary judgment to Defendants here. Accordingly, to the extent that Defendants have
moved for summary judgment on Fiske’s MMLA and related c. 151B, §4(4) retaliation claim,
that motion is DENIED.
C.
Discovery Motions
1.
The Motion to Quash Is Granted in Part
16
Fiske has subpoenaed Healthways’ President and CEO Ben Leedle and its Executive
Vice President and CFO, Alfred Lumsdaine. Healthways has moved to quash these subpoenas,
arguing that their testimony would have limited evidentiary value, would be cumulative of other
discovery in this case and would be an undue burden on the deponents. D. 40 at 2. The Court
notes that Fiske “could have noticed the deposition of the defendant . . . pursuant to Rule
30(b)(1), [because the deponents are] officer[s], director[s] or managing agent of the defendant[,
here, Healthways].” Contardo v. Merrill Lynch, Pierce, Fenner & Smith, 119 F.R.D. 622, 623
(D. Mass. 1988) (citing GTE Products Corp. v. Gee, 115 F.R.D. 67 (D. Mass. 1987)). For this
reason, the Court dispenses with Fiske’s argument that Healthways lacks standing to quash
subpoenas directed to its officers, see D. 43 at 1.
In either case, both Rule 26 and Rule 45 permit the Court to limit discovery when it is
unduly burdensome or cumulative. Fed R. Civ. P. 26(b)(2)(C), 45(c)(3)(A). Healthways argues
that such limitation is appropriate here because Leedle and Lumsdaine’s only knowledge
pertaining to this case is that “the decision to terminate Ms. Fiske was made by its subsidiary
MeYou Health and Mr. Cartter, a fact that has already been established ad nauseam in
discovery.” D. 40 at 2. Fiske counters that, during his deposition, Cartter testified that he
discussed with Leedle the elimination of the marketing department. D. 43 at 3. The reasons for
eliminating the department – and Fiske’s position along with it – are central to this case.
Accordingly, the Court finds that Leedle has relevant testimony to offer here and that the purpose
of this deposition does not appear to amount to, as Healthways suggest, mere harassment.
In addition, as discussed above, the common management of MYH and Healthways,
interrelation between their operations, the centralized control of their labor relations and the
nature of their common ownership is relevant to Fiske’s claim that Healthways was Fiske’s “co-
17
employer” for the purposes of her FMLA claim.
See 29 C.F.R. § 825.104. Presumably,
Healthways’ chief executive officer would be in a good position to testify as to these issues.
As to Lumsdaine, unlike Leedle, Fiske has made no such particularized showing as to the
relevance of his testimony to this case and there has been no demonstration that the topics of
Lumsdaine’s deposition would differ from those in Leedle’s. In light of this circumstance and
the fact that Fiske has already anticipated deposing more than ten individuals, D. 45; see Fed. R.
Civ. P. 30(a)(2)(A)(i) (requiring leave of the Court to conduct more than ten depositions), the
Court will grant the relief that Healthways seeks and quash the subpoena as to Lumsdaine.
2.
The Court Grants the Motion to Increase Deposition Limit to Fourteen in
Part
Fiske has moved to increase the limit on depositions to a total of fourteen. Although the
presumptive limit of depositions is ten, courts may grant parties leave to conduct more than ten
depositions. Id. Courts generally grant such requests upon a showing of a demonstrable need to
do so. See United States ex rel. Banigan v. Organon USA Inc., No. 07-12153-RWZ, 2013 WL
4736844, at *2-3 (D. Mass. Aug. 30, 2013); Coach, Inc. v. Gata Corp., No. 10-CV-141-LM,
2011 WL 198015, at *2-3 (D.N.H. Jan. 20, 2011); cf. San Francisco Health Plan v. McKesson
Corp., 264 F.R.D. 20, 21 (D. Mass. 2010) (denying motion in part because party seeking leave
made no showing as to necessity).
Here, Fiske has conducted six depositions as of the date of her motion. D. 45 at 1. In
addition, Fiske had noticed the following depositions: (1) Josee Poirier, Director of Program
Design and Research, MeYou Health; (2) Ben R. Leedle, Jr., Chief Executive Officer of
Healthways; (3) Alfred Lumsdaine, Chief Financial Officer of Healthways; (4) Alicia Benjamin,
former MeYou Health employee; (5) Seth Lawton, former MeYou Health employee; (6)
Defendant Healthways, Inc. (pursuant to F.R.C.P. 30(b)(6)); (7) Defendant MeYou Health, Inc.
18
(pursuant to F.R.C.P. 30(b)(6)); and (8) Defendant Insperity PEO Services, L.P. (pursuant to
F.R.C.P. 30(b)(6)).
By the date of Defendants’ opposition, Fiske had deposed Insperity’s
corporate representative and had scheduled a deposition for Healthways’ representative. D. 48 at
2.
The Court has already determined that Fiske’s deposition of Lumsdaine is unnecessary
and that a deposition of Ben Leedle is appropriate in this case. The depositions of Lawton and
Benjamin are reasonably calculated to lead to discoverable evidence here for two reasons: first,
as Fiske’s former subordinates at MYH, they may have information regarding the nature of
Fiske’s performance; and second, Fiske alleges that these two employees took on at least some of
Fiske’s responsibilities after her termination, undercutting Defendants’ assertion that Fiske’s
position was truly eliminated. As for Poirier, Fiske asserts that as the head of research, Poirier
has knowledge regarding MYH’s clinical trial, which Fiske alleges was a pretext for her
termination. D. 44 at 3. However, Fiske has made no showing that Poirier has knowledge
regarding the funding of the clinical trial and already has had occasion to depose Cartter and
Erin-McGarry Sullivan, who by all accounts were the ones responsible for allocating the funds
for the trial themselves. SOF ¶¶ 18-27. Accordingly, the Court finds that Poirier’s deposition
would be cumulative.
Finally, Fiske asks to depose representatives of MYH’s corporate
representative. Although Defendants suggest that MYH would designate Cartter, whom Fiske
has already deposed, “[j]ust because [a party] may choose to designate certain individuals as its
corporate designees whose fact depositions have already occurred does not insulate [the party]
from the requirements of Rule 30(b)(6). Such a finding would eviscerate Rule 30(b)(6).” Ice
Corp. v. Hamilton Sundstrand Corp., No. 05-4135-JAR, 2007 WL 1500311 (D. Kan. May 21,
2007). Fiske may take MYH’s 30(b)(6) deposition.
19
Defendants suggest that Fiske has squandered her depositions by electing to depose
former co-workers who did not supervise her. D. 48 at 2. They simultaneously acknowledge the
purpose of these depositions, which was to address Fiske’s contention that the marketing
department was not eliminated and that the purported elimination was a pretext for her
termination. Id. That these individuals might have testimony which would be relevant to this
issue undercuts any suggestion of the impropriety of same. Accordingly, the Court ALLOWS
Fiske’s request in part only to the extent she wishes to depose any of the Rule 30(b)(6)
designees, Leedle, Benjamin and Lawton.4
3.
The Court Allows the Motion to Extend the Discovery Deadline
In light of the foregoing, the Court will ALLOW the motion to extend the discovery
deadline, but only to the extent to address outstanding discovery consistent with this Order. Said
discovery must be completed within 30 days of this Order.
VI.
Conclusion
For the aforementioned reasons, the Court ALLOWS the motion to strike, D. 38, in part;
DENIES the motion for summary judgment, D. 29; ALLOWS the motion to increase the
deposition limit to 14, D. 45, in part and DENIES it in part; ALLOWS the motion in quash, D.
40, in part and DENIES it in part; and ALLOWS the motion to extend the deadline for fact
discovery, D. 44.
So Ordered.
/s/ Denise J. Casper
United States District Judge
4
To extent that any depositions have been taken since the date of the parties’ briefing of
this matter, nothing in this Memorandum and Order should be construed as limiting Fiske from
deposing any of the Rule 30(b)(6) designees, Lawton, Benjamin or Leedle.
20
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