Reilly v. Cox Enterprises, Inc. et al
Filing
54
MEMORANDUM AND ORDER granting 43 Defendants' Motion for Summary Judgment. So Ordered by Chief Judge William E. Smith on 3/1/2016. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
COX ENTERPRISES, INC., et al.,
)
)
Defendants.
)
___________________________________)
PATRICIA J. REILLY,
C.A. No. 13-785 S
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief Judge.
Before the Court is Defendants’ Motion for Summary Judgment
(“Motion,” ECF No. 43).
Plaintiff filed an Opposition (“Pl.’s
Opp’n,” ECF No. 48) and Defendants filed a Reply (“Defs.’ Reply,”
ECF No. 52).
After careful consideration, Defendants’ Motion is
GRANTED for the reasons that follow.
I.
Background
Plaintiff, Patricia Reilly, is suing her former employer, CCI
Corporate Services, Inc., CoxCom, LLC New England, and affiliated
entities
(collectively,
“Cox”),
and
two
former
supervisors,
Jonathan LaCroix and Mark Scott, for allegedly terminating her
employment after she informed them that she planned to take a
medical leave to have hip surgery, in violation of the Family
Medical
Leave
Act
(“FMLA”).
Reilly
also
alleges
gender
and
disability discrimination in violation of the Rhode Island Civil
Rights Act (“RICRA”), R.I. Gen. Laws § 42-112-1, and the Rhode
Island Fair Employment Practices Act (“FEPA”), R.I. Gen. Laws §
28-5-1 et seq.
Reilly was hired by Cox in June 2004.
Undisputed Facts (“SUF”) ¶ 1, ECF No. 44.)
throughout
reviews. 1
her
tenure
(Id. ¶ 43.)
she
received
(Defs.’ Statement of
It is undisputed that
exceptional
performance
It is also undisputed that in 2006, Reilly
received a written warning that cited an “ongoing pattern of
Communication
that
[was]
unprofessional”
and
was
“leading
to
decreased morale and effectiveness on [her] team and within the
department.” (Id. ¶ 11-16.)
In 2010, one of Reilly’s direct
reports, Joseph Petrucci, filed a petition in the Rhode Island
Workers’
Compensation
Court,
“psychological/work-related
alleging
acute
stress
he
had
disorder”
suffered
caused
a
by
“repetitive harassment and verbal abuse” by Reilly (id. ¶¶ 28-29);
however, Reilly notes that Petrucci’s claim was denied, and she
did not receive any written or verbal warning from Cox as a result
of it.
(Pl.’s Separate Statement of Undisputed Facts (“SSUF”) ¶¶
109-10, ECF No. 50.)
On July 18, 2012, Cox alleges that Reilly approached a coworker, Dennis Hawley, and proceeded to reprimand him in a loud,
1
The parties disagree, however, on the extent to which those
reviews also indicated a need for improvement in Reilly’s
communication with her staff.
2
harsh, and condescending manner.
44.)
(Defs.’ SUF ¶¶ 44-48, ECF No.
Reilly admits that a conversation occurred, but disputes
that she behaved inappropriately during it.
(Pl.’s Statement of
Disputed Facts (“SDF”) ¶ 46, ECF No. 49.)
On July 28, after
receiving a report from Hawley’s direct supervisor, Russ O’Connor,
Reilly’s former supervisor, Mark Scott, referred the matter to
Michelle
Joseph
in
Cox’s
Human
(Defs.’ SUF ¶ 50, ECF No. 44.)
Resources
(“HR”)
Department.
Cox’s HR Department began an
investigation of the incident on August 1, and Debra Cornish,
Director of HR, requested a copy of Reilly’s personnel file.
¶ 53.)
(Id.
Cornish testified at her deposition that she became
involved in the investigation of the Hawley incident because
“[Plaintiff] had a reputation for being abusive . . . to people,”
but “also had a reputation for being a very good sales person and
a solid producer,” so that Cornish “expected that [HR] would get
resistance from the leadership team if there were any disciplinary
actions taken or recommended.”
(Id. ¶ 51.)
Joseph began conducting interviews of Hawley and four other
employee witnesses to the incident, and also began preparing a
written summary of the investigation around August 7 or 8.
¶¶ 54, 56.)
(Id.
According to Joseph’s notes, Hawley indicated in his
witness statement that Reilly was “dictatorial” and that the way
she
had
behaved
was
“completely
inappropriate”
and
“not
acceptable”; he also indicated that “she still does what she does”
3
because “she produces.”
(Id. ¶ 55.)
The four other witnesses
likewise described Reilly’s tone during the July 18 incident as
“demeaning
and
uncomfortable,”
“loud
and
condescending,”
“inappropriate,” and “belittling [and] degrading.”
60.)
(Id. ¶¶ 57-
Joseph’s written summary of this investigation noted, “I
know Mark Scott’s recommendation is Final Written Warning.
I
cannot see any action less than this, but I think this may warrant
termination of employment.”
(Pl.’s SDF ¶ 61, ECF No. 49.)
On August 15, Cornish called Reilly’s supervisor, Jonathan
LaCroix, and informed him that “we could possibly be looking at a
termination for Patricia.”
(Id. ¶ 64.)
According to Cox, LaCroix
expressed concern that Reilly’s termination would have detrimental
effects on Cox’s business because she was such a high performer.
(Defs.’ SUF ¶ 64, ECF No. 44.)
On August 22, Cornish and Joseph
spoke with LaCroix and Scott concerning HR’s investigation and
recommendation.
at
that
(Id. ¶¶ 68-69.)
meeting,
or
Cornish testified that “[i]t was
thereabouts,
that
we
firmed
recommendation to terminate Patricia Reilly’s employment.”
SDF, Ex. 12 [Cornish Dep.] at 69:17-19, ECF No. 49-12.)
up
our
(Pl.’s
LaCroix
likewise testified that “as of the 22nd, I was very aware that the
recommendation coming from HR was termination, and so we were
preparing documentation around [Reilly’s] exit.”
[LaCroix Dep.] at 85:14-17, ECF No. 49-14.)
(Id., Ex 14
That same day, Reilly
had dinner with LaCroix, during which Reilly alleges that she told
4
LaCroix she was planning to have hip surgery, and that it was
tentatively
scheduled
for
October
4. 2
(Id.
¶ 80.)
At his
deposition, LaCroix testified that after the August 22 dinner
meeting, he had discussions with most of the “major players” to
inform them of Reilly’s plan to have hip surgery.
(Id.)
On August 27, LaCroix’s supervisor, Jeremy Bye, sent Scott an
email in which he wrote that “[i]t seems that a Final Written would
be the next step, but not sure of other considerations,” and that
he wanted to “set a call” with the “HR VP” so that they could
“discuss the situation.”
(Id. ¶ 72; Defs.’ SUF ¶ 72, ECF No. 44.)
Later that day, Cox contends that Cornish had a conversation with
Bye, LaCroix, and others “to discuss HR’s decision to terminate
Reilly.”
(Id.; see also Pl.’s SDF, Ex. 13 [LaCroix Interr. Resp.]
at 5, ECF No. 49-13.)
The next day, Reilly alleges that she
informed LaCroix that her surgery date of October 4 had been
confirmed, and he in turn “informed all of the relevant decisionsmakers of the surgery date.”
(Pl.’s SDF ¶ 81, ECF No. 49.)
That
afternoon, there was another conversation between HR, Bye, and
others in which Reilly alleges the decision to terminate her was
made.
(Id. ¶ 81; see also id., Ex. 13 [LaCroix Interr. Resp.] at
2
Defendants contend that Reilly merely said she was “moving
in the direction” of hip surgery, but did not inform LaCroix of a
specific date until August 28.
5
5, ECF No. 49-13.)
discharged.
II.
On August 30, Cox informed Reilly she was being
(Defs.’ SUF ¶ 78, ECF No. 44.)
Discussion
Summary judgment is appropriate “if 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.”
56(a).
Fed. R. Civ. P.
An issue of fact is only considered “‘genuine’ if it ‘may
reasonably be resolved in favor of either party.’”
Cadle Co. v.
Hayes, 116 F.3d 957, 960 (1st Cir. 1997) (quoting Maldonado-Denis
v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994)).
When
deciding a motion for summary judgment, the court must “examine[]
the entire record ‘in the light most flattering to the nonmovant
and indulg[e] all reasonable inferences in that party’s favor.’”
Id. at 959 (quoting Maldonado-Denis, 23 F.3d at 581).
A.
FMLA Retaliation Claim
To state a claim for “retaliation” under the FMLA, a plaintiff
must prove “by a preponderance of the evidence that the employer’s
adverse employment action was in retaliation for exercise of
protected rights.”
Colburn v. Parker Hannifin/Nichols Portland
Div., 429 F.3d 325, 332 (1st Cir. 2005); see also Pagan-Colon v.
Walgreens of San Patricio, Inc., 697 F.3d 1, 8 (1st Cir. 2012)
(observing that, “a crucial component of an FMLA retaliation claim
is some animus or retaliatory motive on the part of the plaintiff’s
employer that is connected to protected conduct”).
6
In this case,
Plaintiff claims that Cox fired her because she informed them that
she would be taking a medical leave, which is protected under the
FMLA.
Where a plaintiff, like Reilly, has no direct evidence that
she was retaliated against for exercising her FMLA rights, the
analysis of her retaliation claim proceeds under the McDonnell
Douglas burden-shifting framework.
See Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 160 (1st Cir. 1998).
The first step of
McDonnell Douglas requires Reilly to establish a prima facie case
of retaliation: “(1) she availed herself of a protected FMLA right;
(2) she was adversely affected by an employment decision; and (3)
there was a causal connection between her protected conduct and
the adverse employment action.”
Carrero-Ojeda v. Autoridad de
Energia Electrica, 755 F.3d 711, 719 (1st Cir. 2014).
articulates
a
non-retaliatory
reason
for
the
If Cox
discharge,
“the
ultimate burden of proof remain[s] on the plaintiff to prove by a
preponderance
of
the
evidence
that
the
employer’s
adverse
employment action was in retaliation for exercise of protected
rights.”
Colburn,
429
F.3d
at
332.
Alternatively,
courts
sometimes use a “modified version” of McDonnell Douglas, which
“focus[es] instead on whether the evidence as a whole is sufficient
to
make
out
a
question
discriminatory animus.”
for
a
factfinder
as
to
pretext
and
Calero-Cerezo v. U.S. Dep’t of Justice,
355 F.3d 6, 26 (1st Cir. 2004).
7
Cox’s argument assumes, arguendo, that Reilly can make her
prima facie case of retaliation.
It focuses instead on the fact
that her only evidence of pretext is the timing of her termination,
and the First Circuit has held that temporal proximity alone is
not
enough
reason.
to
rebut
an
employer’s
stated
non-discriminatory
(See Defs.’ Mot. 16, ECF No. 43 (citing Carrero-Ojeda,
755 F.3d at 720).)
Plaintiff disagrees with this characterization
of the law, and asserts that “First Circuit precedent is clear
that a showing of ‘very close’ temporal proximity between the
protected conduct and the adverse employment action, standing
alone, is sufficient.”
(Pl.’s Opp’n 11.)
Yet the cases cited by
Plaintiff only hold that timing is sufficient to establish the
causation prong of the prima facie analysis; none of these cases
hold that temporal proximity alone is enough to rebut a proffered
non-discriminatory reason under either McDonnell Douglas or the
“modified framework.” 3 Indeed, in Calero-Cerezo, after noting that
3
See Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74
(2001) (noting that “the 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’”); DeCaire v. Mukasey, 530 F.3d 1,
19 (1st Cir. 2008) (recognizing that “temporal proximity alone can
suffice to ‘meet the relatively light burden of establishing a
prima facie case of retaliation’” (quoting Mariani-Colon v. Dep’t
of Homeland Sec. ex rel. Chertoff, 511 F.3d 216, 224 (1st Cir.
2007)); Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 25
(1st Cir. 2004) (“The facts demonstrate sufficient temporal
proximity between the protected conduct and the employment action
in this case to make out a prima facie case.”).
8
temporal proximity was sufficient to state a prima facie case, the
First Circuit went on to find that “[s]ince Calero has failed to
point to specific facts that would demonstrate any sham or pretext
intended to cover up defendants’ retaliatory motive, we will affirm
the dismissal of her retaliation claim under Title VII.”
355 F.3d
at 26; see also Pagan-Colon, 697 F.3d at 10 (explaining that the
“close temporal proximity between Pagán’s FMLA-protected leave and
his termination suggests a causal connection between the two,” but
that, “on its own is insufficient to establish pretext,” and is
only relevant evidence when “combined with other facts”).
In
Calero-Cerezo, like in this case, one of the reasons Defendants
cited for firing the plaintiff was “insubordinate and disruptive
behavior.”
355 F.3d at 26.
Accordingly, Plaintiff’s evidence of
temporal proximity is insufficient to establish pretext.
Plaintiff
further
argues
that
alleged
inconsistencies
in
Cox’s explanation for her termination render it “unworthy of
credence.”
(Pl.’s Opp’n 14, ECF No. 48-1 (quoting Sabbrese v.
Lowe’s Home Centers, Inc., 320 F. Supp. 2d 311, 326 (W.D. Pa.
2004)).)
of
fact
In Sabbrese, the court found that there was a question
as
to
whether
the
defendant’s
explanation
that
the
plaintiff was fired for pushing a co-worker in violation of company
policy was “unworthy of credence” because “none of the[] management
officials
acknowledged
that
they
actually
made
the
ultimate
decision to fire Sabbrese and [because of] the different views of
9
what actually happened — i.e., the incidental touching described
by Sabbrese versus the pushing described by Lowe’s.”
Id. at 325.
Plaintiff contends that the record in this case contains similar
inconsistencies.
Specifically,
Plaintiff
cites
to
alleged
discrepancies in the interrogatory answers of Jonathan LaCroix,
Reilly’s
supervisor,
and
the
deposition
testimony
of
Debra
Cornish, Director of Human Resources:
Despite being clearly asked through interrogatories when
the final decision to terminate Ms. Reilly was made and
who made that decision, Mr. LaCroix provided an
inconsistent and contradictory answer. He stated that
the final decision to terminate Ms. Reilly was made on
August 22, 2012 by Ms. Cornish and Ms. Bewlay. . . . As
previously stated, Ms. Cornish testified at her
deposition that she had merely made a recommendation on
or about August 22, 2012 and that the final decision was
made on the afternoon of August 28, 2012 [by] an
undisclosed member o[r] members of a management team.
It is not even clear from the record who was on the socalled management team.
(Pl.’s Opp’n 14, ECF No. 48-1.)
Yet Cornish also testified that,
while it was “[t]echnically” management’s final decision, her
“recommendation
would
have
a
significant
amount
(Cornish Dep. [ECF No. 49-12] at 17:20-18:2.)
of
weight.”
Even taking these
facts in the light most favorable to Reilly, the fact that LaCroix
characterized
HR’s
amount
material
to
a
“recommendation”
inconsistency
as
a
where
“decision”
it
is
does
clear
management would very likely defer to that recommendation.
not
that
Thus,
this is different than the situation in Sabbrese, where nobody
would take responsibility for the decision to fire the plaintiff.
10
Plaintiff also contends that she did not, in fact, yell at
her coworker as alleged.
However, as Defendants note:
The question is not whether plaintiff’s or [her] fellow
employees’ version is the true one, but whether [the
human resources officer] and [her] supervisors believed
what [they] had been told by those interviewed. . . .
Plaintiff’s plea that [her] denials establish triable
issues of fact foreclosing summary judgment would, if
accepted, spell the end of summary judgment.
(Defs.’ Reply 10, ECF No. 52 (quoting Ronda-Perez v. Banco Bilbao
Vizcaya Argentaria-Puerto Rico, 404 F.3d 42, 45 (1st Cir. 2005)).)
Here, as in Ronda-Perez, the HR Department conducted interviews
with
other
employees,
which
corroborated
the
allegations
of
Plaintiff’s misconduct, and “Plaintiff did not assert any adverse
motive or bias on the part of any of these persons.”
404 F.3d at 45.
Ronda-Perez,
The only evidence Plaintiff presents to suggest
that Defendants fabricated the incident with her coworker is that
she, overall, had excellent reviews.
However, as Defendants note
repeatedly, they do not contest this; in fact, they admit that one
of
Cox’s
hesitations
in
firing
Reilly
was
her
excellent
performance. 4
4
Moreover, the reviews cited by Plaintiff concerning her
communication skills bolster, rather than undermine, the picture
Defendants paint of an employee whose harsh tone was alienating to
other employees.
For example, one 2009 review stated that
“Patricia has improved her approach dramatically and has been
witnessed a [sic] much softer approach in dealing with employees.”
(Pl.’s Opp’n 17, ECF No. 48-1.) While positive in the fact that
Reilly was improving, this review also suggests that she had to be
counseled concerning her tone.
11
Finally, Reilly argues that “Defendants failed to follow
their own policy with respect to progressive discipline.”
Opp’n 19, ECF No. 48-1.)
(Pl.’s
However, as Defendants point out, it is
not the Court’s role to “evaluate whether or not the discipline
imposed
was
appropriate,
or
even
reasonable,
under
the
circumstances.” (Defs.’ Reply 11, ECF No. 52); see, e.g., Ramirez
Rodriguez v. Boehringer Ingelheim Pharms., Inc., 425 F.3d 67, 81
(1st Cir. 2005) (“It is not our role to second-guess the merits of
[the employer’s] conclusion.”); Mesnick v. Gen. Elec. Co., 950
F.2d 816, 825 (1st Cir. 1991) (“Courts may not sit as super
personnel
departments,
rationality
decisions.”).
—
of
assessing
employers’
the
merits
—
or
nondiscriminatory
even
the
business
Instead, the Court must evaluate whether Plaintiff
has shown that the reason given — regardless of its merit — is a
pretext. See Ramirez Rodriguez, 425 F.3d at 81 (rejecting argument
that Defendant had failed to comply with progressive discipline
policy).
Overall,
the
record
consistently
shows
that,
while
undisputedly an exceptional performer, Reilly had a history of
interpersonal and communication issues at work. She cannot dispute
that she received a written warning in 2006, and that in 2010, one
of her direct reports filed a workers’ compensation petition
alleging that he had developed an acute stress disorder as a result
of her incessant verbal abuse.
The fact that Cox did not take any
12
action on this complaint and that, ultimately, the employee was
not
awarded
workers’
compensation,
considering it as part of a pattern.
does
not
prevent
HR
from
Reilly also cannot dispute
that HR investigated the July 18 incident and, notwithstanding her
claim that she did nothing wrong, interviews of four different
witnesses described an inappropriate outburst.
According to Reilly’s version of the timeline - which the
Court must credit at this stage – the final decision to terminate
her was made after she told LaCroix about her planned back surgery
on August 22.
Yet the evidence shows, and Reilly cannot dispute,
that HR began to at least discuss termination on August 15.
(See
Defs.’ SUF, Ex. E [Cornish Dep.] at 63:24-64:6, ECF No. 44-5
(“[A]nd that [August 15 call] was the first time I told Jonathan
that we could possibly be looking at a termination for Patricia.”);
Defs.’ SUF, Ex. Q [LaCroix Int. Resp.] at 5, ECF No. 44-17 (“I
spoke with Debra Cornish on or about August 15, 2012, about her
investigation
and
her
thoughts
terminating Ms. Reilly.”).)
concerning
the
possibility
of
As Cox admits, Reilly’s supervisors
pushed back on HR’s recommendation to fire Reilly because she was
a high performer and they feared their business would suffer. That
HR’s recommendation ultimately carried the day does not prove any
connection to Reilly’s back surgery.
The bottom line is that, even viewing all the facts in
Reilly’s favor, the only evidence she has that her upcoming leave
13
at all factored into the decision to terminate her is the timing
of that decision.
As explained above, however, temporal proximity
alone is insufficient to survive summary judgment where there is
a proffered non-discriminatory reason for the employer’s action.
Thus, there is no basis on which to find that Cox’s stated reason
for firing Reilly - her well-documented history of interpersonal
issues and the July 18 incident – is a pretext.
B.
A
FMLA Interference Claim
plaintiff
states
an
FMLA
“interference”
claim
by
demonstrating that she was denied substantive rights to which she
was entitled under the Act.
Colburn, 429 F.3d at 331. Unlike with
a
showing
retaliation
required.”
claim,
See id.
“no
as
to
employer
intent
is
To make out an interference claim, Plaintiff
must establish: (1) that she is an “eligible employee” under FMLA;
(2) that she worked for an employer under FMLA; (3) that she was
entitled to leave under FMLA; (4) that she gave adequate notice to
her employer of her intention to take leave; and (5) that her
employer denied her benefits to which she was entitled by the FMLA.
Surprise v. Innovation Grp., Inc., 925 F. Supp. 2d 134, 145 (D.
Mass. 2013).
In this case, Plaintiff’s interference claim fails for the
same reason that her retaliation claim fails: because she does not
present evidence that Cox’s stated reason for her termination was
pretextual, she is therefore unable to prove that she was “entitled
14
to” leave under the FMLA.
(See Defs.’ Mot. 12, ECF No. 43.)
As
Defendants explain, the fact that Plaintiff requested leave does
not insulate her from an otherwise legitimate firing.
(See id. at
11-12); see also Carrero-Ojeda, 755 F.3d at 722 (“the FMLA does
not protect an employee from discharge for any reason while she is
on leave — rather, as we discussed in the retaliation context, it
protects her only from discharge because she requests or takes
FMLA leave”); Henry v. United Bank, 686 F.3d 50, 55 (1st Cir. 2012)
(“although an employee who properly takes FMLA leave cannot be
discharged for exercising a right provided by the statute, she
nevertheless can be discharged for independent reasons”); Fantini
v. Salem State Coll., 557 F.3d 22, 35 (1st Cir. 2009) (“There is
no
protection,
appropriate
however,
cause
but
for
also
an
employee
happens
5
to
who
is
fired
for
be
on
leave.”). 5
Defendants also argue that Plaintiff’s interference claim
must fail because it is duplicative of her retaliation claim. Yet
courts have recognized that this type of claim is cognizable under
both a theory of interference and a theory of retaliation. See
Turevsky v. FixtureOne Corp., 904 F. Supp. 2d 454, 466 (E.D. Pa.
2012) (“[F]iring an employee for a valid FMLA request can
constitute retaliation as well as interference.”); Colburn v.
Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 331 (1st Cir.
2005) (“The term ‘interference’ may, depending on the facts, cover
both retaliation claims . . . and non-retaliation claims (citation
omitted)). Defendants rely on this Court’s decision in Warrener
v. AAA of S. New England, where Plaintiff’s interference claim was
dismissed. Civil Action No. 14-424 S, 2015 WL 5504495, at *2-*3
(D.R.I. Sept. 16, 2015).
However, in that case, Plaintiff had
already taken her full 12-week leave, and therefore there was no
right with which to interfere.
In this case, by contrast,
Plaintiff’s claim is that she was entitled to her leave, but was
unable to take it, due to the fact she was fired. The fact that
15
Accordingly,
Defendants
are
entitled
to
summary
judgment
on
Plaintiff’s interference claim as well.
C.
RICRA/FEPA Gender Discrimination Claim
Plaintiff also alleges that her termination was a result of
gender discrimination.
discriminating
with
RICRA and FEPA prohibit employers from
respect
to
the
“terms,
conditions
or
privileges of employment” because of “race or color, religion,
sex,
sexual
orientation,
gender
identity
or
disability, age, or country of ancestral origin.”
§ 28-5-7(1)(i)-(ii); R.I. Gen. Laws § 42-112-1.
expression,
R.I. Gen. Laws
Where there is no
direct evidence, Rhode Island courts use the familiar McDonnell
Douglas burden-shifting framework.
See, e.g., Neri v. Ross-
Simons, Inc., 897 A.2d 42, 48 (R.I. 2006); Casey v. Town of
Portsmouth, 861 A.2d 1032, 1036 (R.I. 2004).
To establish a prima facie case of sex discrimination, a
plaintiff
must show that (1) she is a member of a protected class;
(2) she was performing her job at a level that rules out
the possibility that she was fired for inadequate job
performance; (3) she suffered an adverse job action by
her employer; and (4) her employer sought a replacement
for her with roughly equivalent qualifications.
Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir. 1994).
Defendants first argue that Reilly has failed to make a prima facie
the theory of her retaliation claim is essentially the same, does
not provide a basis for dismissal of the interference claim.
16
case because “[t]he evidence in the record is that Reilly was not
performing her job at a level that rules out the possibility that
she was fired for inadequate job performance.”
ECF No. 43 (emphasis in original).)
(Defs.’ Mot. 19,
Although Reilly’s sales
performance was exceptional, Defendants note the history of her
inappropriate and degrading tone with other employees, including
a written warning in 2006.
persuaded
on
this
point.
(Id. at 19-20.)
While
Reilly’s
The Court is not
alleged
outbursts
constitute a non-discriminatory reason for firing her, based on
her undisputedly exceptional performance reviews, she has shown
that – at a minimum – there is a question of fact as to whether
these alleged outbursts qualify as “inadequate job performance.”
In any event, Plaintiff’s case again fails at the rebuttal
stage.
As evidence that she was fired due to her gender, she cites
the following facts:
•
Reilly was replaced by a male, Patrick Brunelle.
•
From 2009 to 2012, of the 14 Carrier Access Managers
employed by Cox, Ms. Reilly was the only female
Carrier Access Manager.
•
Mark Scott, Plaintiff’s supervisor, and other Cox
managers felt that Ms. Reilly’s compensation was too
high, and Mr. Scott told Ms. Reilly that her
compensation was too high.
•
Ms. Reilly received less compensation as a percentage
of the revenue that she generated for Cox in
comparison to male Carrier Access Managers.
17
•
Mr. Scott and the other male Cox managers routinely
played golf on Mondays and regularly had after-work
get-togethers, yet they did not invite or include Ms.
Reilly.
•
Ms. Reilly had asked Mr. Scott if she could attend a
Leadership Rhode Island event, and was told that there
was no money in the budget for her to attend. Mr.
Scott instead sent a male manager, Steve Hughes.
•
There is a dispute of fact as to whether Mark Scott
told Ms. Reilly about a “Book of Thongs” that
contained photographs of women who worked for Cox
wearing thongs.
•
It is disputed whether there were multiple complaints
about the way that Harvey Lee, a Sales Manager, yelled
at his subordinates, yet he was simply required to
take a class and was not terminated.
(Pl.’s Opp’n 22, ECF No. 48-1.)
may
be
enough
discrimination,
to
none
establish
of
them
While some of these allegations
a
prima
facie
successfully
discriminatory reason for firing Reilly.
case
rebuts
of
gender
Cox’s
non-
For example, the facts
that Reilly was replaced by a man, that she was the only female
Carrier Access Manager, and that her percentage of revenue was
lower than her counterparts, help build a prima facie case, but do
not shed any light on why Cox’s stated reason is false.
Moreover,
as Defendants point out, Plaintiff’s revenue allegation “is based
solely on Plaintiff’s own self-serving allegations and no other
evidence, and therefore does not create a genuine issue of material
fact.” (Defs.’ Reply 14, ECF No. 52.)
As Defendants point out, a number of these allegations concern
Scott, Plaintiff’s former supervisor.
18
“[D]iscriminatory comments
may
be
probative
of
pretext
if
a
plaintiff
can
‘show
that
discriminatory comments were made by the key decisionmaker or those
in a position to influence the decisionmaker.’” Ramirez Rodriguez,
425 F.3d at 79 (quoting Santiago–Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 55 (1st Cir. 2000)).
However, where Defendant
has a “compelling stated reason for Plaintiff’s termination, . .
. stray remarks [cited by Plaintiff] do not permit the inference
that Defendant’s real motivation for Plaintiff’s discharge was []
discrimination.”
Id. at 79-80.
As an initial matter, the record
shows that Scott was one of the employees advocating that Reilly
receive a written warning rather than termination.
(See Pl.’s SDF
¶ 61, ECF No. 49 (“I know Mark Scott’s recommendation is Final
Written Warning.”).
But even assuming, arguendo, that Scott was
a decision-maker in Plaintiff’s case, his comments do not rise
past the level of “stray remarks” to cast doubt on Cox’s claim
that Reilly was fired due to her history of interpersonal problems
at work.
Moreover, for some of these allegations, it is not even
clear that the comment was gender-based.
For example, there is no
evidence that Scott’s comment about Reilly’s compensation being
too high had anything to do with her being a woman.
And finally,
as Defendants note, “Reilly was unable to generate any competent
evidence to support her generalized claims concerning Scott’s
alleged gender bias during 12 months of discovery, which included
the taking of Scott’s deposition.”
19
(Defs.’ Mot. 25, ECF No. 43.)
The allegation that a male sales manager also yelled at his
subordinates,
but
was
evidence of pretext.
other
than
her
own
not
terminated,
could
provide
strong
However, Reilly does not have any evidence,
hearsay
testimony
about
what
she
heard
concerning Mr. Lee, nor does she present any facts showing that
the two situations were in fact similar.
(See Pl.’s SDF, Ex. 2
[Reilly Dep.] at 224:7-13, ECF No. 49-2 (“Q. And what was Harvey
Lee accused of doing? A. There were numerous complaints, to my
knowledge, from people that reported to him, and he was told to
take a class. Q. Now, how did you come into this knowledge? A.
Some of his teammates, some of his direct reports shared that with
me.”)); see also Ronda-Perez, 404 F.3d at 46 (rejecting Plaintiff’s
argument concerning comparator where that employee “had evidenced
remorse, had freely acknowledged his inappropriate behavior, was
at a lower level of responsibility than plaintiff, and was free
from the other criticisms levied at plaintiff”).
Accordingly, the Court finds that Reilly’s evidence of gender
discrimination is insufficient to withstand summary judgment.
D.
RICRA/FEPA Disability Discrimination Claim
Reilly’s RICRA/FEPA disability discrimination argument frames
her hip surgery as a required accommodation for a disability of
arthritic hips, rather than retaliation for her intention to take
leave, but the crux of her argument is the same — Cox improperly
terminated her because she informed them she planned to have
20
surgery. Consequently, Plaintiff’s disability discrimination claim
suffers the same fate as her other claims.
She again is unable to
rebut Defendants’ stated non-discriminatory reason for firing her.
III. Conclusion
For the foregoing reasons, Defendants’ Motion for Summary
Judgment is hereby GRANTED.
IT IS SO ORDERED.
William E. Smith
Chief Judge
Date: March 1, 2016
21
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