MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGEMENT
Laura Patrick brought suit in Essex Superior Court against herformer employer, Jansson Corporation (Jansson), allegingpregnancy discrimination in violation of G.L. c. 151B.1Jansson removed the case to the federal district court ondiversity grounds. After the usual course of discovery, Janssonmoved for summary judgment. Patrick duly opposed themotion.2 On May 19, 2005, the court heard oral argument.
The facts in the light most favorable to Patrick are asfollows. Jansson is a Minnesota-based printing companyspecializing in high-end items such as social invitations andbusiness cards. Each year, Jansson introduces new product lines,which are featured at trade shows and in catalogues mailed tostationery stores. Production gears up four months in advance of the trade shows. Jansson wasfounded by Arlene Osoff and two partners in 1976. The company waseventually acquired by Taylor Corporation. After the acquisition,Osoff stayed on as Jansson's General Manager. In 2001, Janssonhad eighty-eight employees, the large majority of whom(sixty-six) were women. Eight of Jansson's eleven senior managers(including Patrick) were female. Eleven of Jansson's twentyfemale assemblers were assigned part-time schedules as achildcare accommodation.
Patrick began working at Jansson as a customer servicerepresentative in August of 1994. Within a year, Patrick waspromoted to Finishing Manager. In 1998, she received a furtherpromotion to the position of Design Development Manager. In thatjob, she was responsible for the development, design, and initialproduction of Jansson's entire product offering. Other thanOsoff, Patrick was the only designer employed at Jansson. Patrickreceived an annual salary of $52,260.
Between January of 2000 and November of 2001, Patrick tookthree FMLA leaves.3 The first two leaves transpiredwithout incident. When Patrick requested a third FMLA leave,Osoff suggested that Patrick take advantage of Jansson's recentlyinstituted salary continuation plan. As a result of Osoff'sintervention, Patrick received 75 percent of her regular salaryduring the seven weeks of her third FMLA leave. On November 26,2001, as the third leave was coming to an end, Patrick calledOsoff to tell her that she was pregnant. She asked Osoff for an additional week's leave. Osoffagreed to the request.
On December 3, 2001, Patrick met with Osoff to discuss a changein her work schedule during the first trimester of herpregnancy.4 Patrick, who was concerned with the risk of amiscarriage, proposed to work a condensed four-day week. Patrickalso told Osoff that she did not want to work onSaturdays,5 but that she would be "more than happy tocome in an extra day in February."
Osoff told Patrick that a condensed schedule would result inthe loss of her status as a salaried employee. Osoff offered topay Patrick an hourly rate of $22.50, an amount which wascalculated by dividing Patrick's annual salary of $52,260 by2,288 hours (the latter figure was based on the assumption thatsalaried employees typically worked four hours of uncompensatedovertime each week).6 Jansson had no written policyrequiring a salaried employee to work uncompensated overtime orto accept an hourly rate of pay in exchange for a flexible workschedule.
Patrick and Osoff met three times on December 7, 2001. Duringthese meetings, Patrick objected to the loss of her salariedstatus, arguing that a pay cut would be unfair in that there would be no real change in her responsibilities,and that if she worked her customary forty-hour week, she wouldmake less money for doing the same job. Osoff told Patrick thatshe would be stepping down from her position as DesignDevelopment Manager as soon as she had trained her replacement.Patrick replied that she did not understand why she was beingdemoted when she had simply asked for a more flexible workschedule.7
In a conversation later that day, Osoff told Patrick that shewould be sick during her pregnancy and unable to do her job. ToOsoff's question "what are you going to do if you have more thanone baby?," Patrick answered that only one child wascontemplated. After a further exchange, Osoff slammed her fist onthe desk and accused Patrick of being ungrateful for her "gift"of paid FMLA leave. Patrick replied that she understood the paidleave to be a company benefit and not a gift. When Patrick statedthat she planned to return to work after having the baby, Osofftold her that she would not be able to make an informed decisionabout resuming work until after she had given birth. Osoff askedPatrick, "what's going to happen if you need to stay home withthe baby when he or she is ill?" When Patrick replied that thequestion was not immediately relevant, Osoff replied "well, let'sface it. It's a man's world. The woman always stay home with thechild." Osoff complained to Patrick, "why should I pay foranother designer? Because if you didn't get pregnant, there wasno need for me to hire another designer because you would be the designer." Patrick and Osoff returned to the topic one more timeon December 7. This last meeting grew confrontational and endedwhen Osoff slammed her fist on the table, pointed her fingerdirectly in Patrick's face and told her to leave. Patrickunderstood Osoff to say that she was fired. Patrick left theworkplace and did not return.8
Summary judgment is appropriate when "the pleadings,depositions, answers to interrogatories and admissions on file,together with the affidavits, if any, show that there is nogenuine issue as to any material fact and that the moving partyis entitled to a judgment as a matter of law." Fed.R.Civ.P.56(c). Once the moving party asserts "an absence of evidence tosupport the nonmoving party's case," Celotex Corp. v. Caterett,477 U.S. 317, 325 (1986), the latter must establish the existenceof an issue that is both "genuine" and "material." Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
To prevail on a claim of gender discrimination underChapter 151B, Patrick has the initial burden of showing a prima faciecase by a preponderance of the evidence, that is: (1) that shewas within a protected class; (2) that she met her employer'slegitimate performance expectations; (3) that she was actually orconstructively discharged; and (4) that she was replaced byanother employee with similar skills and qualifications.9St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). While notidentical in every respect, the interpretation of Chapter 151B bythe Massachusetts courts largely mirrors the Supreme Court'sinterpretation of federal Title VII. See Wheelock College v.Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 137(1976); Blare v. Husky Injection Molding Sys. Boston, Inc.,419 Mass. 437, 440-441 (1995).
A successful showing of a prima facie case "eliminates the mostcommon nondiscriminatory reasons for the plaintiff's rejection,"Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254(1981), and creates (what is perhaps inaccurately termed) a"presumption" of discrimination. Blare, 419 Mass. at 441. Underthe familiar McDonnell Douglas burden-shifting formula, anemployer can eliminate the evidentiary force of the presumptionby offering a legitimate, nondiscriminatory reason for theemployment decision. Once the employer meets this burden, whichis one of production only, the plaintiff must prove that theemployer's articulated justification is a cover up orpretext.10 Historically, Massachusetts had been more generous toplaintiffs than the federal courts by requiring a plaintiff toprove only that the employer's explanation for the adverseemployment decision was pretextual, not that the true reasonswere (necessarily) discriminatory. Blare, 419 Mass. at 443.Federal law has since Blare tended to converge with theMassachusetts approach. See Reeves v. Sanderson PlumbingProds., Inc., 530 U.S. 133, 142 (2000). Cf. Lattimore v.Polaroid Corp., 99 F.3d 456, 465 (1st Cir. 1996) ("When theprima facie case is very strong and disbelief of the profferedreason provides cause to believe that the employer was motivatedby a discriminatory purpose, proof of pretext `may' be sufficient[without the introduction of any additional evidence ofdiscrimination]."). Compare Wheelock College,371 Mass. at 138 ("[I]f the employee has proved a prima facie case . . . andthe employer gives an explanation for a hiring decision which hasno reasonable support in the evidence or is wholly disbelieved(and hence is transparently a pretext), the employee shouldprevail.").
In Massachusetts, "[s]ummary judgment is a disfavored remedy inthe context of discrimination cases based upon disparatetreatment."11 Blare, 419 Mass. at 439. Thus, the issueof discriminatory intent in the great majority of cases is aquestion of fact. Anderson v. City of Bessemer, 470 U.S. 564,572-573 (1985). "The ultimate question of the defendant's stateof mind is elusive and rarely is established by other than circumstantial evidence, which requires the jury to weigh thecredibility of conflicting explanations. . . ." Blare,419 Mass. at 439-440.
Jansson does not dispute that Patrick falls within a protectedclass and that she was a satisfactory (indeed an exemplary)employee. Nor does Jansson dispute for present purposes thecontention that plans were afoot to replace Patrick as SeniorDevelopment Designer. Rather, Jansson argues that Patrick's primafacie case fails because she cannot show any adverse employmentaction. Jansson argues that Patrick was neither terminated norwere her working conditions made so intolerable that resignation(constructive discharge) was a reasonable response to what inJansson's eye were modest adjustments in Patrick's pay and jobdescription.
Patrick, for her part, maintains that a constructive dischargeoccurred when Osoff told her that she would be responsible fortraining a person to take her place in senior management, andthat as a result, she would take a loss in pay. In thealternative, Patrick contends that she reasonably believed thatshe had been fired by Osoff on December 7, 2001, when Osoffyelled at her and told her to leave the premises.12
In a wrongful termination case, an allegation of constructivedischarge "presents a `special wrinkle' that amounts to anadditional prima facie element. In such cases, the plaintiff mustprove that [her] employer imposed `working conditions sointolerable ? that a reasonable person would feel compelled toforsake [her] job rather than to submit to looming indignities.'"Landrau-Romero v. Banco Popular de Puerto Rico, 212 F.3d 607,613 (1st Cir. 2000) (internal citations omitted). "Typically, theemployer must either (1) take something of consequence from the employee, say, bydischarging or demoting her, reducing her salary, or divestingher of significant responsibilities, or (2) withhold from theemployee an accouterment of the employment relationship, say, byfailing to follow a customary practice of considering her forpromotion after a particular period of service." Blackie v.Maine, 75 F.3d 716, 725-726 (1st Cir. 1996) (internal citationsomitted). "A constructive discharge also may occur when anemployer effectively prevents an employee from performing [her]job." Sanchez v. Puerto Rico Oil Co., 37 F.3d 712, 719 (1stCir. 1994).
To prove a constructive discharge, a plaintiff must offerevidence of more severe harassment than that required for ahostile work environment claim. Hernandez-Torres v.Intercontinental Trading, Inc., 158 F.3d 43, 48 (1st Cir. 1998).For example, an injury to an employee's pride resulting from theloss of a promotion will not, in and of itself, support a findingof constructive discharge. See Serrano-Cruz v. DFI PuertoRico, Inc., 109 F.3d 23, 27 (1st Cir. 1997). Because the test isobjective, the employer's subjective intent is immaterial. Ramosv. Davis & Geck, Inc., 167 F.3d 727, 732-733 (1st Cir. 1999).So, too, are the employee's hurt feelings, no matter howsincerely held. Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 54(1st Cir. 2000). Instead, the employee must show that her workingconditions were "so difficult or unpleasant that a reasonableperson in [her] shoes would have felt compelled to resign."Marrero v. Goya of Puerto Rico, Inc., 304 F.3d 7, 46 (1st Cir.2002), citing Alicea Rosado v. Garcia Santiago, 562 F.2d 114,119 (1st Cir. 1977). Massachusetts and federal law are in accord in defining aconstructive discharge.
"The test is met if, based on an objective assessment of the conditions under which the employee has asserted [she] was expected to work, it could be found they were so difficult as to be intolerable. . . . A single, isolated act of an employer (or an agent of the employer) usually will not be enough to support a constructive discharge claim. Thus, evidence of a single unfavorable performance review or even of a demotion generally will not be deemed sufficient to support a claim. . . . In order to amount to a constructive discharge, adverse working conditions must be unusually `aggravated' or amount to a `continuous pattern' before the situation will be deemed intolerable."GTE Products Corp. v. Stewart, 421 Mass. 22, 34-35 (1995)(citations omitted). See also Rubin v. Household CommercialFinancial Services, Inc., 51 Mass. App. Ct. 432, 446 (2001)(acknowledging that a constructive discharge may be found wherean employee is stripped of her authority to the point that herjob is effectively given to someone else).
Taking the facts in the light most favorable to Patrick, areasonable observer could conclude that she had in fact beendismissed on December 7, 2001. Osoff's angry demeanor appeared toleave little room for further negotiations or discussion.Moreover, Osoff's order that Patrick "leave," coming as it did inthe context of demeaning comments about the ability of a motherof a newborn to perform satisfactorily in the workplace and theannouncement of an imminent demotion and a loss of pay, mightreasonably have been interpreted by Patrick as notice that shehad been terminated.13 ORDER
For the foregoing reasons, Jansson's summary judgment motion isDENIED. The clerk will set the case for trial.14
1. While in her Complaint, Patrick alleges that Janssonviolated the Family and Medical Leave Act (FMLA),29 U.S.C. § 2601 et seq. (Complaint ¶ 32) in her brief she makes clear thatshe is not pressing a FMLA claim.
2. Jansson requested and was granted leave to file a replybrief, but never did so.
3. Patrick took leaves for the following reasons: betweenJanuary 17 and February 16, 2000, to undergo a fertility-relatedprocedure; between February 28 and March 20, 2001, to undergoemergency surgery; and between October 15 and November 26, 2001,to undergo additional fertility treatments.
4. Jansson argues that during the heightened productionperiod, Patrick's physical presence was critical. It is not clearfrom the record whether the first trimester of Patrick'spregnancy coincided with the pre-trade show period.
5. Jansson maintains that Patrick requested that a seconddesigner be hired to share the work load, that she be givenMondays off, and that she not be required to work overtime. Forsummary judgment purposes, these allegations are disputed.
6. The math actually works out to an hourly wage of $22.84,which Osoff rounded down to "reflect" Patrick's reducedresponsibilities. If Patrick worked a forty-hour week at anhourly rate of $22.50, she would have earned an annual wage of$46,800 ($5,460 less than her existing salary).
7. At oral argument, Jansson contended that Patrick's claimsof discrimination are contradicted by her deposition testimony. Areading of the deposition transcript, however, reveals nothingmore than that Patrick, in responding to ambiguous questionsposed by Jansson's counsel, adopted the suggestion that thediminution in Patrick's job status and pay was never given anovertly discriminatory explanation by Osoff.
8. Four other female employees at Jansson were moved from asalaried position to a part-time reduced hourly rate of pay afterrequesting childcare-related scheduling accommodations. A fifthsalaried employee, apparently a male, was also shifted to anhourly status after requesting a flexible work schedule.
9. More specifically, where pregnancy discrimination isalleged, a prima facie case requires a plaintiff to show that:(1) she is pregnant (or has indicated an intention to becomepregnant), (2) her job performance has been satisfactory, butthat (3) the employer nonetheless dismissed her (or took someother adverse employment action), while (4) continuing to haveher duties performed by a comparably qualified person. Smith v.F.W. Morse & Co., Inc., 76 F.3d 413, 421 (1st Cir. 1996).Congress has extended specific protections to expectant mothersin the Pregnancy Discrimination Act of 1978, 42 U.S.C. § 2000e. Apregnant plaintiff bears the same burden as any otherdiscrimination plaintiff of proving that an employer'snondiscriminatory explanation for an adverse action is a pretextfor discrimination. Smith, 76 F.3d at 421.
10. The burden shifting formula was devised for the typicalcase in which a plaintiff's only means of proving discriminationis through circumstantial evidence. The McDonnell Douglasframework thus comes into play when there is no direct evidenceof a discriminatory motive. Direct evidence shifts the burden ofpersuasion from the employee to the employer who must then proveit would have made the same decision even if it had not taken theprotected characteristic into account. Price Waterhouse v.Hopkins, 490 U.S. 228, 242 (1989). A plaintiff is not requiredto produce direct evidence of discrimination to sustain a"mixed-motive" case, only evidence sufficient to establish thatanimus was a motivating factor in the adverse employmentdecision. Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-102(2003) (modifying Price Waterhouse in this respect).
11. Although Patrick's brief also advances a disparate impactclaim, she conceded at oral argument that the scant statisticalevidence suggesting that a greater proportion of women than mensuffered an adverse consequence from Jansson's "policy" of movingworkers who request flexible time from salaried to hourly statusis insufficient to support this alternative theory ofdiscrimination. See Donnelly v. Rhode Island Bd. of Govs. forHigher Educ., 110 F.3d 2 (1st Cir. 1997).
12. Osoff maintains that she merely wanted Patrick to leaveher office.
13. I do not rule out the possibility that a finder of factmight conclude that the demotion, loss of pay, and disparagementof motherhood (particularly in the case of a woman who hadundergone lengthy and invasive fertility treatments) wassufficiently humiliating to amount to a constructive discharge,although the question is a close one.
14. As guidance to counsel, the court intends to submit thecase fo the jury on Patrick's theory of pregnancy discrimination.Although she also articulates a generic claim of genderdiscrimination, pregnancy discrimination is, the appropriatesubset of the generic claim for jury purposes.