O'Rourke v. Tiffany and Company
Filing
50
MEMORANDUM AND ORDER granting 34 Motion for Summary Judgment. So Ordered by District Judge William E. Smith on 3/27/2020. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
___________________________________
)
)
)
Plaintiff,
)
)
v.
)
)
TIFFANY AND COMPANY,
)
)
Defendant.
)
___________________________________)
LISA M. O’ROURKE
C.A. No. 16-626 WES
MEMORANDUM AND ORDER
WILLIAM E. SMITH, District Judge.
This
employment
discrimination
action
stems
from
the
termination of Plaintiff Lisa M. O’Rourke from Defendant Tiffany
and Company (“Tiffany”). Currently before the Court is Defendant’s
Motion for Summary Judgment, ECF No. 34.
Defendant argues that it
is entitled to summary judgment on all three claims advanced by
Plaintiff in the Amended Complaint (“Am. Compl.”), ECF No. 32.
For
the
reasons
that
follow,
Defendant’s
Motion
for
Summary
Judgment is GRANTED.
I.
Background and Travel
Plaintiff began her employment with Tiffany in 2010 at its
manufacturing
facility
in
Cumberland,
Rhode
Island.
Def.’s
Statement of Undisputed Facts (“Def.’s SUF”) ¶ 1, ECF No. 35.
2014,
Plaintiff
was
promoted
to
Director
of
Purchasing
By
and
Planning, in which capacity she supervised nineteen employees and
performed purchasing, planning, and sourcing duties.
Id. ¶¶ 2-3.
While in that position, Plaintiff reported to the Group Director
of Purchasing and Planning, Mary Messier.
A.
Id. ¶ 4.
BRCA2 Diagnosis and First Leave
Three
Plaintiff
mutation. 1
years
after
learned
that
Id. ¶ 15.
beginning
she
was
a
her
employment
carrier
of
the
at
Tiffany,
BRCA2
gene
To mitigate the risk associated with being
a carrier of that gene mutation, Plaintiff underwent two surgeries
in the early part of 2014, for which she took a leave of absence
from Tiffany (“First Leave”).
Id. ¶ 16. Plaintiff’s First Leave
lasted seventeen weeks, from January 13, 2014, through May 12,
2014.
Id.
The first twelve weeks of that leave were covered under
the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq.
Plaintiff and Messier had a friendly relationship while they
worked together at Tiffany and kept in contact during Plaintiff’s
First Leave. Id. ¶ 18.
According to her deposition testimony, at
some point during the First Leave, Plaintiff felt some pressure
from Messier to return to work after Messier brought up another
Mutations of the BRCA2 gene correlate with an increased risk
of certain cancers, namely breast and ovarian cancer.
Such
mutations are often hereditary. A mutation of the BRCA2 gene is
not a cancer diagnosis, nor does it mean that the patient will
ultimately develop cancer; it indicates only that the patient has
a higher-than-average risk of developing cancer. See BRCA gene
test
for
breast
and
ovarian
cancer
risk,
Mayo
Clinic,
https://www.mayoclinic.org/tests-procedures/brca-genetest/about/pac-20384815 (last visited March 26, 2020).
1
2
Tiffany employee who underwent a similar procedure and had returned
to work.
Id.
Plaintiff reached out to a colleague about these
concerns,
and
ultimately
determined
that
she
“overthink[ing]” her conversation with Messier.
may
have
been
Id. ¶ 19.
Additionally, while Plaintiff was out on her First Leave,
Tiffany hired Wayne Howard (“Howard”) to serve as Vice President
of
Manufacturing,
position. 2
a
position
Id. ¶¶ 7, 9.
two
levels
above
Plaintiff’s
Howard began his tenure with the company
in January 2014, and in his role managed 800 to 900 employees
scattered across Tiffany’s various manufacturing facilities. 3
¶¶ 7-8.
Id.
Howard was aware that Plaintiff had taken a leave of
absence for medical reasons.
Plaintiff’s Statement of Disputed
Facts/Obj. to Def.’s Statement of Undisputed Facts (“Pl.’s SDF”)
¶ 26, ECF No. 39-1; see Def.’s SUF Ex. K, at 2, ECF No. 35-11.
B.
Return to Work after First Leave and 2013 Performance
Evaluation
Plaintiff returned to work in May 2014 without any medical
restrictions or accommodations.
Def.’s SUF ¶ 28.
Not long after
her return, Plaintiff hired a new employee, Ricky Martin, to fill
a position under her supervision which had been vacant for over a
year.
Id. ¶ 33.
Martin quit just two weeks after he started,
Messier reported directly to Howard. Def.’s SUF ¶ 9.
According to Plaintiff, she had minimal, monthly interaction
with Howard, rarely face-to-face. Id. ¶ 10.
2
3
3
leaving “negative feedback” about Plaintiff upon his exit.
Id. ¶
34; Pl.’s SDF ¶ 34.
Soon thereafter, in June 2014, Howard began to question
Plaintiff’s performance.
Def.’s SUF ¶¶ 35-36.
Part of Howard’s
concern stemmed from the circumstances of Martin’s departure.
¶ 34; Pl.’s SDF ¶ 34.
Id.
Additionally, Howard identified Tiffany’s
planning function, overseen by Messier and Plaintiff, to be an
area of weakness for the company.
Def.’s SUF ¶ 30.
Howard’s
concerns came to light through discussion of Plaintiff’s 2013
performance review in an email to his supervisor on June 10, 2014. 4
Id. ¶ 36.
The email reads, in pertinent part:
Lisa was out on medical leave since I started, only
returning the week that you, Ralph and I went to
[Tiffany’s Rhode Island facility]. Based on [Messier’s]
review, she rated Lisa as a 5, for 2013 and recommended
relevant bonus and increase when we were doing
performance reviews.
I haven ‘t [sic] worked with Lisa yet, but based on what
we have seen with planning, and the recent quick turnover
of Ricky Martin, there are issues in my mind. However,
I wasn’t here in 2013 so I don’t want to be unfair, and
planned to evaluate her performance over the next few
Tiffany uses a yearly two-level performance evaluation
system in which each employee is initially evaluated by his or her
direct supervisor and rated on a scale of one to six, where “1”
signifies
“unsatisfactory”
performance
and
“6”
signifies
“outstanding” performance. Def.’s SUF Ex. B, at 46, ECF No. 352. That evaluation is then passed up to another supervisor, who
determines whether the initial evaluation needs to be adjusted to
account for any perceived performance issues. See Def.’s SUF ¶¶
68-70. Supervisor evaluation scores are one of several data inputs
that influence an employee’s annual bonus and merit raise increase.
See id. ¶¶ 133-141.
4
4
months. Unfortunately, I heard last week that she will
be out again in July for up to 6 weeks.
So, my thought was to sign the forms and speak to
[Messier] about carefully evaluating her performance.
Def.’s SUF Ex. K, at 2.
Despite Howard’s questions, Plaintiff
received an evaluation score of “5” 5 for the calendar year 2013
and 100% of the bonus for which she was eligible that year.
Def.’s
SUF ¶¶ 42, 138.
C.
Plaintiff’s Second Leave
In July 2014, Plaintiff planned to take another leave from
Tiffany for follow-up reconstructive surgery.
Id. ¶ 43.
Around
July 10, 2014, Plaintiff put in a request with Tiffany’s thirdparty leave administrator, Matrix Absence Management (“Matrix”).
Id. ¶ 44.
Matrix denied Plaintiff’s leave request because she had
exhausted her FMLA entitlement for the year during her First Leave.
Def.’s SUF Ex. M, ECF No. 35-13.
Former Tiffany Human Resources
Manager Karen Curtis discussed the denial with Plaintiff and
suggested that Plaintiff could use vacation time or reschedule her
procedure to ensure that her job was protected.
Def.’s SUF ¶ 46;
Def.’s SUF Ex. I, at 27:8-13, ECF No. 35-9; Pl.’s SDF ¶ 46.
Plaintiff declined that suggestion because she planned to use her
vacation time later that year for a family trip.
Def.’s SUF ¶ 47.
After speaking with Curtis and following up with Messier,
A “5” rating under Tiffany’s metrics means that the employee
“frequently exceeded expectations.” Def.’s SUF ¶ 67.
5
5
Plaintiff
contacted
Philip
Gajdjis,
Senior
Resources, Jewelry and Diamond Supply.
Director
Id. ¶¶ 48-49.
of
Human
Plaintiff
discussed with Gajdjis her belief that she was being treated
differently than another manufacturing employee whose leave had
been approved when that employee had already exhausted the FMLA
entitlement.
Id. ¶ 49.
Gajdjis approved Plaintiff’s leave later
that day and informed Plaintiff that her job would be protected in
Id. ¶¶ 50-51.
her absence. 6
Plaintiff began her second leave
(“Second Leave”) on July 17, 2014 and returned to work without
medical restrictions or accommodations on August 10, 2014.
54-55.
second
Id. ¶¶
According to Howard, he was aware that Plaintiff took a
leave
of
absence
surrounding that leave.
but
did
not
know
the
circumstances
Id. ¶ 53; Def.’s SUF Ex. C, at 83:17-
84:9, ECF No. 35-3.
D.
First
Company
Reorganization
and
2014
Performance
Evaluation
By the end of 2014, Howard began a reorganization process to
address the deficiencies he perceived in the company’s planning
function. Def.’s SUF ¶ 58.
Pursuant to this restructure, he
changed Plaintiff’s title from Director of Purchasing and Planning
Following Plaintiff’s call, Gajdjis contacted Matrix to
inquire about Plaintiff’s FMLA status and whether the surgery for
which she requested leave was elective. Def.’s SUF Ex. E, at 18,
ECF No. 35-5. Plaintiff testified in her deposition that Gajdjis’s
inquiry into the elective nature of her procedure was “disgusting.”
Def.’s SUF ¶ 146.
6
6
to Director of Strategic Sourcing; Plaintiff supervised two buyer
positions and continued to report to Messier, who also filled a
new position.
Id. ¶ 59.
With planning responsibilities shifted
to a new hire, Plaintiff was tasked with “strategic procurement of
capital equipment, metals and materials.” Id.
In addition to
creating these new roles, Tiffany worked in conjunction with
outside consultants to perform a three to four month long strategic
sourcing exercise.
Id. ¶ 63.
Plaintiff felt “optimistic” about
her new position and initially considered it to be a promotion.
Id. ¶¶ 65-66.
The next issue arose over Plaintiff’s performance review for
the 2014 year.
a “5”.
Messier initially rated Plaintiff’s performance as
Id. ¶ 67.
Howard met this evaluation with skepticism on
his second-level review.
Id. ¶ 68.
In an email to Messier on
March 2, 2015, Howard questioned:
[F]or Lisa, are you absolutely convinced that she was a
5 last year? It seems that there were inventory issues
throughout the year, planning issues with the DR,
management issues with her new hire and direct reports.
I thought she was more likely a 4. 7
Def.’s SUF Ex. J, at 4, ECF No. 35-10.
she
agreed
that
there
had
been
When Messier responded,
inventory
issues
as
well
as
management issues with Martin, but appeared to defend Plaintiff,
stating that Martin had been “very unprofessional” and was “not .
A “4” rating means that an employee always meets and
sometimes exceeds expectations. Def.’s SUF ¶ 68.
7
7
. . fit for the position.”
Id. at 3-4.
Ultimately, after more
back-and-forth, Messier stated that Howard’s assessment was not
unfair and she revised Plaintiff’s evaluation to reflect a “4”
rating.
Id. at 3; Def.’s SUF ¶¶ 72-74.
Plaintiff viewed this
change as a “setup” designed to “push[]” her out of Tiffany.
Def.’s SUF ¶ 75; Def.’s SUF Ex. H, at 9:5-11, ECF No. 35-8.
She
also noted this change “affected [her] salary and [her] bonus” and
felt it was not “an accurate reflection of [her] performance.”
Def.’s SUF Ex. H, at 9:9-11.
Around the same time as the discussion of Plaintiff’s 2014
evaluation, Howard began to hold bi-monthly meetings with certain
employees on his team.
Id. ¶ 76.
Plaintiff communicated to
Messier that she felt she was being singled out by not receiving
an invitation to these meetings. 8
Id. ¶ 79.
After learning this
information, Howard invited Plaintiff to future meetings.
E.
2015
Reorganization
and
Elimination
of
Id.
Plaintiff’s
Position
By the fall of 2015, Howard planned to further restructure
Plaintiff’s department.
Id. ¶ 85.
Under the proposed plan,
There is some dispute between the parties as to who the
meetings were intended to include and whether Plaintiff’s direct
reports were invited. Def.’s SUF ¶¶ 77-83. According to Howard,
his “direct reports” and other employees, as needed, were invited.
Id. ¶ 77.
Plaintiff, however, disputes this fact and believed
that she was the only director excluded from these meetings, and
that her direct reports were included. Id. ¶ 80-83; Pl.’s SDF ¶
80-83.
8
8
Messier
would
be
reassigned
the
two
positions
supervised
by
Plaintiff, and the company would add a non-director position to be
filled by a person with strategic sourcing experience.
Def.’s SUF
¶ 87.
On October
Plaintiff’s position would be eliminated.
Id.
7, 2015, Howard emailed Gajdjis and another employee to inform
them of the new organization and his recommendation that Tiffany
offer Plaintiff a severance package.
Id. ¶ 88; Def.’s SUF Ex. E,
at 16, Ex. 2 to Gajdjis Dep.
On October 9, 2015 – two days after Howard sent the email
announcing
his
decision
to
eliminate
Plaintiff’s
position
–
Plaintiff emailed the Human Resources department to inform them of
her intention to take another FMLA leave in 2016 to address
complications from her prior surgeries.
Def.’s SUF ¶¶ 93-95.
About a year before her email to Human Resources, Plaintiff had
told Messier that it was possible she would need further surgery.
Id. ¶ 95.
At the end of September or beginning of October 2015,
Plaintiff confirmed to Messier that she would need to take a short
leave in 2016 for this purpose.
Id.
In her deposition, Messier
testified that she did not discuss Plaintiff’s intent to take leave
in 2016 with anyone at Tiffany prior to Plaintiff’s email to Human
Resources. 9
Id. ¶ 98; Def.’s Resp. to Pl.’s Suppl. Facts ¶ 165,
Plaintiff also told another former Tiffany Human Resources
employee about her planned 2016 leave and procedure, describing
that conversation as “personal” in nature.
Def.’s SUF ¶ 96.
9
9
ECF No. 49.
Likewise, Howard denies knowledge of this information
prior to his decision to restructure and eliminate Plaintiff’s
position.
Def.’s SUF ¶ 98.
After learning about Howard’s reorganization plan, hearing
about Plaintiff’s intent to take a medical leave of absence in
2016, and consulting with legal counsel, Gajdjis suggested to
Howard that he offer Plaintiff the lower-level position that was
being added to Messier’s group as part of the reorganization
process, rather than offering a severance package.
Gajdjis
justified
this
suggestion
based
on
his
Id. ¶ 100.
professional
opinion that it is better to “repurpose talent than to hire from
the outside” and that Plaintiff was qualified to fill the lowerlevel role.
Id.
¶ 104.
lower-level position. 10
On
November
10,
Howard agreed to offer Plaintiff the
Id. ¶ 105.
2015,
at
Howard’s
instruction,
Messier
informed Plaintiff that her position was being eliminated and
offered her two options: (1) take the newly-created, lower-level
position or (2) accept the standard severance package.
Id. ¶ 107.
Plaintiff is not aware whether that person shared the information
with anyone else. Id. ¶ 97.
10
There was a substantial difference in salary between
Plaintiff’s position prior to restructure and the lower-level
position offered to her. As the Director of Strategic Sourcing,
Plaintiff earned $127,316.80, with a 15% bonus opportunity and
$25,000 annual award of restricted stock. Id. ¶ 103. In the new
role offered to her, Plaintiff would have earned a $90,000 salary
with no bonus opportunity. Id. ¶ 101.
10
Plaintiff rejected both options and her employment officially
terminated on November 13, 2015. Id. ¶ 108. Despite her rejection
of the severance, Tiffany paid Plaintiff the standard severance
package.
Id. ¶ 109.
After
Plaintiff
Director-level
departed,
position
to
Tiffany
Messier’s
never
team
at
re-added
the
another
Cumberland
facility, nor did it fill the position offered to Plaintiff.
Id.
¶¶ 112-114; Pl.’s Suppl. Statement of Facts ¶ 154, ECF No. 46.
Tiffany did create new roles in strategic sourcing, both of which
are New York-based, neither of which is a Director-level position,
and neither of which reports to Messier. Def.’s SUF ¶¶ 112-114.
Overall, Tiffany eliminated three director-level positions at the
Cumberland facility between 2015 and 2016; Plaintiff testified
that she was aware of more than ten position eliminations at the
Cumberland
facility
between
2014
and
2015.
Id.
¶¶
117-119.
Plaintiff’s position was the only one terminated in Tiffany’s
“sourcing” area. 11
F.
Pl.’s Suppl. Statement of Facts ¶ 149.
Travel of the Case
Plaintiff filed this action on November 18, 2016, alleging
Defendant violated the Rhode Island Fair Employment Practices Act,
R.I. Gen. Laws § 28-5-1 et seq.
See Compl. ¶ 17, ECF No. 1.
She
At the time of the position elimination, the sourcing
department at the Cumberland facility consisted of only Plaintiff,
Messier, and one lower level employee.
Def.’s Resp. to Pl.’s
Suppl. Facts ¶ 149, ECF No. 49.
11
11
later amended her Complaint to include two federal claims: (1)
disability
discrimination
in
violation
of
the
Americans
with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and (2)
retaliation in violation of the FMLA, 29 U.S.C. § 2601 et seq.
See Am. Compl. ¶¶ 25, 28.
judgment on all counts.
II.
Defendant filed a motion for summary
See Mot. Summ. J., ECF No. 34.
Summary Judgment Standard
Under Federal Rule of Civil Procedure 56, a court may grant
summary judgment only “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.”
Fed. R. Civ. P. 56(a).
“A genuine
dispute is ‘one that must be decided at trial because the evidence,
viewed in the light most flattering to the nonmovant, would permit
a rational factfinder to resolve the issue in favor of either
party.’”
Flaherty v. Entergy Nuclear Operations, Inc., 946 F.3d
41, 53 (1st Cir. 2019) (quoting Medina-Muñoz v. R.J. Reynolds
Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)).
Moreover, “[f]acts
are material when they have the potential to affect the outcome of
the suit under the applicable law.”
Id. (quoting Cherkaoiu v.
City of Quincy, 877 F.3d 14, 23 (1st Cir. 2017) (quotation marks
omitted).
“[T]he burden of producing specific facts sufficient to
deflect the swing of the summary judgment scythe” rests on the
non-movant.
Miceli v. JetBlue Airways Corp., 914 F.3d 73, 81 (1st
Cir. 2019) (quoting Mulvihill v. Top-Flite Golf Co., 335 F.3d 15,
12
19 (1st Cir. 2003)).
III. Discussion
Because
Plaintiff
has
not
proffered
direct
evidence
of
discrimination, both the disability discrimination claims and the
FMLA retaliation claim are analyzed under the burden-shifting
framework outlined in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800-06 (1973). 12
McDonnell
Douglas
See Flaherty, 946 F.3d at 53 (applying
framework
to
ADA
claims);
Hodgens
v.
Gen.
Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998) (“[W]hen there
is no direct evidence of discrimination, the McDonnell Douglas
burden-shifting framework applies to claims that an employee was
discriminated
rights.”)
against
for
availing
himself
of
FMLA-protected
Under this standard, a plaintiff must first establish
a prima facie showing of discrimination.
Co., 417 F.3d 229, 234 (1st Cir. 2005).
Webber v. Int’l Paper
“Once the plaintiff
succeeds in establishing a prima facie case, his [or her] employer
must
shoulder
the
burden
to
articulate
a
legitimate,
nondiscriminatory reason for the plaintiff’s termination.”
Id.
Plaintiff’s state RIFEPA claim is analyzed under the ADA
analytical framework. See Deighan v. SuperMedia LLC, C.A. No. 14264 S, 2016 WL 6988813, at *8 (D.R.I. Nov. 29, 2016). The RIFEPA
bars
an
employer
from
“discharg[ing]
an
employee
or
discriminat[ing] against him or her” on the basis of “disability.”
R.I. Gen. Laws § 28-5-7(1).
Similarly, the ADA prevents an
employer from discriminating against or terminating an employee on
the basis of disability. 42 U.S.C. § 12112(a).
12
13
If the employer satisfies this burden, the plaintiff “bear[s] the
ultimate burden of adducing sufficient evidence from which a
factfinder rationally might infer that the employer’s articulated
reason is a pretext for discrimination, and that the real reason
for the termination was discriminatory animus.”
Id.
Defendant challenges Plaintiff’s ability to carry either of
her burdens under the McDonnell Douglas framework.
The Court
discusses each argument in turn.
A.
Disability Discrimination (Counts I & III)
For Plaintiff to establish a prima facie case of disability
discrimination, she must demonstrate that she “(1) was disabled
within the meaning of the ADA, (2) was a ‘qualified individual,’
and (3) was discharged in whole or in part because of [her]
disability.”
Flaherty, 946 F.3d at 53.
Defendant attacks the first and third prongs of the prima
facie disability discrimination analysis.
Specifically, Defendant
contends that: (1) Plaintiff cannot demonstrate that she was
disabled at the time the company decided to eliminate her position
and (2) even if Plaintiff was disabled, she cannot connect her
disability
to
her
termination
because
Howard,
the
ultimate
decision-maker, was not aware of her specific disability.
Def.’s
Mem. in Supp. of Summ. J. (“Def.’s Mem.”) 15, ECF No. 34-1.
As to the first prong, Plaintiff argues that she is disabled
under the meaning of the statutes because she has suffered a
14
permanent
“anatomical
loss”
as
a
result
of
the
preventative
surgeries to alleviate the risk posed by her BRCA2 gene mutation
diagnosis, permanently affecting her reproductive system. 13
Pl.’s
Obj./Resp. in Opp’n to Summ. J. (“Pl.’s Obj.”) 20-22, ECF No. 36.
It
is
unclear
whether
an
individual
who
has
a
genetic
predisposition (i.e., the BRCA2 gene mutation) for a qualifying
disability
(i.e.,
breast
cancer),
but
who
is
asymptomatic,
qualifies as “disabled” under the ADA.
This appears to be a novel
issue courts have not yet addressed.
This Court need not reach
the question, however, because Plaintiff’s prima facie case fails
at the third prong.
Under the third part of the prima facie analysis, Plaintiff
A person is considered disabled within the confines of the
ADA “if she (a) has a physical or mental impairment that
substantially limits one or more of her major life activities; (b)
has a record of such an impairment; or (c) is regarded as having
such an impairment.” Ruiz Rivera v. Pfizer Pharms., LLC, 521 F.3d
76, 82 (1st Cir. 2008); see 42 U.S.C. § 12102. Equal Employment
Opportunity Commission regulations define a physical or mental
impairment as “[a]ny physiological disorder or condition, cosmetic
disfigurement, or anatomical loss affecting one or more body
systems, such as neurological, musculoskeletal, special sense
organs, respiratory (including speech organs), cardiovascular,
reproductive, digestive, genitourinary, immune, circulatory,
hemic, lymphatic, skin, and endocrine[.]”
29 C.F.R. §
1630.2(h)(1). Plaintiff’s Amended Complaint is arguably deficient
with respect to setting forth Plaintiff’s disability, as it only
states that Plaintiff has been diagnosed with the BRCA2 gene
mutation and that she had preventative surgery to mitigate the
associated risk. Am. Compl. ¶ 10. The Amended Complaint does not
contain any specific allegations as to the substantial limitation
on one or more life activity. See generally id. Plaintiff has
fleshed out this argument more fully in her briefing and argument.
13
15
must put forth evidence that she was “discharged in whole or in
part because of [her] disability.”
Flaherty, 946 F.3d at 53.
A
critical piece of this causal nexus is that the decision-maker has
knowledge of an employee’s disability prior to discharge.
Boadi
v. Ctr. for Human Dev., Inc., 239 F. Supp. 3d 333, 350-51 (D. Mass.
2017); see also Tennial v. United Parcel Serv., Inc., 840 F.3d
292, 306 (6th Cir. 2016) (“An employee cannot be subject to an
adverse employment action based on his disability unless the
individual
decisionmaker
responsible
for
his
demotion
has
knowledge of that disability.”).
Although
an
employee
need
not
tell
the
employer
of
her
disability, there must be sufficient information available for the
decision-maker
to
glean
that
the
employee
suffers
from
a
disability. See Boadi, 239 F. Supp. 3d at 351 (“For purposes of
the ADA . . . employers can become aware of an employee’s condition
indirectly,
such
as
through
observation
of
the
employee’s
behavior, a third party’s report, or the employee’s description of
his
or
her
condition.”)
(citations
omitted);
Echevarria
v.
AstraZeneca, LP, 133 F. Supp. 3d 372, 392 (D.P.R. 2015) (“Knowing
that an employee has health problems is not the same as knowing
that the employee suffers from a disability.”).
Plaintiff contends that a question of fact exists as to
whether Howard had knowledge of her disability.
23.
The Court disagrees.
Pl.’s Obj. 22-
First, it is clear that Howard was the
16
ultimate decision-maker. 14 Second, Howard expressly testified that
he had no knowledge that Plaintiff was a carrier of the BRCA2 gene
mutation while they worked together.
Ex. C, at 64:22-65:21, 66:15-67:1-6.
Def.’s SUF ¶ 91; Def.’s SUF
More specifically, Howard
testified that he knew Plaintiff had exercised her FMLA rights for
“a medical health issue” but that he “didn’t know the specifics”
until he read about it in the news. Def.’s SUF Ex. C, at 16:3-12,
17:2-13.
Plaintiff “disputes” Howard’s ignorance, arguing that a jury
could infer he had knowledge of her alleged disability from the
fact that she told Messier, other employees at Tiffany, and Matrix
about her condition, and they could have told Howard.
Obj. 22-23.
See Pl.’s
To demonstrate that a jury could infer Howard “was
indeed aware of [her] disability when he formulated his plan to
terminate her,” Plaintiff points to the following:
a “trail of
conference calls”; “multiple emails involving Tiffany personnel
obsessing over [her] second leave request”; Howard’s June 10, 2014
email characterizing her Second Leave as “unfortunate[]”; and
emails
between
Matrix
personnel
and
Gajdjis
stating
that
Plaintiff’s second request for medical leave was to undergo surgery
Although Howard elicited input from Human Resources, he
testified that he had final say on reorganization decisions, and
specifically, elimination of Plaintiff’s position. Def.’s SUF Ex.
C, at 19:5-20, 21:4-23, 31:1-4.
14
17
“which may be elective.”
Id.
Even in the light most favorable to Plaintiff, these facts
taken together are not sufficient to “dispute” Howard’s ignorance
about her alleged disability – at most, they indicate that Howard
and other Tiffany personnel were aware that Plaintiff had requested
FMLA leave for “medical” reasons.
Moreover, the person with
specific knowledge of Plaintiff’s medical condition — Messier —
testified
that
she
did
not
discuss
the
specific
reason
for
Plaintiff’s leaves of absence with her superiors. See Def.’s SUF
Ex. B, at 178:17-20.
Accordingly, Plaintiff’s claim for disability discrimination
under the ADA (and, by extension, RIFEPA) fails at the prima facie
stage.
B.
FMLA Retaliation (Count II)
1. Statute of Limitations
Defendant
first
argues
that
Plaintiff’s
FMLA
retaliation
claim based on her First Leave in 2014 is barred by the two-year
statute of limitations set forth in 29 U.S.C. § 2617(c)(1). 15
Defendant initially objected to Plaintiff’s amendment of
her Complaint on several grounds, including timeliness.
See
generally Def.’s Resp. in Opp. to Pl.’s Mot. to Amend, ECF No. 24.
Although Magistrate Judge Sullivan allowed Plaintiff to amend her
Complaint, she noted that Plaintiff’s added FMLA retaliation claim
was “both legally and factually new” and expressly stated that
Defendant’s ability to raise the statute of limitations defense
was not affected by her order allowing amendment.
See May 23,
2018 Text Order.
15
18
Def.’s Mem. 19.
Plaintiff concedes that this claim was added more
than two years after her termination, but argues that it is not
barred because it relates back to the same set of facts alleged in
her initial pleading.
Pl.’s Obj. 5.
“Under the doctrine of
relation back, an amended complaint can be treated, for purposes
of the statute of limitations, as having been filed on the date of
the original complaint.”
Pessotti v. Eagle Mfg. Co., 946 F.2d
974, 975 (1st Cir. 1991). Relation back occurs when “the amendment
asserts
a
claim
or
defense
that
arose
out
of
the
conduct,
transaction, or occurrence set out – or attempted to be set out –
in the original pleading.”
Here,
Plaintiff’s
Fed. R. Civ. P. 15(c)(1)(B).
claim
arguably
depends
on
factual
allegations asserted for the first time in the Amended Complaint.
See Am. Compl. ¶¶ 12-13.
However, in her initial Complaint,
Plaintiff referenced her First Leave in 2014 and the fact that she
had exhausted her FMLA entitlement during that year.
10-11.
Compl. ¶¶
Plaintiff also alleged that she was terminated in 2015.
Id. ¶ 13.
Although a close call, the Court finds that Plaintiff’s
retaliation claim based on her 2014 FMLA leave sufficiently relates
back to the initial pleading because it stems from the same set of
core facts, and is therefore not barred by the two-year statute of
limitations.
2. Prima Facie Case
For a plaintiff to make out a prima facie case of retaliation
19
under the FMLA, she must show that she: (1) “availed herself of a
protected FMLA right”; (2) “was adversely affected by an employment
decision”; and (3) can establish a “causal connection between [her]
protected conduct and the adverse employment action.” CarreroOjeda v. Autoridad de Energía Eléctrica, 755 F.3d 711, 719 (1st
Cir. 2014) (citation and quotation marks omitted).
The first two elements of the prima facie FMLA retaliation
claim are not at issue. 16
respect
to
connection
this
claim
between
Therefore, the crux of the analysis with
relates
to
Plaintiff’s
whether
2014
there
leave
is
and
a
her
causal
2015
termination. 17
At the outset of this causation analysis, the parties dispute
It is undisputed that at least part of Plaintiff’s First
Leave in 2014 was covered under FMLA. Def.’s SUF ¶¶ 16-17. It is
further undisputed that Plaintiff was discharged in November 2015.
Id. ¶ 108.
17
Although there is much mention of Plaintiff’s second 2014
leave, it does not factor into the Court’s analysis of this prima
facie claim.
Two facts regarding Plaintiff’s Second Leave are
undisputed: (1) Plaintiff had already exhausted her FMLA
entitlement for the year during the First Leave and (2) Plaintiff
took her Second Leave and returned to work without issue for over
a year. See Valdez v. McGill, 462 Fed. Appx 814, 822-23 (10th
Cir. 2012) (holding that there can be no cognizable claim for FMLA
retaliation or interference where an employee has exhausted his or
her FMLA leave because, in such situation, the employee cannot
establish the first prong of his or her prima facie case, i.e.,
that he or she engaged in a “protected activity”)
Similarly, Plaintiff’s October 9, 2015, request for a third
leave to take place in 2016 cannot form the basis for a retaliation
claim.
It is undisputed that Howard indicated his intent to
terminate plaintiff two days prior to Plaintiff’s FMLA request.
Def.’s SUF ¶¶ 88, 93.
Furthermore, although Messier may have
learned that Plaintiff needed to take FMLA leave in 2016 for
16
20
whether a “but-for” or “negative factor” standard should apply.
See Pl.’s Obj. 9; Def.’s Reply 4-5, ECF No. 37.
has not yet clearly answered this question.
The First Circuit
Limoli v. Delta Air
Lines, Inc., No. 18-cv-10561-FDS, 2019 WL 6253269, at *6 (D. Mass.
Nov.
22,
2019)
(“The
causation
standard
retaliation cases is unresolved.”).
applicable
to
FMLA
Plaintiff argues that the
“negative-factor” standard should apply, “under which a plaintiff
need only show that her decision to take FMLA leave was a ‘negative
factor’ in an adverse employment action.”
Id. (citing Chase v.
United States Postal Serv., 843 F.3d 553, 559 n.2 (1st Cir. 2016));
see Pl.’s Obj. 9.
Defendant contends a “but-for” test governs,
which “requires proof that the unlawful retaliation would not have
occurred in the absence of the alleged wrongful action or actions
of the employer.”
Id. (quoting Chase, 843 F.3d at 559 n.2); see
Def.’s Reply 4-5.
The Court takes no position on which standard should apply in
this
case.
See
Chase,
843
F.3d
at
559
n.2.
Rather,
because
Plaintiff cannot meet her burden of demonstrating pretext, as
discussed in the following section, it assumes, without deciding,
that Plaintiff has satisfied her burden of establishing a prima
further surgery, Messier testified that she did not communicate
this information to Howard prior to his October 7, 2015 email. Id.
¶¶ 95, 98.
21
facie FMLA case.
3. Non-Discriminatory Reason and Pretext
Assuming, arguendo, that Plaintiff could make out a prima
facie case for FMLA retaliation, the Court finds that Defendant
has
set
forth
Plaintiff’s
a
legitimate,
termination.
non-discriminatory
Def.’s
Mem.
25-28.
reason
for
According
to
Defendant, Plaintiff’s position was eliminated because it was
inefficient and redundant to have a Director reporting to a Group
Director in a department of four people. See Def.’s SUF ¶¶ 85-86.
Consequently,
the
burden
shifts
to
Plaintiff
to
provide
evidence “from which a factfinder rationally might infer that the
employer’s articulated reason is a pretext for discrimination, and
that
the
real
animus.”
reason
for
the
termination
See Webber, 417 F.3d at 234.
was
discriminatory
To meet this burden, a
plaintiff “must offer some minimally sufficient evidence, direct
or indirect, both of pretext and of [Defendant’s] discriminatory
animus.”
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128,
140 (1st Cir. 2012) (emphasis in original) (quoting Mesnick v.
Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991)).
“It is not
enough for a plaintiff merely to impugn the veracity of the
employer’s
justification;
[s]he
must
elucidate
specific
facts
which would enable a jury to find that the reason given is not
only a sham, but a sham intended to cover up the employer’s real
motive.”
Mesnick, 950 F.2d at 824 (citation and quotation marks
22
omitted).
An
inference
of
pretext
may
be
drawn
where
a
plaintiff
demonstrates “such weaknesses, implausibilities, inconsistencies,
incoherencies,
or
contradictions
in
the
employer’s
proffered
legitimate reasons for its action” or “close temporal proximity”
between the FMLA leave and adverse employment action.
144 F.3d at 168 (citations omitted).
look
to
several
factors
to
assess
Hodgens,
Furthermore, a court may
discriminatory
motive,
including: (1) “the historical background of the . . . decision”;
(2) “the specific sequence of events leading up to the challenged
decision”; (3) “departures form the normal procedural sequence”;
(4) “any contemporary statements by members of the decisionmaking
body”; and (5) “substantive departures. . ., particularly if the
factors usually considered important by the decisionmaker strongly
favor a decision contrary to the one reached.”
Id. at 168-69
(citations omitted).
Plaintiff contends that “a pattern of behavior” exists from
which a jury could infer that Howard had a discriminatory motive
when
he
decided
to
eliminate
her
position.
Pl.’s
Obj.
14.
Plaintiff points to the following actions by Howard to support her
argument: (1) questioning her attendance record; (2) describing
Plaintiff’s Second Leave as “unfortunate” in a June 10, 2014 email;
(3) setting Plaintiff up in a director position only to determine
months later that the job was redundant; (4) blaming Plaintiff for
23
Martin’s
resignation;
(5)
insisting
that
Messier
reduce
Plaintiff’s performance rating on her 2014 performance evaluation;
(6) holding Plaintiff accountable for inventory issues while she
was on FMLA leave; and (7) arranging a “sham job offer” for a nonexistent position.
See id. at 18. Although the Court looks at
these facts cohesively to analyze pretext, it briefly addresses
each point.
First, Plaintiff claims that “Messier[] testified that Howard
had asked questions about [Plaintiff’s] ‘excessive absenteeism’
during
2014,”
and
that
discriminatory animus.
this
line
Id. at 10.
of
questioning
reveals
a
However, a review of the cited
deposition testimony reveals that it was counsel, not Messier, who
used the phrase “excessive absenteeism” and that Messier never
even fully responded to the question in which that phrase was used.
See Pl.’s Obj. Ex. EE, at 180:13-181:7, ECF No. 36-10.
Moreover,
the record shows that Plaintiff took at least one additional,
unprotected
vacation.
leave
of
absence
in
October
2014
for
a
personal
Def.’s SUF ¶ 46; Def.’s SUF Ex. I, at 27:10-28:3.
Thus,
even if Howard raised questions about Plaintiff’s attendance in
2014, the evidence to which she has cited does not show that his
questions were related to her FMLA leave, as opposed to her other
absences throughout the year.
Second,
Plaintiff
“unfortunately”
in
an
argues
email
that
Howard’s
discussing
24
her
use
2013
of
the
word
performance
evaluation allows for an inference of discriminatory animus. Pl.’s
Obj. 14. In Howard’s June 10, 2014 email, the word “unfortunately”
was used to describe the fact that Plaintiff would be out of work
for an additional six weeks during her Second Leave.
SUF Ex. K, June 10, 2014 Email.
See Def.’s
As discussed supra, Plaintiff’s
Second Leave cannot form the basis for her FMLA retaliation claim
because she had already exhausted her FMLA entitlement.
Further,
even if the Court reads this comment in relation to her JanuaryMay 2014 FMLA leave, it would be purely speculative to infer any
causal connection between that comment and the elimination of
Plaintiff’s position sixteen months later, and Plaintiff has not
pointed to any evidence in the record to support such an inference.
See, e.g., Bennett v. Saint-Gobain Corp., 507 F.3d 23, 32 (1st
Cir. 2007) (“[S]ixteen months passed between the filing of the
grievance and the plaintiff's subsequent ouster. This temporal gap
is
sufficiently
large
so
that,
without
some
corroborative
evidence, it will not support an inferred notion of a causal
connection between the two.”).
Third,
Director
of
Plaintiff
Strategic
argues
Howard
Sourcing
and
created
moved
the
position
O’Rourke
into
of
that
position in December 2014 with the intention of terminating her.
Pl.’s Obj. 14-15.
She argues that Howard’s “explanation for
eliminating this job — less than a year after he created it — was
that it made no sense to have the position of director — a position
25
he had created — on Ms. Messier’s team.” Id.
The First Circuit
has instructed that “[c]ourts may not sit as super personnel
departments, assessing the merits — or even the rationality — of
employers' nondiscriminatory business decisions.”
Mesnick, 950
F.2d at 825; see Smith v. Stratus Computer, Inc., 40 F.3d 11, 16
(1st Cir. 1994) (stating in a Title VII discrimination case that
a
plaintiff
is
not
entitled
to
relief
where
she
“has
been
discharged unfairly, even by the most irrational of managers,
unless the facts and circumstances indicate that discriminatory
animus was the reason for the decision”).
Fourth, Plaintiff contends that part of this pattern included
Howard “wrongly” holding her responsible for Martin’s resignation.
Pl.’s Obj. 18.
However, nothing in the record connects Howard’s
comments about Martin to Plaintiff’s FMLA leave.
Howard discussed
Martin’s abrupt resignation in the context of his questions about
Plaintiff’s 2013 Performance Evaluation.
2.
See Def.’s SUF Ex. K, at
Notably, Howard also stated in that email that he “wasn’t
[there] in 2013,” and that he didn’t “want to be unfair, and
planned to evaluate [Plaintiff’s] performance over the next few
months.”
Id.
Fifth, Plaintiff argues that “a jury can consider as evidence
of Howard’s intent the emails questioning [Plaintiff’s] rating,”
and
claims
that
Howard
“insisted”
Messier
performance rating in the March 2, 2015 email.
26
reduce
O’Rourke’s
Pl.’s Obj. 14, 17.
However, Howard did not eliminate Plaintiff’s position because of
performance
issues
–
he
eliminated
her
position
because
her
Director-level status was redundant and inefficient in a group of
four people.
21:17.
See Def.’s SUF ¶¶ 85-86; Def.’s SUF Ex. C, at 17:14-
Furthermore, nothing in the record suggests that Howard
challenged Plaintiff’s 2014 Performance Evaluation because she
took FMLA leave.
Sixth, Plaintiff points to the same March 2, 2015 email to
argue that Howard held her accountable for inventory issues during
her leave, which serves as evidence of animus about her exercise
of FMLA rights.
Pl.’s Obj. 14.
Similarly, these comments relate
to her performance evaluation, and Plaintiff has not pointed to
specific evidence to show that these comments demonstrate animus
based on her FMLA leave. See Def.’s SUF Ex. J.
Seventh, Plaintiff claims that Howard’s decision to offer her
the lower-level position in lieu of termination in November 2015
demonstrates pretext because “the alternative position offered to
[Plaintiff] did not even exist at the time he decided to terminate
her.”
Pl.’s
However,
Obj.
this
12
(citing
argument
does
Pl.’s
Obj.
not
rebut
Ex.
W,
at
119:2-6).
Tiffany’s
proffered
legitimate reason for eliminating Plaintiff’s position – i.e.,
that it was inefficient to have a Director reporting to a Group
Director in an operation of four people.
See St. Mary's Honor
Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (stating in a Title VII
27
discrimination case that “a reason cannot be proved to be ‘a
pretext for
discrimination’
unless
it
is
shown both that
the
reason was false, and that discrimination was the real reason.”)
(emphasis in original).
Tiffany did not try to hide that it was
eliminating Plaintiff’s position – indeed, it offered her the
choice between accepting a lower-level position or accepting the
standard severance package at the same time. Def.’s SUF ¶ 107.
Moreover, following Plaintiff’s position elimination, Tiffany did
not re-add a director level position to the sourcing department.
Id. ¶¶ 112-114.
Thus, the fact that Tiffany offered Plaintiff a
lower-level position that did not yet exist is not particularly
relevant
to
assessing
the
“real
reason”
her
position
was
eliminated.
The question for the Court to decide is whether these facts,
considered in the light most favorable to Plaintiff, are sufficient
to raise a genuine issue of material fact as to whether Plaintiff
was discriminated against based on her exercise of FMLA rights.
See Zapata-Matos v. Reckitt & Colman, Inc., 277 F.3d 40, 45 (1st
Cir. 2002).
Taking all of the evidence together, the Court finds
that Plaintiff’s proffered evidence does not create a dispute of
fact as to whether Howard terminated Plaintiff for taking FMLA
leave.
Accordingly, Defendant is entitled to summary judgment on
28
Count II.
IV.
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary
Judgment, ECF No. 34, is GRANTED as to all counts.
enter in favor of Defendant.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: March 27, 2020
29
Judgment shall
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