Margaret Wagner v. Baystate Health Inc

Filing 82

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated in the attached memorandum and order, Defendants Motion for Partial Summary Judgment (Dkt. No. 57 ) is hereby ALLOWED. The court will retain supplemental jurisdiction over the remaining state-law claims. The clerk will now schedule the case for a final pretrial conference on those remaining issues. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
MARGARET WAGNER,
Plaintiff

)
)
)
)
) C.A. NO. 12-cv-30146-MAP
)
)
)

v.
BAYSTATE HEALTH, INC.
Defendant

MEMORANDUM AND ORDER REGARDING
DEFENDANT’S MOTION FOR PARTIAL SUMMARY JUDGMENT
(Dkt. No. 57)
October 29, 2013
PONSOR, U.S.D.J.
I.

INTRODUCTION

Plaintiff Margaret Wagner, a resident of Holyoke,
Massachusetts, is a former employee of Defendant Baystate
Health, Inc.

She brought this suit in state court alleging,

inter alia, unlawful retaliation under the Family Medical
Leave Act (“FMLA”).

29 U.S.C. § 2601.

Defendant, a

Massachusetts corporation with its principal place of
business in Springfield, removed the case to this court and
filed a Motion for Partial Summary Judgment on Plaintiff’s
retaliation claim. (Dkt. No. 57.)

Because there is

insufficient evidence to support a finding that Defendant’s

proffered legitimate reason for Plaintiff’s termination is
actually a pretext for retaliation based on her invocation
of rights under the FMLA, Defendant’s Motion for Partial
Summary Judgment will be allowed.

The court will, however,

utilize its discretion to retain supplemental jurisdiction
over the remaining state law claims and set the case for a
final pretrial conference.
II.

FACTS1

Plaintiff Margaret Wagner began working for Defendant
in February 2004 as a per diem lab assistant.

By 2006, she

had been promoted to Lead Lab Assistant in the Reference
Lab, which is the job she held at the time of her
termination.

In this position, Plaintiff was responsible

for overseeing the lab during her shift.

For the majority

of 2006-2009, she reported to the Manager of Accessioning,
JoAnne Palmer.

For a brief period in 2008, her supervisor

was Sharon Perry.

From December 2009 until her termination

in December 2010, Plaintiff reported to Lisa Piepul,

1

The facts, unless otherwise noted, are drawn from
Defendant’s Statement of Material Facts, (Dkt. No. 59), and
Plaintiff’s Counter Statement of Material Facts (Dkt. No.
65).
-2-

Supervisor of Accessioning, who, in turn, reported to
Palmer.
In 2007, Plaintiff began to receive mixed performance
evaluations.

She was given an opportunity to view each one,

and signed an acknowledgment to that effect.

Although there

was substantial positive feedback, the evaluations also
expressed concern over her interpersonal skills, her ability
to accept criticisms, and her attitude in dealing with
difficult situations.

In the 2007 evaluation, Palmer also

wrote that Plaintiff needed to be “calm and collected when
challenged.”

(Dkt. No. 59, Ex. 6.)

In the 2008 evaluation, Perry noted that Plaintiff
needed to address comments or concerns directly to her
coworkers or supervisors, rather than discussing them with
staff.

(Dkt. No. 59, Ex. 7.)

The evaluation recommended

that she “maintain a professional and calm demeanor when
talking with staff, lead, and superiors, especially when
having difficult conversations.”

(Id.)

In 2009, the evaluation was harsher.

Palmer wrote that

“Margaret needs to treat all contacts with respect, being
mindful of her demeanor in all settings . . . .
-3-

Some staff

report that she is sometimes abrupt.” (Dkt. No. 59, Ex. 8.)
Palmer indicated that Plaintiff had inappropriately shared
information about a patient with a coworker.

(Id.)

year, Plaintiff was also interested in a promotion.

That
Palmer

told Plaintiff that she would not be considered for this
because of a previous interpersonal conflict Plaintiff had
with another employee.

(Dkt. No. 59, Ex. 1 at 28-31.)

A number of employees began to complain about Plaintiff
to Palmer in 2009.

This included Jennifer Peloquin, Tiffany

Tranghesy, and Emily Moccio.

(Dkt. No. 59, Ex. 2 at 22-23.)

Moccio, for instance, said she felt Plaintiff was unfair in
her assignments, made the work environment very
uncomfortable, and whispered and talked privately while
staring at Moccio and other employees.

(Dkt. No. 59, Ex.

9.)
In July 2010, Plaintiff left work for a vacation.
parties dispute what occurred when she returned.

The

Defendant

claims that on July 14, 2010, supervisor Piepul told
Plaintiff that she needed to distribute extra hours fairly
and needed to move staff around more to avoid favoritism.
(Dkt. No. 59, Ex. 3 at 28.)

Plaintiff claims that this
-4-

issue was not discussed until she returned from her later
FMLA leave.

(Dkt. No. 65, Ex. 6.)

For purposes of the

court’s ruling this dispute bears on no dispositive facts.
The next month, Plaintiff believed that four employees
under her supervision had violated the company’s sexual
harassment policies.

As a result, she reported them by

calling the company’s compliance hotline and by speaking
with her supervisor.

Following this incident, Plaintiff

contends, her supervisor became distant, and their
relationship changed.
On September 1, 2010, Plaintiff took FMLA leave for
disc replacement surgery in her neck.2

While Plaintiff was

on leave, employees continued to complain about the work
environment created by Plaintiff.

After Plaintiff returned

to work on October 12, she met with Palmer to discuss issues
with teamwork and problems related to scheduling.
Following that discussion, an “environmental scan,” or
evaluation of the office, was conducted by the Human
Resources Department to evaluate problems in the lab.

2

Plaintiff was also granted a second FMLA leave, but
did not use it.
-5-

Numerous findings reflected unfavorably on Plaintiff.

These

included her failure to encourage teamwork, her “negative
tone,” her favoritism, and what some employees characterized
as “bullying.”

(Dkt. No. 59, Ex. 14.)

Plaintiff’s behavior thereafter continued to be
problematic.

Plaintiff disregarded a “trial” change in

office policy and actively discouraged employees from
participating in it.

Plaintiff also failed to complete part

of her work assignments and was disrespectful to her
coworkers.

In response to this, it is undisputed that on

November 23, 2010, in accordance with Baystate Policy,
Defendant issued Plaintiff a Final Written Warning for
Insubordination (“FWW”).

The FWW included a Performance

Improvement Plan (“PIP”) that set forth specific
requirements for Plaintiff to follow to improve her
behavior.

Failure to conform to the PIP was a ground for

termination.

Plaintiff acknowledges the FWW and PIP, but

she disputes the reasons underlying them.

Again, the

dispute with regard to the underlying reasons is not
dispositive.
On November 29, 2010, Plaintiff provided Jo-Ann Davis,
-6-

Director of Human Resources Consulting and Employee
Relations, a draft copy of a complaint Plaintiff had
prepared to file with the Massachusetts Commission Against
Discrimination (“MCAD”).

On December 1, Plaintiff filed the

complaint with the MCAD, alleging retaliation for reporting
sexual harassment and taking FMLA leave.

On December 6,

Defendant determined that Plaintiff’s behavior had not
improved and suspended Plaintiff.

On December 8, Plaintiff

was terminated.
Plaintiff claims that the termination was the result of
taking FMLA leave and reporting her co-workers’ sexual
harassment.

Defendant contends that there was a pattern of

behavior on Plaintiff’s end that warranted the action.
Plaintiff has brought suit for retaliation under the FMLA,
retaliation under Mass. Gen. Laws ch. 151B, § 4 for
reporting sexual harassment, and retaliation under Mass.
Gen. Laws ch. 151 for filing a complaint with the MCAD and
taking FMLA leave.

As noted above, the only issue raised by

the Motion for Partial Summary Judgment is Plaintiff’s claim
for retaliation under the FMLA.
III.

DISCUSSION
-7-

A.

Partial Summary Judgment
As with all Rule 56 motions, partial summary judgment

is appropriate when there is no genuine issue of material
fact and the movant is entitled to judgment as a matter of
law.

Fed. R. Civ. P. 56; Reich v. John Aldern Life Ins.

Co., 126 F.3d 1, 6 (1st Cir. 1997).

The court must view the

facts in the light most favorable to the non-moving party,
drawing all reasonable inferences from those facts in that
party’s favor.

Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt.,

369 F.3d 584, 588 (1st Cir. 2004).
In the absence of direct evidence, the familiar threestep McDonnell Douglas framework applies to retaliation
claims under the FMLA.

Hodgens v. Gen. Dynamics Corp., 144

F.3d 151, 160-61 (1st Cir. 1998).

First, a plaintiff must

establish a prima facie case of retaliation.

Id. at 161.

Once established, the burden of production shifts to the
defendant to offer a legitimate, non-retaliatory reason for
the adverse employment action.

Id.

If the defendant

successfully meets its burden, the ultimate burden of
persuasion rests with the plaintiff to prove that the
proffered reason is a pretext for retaliation.
-8-

Id.

A prominent issue in this case is whether temporal
proximity of an adverse employment action to a statutorily
protected activity (here, Plaintiff’s invocation of FMLA
rights), without more, is sufficient for Plaintiff to make
out her prima facie case of retaliation.

If it is, or at

least can be, the next question becomes whether the close
sequence of events is enough to establish that an alleged,
legitimate reason for the termination was a pretext for
retaliation.

While Plaintiff takes issue with this

characterization of the case, she has failed, in her briefs
and at oral argument, to present any significant independent
evidence supporting her claim of FMLA retaliation.3

As the

analysis below demonstrates, although Plaintiff’s
allegations are enough to move her past the prima facie
3

Plaintiff relies on three pieces of evidence: first,
the short interval between her FMLA leave and her
termination; second, the failure of Defendant to penalize
Plaintiff before her FMLA leave; and, third, the supposed
unreliability of some of Defendant’s witnesses since they
were the same employees Plaintiff accused of sexual
harassment. The first two pieces of evidence speak to the
proximity of the protected activity and the adverse
employment action. The third, while potentially bearing on
general credibility, is more directly relevant to
Plaintiff’s claim for retaliation based on her reporting of
sexual harassment and is insufficient to carry Plaintiff
through the final stage of the FMLA retaliation analysis.
-9-

threshold, they are not enough to paint Defendant’s
explanation as pretext.
1.

Plaintiff’s Prima Facie Case of Retaliation.

To establish a prima facie case of retaliation, a
plaintiff must show: (1) that the plaintiff exercised a
protected right; (2) an adverse employment action was taken
against the plaintiff; and (3) there is a causal connection
between the employee’s protected activity and the adverse
employment action.

Id.

There is no question that Plaintiff satisfies the first
two requirements.

She clearly exercised a protected right

in taking FMLA leave, and her termination serves as an
adverse employment action.4

The central inquiry here is

whether Plaintiff has met her third requirement, or, more
concretely, whether temporal proximity between a protected
right and an adverse action, without more, satisfies this
4

While the parties agree that Plaintiff’s termination
was an adverse employment action, they disagree over whether
it was the only one. Specifically, they diverge over
whether the FWW and PIP also constituted an adverse action.
The law is not clear on this question. Compare Billings v.
Town of Grafton, 515 F.3d 39 (1st Cir. 2008), with Bhatti v.
Trustees of Boston Univ., 659 F.3d 64 (1st Cir. 2001). The
court will assume for purposes of this motion that the FWW
and PIP were adverse employment actions.
-10-

element.
The prima facie requirement is a low bar to overcome,
and case law suggests that temporal proximity may, at least
in some instances, be sufficient to carry a plaintiff’s case
over it.

However, “[t]he cases that accept mere temporal

proximity between an employer’s knowledge of protected
activity and an adverse employment action as sufficient
evidence of causality to establish a prima facie case
uniformly hold that the temporal proximity must be ‘very
close.’”

Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268,

273-74 (2001) (citing O’Neal v. Ferguson Constr. Co., 237
F.3d 1248, 1253 (10th Cir. 2001)); Richmond v. ONEOK, Inc.,
120 F.3d 205, 209 (10th Cir. 1997) (three-month period
insufficient); Hughes v. Derwinski, 967 F.2d 1168, 1174-75
(7th Cir. 1992)(four-month period insufficient).
In this circuit, a close relationship between the time
of the protected activity and the adverse action is
“strongly suggestive of retaliation.”

Oliver v. Digital

Equip. Corp., 846 F.2d 103, 110 (1st Cir. 1988)(citation
omitted).

Both a one-month and two-month interval between a

protected activity and adverse action have been classified
-11-

as “close enough” to imply retaliation for purposes of the
prima facie case.

See Mariani-Colon v. Dep’t Homeland Sec.

ex. rel. Chertoff, 511 F.3d 216, 224 (1st Cir. 2007)(twomonth period sufficient); Caleo-Cerezo v. U.S. Dep’t of
Justice, 355 F.3d 6, 25-26 (1st Cir. 2004)(one-month period
sufficient); contra Furtado v. Standard Parking Co., 820 F.
Supp. 2d 261, 273 (D. Mass. 2011)(one-year period
insufficient).
In this case, Plaintiff was reprimanded six weeks after
she returned from FMLA leave, and was terminated two weeks
after that.

This timing is close enough to suggest a

retaliatory motive as a preliminary matter.

A reasonable

jury, looking solely at the sequence of events -- without
any responsive explanation by Defendant -- could conclude
that Defendant unlawfully retaliated against Plaintiff.
Therefore, at this stage of the analysis, Plaintiff has
established a prima facie case and the burden of production
shifts to Defendant.
2.

Defendant’s Legitimate, Non-Retaliatory Reason.

Once a plaintiff has established a prima facie case of
retaliation, the burden of production shifts to the
-12-

defendant to offer a legitimate, non-retaliatory reason for
the adverse action.

Hodgens, 144 F.3d at 160-61.

too, is a fairly low threshold.

This,

Espinal v. Nat’l Grid NE

Holdings 2, LLC, 794 F. Supp. 2d 285, 292 (D. Mass. 2011).
Defendant need only put forth some evidence that the adverse
action occurred for a legitimate reason.

See e.g., Clay v.

City of Chicago Dep’t of Health, 143 F.3d 1092, 1094 (7th
Cir. 1998)(finding the defendant’s evidence of the
plaintiff’s poor performance, which included grievances, coemployee testimony, and evaluations, enough to meet this
burden).
Defendant has presented more than enough evidence to
satisfy its burden at this stage.

First, Defendant has

pointed to a documented pattern of increasingly negative
performance evaluations, beginning in 2007 and becoming more
serious as time progressed.

This evidence undermines any

argument that Defendant has fabricated a post-hoc
justification for its actions.
Second, Defendant has a coherent explanation for the
timing of events.

Defendant relies on the testimony of

other employees who complained about Plaintiff’s behavior.
-13-

Several of the employees testified in their depositions
about their problems with Plaintiff.

When those complaints

intensified, Defendant conducted an “environmental scan” of
the department and attempted to work with Plaintiff to
improve her behavior.

Plaintiff’s continuing poor

performance provides a fair explanation for Defendant’s
decision to reprimand and ultimately terminate Plaintiff.
Significantly, the court’s analysis does not change if
Plaintiff is correct in her claim that some of her fellow
employees were concocting stories about her because they
resented her reporting them for sexual harassment.

The

undisputed fact that a substantial number of Plaintiff’s coworkers were reporting their unhappiness with Plaintiff’s
conduct on the job provides material support to Defendant’s
proffered justification for its decision to terminate
Plaintiff.

Ahmed v. Berkshire Med. Ctr., Inc., No. CIV. A.

94-30250-FHF, 1998 WL 157016, *7 (D. Mass. 1998).
Defendant’s reliance on those complaints, even recognizing
that Plaintiff now disputes them, is sufficient to
demonstrate a bona fide basis for its adverse employment
action.
-14-

In sum, Defendant has assembled a significant record
detailing a suitable explanation for its actions.

As such,

it has met its burden of production at the second stage of
the analysis, and the burden shifts back to Plaintiff.
3.

Pretext.

Once a defendant has met its burden of production, the
ultimate burden of persuasion shifts back to the plaintiff.
To survive summary judgment, a plaintiff must provide
evidence raising a genuine issue of material fact as to
whether the defendant’s legitimate, non-retaliatory reason
was a pretext for retaliation.

At this point of the

analysis, the presumption of retaliation no longer exists.
Henry v. United Bank, 686 F.3d 50, 56 (1st Cir. 2012).
A plaintiff can show pretext “either directly by
persuading the court that a discriminatory reason more
likely motivated the employer, or indirectly by showing that
the employer’s proffered explanation is unworthy of
credence.”

Texas Dep’t of Comm. Affairs v. Burdine, 450

U.S. 248 (1981).

To show pretext directly, a plaintiff will

typically rely on a statement by a decision-maker
demonstrating retaliatory motive or evidence that other
-15-

similarly situated employees were not sanctioned.

See

Colburn v. Parker Hannifan/Nichols Portland Div., 429 F.3d
325, 338 (1st Cir. 2005).
Here, the record contains no such direct evidence, and
Plaintiff’s indirect evidence of temporal proximity, even if
satisfactory for Plaintiff to establish her prima facie
case, is not enough, without more, to show pretext.

As the

Fifth Circuit has aptly stated,
Close timing between an employee’s protected
activity and an adverse action against him may
provide the ‘causal connection’ required to make
out a prima facie case of retaliation . . . .
However, once the employer offers a legitimate,
non-discriminatory reason that explains both the
adverse action and the timing, the plaintiff must
offer some evidence from which the jury may infer
that retaliation was the real motive.
Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.
1997).

The First Circuit has found, on at least two

occasions, a temporal connection adequate for the prima
facie case, but inadequate on this final stage.

See Henry,

686 F.3d at 57 (noting that the timing needs to be
overwhelmingly suggestive of a non-retaliatory reason to
prove pretext); Calero-Cerezo, 355 F.3d at 25-26.

Unless

the timing speaks for itself, this requirement makes sense.
-16-

Once a defendant has offered an acceptable explanation for
the sequence of events, a plaintiff needs to provide some
evidence to explain why that explanation is invalid.
The timing here, at least at the third stage of
analysis, has negligible probative value.

Although the

adverse action did occur after Plaintiff’s FMLA leave, the
surge of negative reports about Plaintiff and her failure to
respond to the warning and performance improvement plan
offer an explanation for why the termination occurred when
they did.

The timing alone, especially given this

explanation, does not suggest retaliation.

For Plaintiff to

establish pretext here, she needed to provide evidence that
directly or indirectly implied a retaliatory motive.
the record reveals no such evidence.

Here,

Without any basis

beyond timing, a reasonable jury simply could not find that
Defendant’s explanation constitutes a pretext for
retaliation based on her invocation of her FMLA rights.
Ultimately, though Plaintiff succeeds in establishing a
prima facie case, she cannot overcome Defendant’s
legitimate, non-retaliatory explanation.

As a result, there

is no genuine issue of material fact, and summary judgment
-17-

in Defendant’s favor on this claim is appropriate.
B.

Remaining State-Law Claims
Once there is no claim over which a federal court would

have original jurisdiction, it is within that court’s
discretion to determine whether to retain supplemental
jurisdiction over the remaining state-law causes of action.
28 U.S.C. § 1367(c)(3); Carslbad Tech., Inc. v. HIF Bio,
Inc., 556 U.S. 635, 639 (2009).

In making this

determination, a court should consider “the interests of
fairness, judicial economy, convenience and comity.”
Camelio v. Am. Fed’n, 137 F.3d 666, 672 (1st Cir. 1998).
These factors make it clear that the remaining statelaw claims should be retained for trial.

First, the parties

have completed discovery and are essentially ready for trial
on the remaining claims.

Dismissing the case at this point

would cause needless delay.

Second, this court is now

sufficiently familiar with the matter that it is in the
interest of judicial economy to retain it.

Finally, as a

matter of fairness, Plaintiff is entitled to her day in
court.

Plaintiff originally filed this case in state court.

Defendant removed the case to this court but is now seeking
-18-

to return to the original forum.

It would be unfair to

Plaintiff to allow Defendant to play ping-pong with the case
in this way.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for
Partial Summary Judgment (Dkt. No. 57) is hereby ALLOWED.
The court will retain supplemental jurisdiction over the
remaining state-law claims.

The clerk will now schedule the

case for a final pretrial conference on those remaining
issues.
It is So Ordered.

/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

-19-