Katica v. Webster Bank, N.A.

Filing 52

Judge Michael A. Ponsor: MEMORANDUM AND ORDER entered. As follows: For the reasons stated, Defendants Motion for Summary Judgment (Dkt. No. 31 ) as to counts IV and VI, on the limited theory that Plaintiff was denied a promotion toa customer servic e representative position based on her pregnancy and national origin, is hereby DENIED. Defendants motion is hereby ALLOWED as to all remaining counts. The clerk shall schedule the matter for a final pretrial conference on the two remaining claims. It is So Ordered. See the attached memo and order for complete details. (Lindsay, Maurice)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
LUTVIJA KATICA,
Plaintiff,

)
)
)
)
) C.A. NO. 13-cv-30072-MAP
)
)
)

v.
WEBSTER BANK, N.A.,
Defendant.

MEMORANDUM & ORDER REGARDING
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
(Dkt. No. 31)
July 18, 2014
PONSOR, U.S.D.J.
I.

INTRODUCTION

Plaintiff Lutvija Katica has brought suit in eight
counts against her former employer, Defendant Webster Bank.
She has asserted claims under the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12101, et seq., and
Mass. Gen. Laws. ch. 151B, for disability discrimination,
pregnancy discrimination, national origin discrimination,
and retaliation.

On April 11, 2014, Defendant filed the

pending Motion for Summary Judgment.

(Dkt. No. 31.)

Because a genuine dispute of fact exists with respect to
Plaintiff’s claim that she was denied a promotion for

improper reasons, the court will deny Defendant’s motion as
to counts IV and VI on that limited theory.

However, since

Plaintiff cannot succeed on any other claim, the court will
allow the balance of Defendant’s motion.
II. BACKGROUND FACTS1
Plaintiff, Lutvija Katica (a/k/a “Seka”), was born in
Bosnia and came to the United States in 2000.

Defendant,

Webster Bank, is a national bank with its main office in
Waterbury, Connecticut.

Plaintiff began working for

Defendant on October 4, 2010, as a “floating” branch
customer service representative at twelve banking centers in
Springfield, Massachusetts.

Angela Chirico, Defendant’s

Senior Vice President, oversaw the Springfield market, and
Adam Cherry served as Plaintiff’s human resources (“HR”)
contact.
In 2011, Plaintiff was pregnant with her second child.
During her pregnancy, Plaintiff was occasionally denied the
ability to use the restroom despite an increased need to do
so.

Her supervisors also required her to bend and lift

1

Unless otherwise noted, the facts are drawn from
Defendant’s Statement of Material Facts (Dkt. No. 32),
Plaintiff’s Response to Defendant’s Statement of Material
Facts (Dkt. No. 44), and the documents referenced therein.
2

heavy items in spite of the fact that her pregnancy made
this difficult, and on one occasion her immediate
supervisor, Ms. Debra Lizon, called her “huge.”
Dep. I 65:22-23, Dkt. No. 44, Ex. 4 at 18.)

(Katica

During this

time, Plaintiff also attempted to wear certain maternity
apparel, such as open-toe shoes, but her supervisors
required her to change into less comfortable clothes that
conformed to Defendant’s requirements for attire.
Plaintiff gave birth on August 20, 2011.

During her

delivery, she experienced a back injury and, subsequently,
suffered from postpartum depression.

Consequently, she took

a leave of absence that Defendant approved through October
3, 2011.

Plaintiff sought an extension of her leave, which

Defendant approved through November 1, 2011.
During this leave, Plaintiff applied for a vacant
customer service representative position with Defendant.
The position did not involve an increase in pay, and
Plaintiff even would have lost money to cover her
transportation expenses.

Nonetheless, the new job would

have allowed her to work at a single branch, and it could

3

have opened up more opportunities to advance within the
company.2
Although Plaintiff was expected to return to work on
November 1, 2011, she requested another extension of her
leave at that time.

In support of that request, Plaintiff’s

chiropractor provided a note stating, “The patient may
return to work on November 8, 2011, without restrictions.”
(Dkt. No. 32, Ex. 5 at 20.)

However, Defendant took the

position that, due to understaffing, it needed to fill the
“float” position.

Mr. Cherry informed Plaintiff that

Defendant would advertise the position, but she could return
before it was filled.

Plaintiff testified that Mr. Cherry,

in threatening tones, urged her to return to work
immediately.

(Katica Dep. II 42:2-8, Dkt. No. 44, Ex. 5 at

13.)
Plaintiff did resume work on November 8, 2011.

When

she did, Defendant began accusing her of making errors.
2

Plaintiff also applied for a vacant senior teller
position around the same time. It is undisputed that Ms.
Chirico told Plaintiff that she did not have the requisite
experience to be promoted to a senior teller job. It is
also undisputed that Plaintiff did not, in fact, have the
necessary qualifications required for that position. In the
end, she did not receive the promotion.
4

These included: cashing post-dated checks, cashing a check
without a proper endorsement, and making “batching”
mistakes.

Plaintiff denied these accusations.

In her view,

her managers and co-workers were simply, and increasingly,
rude to her, even expressing objections when she needed to
go to the restroom to use a breast pump.

They even,

according to Plaintiff, flatly denied her the opportunity to
use the restroom on several occasions.
On November 22, 2011, Ms. Chirico met with Plaintiff to
talk about her mistakes.
Plaintiff applied for.

They also discussed the position
According to Plaintiff’s testimony,

Ms. Chirico stated that Plaintiff would not get the customer
service representative job because of her language skills,
her accent, and her constant need to use the restroom.
Defendant denies that Ms. Chirico made this statement.
Three days later, Plaintiff sent an e-mail to Mr.
Cherry referring to the meeting with Ms. Chirico.

Plaintiff

complained about a general lack of opportunity to advance
and stated that she felt people were treating her poorly
because she was a breast-feeding mother.

She did not,

however, recount Ms. Chirico’s alleged statements.
5

As a result of this meeting, Mr. Cherry investigated
Plaintiff’s complaints.

Plaintiff, during the

investigation, described co-workers’ facial expressions and
stated that she believed people constantly stared at her.
She also repeated her charge that her access to the restroom
was unduly limited.

Mr. Cherry ultimately concluded that

the Springfield staff was fine with Plaintiff using the
restroom as often as she needed, but, like every other
employee, Plaintiff needed to obtain coverage at the teller
line before she stepped away.

On December 16, 2011,

Plaintiff and Mr. Cherry discussed the matter, and Plaintiff
informed him that the situation had improved.
On December 28, 2011, a customer at the Vernon banking
center spoke with Karen Green, an Assistant Manager, about
an employee named “Seka.”

The customer stated that she went

to the bank on November 30, 2011, to deposit a check and the
teller asked her multiple times if she wanted to open a new
credit card.

Defendant had offered a number of incentive

plans to its employees.

One such offer awarded an employee

ten dollars for every customer he or she signed up for a
credit card.

The customer reported that, although she
6

indicated no interest in a new card, she still observed
Plaintiff entering information into the computer.

Feeling

uncomfortable, the customer asked Plaintiff to print out
what she was preparing.

The customer kept the paper and

wrote “told her did not want & did not sign”; “make sure not
generated” and “hold until Feb 2012! Then shred.”
32, Ex. 9 at 5.)

(Dkt. No.

Nonetheless, the credit card company later

informed the customer that a credit card application had
been submitted and was declined because her income was
listed, incorrectly, at $10,000.
On January 4, 2011, Ms. Chirico, who had been on
vacation at the time of the customer’s complaint, returned
to work and learned of the matter.

She spoke with the

customer, asked Ms. Green for information about the
transaction, obtained the screen-shot of the application
(which showed Plaintiff’s name), and reviewed the customer’s
deposit slip, which carried the number of the cash register
assigned to Plaintiff that day.

Based on that information,

Ms. Chirico concluded that Plaintiff was, in fact, the
responsible teller.

At that point, she discussed the matter

with Mr. Cherry, and they determined that Plaintiff’s
7

misconduct, if it had occurred, warranted termination.
Nonetheless, they wanted to provide Plaintiff an opportunity
to defend herself before they acted.
Plaintiff was on an unrelated medical leave from
January 4, 2012, to February 20, 2012.

When she returned to

work, Ms. Chirico immediately approached Plaintiff about the
credit card incident.

Plaintiff denied the allegations, as

she has continued to do during this litigation.

It is

undisputed that Ms. Chirico and Mr. Cherry made the final
decision to terminate Plaintiff some time between roughly
February 21 and February 29, 2012.
52.)

(Dkt. No. 32, Ex. 5 at

On February 29, 2012, Ms. Chirico and Mr. Cherry

exchanged final drafts of the termination notice.
54-56.)

(Id. at

The only other person they consulted about the

decision to terminate Plaintiff was Mr. Cherry’s supervisor,
Becky Lowry.
On February 28, 2012, Plaintiff arrived late to work.
Her supervisor reprimanded her and asked her if she
understood a recent change to her schedule.

Plaintiff

believed that she was asked this question solely because she
was from another country.

On March 1, 2012, around 11:30
8

a.m., Plaintiff sent Mr. Cherry an e-mail about that
incident along with a general complaint about
discrimination.

(Supplemental Cherry Aff. ¶ 2, Dkt. No. 48,

Ex. 1.)
On March 5, 2012, Ms. Chirico and Mr. Cherry terminated
Plaintiff because of the credit card incident.

Plaintiff

asked if she could apply for a job in the future, and Mr.
Cherry informed her that she was “free to apply for future
employment.”

(Cherry Dep. 74:15-24 – 75:1, Dkt. No. 44, Ex.

2 at 21.)
In July 2012, Plaintiff filed a charge of
discrimination with the Equal Employment Opportunity
Commission (“EEOC”) and the Massachusetts Commission Against
Discrimination (“MCAD”) for sex (pregnancy) discrimination;
national origin (ethnicity) discrimination; retaliation; and
harassment (gender/ethnicity) under Title VII and Mass. Gen.
Laws Ch. 151B.

On September 9, 2012, the EEOC issued a

dismissal and right to sue notice.
2012, did the same.

MCAD, on October 2,

On December 20, 2012, Plaintiff filed a

second complaint with the EEOC requesting dual filing with
MCAD.

At this point, she alleged disability discrimination.
9

The EEOC provided a second notice of a right to sue on
January 15, 2012.
Plaintiff originally filed her complaint in state
court, pursuant to chapter 151B, on February 19, 2013.

On

March 29, 2013, Defendant, invoking diversity jurisdiction,
removed the case.

(Dkt. No. 1.)

Plaintiff, on April 2,

2013, filed an amended complaint asserting claims for: (I)
discrimination under the ADA, 42 U.S.C. § 12101; (II)
failure to provide a reasonable accommodation under the ADA;
(III) retaliation under the ADA; (IV) gender, sex, and
pregnancy discrimination in violation of chapter 151B; (V)
disability discrimination in violation of chapter 151B; (VI)
race, ethnicity, and national origin discrimination in
violation of chapter 151B; (VII) retaliation-harassment in
violation of chapter 151B; and (VIII) retaliationtermination in violation of chapter 151B.

(Dkt. No. 3.)

On April 11, 2014, Defendant filed the pending Motion
for Summary Judgment.

(Dkt. No. 31.)

Plaintiff, in her

opposition, conceded that her disability-discrimination
claims, Counts I-III and V were properly subject to
dismissal.

(Pl.’s Mem. Of Law in Opp’n 2, Dkt. No. 47.)
10

Counsel appeared for argument on the remaining counts on May
14, 2014, and the court took the matter under advisement.
III.

DISCUSSION

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(a).

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).
Though Plaintiff does not oppose dismissal of her
disability discrimination claims, she vigorously opposes
Defendant’s motion with respect to the remaining four
counts.

Though the analysis will overlap at times, this

memorandum will address each remaining one in turn.
A.

Count IV: Gender, Sex, and Pregnancy Discrimination
Plaintiff raises one count of gender, sex, or pregnancy

discrimination under chapter 151B.

She grounds this claim

on two theories: hostile work environment and disparate
treatment.

Because the parties primarily focus on the

11

hostile work environment contention, the court will address
that argument first.
1.

Hostile Work Environment

To establish the existence of a hostile work
environment, Massachusetts law takes its cue from Title VII
and requires a plaintiff to show that: (1) she is a member
of a protected class; (2) she experienced uninvited
harassment; (3) the harassment was based on sex;3 (4) the
harassment was so severe or pervasive as to create an
abusive work environment; (5) the harassment was objectively
and subjectively offensive; and (6) some form of employer
liability exists.

Douglas v. J.C. Penney Co., Inc., 422 F.

Supp. 2d 260, 280 (D. Mass. 2006).
At summary judgment, the analysis typically hinges on
whether the harassment was severe or pervasive.

“The thrust

of this inquiry is to distinguish between the ordinary, if
occasionally unpleasant, vicissitudes of the workplace and
3

Under state law, any classification based on pregnancy is
a distinction based on sex. Mass. Elec. Co. v. Mass. Comm’n
Against Disc., 375 Mass. 160, 167 (1978). The Supreme
Judicial Court has also indicated that a lactating mother is
provided the full protections of the anti-discrimination
statutes. Currier v. Nat’l Bd. of Med. Exam’rs, 462 Mass.
1, 16 (2012).
12

actual harassment.”
(1st Cir. 2005).

Noviello v. Boston, 398 F.3d 76, 92

Factors to consider include, “the severity

of the conduct, its frequency, whether it is physically
threatening or not, and whether it interfered with the
victim’s work performance.”

Gerald v. Univ. of P.R., 707

F.3d 7, 18 (1st Cir. 2013).

Although the inquiry is fact-

specific, a court has a duty to limit claims to those that a
reasonable juror could find to be hostile or abusive.

See

Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83 (1st
Cir. 2006).
To support her claim that she experienced a hostile
work environment, Plaintiff alleges –- through her own,
fairly broad testimony –- five incidents of harassment.

The

first four focus on her experience while she was pregnant.4
First, she contends that her supervisors gave her a
hard time about missing work for medical appointments during
her pregnancy.

According to Plaintiff, her supervisors

4

Defendant believes that these four assertions are
untimely. The court need not determine whether Defendant is
correct or whether the “continuing violation” doctrine
applies, see, e.g., Silvestris v. Tantasqua Reg’l Sch.
Dist., 446 Mass. 756 (2006), as Plaintiff cannot succeed
even if the court considers these events.
13

became upset and angry when Plaintiff requested time off.
Consequently, Plaintiff had to schedule her appointments for
non-work hours.
at 28.)

(Katica Dep. I 103:2-10, Dkt. No. 44, Ex. 4

Second, Plaintiff’s supervisors denied her the

ability to wear maternity clothes –- such as open-toe shoes
–- during her pregnancy.

When Plaintiff arrived to work in

such outfits, her supervisors required her to change to
comply with Defendant’s requirements for attire.

Third, on

several occasions during her pregnancy, Plaintiff was told
to lift heavy files or carry cash drawers.

Though Plaintiff

asked to be exempt from this work, those requests were
rebuffed.

Fourth, on one occasion, Ms. Lizon, Plaintiff’s

immediate supervisor, told Plaintiff that she looked “huge.”
(Katica Dep. I 65:22-23, Dkt. No. 44, Ex. 4 at 18.)
The final form of harassment Plaintiff discusses stems
from the time after she gave birth and her associated need
to use a breast pump.

Though she discusses this period at a

number of different places in her memorandum, her general
complaint is that Defendant denied her the ability to use
the pump at will and her co-workers negatively reacted to
that need.

Specifically, on at least five dates,
14

Plaintiff’s supervisors denied her request to use the
restroom.

On unspecified occasions, Plaintiff alleges that

Defendant even denied Plaintiff her normal breaks.

On those

instances where she was able to use the restroom, co-workers
would often ask if she had permission to do so and would
tell her to be quick.

It is conceded that these reactions

usually coincided with an increase in the number of
customers present at the bank.
Even crediting these allegations, two problems emerge.
First, the bulk of Plaintiff’s allegations are essentially a
reasonable accommodation claim recast under a hostile
workplace label.

Had Plaintiff chosen to pursue her

disability discrimination claims, they might possibly have
formed the basis for a claim that Defendant had denied her
an accommodation that would have allowed her to perform the
functions of her job.

However, the picture painted by these

allegations, unpleasant and distressing as it may appear,
fails to depict a landscape of intimidation and humiliation
required to constitute harassment.

See Prescott v. Higgins,

538 F.3d 32, 42 (1st Cir. 2008)(stating that Massachusetts
law defines a hostile work environment as one “pervaded by
15

harassment or abuse, with the resulting intimidation,
humiliation, and stigmatization,” limiting a plaintiff’s
ability to participate fully in the workforce)(internal
quotations omitted).
The larger problem for Plaintiff –- assuming that all
of the allegations were proved to be some form of harassment
–- is that a reasonable juror simply could not conclude that
the conduct in question was sufficiently severe or pervasive
to rise to the level of a hostile environment.

Plaintiff’s

allegations focus on a matter of a few months, during
several of which she was out of work on medical leave.
Moreover, Plaintiff provides minimal, concrete evidence
respecting the consistency of the alleged harassment.

The

most frequent harassment she alleges is the multiple times
Defendant denied Plaintiff permission to use the restroom.
Even if the court assumes that the other problems Plaintiff
describes occurred with similar frequency, they are still a
far cry from a consistent form of conduct that can be deemed
pervasive.

See Alfano v. Costello, 294 F.3d 365 (2d Cir.

2002)(noting that twelve incidents over a five year span was
not pervasive).
16

Absent allegations of pervasive conduct, Plaintiff must
show that the actions were so severe as to alter the
conditions of her employment.

See Marrero v. Goya of P.R.,

Inc., 304 F.3d 7, 19 (1st Cir. 2002).

The harassment here,

however, does not approach that threshold.

Though

Plaintiff’s immediate supervisors may have treated her
poorly, no individual ever threatened Plaintiff’s physical
well being, nor did she suffer from a consistent barrage of
insults.

At worst, her supervisors to some extent abused

their authority, and her co-workers were rude to her.

See

Lee-Crespo v. Schering-Plough Del Caribe, Inc., 354 F.3d 34,
46-47 (1st Cir. 2003)(stating that eradicating such conduct
is not the goal of the anti-discrimination statute).
Particularly telling on the severity question is
Plaintiff’s failure to establish that the events “negatively
affected her work performance.”

Medina v. Adecco, 561 F.

Supp. 2d 162, 173 (D.P.R. 2008), citing Pomales, 447 F.3d at
83; Lee-Crespo, 354 F.3d at 46.

Indeed, in contending that

her termination was not related to her performance, as will
be seen below, Plaintiff repeatedly argues that her work

17

remained consistent and never fell below an acceptable
level.
In the end, the evidence to support the claim that
Plaintiff experienced a hostile work environment cannot be
found in this record.
2.

Disparate Treatment

In support of her claim for pregnancy discrimination
Plaintiff also offers a disparate treatment theory.

Absent

direct evidence, Plaintiff can make out a prima facie case
of disparate treatment by showing: “(1) she was pregnant at
the relevant time, (2) her performance was satisfactory, but
(3) her employer nevertheless took some adverse employment
action against her while, (4) treating non-pregnant
employees differently.”

Gorski v. N.H. Dep’t of Corr., 290

F.3d 466, 475 (1st Cir. 2002).

If Plaintiff makes out a

prima facie case, the burden of production shifts to
Defendant to offer a legitimate, non-discriminatory reason
for the adverse employment action.

Benoit v. Technical Mfg.

Corp., 331 F.3d 166, 173 (1st Cir. 2003)(noting that the
McDonnell Douglas framework applies to claims under chapter
151B).

If Defendant carries this burden, the ultimate
18

burden of persuasion rests with Plaintiff to show that
Defendant’s proffered reason was a pretext for
discrimination.
Plaintiff believes she was treated adversely in two
ways.

First, she argues she was terminated because of her

need to use a breast pump post-pregnancy.

On this point, it

is questionable whether Plaintiff has satisfied her prima
facie burden given the dearth of evidence indicating that
non-breast-feeding employees were given more generous
opportunities to use the restroom than Plaintiff was.
Nonetheless, the court will assume for purposes of the
motion that Plaintiff has established her prima facie case.
Relying on that assumption, the burden of production
shifts to Defendant to provide a legitimate, nondiscriminatory reason for its decision to terminate
Plaintiff.

That burden is not onerous, Espinal v. Nat’l

Grid NE Holdings 2, LLC, 794 F. Supp. 2d 285, 292 (D. Mass.
2011), and Defendant undoubtedly satisfies it in this case.
Defendant has provided evidence supporting its claim that it
terminated Plaintiff for signing a customer up for a credit
card against that individual’s express wishes.
19

(Dkt. No.

32, Exs. 5, 8, & 9.)

This was in direct violation of

Defendant’s policies, and Defendant chose to respond by
terminating Plaintiff.
Since Defendant has met its burden, the prima facie
case vanishes, and Plaintiff’s claim hinges on the final
step of the analysis.

St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 507 (1993).

Here, the question is whether

Plaintiff has presented evidence to raise a genuine issue of
material fact that Defendant’s proffered reason was a
pretext for discrimination.

Plaintiff provides four

arguments.5
Plaintiff’s predominant argument is that, despite
Defendant’s allegations, she did not sign a customer up for
a credit card against that individual’s wishes.

However,

even if, arguendo, Plaintiff convinced a jury that she was
not the individual responsible for the credit card
transaction, Defendant’s good faith, but mistaken, belief
would still constitute a legitimate reason for the

5

Plaintiff breaks these arguments into a number of
different categories. The court has considered each and, to
the extent they have potential merit, incorporated them into
these four contentions.
20

termination.

Ronda-Perez v. Banco Bilbao Vizcaya

Argentaria—P.R., 404 F.3d 42, 45 (1st Cir. 2005)(noting that
the question is not whether the proffered reason is false,
but whether the employer actually believed it to be real).
Critically, no evidence intimates any bad faith on
Defendant’s part.
Plaintiff also questions the timing of the termination.
The event occurred in November 2011, but Defendant did not
terminate her until March 2012.

This gap, Plaintiff says,

implies that the credit card transaction was not the real
reason for the decision.
explains the interval.

However, the undisputed evidence
The customer did not complain until

the end of December, at which point Ms. Chirico was on
vacation; Plaintiff was then out on medical leave; the
problem was swiftly addressed upon Plaintiff’s return.

In

sum, the “delay” argument is specious.
Next, Plaintiff contends that Defendant had discretion
in how to reprimand Plaintiff; termination was not required.
However, the mere existence of discretion, absent any other
evidence of discrimination, is not sufficient to create a
material question over pretext.
21

Cf. Tex. Dep’t of Cmty.

Affairs v. Burdine, 450 U.S. 248, 259 (1981)(noting that an
employer generally has discretion to act and can do as it
pleases so long as it does not make a decision based on an
unlawful criterion).
Finally, Plaintiff emphasizes Mr. Cherry’s statement at
the time of Plaintiff’s termination.

He allegedly said, “I

told her she was free to apply for future employment.”
(Cherry Dep. 74:24-75:1, Dkt. No. 44, Ex. 2 at 21.)

This

statement, Plaintiff insists, is inconsistent with a
termination based on performance-related issues.

However,

although the court must draw inferences in Plaintiff’s
favor, it is only required to do so if it would be
reasonable and “can be drawn from the evidence without
resort to speculation.”

Mulero-Rodriguez v. Ponte, Inc., 98

F.3d 670, 672 (1st Cir. 1996).

Here, the remainder of Mr.

Cherry’s testimony makes the requested inference
impermissible.

(Cherry Dep. 74:16-18, Dkt. No. 44, Ex. 2 at

21 (“She had asked if she would be eligible to be rehired at
Webster.

I replied she is free to apply to open

positions.”); Cherry Dep. 74:22-24 - 75:1 (“Q: So you told
her you would consider her for future employment? A: I
22

Didn’t. I told her she was free to apply for future
employment.”); Cherry Dep. 75:23-24 – 76:2-4 (Q: Why would
you tell her she could apply? A: Because she has every right
to apply.

It doesn’t mean we are going to select her.”);

Cherry Dep. 76:20-22 (“She asked if she was able to apply
for other positions.

I told her she was.”).)

The only

inference that can be drawn is that Mr. Cherry would not –indeed, could not –- prohibit Plaintiff from applying for a
position with Defendant in the future.

Plaintiff’s argument

on this point again amounts to nothing.
In sum, Plaintiff has failed to provide evidence that
would allow a reasonable juror to conclude that Defendant’s
proffered reason for terminating her was a pretext for
discrimination.
Plaintiff has a second disparate treatment argument.
She avers that she was denied the customer service
representative position on account of her pregnancy.

Two

disputed issues of fact allow this very limited claim to
move forward.
First, the parties dispute whether the customer service
representative position constituted a promotion.
23

Defendant

argues that Plaintiff would have received the same pay and
would have actually lost her mileage expense.

Therefore,

the job should not be considered a promotion.

Plaintiff,

meanwhile, focuses on the convenience of working at one
office and the corresponding opportunities to advance in the
corporation.
If a jury were to accept Plaintiff’s arguments, it could
view the increase in status or the convenience to Plaintiff
as a material increase in benefits, thus making the job
change tantamount to a promotion.

At a minimum, it would

constitute a transfer to a different position.

Either is

considered an actionable, employment decision.

See Nat’l

R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002).
The other disputed issue of fact relates to causation.
Defendant contends that Plaintiff was not selected for the
customer service representative position because of her
performance issues following her return from maternity
leave.

Plaintiff, however, testified under oath -- though

less clearly than with respect to her national origin claim,
discussed in the section below -- that Ms. Chirico denied
Plaintiff the promotion because of her need to use a breast
24

pump.

(Katica Dep. I 136:17-18, Dkt. No. 44, Ex. 4 at 36

(“What she was telling me was based on my taking too much
time to breast pump.”); Katica Dep. I 140:20-22 (“I was a
breast feeding mother and I had to take too much time out of
teller and go breast pump.”).)
Reading Plaintiff’s testimony generously, she provides
a statement by a decisionmaker connecting an adverse
employment action with discriminatory intent.

When evidence

“consists of statements by a decisionmaker that directly
reflect the alleged animus and bear squarely on the
contested employment decision,” it is considered direct
evidence.

Febres v. Challenger Caribbean Corp., 214 F.3d

57, 60 (1st Cir. 2000)(citations omitted).

The presence of

such direct evidence is sufficient to generate a jury issue
on the question of a possibly improper mixed-motive on
Defendant’s part.
(1989).

Price Waterhouse v. Hopkins, 490 U.S. 228

Once a plaintiff demonstrates discrimination as a

motivating factor under the mixed-motive framework, the
burden of persuasion shifts “to the employer, who then must
establish that he would have reached the same decision
regarding the plaintiff even if he had not taken the
25

proscribed factor into account.”

Febres, 214 F. 3d at 60

(citation omitted); see also Wynn & Wynn, P.C. v. Mass.
Comm’n Against Discrimination, 431 Mass. 655, 669 (2000),
overruled on other grounds by Stonehill Coll. v. Mass.
Comm’n Against Discrimination, 441 Mass. 549 (2004).
Here, if a jury accepted Plaintiff’s testimony, it
would constitute direct evidence of discrimination, and
would satisfy Plaintiff’s burden. The burden would thus
shift to Defendant to show that it would have denied her the
new job regardless of her need to use a breast pump.
Because that question is one of fact, this claim must go to
a jury.
Ultimately, Plaintiff’s claim for pregnancy
discrimination cannot move forward on her hostile work
environment theory or her claim that she was terminated for
discriminatory reasons.

However, she does have a right to

have a jury weigh her claim that she was denied a promotion
on account of her pregnancy.
B.

Count VI: National Origin Discrimination6

6

Plaintiff initially pled this as a race, ethnicity, and
national origin claim. However, in opposing Defendant’s
motion Plaintiff exclusively focuses on her claim for
26

Complementing her claim for pregnancy discrimination,
Plaintiff provides two theories to justify her national
origin discrimination claim: one based on a hostile work
environment theory and one on disparate treatment.

The

court will again address each theory independently.7
1.

Hostile Work Environment

The same standard previously discussed applies with
equal force in this context.

Here though, Plaintiff anchors

her claim on Navarro v. U.S. Tsubaki, Inc., 577 F. Supp. 2d
487 (D. Mass. 2008).

In that case, a father, mother, and

son, all of Mexican heritage, sued the same employer for,
inter alia, national origin discrimination.

Id. at 493-99.

At summary judgment, it was undisputed that co-workers told
the father “he should be picking watermelons . . . and
described him as a monkey,” that supervisors “referred to
asking him for help as ‘calling the Alamo,’” and that

discrimination based on her national origin.
7

Defendant broadly argues that Plaintiff cannot proceed on
these claims for failure to exhaust her administrative
remedies. Contrary to Defendant’s contention, Plaintiff
included enough detail in her MCAD complaint to provide the
institution with the information it needed to investigate
the claim. (Dkt. No. 44, Ex. 7 at 3.)
27

co—workers repeatedly pretended not to understand the mother
because of her accent.

Id. at 510.

Moreover, the

plaintiffs alleged that they were subjected to racially
based taunts on a consistent basis for nearly six years.
Id. at 493-99.

Finally, in Navarro the plaintiffs were each

passed over for promotions and disciplined in ways that
their white counterparts were not.

Id.

Plaintiff contends that her case is analogous to
Navarro.
accent.

According to Plaintiff, Ms. Lizon ridiculed her
Another employee, Ms. Talbot, would laugh at

Plaintiff when she spoke or would criticize her for the way
she said certain words.

They would also repeat what she

said and mimic her accent.

On one occasion, she overheard

Ms. Talbot complaining about another employee with an
accent.

Finally, Plaintiff invokes the February 28, 2012,

incident where her supervisors asked her if she understood a
change in the attendance policy.
Navarro does not assist Plaintiff here.

In particular,

the plaintiffs there provided detailed evidence of specific
events over a substantial period of time.

Here, Plaintiff’s

testimony consists solely of broad allegations of rude or
28

inappropriate behavior by two or three of her co-workers.
No details show that the incidents occurred on a consistent
basis, or that she suffered from an “increasingly difficult
environment.”

O’Rourke v. City of Providence, 235 F.3d 713,

729 (1st Cir. 2001).

Moreover, no evidence suggests that

the harassment was particularly severe or longstanding, or
impacted her work.

Simply put, Plaintiff suffered from an

environment that was unpleasant perhaps, but not one that
was hostile.
2.

Disparate Treatment

Plaintiff again focuses on the two adverse employment
decisions –- her termination and the denial of a promotion
-- to form the basis of this disparate treatment claim.

To

succeed in showing that she was terminated on account of her
national origin, Plaintiff must show (1) she belonged to a
protected class; (2) she was performing her job at a level
that ruled out the possibility that she was fired for job
performance; (3) she suffered an adverse employment action;
and (4) her employer sought a replacement for her with
roughly equivalent qualifications or left the position
vacant.

Douglas, 422 F. Supp. 2d at 273.
29

The McDonnell

Douglas burden-shifting framework, as previously described,
applies once Plaintiff can make out her prima facie case.
Plaintiff adequately establishes that she was in a
protected class and that she was terminated.

The court will

assume that she performed her job responsibilities in an
acceptable fashion.

Notably, though, she does not provide

evidence –- nor does she even argue in her memorandum -that Defendant sought a replacement for her with roughly
equivalent qualifications or that the position remained
open.

The failure to make out a prima facie case is

sufficient on its own to sink her claim.

See, e.g., Fields

v. Clark Univ., 966 F.2d 49 (1st Cir. 1992).
However, even if Plaintiff could make out her prima
facie case, the burden of production would shift to
Defendant to provide a legitimate, non-discriminatory reason
for its action.

As discussed before, Defendant more than

carries that burden since it terminated Plaintiff for the
credit card incident.
The ultimate burden of persuasion thus rests with
Plaintiff.

Plaintiff presents the same, previously

discounted, arguments to attack Defendant’s justification.
30

Specifically, she again contends that she was not
responsible for the credit card transaction, that Defendant
had discretion in how to address the event, that the timing
of events implied discrimination, and that Mr. Cherry
informed her that she could reapply for a position with
Defendant.

As described above, each of these arguments has

a fatal flaw rendering the evidence insufficient to allow a
jury to conclude that Defendant’s proffered reason was a
pretext for discrimination.
As she did before though, Plaintiff points to a second,
adverse employment action, the denial of a promotion to a
customer service representative position because of her
national origin.

The evidence here is straightforward.

According to Plaintiff, Ms. Chirico said that Defendant
denied Plaintiff the promotion because of her national
origin.

(Katica Dep. I 137:2-5, Dkt. No. 44, Ex. 4 at 36

(“Q: Did she say to you the fact you were of a different
national origin was the reason you didn’t get the promotion.
A: yes.”); Katica Dep. II 108:14-21 (“Because she said that
they had a better candidate and that other managers, that
she talked to other managers about me and I am not a good
31

candidate about it and she told me because of my language .
. . because of my language skills and my accent.”); Katica
Dep. II 107:19-22 (“Q: Who are you claiming at the Bank told
you you didn’t get the promotion because of your accent and
language skills? A: Angie [Ms. Chircio] and Maureen.”).)
Given this direct evidence of discrimination, the Price
Waterhouse mixed-motive framework governs the court’s
response once again.

Plaintiff is entitled to present to a

jury her claim that her denial of a promotion grew out of
discrimination based on her national origin.
C.

Counts VII & VIII: Retaliation
Plaintiff’s final two counts are for retaliation.

First, she contends that she was retaliated against by way
of harassment, count VII.

To show retaliatory harassment, a

plaintiff must establish: (1) she engaged in a legally
protected activity; (2) she was subjected to a hostile work
environment; and (3) there was a causal connection between
the two.

Colon-Fontanez v. Municip. of San Juan, 660 F.3d

17, 36 (1st Cir. 2011).
Plaintiff relies on the facts previously discussed in
connection with her hostile work environment claims to
32

support her claim of retaliation here.

However, as

demonstrated previously, those events were not objectively
severe or pervasive.

Summary judgment for Defendant is

therefore appropriate on her claim of retaliation based on
harassment.8
Plaintiff’s second retaliation count is anchored on her
termination, count VIII.

For her to succeed, she must first

establish a prima facie case.

To do this, she must prove:

(1) she engaged in protected conduct; (2) she suffered an
adverse employment action (in this case, termination); and
(3) the adverse employment action was causally connected to
the protected activity.
582, 591-92 (2004).

Mole v. Univ. of Mass., 442 Mass.

If and when a prima facie case is made

out, McDonnell Douglas places on Defendant the burden of
production to provide a non-retaliatory reason for the
adverse employment action.

Id. at 591.

Finally, Plaintiff

bears the ultimate burden of persuasion to show that
Defendant’s proffered reason was a pretext for retaliation.
Id.
8

The absence of any causal connection between the
protected activity and the alleged harassment would also
defeat this claim.
33

In terms of her prima facie case, no dispute exists
that Plaintiff engaged in a protected activity by
complaining about discrimination.

Nor do the parties

disagree that Plaintiff was terminated.

The parties contest

the final element –- causation.
The only real evidence of causation Plaintiff can point
to is the temporal proximity between events: she complained
of discrimination on November 25, 2011, and March 1, 2012,
and Defendant then terminated her on March 5, 2012.

Without

considering Defendant’s evidence at this stage, the
extraordinarily close timing between Plaintiff’s second
complaint and her ultimate termination is sufficient to
establish a prima facie case of retaliation.

See Mariani-

Colon v. Dep’t Homeland Sec., 511 F.3d 216, 224 (1st Cir.
2007); Furtado v. Standard Parking Co., 820 F. Supp. 2d 261,
273 (D. Mass. 2011).
The burden of production thus shifts to Defendant.
Defendant’s same legitimate reason for terminating
Plaintiff, as previously described, satisfies this burden.
One key, undisputed fact here is that Defendant made the

34

decision to terminate Plaintiff before February 29, 2012.
(Dkt. No. 32, Ex. 5 at 52.)
The final burden of persuasion therefore rests with
Plaintiff to show that Defendant’s reason was a pretext for
retaliation.

She first relies on the same arguments

provided earlier to establish pretext –- particularly
focusing on her claim of innocence with respect to the
credit card incident.

For the reasons set forth above,

these arguments are without merit.
Plaintiff also emphasizes the timing of events to show
pretext.

Temporal proximity alone can be sufficient to

establish pretext, but only where it is strongly suggestive
of retaliation.
Cir. 2012).

Henry v. United Bank, 686 F.3d 50, 57 (1st

In this case, the termination decision

undisputedly occurred before Plaintiff’s second complaint.
Plaintiff must therefore rely on the three-month gap between
her initial complaint and the termination decision.

That

span, however, is not nearly close enough on its own to
suggest pretext.

See Calero-Cerezo v. U.S. Dep’t of

Justice, 355 F.3d 6, 25-26 (1st Cir. 2004)(one-month
insufficient to show pretext.)
35

More broadly, the “surrounding circumstances undermine
any claim of causation.”

Carrero-Ojeda v. Autoridad De

Energia Electrica, –- F.3d –-, 2014 WL 2786536 at *9 (1st
Cir. June 20, 2014).

No evidence traditionally used to show

pretext, such as a statement by a decision-maker or evidence
of similarly situated employees, exists in this record.

See

Colburn v. Parker Hannifan/Nichols Portland Div., 429 F.3d
325, 338 (1st Cir. 2005).

Indeed, no evidence suggests that

Defendant considered Plaintiff’s complaint at all in its
decision to terminate her.

Absent any such proof, Plaintiff

fails to create a genuinely disputed issue at this final
step of the analysis.

Accordingly, Plaintiff’s final claim

cannot survive summary judgment.
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for
Summary Judgment (Dkt. No. 31) as to counts IV and VI, on
the limited theory that Plaintiff was denied a promotion to
a customer service representative position based on her
pregnancy and national origin, is hereby DENIED.
Defendant’s motion is hereby ALLOWED as to all remaining
counts.
36

The clerk shall schedule the matter for a final pretrial conference on the two remaining claims.
It is So Ordered.
/s/ Michael A. Ponsor
MICHAEL A. PONSOR
U. S. District Judge

37