Fincher v. EMD Sorono

Filing 67

Judge Richard G. Stearns: ORDER entered granting 36 Motion for Summary Judgment (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 14-10502-RGS
CONTESSA FINCHER
v.
EMD SERONO, INC.
MEMORANDUM AND ORDER ON DEFENDANT EMD SERONO’S
MOTION FOR SUMMARY JUDGMENT
October 5, 2015
Plaintiff Contessa Fincher brought parallel federal and state causes of
action against her former employer, defendant EMD Serono, Inc. (EMD
Serono), under the Massachusetts Anti-Discrimination Law, Mass. Gen.
Laws ch. 151B (Count I), and the Americans with Disabilities Act (ADA), 42
U.S.C. § 12101 et seq. (Count II).

Fincher alleges that EMD Serono

discriminated against her by terminating her because of a severe depressive
disorder, and by failing to offer reasonable accommodations 1 for her disorder
prior to her termination. EMD Serono seeks summary judgment on all

Fincher does not argue that EMD Serono failed to provide the
accommodations that she in fact requested; Fincher’s Complaint alleges only
that EMD Serono failed to offer her additional accommodations she had not
expressly requested.
1

counts of Fincher’s Complaint. EMD Serono maintains that it had good-faith
reasons to terminate Fincher’s employment and that Fincher has provided
no evidence to substantiate her claims of discrimination. EMD Serono
further asserts that it provided Fincher with every accommodation which she
requested. A hearing on the motion was held on September 29, 2015.
BACKGROUND
EMD Serono hired Fincher in April of 2007 as an at-will employee.
From 2007 to 2012, Fincher worked as a telecommuting member of a small
team of four employees led by her direct supervisor, Dennis Meletiche.
Fincher’s job description was Senior Manager, Regional Outcomes and
Market Access, for the Western United States. Fincher remained in this
position for the duration of her employment at EMD Serono. Though EMD
Serono is headquartered in Boston and her assigned region included the
Western states, Fincher received permission to work remotely out of
Chicago, Illinois. Fincher subsequently moved to Ann Arbor, Michigan; to
Austin, Texas; and back to Ann Arbor, all while remaining in the same
position at EMD Serono. Fincher testified that other employees had similar
work arrangements.
As Fincher’s direct supervisor, Meletiche was responsible for
evaluating Fincher’s performance and providing her with feedback, written
2

and oral, which he did at least twice annually. The parties disagree on their
assessment of Fincher’s performance reviews. EMD Serono characterizes
Fincher’s performance, from 2007 through 2010, as mostly “average,” while
Fincher’s Opposition maintains that her performance was “excellent” and
her reviews “very good”. Def.’s Statement of Undisputed Facts (SOF) at 3;
Opp’n at 1-2. From 2007 to 2010, Fincher’s written performance reviews
reflect four ratings of “Exceeds [Objectives],” one rating of “Work Required,”
and fourteen ratings of “Meets [Objectives].” Meletiche Aff. Exs. B-E.
EMD Serono argues that Fincher’s performance began to deteriorate
in early 2011. Fincher’s 2011 mid-year review was more critical than her
previous evaluations, noting “a number of performance issues related to
communication, organization, and project management.” Meletiche Aff. Ex.
F. The review stated that one of Fincher’s major objectives was “significantly
behind plan,” that Fincher “needs to focus on improving her execution,” and
“needs to focus more on keeping her . . . colleagues up to date on the status
of tools.” Id. The review also stipulated that Fincher “need[ed] to be more
proficient in SAP 2 and be more vigilant about missing receipts. She also

Although not fully explained in the record, SAP appears to be
proprietary software for managing business operations and customer
relations.
2

3

needs to stay on top of her calendar.” Id. Fincher received her mid-year
performance review on July 21, 2011.
On August 15, 2011, Meletiche sent a detailed email to Fincher listing a
series of “fundamentals” which he believed “necessary to meet the expected
level of performance for your current role, but also essential for any other
role.” Corvini Aff. Ex. A, Part 2 at 51. Meletiche’s email stated that he had
discussed “the fundamentals” during Fincher’s mid-year performance
review, and that he was writing to insure “complete clarity on my
expectations.” Id. Meletiche’s email instructed Fincher to “stay on top of her
calendar” and keep it up to date; to notify Meletiche when Fincher required
vacation time or other time off; to keep use of rental cars on business trips to
a minimum and to refrain from using rental cars for sightseeing; to book
company travel a week or more in advance in order to save the company
money; to keep promotional materials and tools up to date; to follow up on
communications consistently and in a timely fashion; to take ownership of
her top priority projects; to maximize the amount of work done during
downtime while traveling on business; and to complete compliance courses
in a timely fashion. Meletiche noted that he had not included “the issues
around effective communication” in his email since they had been discussed
at length during Fincher’s mid-year evaluation. Id.
4

In August of 2011, Fincher was diagnosed with severe anxiety and
depression, for which she was subsequently treated. Fincher states that her
diagnosis for severe anxiety occurred on August 12, 2011, while her diagnosis
for depression came on August 18, 2011. Sometime after that date, Fincher
informed Meletiche of her diagnoses, which elicited the alleged response,
“Oh shit . . . do what you have to do to take care of yourself.” 3 Opp’n at 2021.
Fincher subsequently took twelve weeks of short-term disability leave
pursuant to the Family and Medical Leave Act (FMLA).

EMD Serono

granted her request to extend her leave by an additional week, and also gave
her permission to relocate from Texas to her former home in Michigan. 4
Fincher returned to work on December 11, 2011. She agrees that her shortterm disability benefits were “excellent” and that in this regard EMD Serono
treated her “fairly.” Fincher did not share with EMD Serono the details of
her treatment plan. Nonetheless, EMD Serono permitted Fincher to attend
doctor’s appointments freely during work hours.

FMLA leave and

Fincher’s counsel maintains that this remark indicated Meletiche’s
recognition of the seriousness of Fincher’s condition, which caused
Meletiche to embark on a campaign to terminate her.
3

4 Fincher disputes EMD Serono’s characterization of the permission for

her to change job locations as an “accommodation.”
5

permission to schedule doctor’s appointments during work hours were the
only formal accommodations Fincher requested of EMD Serono.
Fincher received her 2011 year-end performance review in January of
2012. Fincher’s comments to the review reflect her belief that she had
resolved all of the issues identified in Meletiche’s August email. Meletiche’s
written comments essentially repeat his remarks in the July review, which
EMD Serono attributes to Fincher’s being absent on leave from September
to December 2011.

Fincher’s “Overall” grade for 2011 was “C,” which

corresponds to “[p]artially met . . . expectations/requirements.” Meletiche
Aff.-Ex. H.
Meletiche and EMD Serono assert that Meletiche conducted an oral
review warning Fincher of ongoing concerns regarding her performance.
Fincher claims in her Opposition that Meletiche “lied” in his affidavit about
holding an in-person meeting to discuss her year-end review, but
acknowledged in her deposition that she did not recall the meeting, and that
it “could have happened.” Fincher Dep. at 288.
On January 6, 2012, Fincher emailed Meletiche to discuss the ongoing
approval process for two of the marketing tools for which she was
responsible. Fincher wrote that one of the tools, the Growth Hormone
Analyzer, was “approved for use for 2012,” but that a “minor change on 1
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slide” was needed. She wrote that the timeline for this change was “2 weeks
from today.” For another tool, the Waste Calculator, Fincher wrote that the
timeline was “2 months to PSMR [Promotional and Scientific Material
Review] review.” Dkt. #43 – Meletiche Aff. Ex. I.
In February of 2012, Fincher was hospitalized for one week for mental
health-related issues. Fincher informed EMD Serono that she was out sick,
but did not report her hospitalization as related to her previous mental health
condition, nor did she request an accommodation. Through February and
March 2012, Fincher continued to miss deadlines on several projects and
administrative tasks, and was late in attending two conference calls. Fincher
testified that it was not uncommon for EMD Serono employees to be late for
such calls.
On March 15, 2012, Fincher booked air travel for a meeting with a
customer in Boise, Idaho. The meeting was scheduled for Tuesday, March
20, but Fincher booked a weekend flight through Minneapolis, Minnesota.
Fincher claimed that the flight was cheaper than a direct flight, and that by
flying through Minneapolis she would be able to meet with a fellow EMD
Serono employee, Angela Justice, to review a training slide deck. Justice was
also a personal friend of Fincher’s, with whom she planned to stay while in
Minneapolis. Meletiche approved the trip.
7

Prior to the trip, Fincher’s meeting in Boise was canceled. Fincher does
not recall notifying Meletiche of the cancellation, and Meletiche attests that
he did not learn that the meeting had been canceled until two weeks later.
Fincher chose nonetheless to fly to Minneapolis. Fincher stayed with Justice
over the weekend and the two shared dinner at a Thai restaurant. 5 Fincher
and Justice reviewed training slide decks on the subsequent Monday.
On March 28, 2012, Meletiche discovered that the two marketing tools
for which Fincher was responsible had not yet been approved through EMD
Serono’s PSMR process, despite Meletiche’s belief that Fincher had
represented in her January 6, 2012 email that one of the projects had been
approved and that the other would be shortly. 6
On March 29, 2012, after learning that Fincher had traveled to
Minneapolis despite the cancellation of the customer meeting, Meletiche
emailed Fincher expressing his disapproval. Meletiche wrote that “[y]ou
know very well that slide training for field personnel is typically done via
webcast and there have been several opportunities for training. . . . Clearly,

Fincher denies that she socialized with Justice over the weekend.
Justice, however, stated in her deposition that she did socialize with Fincher
over the weekend, and characterized the “weekend part” as “a little bit more
social built around a business trip.” Justice Dep. at 41.
5

Fincher contends that the tools had been verbally approved, but
conceded that she did not know whether they were fully approved.
6

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this is a very inefficient and expensive way to provide training for slides that
were not even intended for our team.” Corvini Aff. Ex. A, Part 2 at 57.
Meletiche concluded that the trip was “not justifiable and . . . yet another
serious action inconsistent with the level of judgement and performance that
is expected from you.” Id. Meletiche attests that he would not have approved
the trip had he been told of the client’s cancellation of the Boise meeting, and
that he believed then, and now, that Fincher traveled to Minneapolis so that
she could spend the weekend with a friend at company expense.
On March 28, 2012, Meletiche wrote to EMD Serono’s Human
Resources Director recommending Fincher’s termination. Fincher received
notice of the recommendation on March 29, 2012. EMD Serono terminated
Fincher on April 4, 2012. Fincher subsequently obtained employment at
Teva Pharmaceuticals, where she remains employed. Fincher filed this
action on March 5, 2014.
DISCUSSION
A court may grant summary judgment only “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). The initial burden of establishing that no genuine issue
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of material fact exists is borne by the moving party. Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986). “Summary judgment will not lie if the dispute
about a material fact is ‘genuine,’ that is, if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The record must be
analyzed in the light most favorable to the nonmoving party, with all
reasonable inferences drawn in the nonmovant’s favor. United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
However, “[w]hen the moving party has carried its burden under Rule
56(c), its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The nonmovant must plead
“specific facts sufficient to deflect the swing of the summary judgment
scythe.” Mulvihill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). “The
mere existence of a scintilla of evidence is insufficient to defeat a properly
supported motion for summary judgment.” Anderson, 477 U.S. at 248.
In order to establish a prima facie case for disability discrimination
under the burden shifting formula of McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973), Fincher must prove that she “(i) has a disability within the
meaning of the Act; (ii) is qualified to perform the essential functions of the
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job, with or without reasonable accommodations; (iii) was subject to an
adverse employment action by [EMD Serono], (iv) was replaced by a nondisabled person or was treated less favorably than non-disabled employees;
and (v) suffered damages as a result.” Jacques v. Clean-Up Grp., Inc., 96
F.3d 506, 511 (1st Cir. 1996) (internal citations omitted). The parties dispute
whether Fincher has made a prima facie case of discrimination, particularly
regarding whether she has made a showing that she was able to perform the
essential functions of her job with or without an accommodation. While the
issue is a close one, the court will proceed under the McDonnell Douglas
form as the issue of job performance is the same whether analyzed under the
aegis of her prima facie case or as part of the third stage of burden-shifting.
With regard to the second stage of McDonnell Douglas, “[t]he
employer’s burden of articulating a non-discriminatory reason is only a
burden of production, not a burden of persuasion; the burden of proving
unlawful discrimination rests with the plaintiff at all times.” Freadman v.
Metro. Prop. & Cas. Ins. Co., 484 F.3d 91, 99-100 (1st Cir. 2007) (internal
citations omitted). EMD Serono has offered two explanations for Fincher’s
termination, both of which easily satisfy its burden of production; namely
that Fincher was fired because of a deteriorating job performance, and that
she was fired because of her exercise of poor judgment and misuse of
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company funds in traveling for the weekend to Minneapolis in March of
2012.
The issue therefore is whether EMD Serono’s proffered reasons for
Fincher’s termination are pretextual, as Fincher contends. Fincher finds
pretext in EMD Serono’s “reevaluation” of her “very good” performance
reviews and relates this to Meletiche’s learning of her mental health
disability. Pl.’s Opp’n at 2, 17. The argument misses the mark for two
obvious reasons. First, even if Fincher’s generous characterization of her
pre-2011 performance evaluations is accurate, both Fincher’s 2011 mid-year
performance review and Meletiche’s follow-up email of August 15, 2011
emphasizing the need for substantial improvement on her part, predated her
diagnosis for depression and request for FMLA leave. Fincher herself admits
that she had “start[ed] slipping” in 2011, while faulting EMD Serono for
failing to afford her a sufficient “chance to get back up to be a top performer.”
Fincher Dep. at 221-223.7

Fincher’s speculation that Meletiche, as a trained pharmacist, might
have had the medical insight of a Dr. Gregory House, and the ability to
diagnose her prior to August 18, 2011 as suffering from severe anxiety and
depression by observing her demeanor and weight loss, even before she
herself became aware of her condition, does not suffice to raise a dispute of
material fact for Rule 56 purposes.
7

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Second, there is no material dispute about the facts surrounding
Meletiche’s determination that Fincher had exercised bad judgment and
misused company resources in traveling to Minneapolis for mostly personal
reasons. While it might reasonably be debated whether Fincher’s decision to
make the trip was sufficiently egregious to warrant her termination, that is
not the issue. 8

An employer may act entirely irrationally toward its

employees, provided the reasons for so doing are not discriminatory. “Courts
may not sit as super personnel departments, assessing the merits--or even
the rationality--of employers’ nondiscriminatory business decisions.”
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) (emphasis
added).
This, of course, does not end the case. A plaintiff has the both the
burden and the opportunity to “adduce sufficient evidence to support a
finding that [the employer’s] stated [and facially legitimate] reason [for an
adverse job action] was not only a pretext, but that it was a pretext for illegal
. . . discrimination.” Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir.

EMD Serono argues, with support in the case law, that the travel
incident itself was a sufficient basis for Fincher’s termination. See Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) (“[A]n
employer would be entitled to judgment as a matter of law if the record
conclusively revealed some other, nondiscriminatory reason for the
employer’s decision”); see also Dennis v. Osram Sylvania, Inc., 549 F.3d
851, 859 (1st Cir. 2008).
8

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1994). The only direct evidence that Fincher offers of a discriminatory
animus on Meletiche’s part is his alleged statement, upon learning of
Fincher’s diagnosis, “Oh shit . . . Do what you have to do to take care of
yourself.” The statement is at best ambiguous (it might be interpreted as one
of surprise and sympathy, or, as Fincher would have it, as displeasure at the
thought that accommodation of her condition might adversely impact her job
performance). But it is well established that a “stray remark,” by itself (even
where unambiguous) is insufficient to defeat summary judgment. 9 Ruiz
Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 87 (1st Cir. 2008).
Fincher’s alternative argument is that she was denied reasonable
accommodations for her condition by EMD Serono. The short answer is that
Fincher has failed to identify any accommodation that she requested from
EMD Serono that was denied. Fincher’s Complaint alleges that EMD Serono
failed to offer accommodations, but sua sponte offers to accommodate an

The argument of plaintiff’s counsel at the hearing of the motion that
temporal proximity between the disclosure of her mental health problems
and her termination is alone sufficient to establish pretext has little support
in the cases. See, e.g., Ponte v. Steelcase Inc., 741 F.3d 310, 322 (1st Cir. 2014)
(“[C]hronological proximity does not by itself establish causality, particularly
if ‘[t]he larger picture undercuts any claim of causation.’ ”), quoting Wright
v. CompUSA, Inc., 352 F.3d 472, 478 (1st Cir. 2003).
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employee’s disability are not required by the ADA. See Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001).
The court understands that in an employment discrimination case, the
question of the employer’s intent or motive is generally one for the jury. See
Soto-Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 30 (1st Cir. 2015);
Mulero-Rodríguez v. Ponte, Inc., 98 F.3d 670, 677 (1st Cir. 1996).
Nonetheless, as the First Circuit has noted, “[e]ven in an employment
discrimination case, where elusive concepts such as motive or intent are at
issue, summary judgment may be appropriate if the nonmoving party rests
merely

upon

conclusory

allegations,

improbable

inferences,

and

unsupported speculation.” Smith v. Stratus Computer, Inc., 40 F.3d 11, 13
(1st Cir. 1994) (internal citations and quotation marks omitted).
Such is the case here. Essentially, Fincher asks the court to pile
inference upon inference in order to conclude that her job performance was
excellent rather than average; that Meletiche determined her medical
condition before she was in fact diagnosed, and began to blaze a paper trail
in order to justify her termination; that the incidents cited by Meletiche as
examples of misconduct or deteriorating performance were immaterial; that
her work performance did not deteriorate despite the evidence to the
contrary in her performance reviews; that she was perfectly justified in
15

taking the Minneapolis trip; and that the trip did not itself constitute grounds
for termination.

These are all arguments that may impugn the

reasonableness of the employer’s decision. They do nothing, however, to
establish that the termination decision, even if manifestly unreasonable
(which it would not appear to have been) was motivated by a discriminatory
animus.
For the same reasons, Fincher’s discrimination claims under the
Massachusetts Anti-discrimination Statute, Mass. Gen. Laws ch. 151B, also
fail.

The Massachusetts legal standard for evaluating such claims is

substantially the same as that under federal law. Labonte v. Hutchins &
Wheeler, 424 Mass. 813, 816 n.5 (1997); Garrity v. United Airlines, Inc., 421
Mass. 55, 59 (1995).
ORDER
For the foregoing reasons, EMD Serono’s motion for summary
judgment on Counts I and II is ALLOWED. The Clerk will enter judgment
for EMD Serono and close the case.

SO ORDERED.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
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