Miceli v. JetBlue Airways Corporation et al

Filing 57

Judge Richard G. Stearns: ORDER entered denying 46 Motion to Strike ; denying 52 Motion for Hearing; granting 35 Motion for Summary Judgment. "For the foregoing reasons, defendants' motion for summary judgment is ALLOWED. The clerk will enter judgment for defendants and close the case." (RGS, int2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 16-12032-RGS
LAUREN MICELI
v.
JETBLUE AIRWAYS CORP.
and MATHEW BOURGEOIS
MEMORANDUM AND ORDER ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
March 28, 2018
STEARNS, D.J.
In December of 2015, JetBlue Airways terminated flight attendant
Lauren Miceli for absenteeism. 1

Miceli alleges that the discharge was

motivated by animus for her disability (post-traumatic stress disorder) and
in retaliation for a claim that she filed with the Massachusetts Commission
Against Discrimination (MCAD).

Discovery having been completed,

defendants move for summary judgment.
BACKGROUND
JetBlue is a major airline operating at Boston’s Logan Airport. In
March of 2006, JetBlue hired Miceli as a full-time Inflight Crewmember
During the relevant time period, defendant Mathew Bourgeois served
as JetBlue’s Boston Inflight Base Manager.
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(flight attendant) based out of Logan. On her first day of work, Miceli signed
an Acknowledgement of Receipt of the Crewmember Blue Book. See Defs.’
Ex. V (Dkt # 36-22). The Blue Book sets out JetBlue’s employment rules and
policies. The Blue Book states that employment with JetBlue is at will, Defs.’
Ex. G (Dkt # 36-7) § 4.1, and includes, inter alia, an attendance policy. “While
safety is our first value, JetBlue strives to be an ‘On-Time Airline.’ Therefore,
Crewmember attendance and punctuality is essential to ensure that JetBlue
lives up to this commitment to benefit our Customers. Crewmembers are
expected to arrive for work on time, fit and ready for duty.” Id. § 6.1.
“Crewmembers should follow their Department’s dependability guidelines
when they cannot report to work. . . . Unacceptable reasons for absences, a
persistent pattern of absences or an excessive amount of absences for any
reasons, except for a substantiated FMLA [(Family and Medical Leave Act)]
leave or other substantiated leave protected by law, may result in Progressive
Guidance, up to and including termination.” Id. § 6.1.1.
The specific dependability policy applicable to Miceli is outlined in the
Inflight Blue Book Supplement. Crewmember attendance is recorded over a
rolling 12-month period. Defs.’ Ex. H (Dkt # 36-8) § 7.2.1. Dependability
lapses – for example tardiness or an unscheduled absence – are assigned a
category code and a point value. Id. §§ 7.2.3-7.2.4. A crewmember who
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accumulates 12 points within a 12-month period is subject to employment
review (any point level greater than 4 is subject to Progressive Guidance,
JetBlue’s terminology for employee disciplinary action.) Id. § 7.2.5.
By February of 2015, Miceli had accrued 7.5 dependability points and
had received an Initial Progressive Guidance review from her supervisor,
Tara McCarthy. In or about March of 2015, Miceli was diagnosed with posttraumatic stress disorder (PTSD) and depression/anxiety induced by a workrelated ear injury suffered in 2014. Acting on the recommendation of
Miceli’s doctor, to accommodate Miceli’s “flare-ups” and treatment, Pl.’s Ex.
X (Dkt # 48-27), Metropolitan Life Insurance Company (MetLife), JetBlue’s
leave administrator, approved Miceli for intermittent FMLA leave of one
absence of one day’s duration beginning on or about March 16. Again, at the
recommendation of Miceli’s doctor, MetLife expanded her FMLA leave
authorization to cover one five-day absence each month beginning June 18,
2015. See id.
Between March and May of 2015, Miceli was absent from work on
multiple occasions. MetLife recorded Miceli as taking approved voluntary
short-term disability leave from March 3 to March 13. Defs.’ Ex. D (Dkt #
36-4) at JB000183.

March 14 was coded as “UNA” (unavailable for

assignment). Id. On March 16, Miceli was out on approved FMLA leave. She
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was again out between March 23 and 24 and on April 4, and these two
absences were recorded as “FMLA denied – outside of parameters.” Id. The
next absence, on May 18, was recorded as “FMLA denied – did not meet
notification requirements.” Id. 2 Miceli missed work again on approved
FMLA leave on May 22.
On May 27 or May 28, 2015, Miceli received a Continued Progressive
Guidance and met with McCarthy and Tenekka Hilliard, JetBlue’s Leave
Coordinator, to discuss her work attendance record. At the meeting, Miceli
stated her belief that some of the absences had been miscoded, and should
have been excused as FMLA leave. According to Miceli, McCarthy took an
inappropriate “motherly” tone with her, Defs.’ Ex. C (Dkt # 36-3) at 106-107,
stating that “it [was] hard to believe” that Miceli had submitted the
appropriate paperwork to MetLife, id. at 103. Hilliard advised Miceli that
her absences could be retroactively recoded if she were to submit the
appropriate documentation to MetLife.
On the following day, Miceli met with Bourgeois (McCarthy’s superior)
to discuss her difficulty in obtaining approved FMLA leave.

She also

complained that McCarthy gossiped about her personal issues with her

The Blue Book states that, absent extenuating circumstances,
“Crewmembers will have seven (7) days from the leave effective date to
report an FMLA leave to MetLife.” Defs.’ Ex. G § 7.9.5.
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coworkers. Miceli states that she told Bourgeois that she suffered from
PTSD, and that she had a panic attack during the meeting. Bourgeois
concluded the meeting abruptly and asked Miceli to send him an email
documenting her concerns, which she did on July 1. The email read, in part,
as follows.
It is widely known at JetBlue that MetLife has been less then [sic]
fair or on task with their end of the Fmla proceedings. JetBlue
has had massive issues with them, and you yourself told me that
they are contemplating other providers. I find it to go against the
values of JetBlue with regards to how I have been treated. Caring
is one of the core values of JetBlue and as an employee with a
disability I feel that I have been treated poorly with regards to my
situation. I accomplished each task with regards to my disability
claim as well as Fmla. When I called to confirm my acceptance
MetLife told me that I have been approved since March. It is not
my issue that they and JetBlue have some sort of
miscommunication or technology disruption whereas it causes it
to look denied or incomplete. I am a flight attendant with no
access to your or their system. That is out of my hands. However
the behavior exhibited by my team leader and those who chose
to be involved was unprofessional and I find it disheartening
when all are aware that we are dealing with a disability and when
the caring value is needed most. I now feel uncomfortable, my
character compromised as well as my privacy and this is very
challenging for me to deal with.
Defs.’ Ex O (Dkt # 36-15).
On July 10, 2015, Noreen Dowd, a member of JetBlue’s People
Resources Team, sent Miceli an email, explaining MetLife’s reason for
denying her certain absences.

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We spoke with MetLife in regards to the dates that were showing
as "denied" in the system. You advised that your doctor was
sending in additional certification paperwork to MetLife in order
to change your parameters (frequency and duration) which were
1 per month for 1 day. MetLife has received the updated
paperwork and your new parameters (frequency and duration)
are 1 per month for up to 5 days. However, the dates on the
paperwork are from 6/18/15 to 12/17/15. Therefore, the dates
prior to that (3/23, 3/24, 4/4, & 5/18) are still "denied" by
MetLife and will remain coded as UNA.
Defs.’ Ex K (Dkt # 36-11). In June and July of 2015, MetLife recorded Miceli
as having been absent on June 11 (“FMLA Approved”), June 26 to June 28
(“FMLA Approved”), July 8 to July 10 (“UNA”), July 17 (“FMLA Approved”),
July 29 to July 30 (“FMLA Approved”). Defs.’ Ex. D at JB000183. On July
17, having reviewed Miceli’s attendance record, Bourgeois placed her on
Final Progressive Guidance. Pl.’s Ex. K (Dkt #48-12).
Miceli was hospitalized from July 30 to August 5, 2015, and received
inpatient and outpatient mental health treatment thereafter. Based on the
documentation submitted by her doctor, MetLife approved Miceli for
disability leave from August 6 until November 15, 2015. See Defs.’ Ex. P (Dkt
# 36-16). MetLife recorded Miceli as “UNA” on August 4. Defs.’ Ex. D at
JB000183. While she was on disability leave, Bourgeois reviewed Miceli’s
attendance record again, and determined that, with the August 4 unexcused
absence, Miceli had accrued 12 dependability points warranting termination.
Shortly after Miceli returned to work, on November 17, 2015, Bourgeois
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suspended Miceli, and informed her that she could submit a responsive
statement regarding her dependability record by November 24. Defs.’ Ex. S
(Dkt # 36-19). Miceli did not submit a statement, and was terminated by
JetBlue on December 15.
Miceli lodged a complaint with the MCAD on December 9, 2015, and
filed this lawsuit in Suffolk Superior Court in July of 2016. The Complaint
alleges disability discrimination in violation of Mass Gen. Laws Ch. 151B, § 4
(Count I), and retaliation (Count II). JetBlue timely removed the case to this
court on the basis of diversity jurisdiction.
DISCUSSION
Summary judgment is appropriate 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). A material fact is one
which has the “potential to affect the outcome of the suit under applicable
law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.
1993). For a dispute to be “genuine,” the “evidence relevant to the issue,
viewed in the light most flattering to the party opposing the motion, must be
sufficiently open-ended to permit a rational factfinder to resolve the issue in
favor of either side.” Nat’l Amusements v. Town of Dedham, 43 F.3d 731,
736 (1st Cir. 1995) (citation omitted).
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Mass. Gen. Laws ch. 151B, § 4(16) prohibits an employer from
“dismiss[ing] from employment . . . or otherwise discriminate against,
because of his handicap, any person alleging to be a qualified handicapped
person, capable of performing the essential functions of the position involved
with reasonable accommodation.” Like claims brought under the Americans
with Disability Act (ADA), where there is no direct evidence of discrimination
(as is the case here), the analysis of the parallel state law claim is guided by
the burden-shifting framework set out by McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Gannon v. City of Boston, 476 Mass. 786,
793, (2017).
In the first stage, the employee has the burden to establish a
prima facie case of discrimination by showing that (1) he is a
member of a class protected by G.L. c. 151B; (2) he performed his
job at an acceptable level; (3) he was terminated; and (4) his
employer sought to fill the plaintiff's position by hiring another
individual with qualifications similar to the plaintiff’s. . . . The
prima facie case eliminates the most common nondiscriminatory
reasons for the plaintiff’s rejection, which are lack of competence
and lack of job availability, and thereby creates a presumption of
discrimination.
Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116
(2000) (internal quotation marks and citation omitted).
Where the plaintiff employee makes this prima facie showing,
the burden shifts to the employer to show with credible evidence
that the real reason for the adverse employment action was not
the employee’s handicap but a lawful reason that was unrelated
to the employee’s handicap. Where the employer meets this
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burden, the burden shifts back to the plaintiff employee to prove
that the adverse action was taken “because of his [or
her] handicap,” G. L. c. 151B, § 4 (16), and not for the reason
proffered by the employer.
Gannon, 476 Mass. at 794.
Defendants contend, and the court agrees, that Miceli has not proffered
evidence that would allow a reasonable factfinder to conclude that JetBlue
terminated her “because of” her disability. 3

JetBlue’s explanation for

Miceli’s discharge is that, consistent with its stated policy, Miceli had
accumulated 12 dependability points within a 12-month period. In other
words, Miceli’s work attendance was unacceptably erratic.
Miceli argues that JetBlue’s reliance on her attendance record is
pretextual because JetBlue incorrectly assessed her points for absences that
should have been excused as FMLA leave. Critically, according to Miceli,
JetBlue should not have penalized her for missing work on August 4, the
absence that pushed her over the termination threshold. Miceli states that
she informed MetLife of her hospitalization on July 30, and MetLife’s
records reflect that she had requested disability leave on that date. See Pl.’s

Defendants characterize this as a failure to establish a prima facie
case. This would be true under federal law, see Echevarria v. AstraZeneca
Pharm. LP, 856 F.3d 119, 126 (1st Cir. 2017) (third element of a prima facie
case under the ADA is that employee “was discharged or otherwise adversely
affected in whole or in part because of [her] disability.”), and does not alter
the ultimate outcome.
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3

Ex. U (Ex. 48-24) (July 30, 2015 letter from MetLife to Miceli, indicating that
MetLife “ha[s] been notified of [Miceli’s] request to leave a leave of absence
(LOA) for a serious health condition . . . that makes [her] unable to perform
the essential functions of [her] job.”). Miceli’s father, Matthew, also called
JetBlue on August 9 to inform JetBlue of Miceli’s hospital stay.4 See Pl.’s M
(Dkt # 48-14). In addition, on November 2 (prior to her suspension), Miceli’s
attorney sent a letter to JetBlue’s General Counsel and Dowd describing the
circumstances giving rise to Micel’s disability discrimination claim, and her
intent to file a complaint with the MCAD. See Susan Trombetta Aff. Ex 1 (Dkt
# 47-1) at JB000146 (Miceli “admitted herself into the Arbour mental health
facility in Brookline, Massachusetts. She stayed at that facility for one
week.”).
Although Miceli attaches to her summary judgment affidavit a copy of
the discharge form for her July 30 to August 5 hospital stay, there is no

The court did not give weight to the uncorroborated statements in
Matthew Miceli’s affidavit (Dkt # 43) in support of plaintiff’s opposition
because he was not identified in plaintiff’s Rule 26 disclosures nor in
response to defendant’s interrogatory seeking the names of potential
witnesses. Under Fed. R. Civ. P. 37(c)(1), “[i]f a party fails to provide
information or identify a witness as required by Rule 26(a) or (e), the party
is not allowed to use that information or witness to supply evidence on a
motion . . . unless the failure was substantially justified or is harmless.”
Plaintiff has not established that the failure to disclose her father as a
material fact witness was either “substantially justified or [] harmless.”
Further, Matthew Miceli’s affidavit does not bear an authentic signature.
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4

evidence that she submitted any substantiating documentation to MetLife or
JetBlue for that period of time prior to her termination.5 The July 30 letter
from MetLife informed Miceli that she must submit a Certification of Health
Care Provider for Crewmember’s Serious Health Condition to be approved
for a leave of absence. Pl.’s Ex. U. The Certification submitted by Miceli’s
doctor indicates a condition start date of August 6, 2015. Defs.’ Ex. P.
Matthew Miceli’s phone call to JetBlue was placed on August 9, within the
certified period. Nor did Miceli’s counsel clarify in his November 2 letter that
her hospital stay included the week prior to August 6. See Susan Trombetta
Aff. Ex. 1. In addition, the Progressive Guidance issued in connection with
Miceli’s suspension on November 15, 2015 identified August 4 as the “trigger
event.” Defs.’ Ex. D at JB000188. Although invited to provide a responsive

JetBlue’s paperwork requirement is admittedly bureaucratic, but that
is not a surprising finding in a large corporate organization, and is not
discriminatory absent evidence of disparate enforcement. While a more
compassionate employer might have been less unbending, this is a business
judgment that falls outside the competence of a court evaluating an
employer’s actions for signs of discrimination. “The employer’s reasons for
its decision to terminate ‘may be unsound or even absurd, but if they are not
discriminatory and if the plaintiff does not prove they are pretexts, the
plaintiff cannot prevail.’” Tate v. Dep’t of Mental Health, 419 Mass. at 363,
quoting Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761,
766 (1986).
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statement by November 24, 2015 – and this is critical in the court’s judgment
– Miceli elected not to do so.
Likewise, while Miceli complained to McCarthy, Hilliard, Dowd, and
Bourgeois that MetLife had miscoded certain prior absences between March
and May of 2015, there is no evidence that Miceli ever submitted
substantiating medical documentation for those dates.6 MetLife approved
intermittent FMLA for the dates and durations that were supported by
documentation from Miceli’s doctor. See Pl.’s Ex. X (once a month of one
day from March 23, 2015, amended to once a month of five days from June
18, 2015). Although Miceli submits as an exhibit a memorandum dated July
21, 2015 from her doctor stating that her absences on March 23-24 and May
18 were for medical reasons, see Pl.’s Ex. T (Dkt # 48-23), there is no
evidence that this memorandum was submitted to JetBlue or MetLife prior
to her termination.
Finally, Miceli suggests that JetBlue either failed to provide a
reasonable accommodation for her disability, or that JetBlue disparately
enforced its dependability policy. As for the former, there is no evidence that
Miceli submitted a request for an accommodation other than the three

McCarthy, Hilliard, Dowd, and Bourgeois did not participate in
MetLife’s leave approval process.
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approved leave requests. As to the latter, Miceli has offered no comparator
evidence that other similarly situated employees received more favorable
treatment.
Miceli’s second claim – retaliation – is an independent cause of action.
To succeed on a claim of retaliation, “the plaintiff must prove that
[she] reasonably and in good faith believed that the [employer]
was engaged in wrongful discrimination, that [she] acted
reasonably in response to [her] belief, and that the [employer’s]
desire to retaliate against [her] was a determinative factor in its
decision to terminate [her] employment.”
Abramian, 432 Mass. at 121, quoting Tate v. Department of Mental Health,
419 Mass. 356, 364 (1995).

There is no evidence that Miceli’s MCAD

complaint was “a determinative factor,” or even a factor at all, in the decision
for her termination. Bourgeois reviewed Miceli’s attendance record and
made the determination that she had accumulated 12 dependability points
in October of 2015, see Defs.’ Exs. R (Dkt #36-18) & Y (Dkt # 36-25); prior
to JetBlue having received any notice that Miceli intended pursue a claim
with the MCAD.

JetBlue consistently enforced its dependability policy

before and after having notice of Miceli’s MCAD complaint, and issued
Progressive Guidance to Miceli only as justified by her attendance record.7
As noted above, Miceli also has no evidence that other similarly situated

Defendants note that Miceli had received Progressive Guidance in six
prior years as a result of her spotty attendance record.
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employees were treated more favorably. Without linkage there can be no
causation, and without causation the retaliation claim fails as a matter of law.
ORDER
For the foregoing reasons, defendants’ motion for summary judgment
is ALLOWED. The clerk will enter judgment for defendants and close the
case.
SO ORDERED.
/s/ Richard G. Stearns
___________________________
UNITED STATES DISTRICT JUDGE

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