VACHON v. R. M. DAVIS

2004 | Cited 0 times | D. Maine | April 13, 2004

MEMORANDUM DECISION ON MOTION TO STRIKE AND RECOMMENDED DECISION ON MOTION FOR SUMMARY JUDGMENT

The defendant, R M. Davis, Inc., moves for summary judgment on allclaims asserted against it by the plaintiff, Robyn Vachon, its formeremployee. The defendant has also filed a motion to strike portions of thePlaintiff's response to its statement of material facts and portions ofthe statement of additional facts filed by the plaintiff in opposition tothe motion for summary judgment. I grant the motion to strike in part andrecommend that the court grant the motion for summary judgment.

I. Motion to Strike

To support the response to the defendant's statement of material factsthat is required by Local Rule 56(c), the plaintiff filed, interalia, the affidavit of her attorney in which he identifies nineteenexhibits as "true and correct" copies of certain documents. Affidavit ofGuy D. Loranger in Support of Plaintiff's Opposition to Defendant'sSeparate [sic] Statement of Material Facts ("First Loranger Aff."),Attachment 1 to Plaintiff's Opposition to Defendant's Statement ofMaterial Facts ("Plaintiff's Responsive SMF") (Docket No. 15). To support her own statement of additionalmaterial facts filed pursuant to Local Rule 56(c), the plaintiff filed,inter alia, another affidavit from her attorney in which heidentifies 61 exhibits as "true and correct" copies of certain documents.Affidavit of Guy D. Loranger in Support of Plaintiff's Statement ofUndisputed Facts ("Second Loranger Aff."), Attachment 1 to Plaintiff'sSeparate Statement of Undisputed Facts ("Plaintiff's SMF") (Docket No.16). In each affidavit, the attorney states that all of his statementsare made "under the penalty of perjury." First Loranger Aff. at 4; SecondLoranger Aff. at 6. In each affidavit he states that all of the documentsto which the affidavit refers were produced by the defendant "as part ofPlaintiff's employment file" and were business records of the defendant.First Loranger Aff. ¶ 1; Second Loranger Aff. ¶ 61.

The defendant moves to strike both affidavits and those portions of thePlaintiff's responsive and additional statements of material facts "thatare supported only by citation to one of the Loranger Affidavits."Defendant's Motion to Strike, etc. ("Motion to Strike") (Docket No. 20)at 1. Most of the paragraphs of the two statements of material facts aresupported only by citation to one or the other of the affidavits. Thedefendant contends that the attorney's affidavits are not made onpersonal knowledge, as required by Fed.R.Civ.P. 56(e), because theattorney could not possibly have the necessary knowledge to identify andauthenticate the documents. Id. at 3-5.

The plaintiff responds that "in a summary judgment" documents producedand identified by an employer as a Plaintiff's personnel file do not needfurther authentication. Plaintiff's Opposition to Defendant's Motion toStrike ("Strike Opposition") (Docket No. 25) at 1. She also contends thatthe defendant authenticated her personnel file as its business record inthe affidavit of its vice-president, Wendy Laidlaw, submitted in supportof the motion for summary judgment, and that "most" of the exhibitsattached to the Loranger affidavits do not rely solely on the affidavitsfor authentication Id. at 2. The second argument is based on a mischaracterization of the Laidlawaffidavit, which in no way can reasonably be construed to authenticatethe Plaintiff's "personnel file," or anything other than the documentsattached to the affidavit. Affidavit of Wendy A. Laidlaw ("Laidlaw Aff.")(Docket No. 14). The third argument is based on a listing of new sourcesfor authentication of specific documents listed in the Lorangeraffidavits. Strike Opposition at 4-9. Each of those documents wasauthenticated in the Plaintiff's initial filings only by one or the otherof the Loranger affidavits. The plaintiff, having been alerted to apossible deficiency in her authentication of the documents on which thosefilings rely, cannot now be allowed to remedy the deficiency after thefact, particularly when that approach would require the court to examineeach new source cited for each document, an exercise that would not havebeen necessary had Plaintiff's counsel made a proper authentication inthe first place. I will accordingly consider only the Plaintiff's firstarguments.

The plaintiff cites three decisions in support of her first argument,to which the defendant has not responded. In one of those cases, thecited language is clearly dicta, because the court chose analternate basis for its decision. Sharma v. Brown, 1997 WL 43472(N.D. Ill. Jan. 29, 1997), at *4. The courts in the other two cases dohold that a document produced in discovery by the defendant employer fromthe Plaintiff's personnel file is sufficiently authenticated thereby,although in one case the court notes that such provenance is "perhapsenough to overcome a hearsay objection," Corral v. Chicago FaucetCo., 2000 WL 628981 (N.D. Ill. Mar. 9, 2000), at *3, and in theother case the court finds the documents sufficient because they "arebusiness records maintained by the" defendant employer and "areverifiable and of known origin," Johnson v. Medical Ctr. ofLouisiana, 2002 WL 31886829 (E.D. La. Dec. 26, 2002), at *2. I willaccept the Plaintiff's general argument for purposes of the motion forsummary judgment, see also Denson v. Northeast Illinois Reg'lCommuter R.R. Corp., 2002 WL 15710 (N.D. Ill. Jan. 4, 2002), at*2-*3, but that does not end the matter. The defendant points to two specific documents that have additionalauthentication deficiencies. Motion to Strike at 4. Exhibit 23 to thesecond Loranger affidavit is a handwritten note that the affidavitidentifies as "a hand written note by Kimberly Kalicky." Second LorangerAff. ¶ 23. While the document is written on paper with a letterheadbearing Ms. Kalicky's name, the attorney's affidavit makes no attempt toassert that the handwriting belongs to Ms. Kalicky. Exh. 23 to SecondLoranger Aff. This document accordingly is neither verifiable — atleast by the Plaintiff's attorney — nor of known origin. The seconddocument, Exhibit 61 to the second Loranger affidavit, is identified inthe affidavit as "an email from Wendy Laidlaw to Gerry Crouter." SecondLoranger Aff. ¶ 60. This document has several handwritten notes onit. Exh. 61 to Second Loranger Aff. The Plaintiff's statement of materialfacts apparently assumes that the notes were written by Wendy Laidlaw.Plaintiff's SMF ¶¶ 8, 89.1 This portion of the document is neitherverifiable nor can the origin possibly be known by the attorney; indeed,the handwritten portions could not be part of an e-mail. Paragraphs 23and 60 of the second Loranger affidavit will be stricken, along withparagraphs 8, 48 and 89 of the Plaintiff's statement of material facts.The remainder of the defendant's motion to strike is denied.

II. Motion for Summary Judgment

A. Summary Judgment Standard

Summary judgment is appropriate only if the record shows "that there isno genuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). "Inthis regard, `material' means that a contested fact has the potential tochange the outcome of the suit under the governing law if the disputeover it is resolved favorably to the nonmovant. By like token, `genuine' means that `the evidence about the fact is such that areasonable jury could resolve the point in favor of the nonmovingparty.'" Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir.2001) (quoting McCarthy v. Northwest Airlines, Inc.,56 F.3d 313, 315 (1st Cir. 1995)).

The party moving for summary judgment must demonstrate an absence ofevidence to support the nonmoving party's case. Celotex Corp. v.Catrett, 477 U.S. 317, 325 (1986). In determining whether thisburden is met, the court must view the record in the light most favorableto the nonmoving party and give that party the benefit of all reasonableinferences in its favor. Nicolo v. Philip Morris, Inc.,201 F.3d 29, 33 (1st Cir. 2000). Once the moving party has made a preliminaryshowing that no genuine issue of material fact exists, the nonmovant must"produce specific facts, in suitable evidentiary form, to establish thepresence of a trialworthy issue." Triangle Trading Co. v. RobroyIndus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (citation and internalpunctuation omitted); Fed.R.Civ.P. 56(e). "As to any essential factualelement of its claim on which the nonmovant would bear the burden ofproof at trial, its failure to come forward with sufficient evidence togenerate a trialworthy issue warrants summary judgment to the movingparty." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citationand internal punctuation omitted).

B. Factual Background

The following undisputed material facts are appropriately supported inthe parties' respective statements of material facts.

The defendant, which is in the business of providing investment andwealth management services and advice, had 38 employees during therelevant period of time, 32 of whom were salaried employees and six ofwhom were hourly employees. Defendant's Statement of Material Facts("Defendant's SMF") (Docket No. 7) ¶¶ 1-2; Plaintiff's Responsive SMF ¶¶ 1-2. Thedefendant had a policy manual which included the following policy: R. M. Davis, Inc. is not subject to the Federal Family Medical Leave Act at this time; however, the company is subject to the State of Maine Family Medical Leave Act. Each employee who has been employed consistently by the company for at least one year may receive up to 10 weeks of unpaid medical leave in any two calendar year period [sic] due to the 1) birth of an employee's child, 2) placement of a child 16 years old or younger with the employee in connection with the adoption or foster care of the child by the employee, 3) care for a child, parent or spouse with a serious health condition, or 4) the [sic] employee's own serious health condition. The 10 weeks may run concurrently with other paid or unpaid leave that may be available to the employee such as sick, personal, vacation, or maternity leave. Employees must provide at least 30 days notice to the company of any foreseeable event that could involve family medical leave. If 30 days notice is not possible, then notice must be provided as soon as practicable.Id. ¶¶ 4-5.2 The defendant also had a writtenpolicy requesting employees to keep personal telephone calls duringworking hours few in number and brief in length. Id. ¶ 7.The defendant also had a policy that personal use of the internet waspermitted only during non-working hours and breaks and must not interferewith business activity. Id. ¶ 6.3

The defendant also had the following written policy: It has been traditional practice that during the months of July and August each year, employees may leave at 1:00 p.m. on alternating Friday afternoons. A schedule is established in the spring of each year and circulated. Employees are strategically divided into two equally sized groups to provide proper coverage and support in the office. Each group is assigned the set of dates when they may leave early. Changes and substitutions to the schedule are strongly discouraged due to the strategic nature of the group selection process and so that the list can be relied upon by all employees. Employees are asked to work through 1:00 p.m. on the days when they are leaving early to permit the other group of employees to each lunch and return to the office by 1:00 p.m.Id. ¶ 11.

In July 1996 the defendant hired the plaintiff for an eight-weektemporary position as an administrative assistant. Id. ¶ 13.At the end of that period she was hired as a permanent part-timeemployee, working 24 hours per week. Id. In June 1997 she beganworking 30 hours per week and in January 1998 this was increased to 35hours per week. Id. She was permitted to remain a part-timeemployee even after the defendant adopted a policy requiring allemployees to work full time. Id. Wendy Laidlaw, the defendant'schief operating officer, was the Plaintiff's supervisor for her firstfour years of employment with the defendant. Id. ¶ 14.Kimberley Kalicky took over as the Plaintiff's supervisor in January2001. Id. ¶ 15.

Laidlaw evaluated the plaintiff in writing after she had been employedby the defendant for three months, six months and yearly thereafter.Id. ¶ 16. In these evaluations, the plaintiff was repeatedlycomplimented for her friendly demeanor, excellent word processing skillsand clerical work. Id. ¶ 19. One area identified by Laidlawwhere the plaintiff needed to improve was in the amount of time she wasmissing from work and the amount of time she spent on personal mattersduring the work day. Id.4 Laidlaw addressed these concernswith the plaintiff during her performance reviews. Id. ¶20.5 In the 1998 performance evaluation, Laidlaw wrote: With some regularity, events in your personal life seem to affect your demeanor and ability to function in an effective and work-focused way in the office. While we all have days and periods when our work-life is impacted by our home-life, it is important that we try to minimize the impact of these at work as much as possible. One way in which this might be accomplished is for you to exercise good management of your leave time so that you have days to take as leave when emergencies and unforeseen events occur. In 1998 your management of your leave time was poor. I need you to improve your management of your leave time in 1999.

Id. ¶ 21.6 In the 2000 review, Laidlaw wrote: My general concern in the performance area, Robyn, is if the Company is consistently getting your focus, attention and productivity for a full 35 hour a week (not including paid leave time, lunch breaks, etc.). I am concerned, outside the occasional bad or distracting days we all have, that you are not as productive during working hours as you could be or should be. With the attractive distractions of personal emails — received and sent, phone calls, non-work related chats, the hours taken away from work can add up surprisingly quickly. I would like to know your view of this matter regarding your performance.Id. ¶ 22.7

In February 2001 the plaintiff notified the defendant that she wasrequired to be on bed rest for the remainder of her pregnancy.Id. ¶ 26. In a letter to the plaintiff dated February 23,2001 Laidlaw wrote that she would decide whether the plaintiff would beallowed to work from home after hearing from the plaintiff that she haddiscussed he ability to do so with her physician. Id. ¶ 27.The plaintiff never told Laidlaw after this date that she was able towork from home. Id. ¶ 28.8 The plaintiff was out of workfor six months, until August 13, 2001. Id. ¶ 30. When the plaintiff was getting ready to return to work, she haddifficulty getting her new infant to take a bottle. Id. ¶31. She told Kalicky that she would have to leave early each day to feedthe baby and that she would use personal time for that purpose.Id. ¶ 34. Kalicky agreed, and the plaintiff did this for herfirst two weeks back at work. Id. The plaintiff also expressedmilk for her baby during breaks in the working day. Id. ¶35. Upon her return to work, the plaintiff had only one week of leaveremaining for the entire year. Plaintiff's SMF ¶ 15; Reply Statementof Facts ("Defendant's Responsive SMF") (Docket No. 24) ¶ 15. Theplaintiff used her thirty minutes allotted for lunch to pump.Id. ¶ 18. She continued this arrangement until April 2002when she was able to discontinue pumping. Id.

Although some of the plaintiff's job duties changed when she returnedfrom maternity leave, she did not care about this. Defendant's SMF ¶37; Plaintiff's Responsive SMF ¶ 37. After her return, all of thepeople who worked in close proximity to the plaintiff remarked to Kalickythat the plaintiff was making excessive personal use of the telephone.Id. ¶ 39.9 After the Plaintiff's return, a co-worker,Ruth Briggs, complained to Kalicky that the plaintiff was doing personalbusiness on the internet instead of her work. Id. ¶ 40. Alsoat this time, Angela Hagan, who worked near the plaintiff, complained twoor three times to Kalicky that the plaintiff was disruptive because ofher talking and her radio. Id. ¶ 41. Ms. Vigneault, for whomthe plaintiff was supposed to work, felt that the quality of thePlaintiff's work decreased after she returned from maternity leave.Id. ¶ 42.10 On one occasion, Vigneault observed theplaintiff shopping on the Toys-R-Us website for over an hour. Id. ¶44.11 Vigneault raised her concerns about the Plaintiff's work toKalicky. Id. ¶ 45. The Plaintiff's supervisors asked thedefendant's systems people to monitor the Plaintiff's internet usage.Id. ¶ 46.

Approximately a week after the plaintiff returned, Kalicky sent ane-mail to Hagen asking, "Now that Robyn has been back for over a week,and your space has now changed, how are you making out?" Plaintiff's SMF¶ 20; Defendant's Responsive SMF ¶ 20. On August 28, 2001 Laidlawsent an e-mail to Kalicky suggesting that she remind the plaintiff "whatour standard is for handling personal issues or phone calls or emailsduring business hours." Id. ¶ 21. On September 17, 2001Laidlaw sent Kalicky an e-mail asking whether she was comfortable withproductivity. Id. ¶ 22. At the end of September 2001 Kalickyasked the Plaintiff's three supervisors to "think back on the work youhave given Robyn this week and try to give me a fairly accurate guess ofhow much this work should have taken her over the two weeks."Id. ¶ 23. From the responses, Kalicky determined that theplaintiff should have worked thirty-five hours but that she could onlyaccount for twenty hours. Id. ¶ 24. In a memo dated October12, 2001 to Laidlaw, Kalicky concluded from her review of printoutsprovided by the defendant's computer technicians that that Plaintiff'spersonal use of the internet had been excessive. Id. ¶ 31.

Kalicky and Laidlaw met with the plaintiff on October 12, 2001 todiscuss performance concerns. Defendant's SMF ¶ 48; Plaintiff'sResponsive SMF ¶ 48. One topic discussed at this meeting was thePlaintiff's excessive personal use of the telephone. Id. ¶49. The plaintiff conceded that she had been spending more time on personal business and asked how much time shecould spend each day on personal telephone calls. Id. ¶¶50-51. Laidlaw told the plaintiff that she could use ten minutes per dayas a rule of thumb. Id. ¶ 51. During the meeting Kalickytold the plaintiff that over the past two weeks the plaintiff had visitedover a dozen personal internet websites. Plaintiff's SMF ¶ 38;Defendant's Responsive SMF ¶ 38. Kalicky also told the plaintiff totell her friends not to call her at work; that if she chose to expressmilk on her lunch break, it would cut into the time she had to makepersonal calls; that she would not let the plaintiff make up time whenthe office was closed or on weekends and that the plaintiff could onlymake up seven hours per week, all in the same week, so that she could notkeep extra work time "in reserve;" and that the plaintiff was to fileweekly reports summarizing her work. Id. ¶¶ 40-41, 43-44,47.12

On October 16, 2001 the plaintiff asked Kalicky if it would be possiblefor her to work from home if one of her two children were sick.Id. ¶ 49. On that date Kalicky admitted in an e-mail toLaidlaw that she had allowed another administrative assistant to workfrom home due to her mother's illness. Id. ¶ 50. In a memodated October 17, 2001 Kalicky denied the Plaintiff's request to workfrom home. Id. ¶ 51. On October 26, 2001 Kalicky told theplaintiff that they were very happy with her productivity. Id.¶ 56. On February 1, 2002 Kalicky told the plaintiff:

Your performance for your team since our meeting has been highly satisfactory. Your management of leave time was handled professionally on your part. Personal business done during office hours seems to have dropped off considerably in [sic] your management of this has been done well. I have no issues at that [sic] time. Id. ¶ 61. In an April 2, 2002 memo Laidlaw said thatif the plaintiff exceeded her leave, she may be terminated. Id.¶ 68. In an April 18, 2002 memo Laidlaw sought Kalicky's assistancein gathering documentation showing that the plaintiff had exceeded herleave time "by how much and when during the years in which she did this."Id. ¶ 69. In an April 29, 2002 memo to Laidlaw, Kalickyfound that the plaintiff exceeded her leave in 2001 by eight hours andfive minutes. Id. ¶ 70.

In April 2002 Kalicky officially notified the plaintiff that herperformance had improved. Defendant's SMF ¶ 52; Plaintiff'sResponsive SMF ¶ 52. In a note dated April 5, 2002 Kalicky recordedthat at her meeting with the plaintiff the plaintiff said that "she knowsshe will exceed her leave time so this will be her last year with R.M.D.She said what [sic] she doesn't know if she should let us fire her orquit first, but she said that she would make that decision." Plaintiff'sSMF ¶ 77; Defendant's Responsive SMF ¶ 77. In May 2002 Kalickydid an informal review of the plaintiff's performance. Defendant's SMF¶ 55; Plaintiff's Responsive SMF ¶ 55. Kalicky identifiedminimizing personal calls and keeping personal business in its place asareas that the plaintiff needed to work on. Id. ¶ 56.13In an August 19, 2002 memo Laidlaw told Kalicky to put the followingstatement in each of the plaintiff's reviews: Robyn, you exceeded your company paid leave allotments in 1998, 2000 and 2001. Exceeding your paid leave allotment in any year must not occur again, if you do exceed your company leave allotment at any time in the future by any amount, your employment with R M. Davis may be immediately terminated.Plaintiff's SMF ¶ 71; Defendant's Responsive SMF ¶ 71.

In the summer of 2002 the Plaintiff's desk was moved from the third tothe fourth floor. Defendant's SMF ¶ 57; Plaintiff's Responsive SMF¶ 57. After the move, Kalicky received complaints from a number of the Plaintiff's co-workers about her chatter.Id. ¶ 59.14 She addressed the concerns with theplaintiff, who thereafter, contrary to Kalicky's instructions, asked someof her co-workers if they had complained about her. Id. In aSeptember 11, 2002 e-mail Kalicky asked two of the plaintiff'sco-workers how things were going with the plaintiff. Plaintiff's SMF¶ 86; Defendant's Responsive SMF ¶ 86. One responded, "Things arefine. I want you to know however, that I will not be providing any futureinput because twice I have given input and twice the issues were notaddressed discretely [sic]." Id.

Laidlaw and Kalicky decided to have a meeting with the variousemployees who had been involved to discuss working together. Defendant'sSMF ¶ 60; Plaintiff's Responsive SMF ¶ 60. Kalicky notified theseemployees, including the plaintiff, of the meeting by e-mail.Id. ¶¶ 60-61. The plaintiff went immediately to Laidlaw'soffice and resigned. Id. ¶ 62.15

Laidlaw identified the need for a finance administrator by early 2002.Id. ¶ 65.16 The defendant's executive committee approvedthe position in early 2002. Id. ¶ 66.17 Some of theduties assigned to this position had been performed by the plaintiff andsome had not. Id. ¶¶ 67-68. The job was posted internally,and the plaintiff chose not to apply. Id. ¶ 69. The personhired for the position has a college degree in accounting and 29 years ofexperience in financial jobs. Id. ¶¶ 70-71. The plaintiffdoes not have a college degree. Id. ¶ 72. The defendant's management has tracked the time of three employees whohad a perceived attendance problem. Id. 75.18

C. Discussion

The complaint asserts claims for relief under the federal PregnancyDiscrimination Act, 42 U.S.C. § 2000e(k), 2000e-2(a) ("the PDA") andthe Maine Human Rights Act, 5 M.R.S.A. § 4572-A ("the MHRA").Complaint (Docket No. 1)at 7-8. The federal statutes provide, in relevantpart: It shall be an unlawful employment practice for an employer — (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex. . . .42 U.S.C. § 2000e-2(a)(1).

The term[] "because of sex" . . . include[s], but [is] not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.42 U.S.C. § 2000e(k). The state statute provides, in relevantpart: 1. Sex defined For the purpose of this Act, the word "sex" includes pregnancy and medical conditions which result from pregnancy. 2. Pregnant women who are able to work. It shall be unlawful employment discrimination in violation of this Act, except where based on a bona fide occupational qualification, for an employer . . . to treat a pregnant woman who is able to work in a different manner from other persons who are able to work. 3. Pregnant women who are not able to work. It shall also be unlawful employment discrimination in violation of this Act, except where based on a bona fide occupational qualification, for an employer . . . to treat a pregnant woman who is not able to work because of a disability or illness resulting from pregnancy, or form medical conditions which result from pregnancy, in a different manner from other employees who are not able to work because of other disabilities or illnesses. 4. Employer not responsible for additional benefits. Nothing in this section may be construed to mean that an employer . . . is required to provide sick leave, a leave of absence, medical benefits or other benefits to a woman because of pregnancy or other medical conditions that result from pregnancy, if the employer . . . does not also provide sick leaves, leaves of absence, medical benefits or other benefits for the employer's other employees and is not otherwise required to provide those leaves or benefits under other state or federal laws.5 M.R.S. A. § 4572-A. This court has previously stated that itsanalysis of claims brought under the PDA applies equally to claimsbrought under 5 M.R.S.A. § 4572-A. Green v. New Balance AthleticShoe, Inc., 182 F. Supp.2d 128, 135 (D. Me. 2002).19

"[A]n employee claiming discrimination on the basis of pregnancy mayproceed under either a disparate treatment or a disparate impact theory."Smith v. F. W. Morse & Co., 76 F.3d 413, 420 (1st Cir.1996). The plaintiff does not dispute the defendant's assertion that sheis proceeding under a disparate treatment theory. Defendant's Motion forSummary Judgment, etc. ("Summary Judgment Motion") (Docket No. 6) at 6.Her memorandum of law makes clear that she is contending that thedefendant treated her differently from the manner in which it treated oneor more non-pregnant employees, Plaintiff's Memorandum of Law in Supportof her Opposition to Defendant's Motion for Summary Judgment ("SummaryJudgment Opposition") (Docket No. 18) at 18-24, which is the essence of adisparate treatment claim, Green, 182 F. Supp.2d at 134.Accordingly, the plaintiff can establish a prima facie case of pregnancy discrimination by showing that (1) she is pregnant (or has indicated an intention to become pregnant), (2) her job performance has been satisfactory, but (3) the employer nonetheless dismissed her from her position (or took some other adverse employment action against her) while (4) continuing to have her duties performed by a comparably qualified person. Establishing the prima facie case raises a rebuttable presumption that discrimination sparked the adverse employment action and imposes upon the employer a burden to put forward a legitimate, nondiscriminatory motive for the action. If the defendant clears this modest hurdle, the presumption of discrimination vaporizes, and the plaintiff (who retains the ultimate burden of persuasion on the issue of discriminatory motive throughout) must then prove that the employer's proffered justification is a pretext for discrimination.

Smith, 76.3d at 421 (citations omitted). Ultimately, theplaintiff must show that "her employer purposely took adverse actionagainst her because of her pregnancy." Green, 182 F. Supp.2d at135.

The defendant contends that the plaintiff has not offered evidence thatwould allow a reasonable factfinder to conclude that she suffered anyadverse employment action, that she was treated differently fromnon-pregnant employees or that the nondiscriminatory reasons proffered bythe defendant for its challenged actions were pretextual. SummaryJudgment Motion at 6-12.

In response, the plaintiff identifies three alleged adverse employmentactions: the defendant's (i) "conduct with regard to her need to breastfeed and pump," (ii) "continually threatening her with termination forviolating her annual leave while at the same time making it as difficultas possible for Plaintiff to stay within her annual leave limits," and(iii) creation of "an environment, by way of the overall adverseemployment actions, which eventually forced Plaintiff to quit." SummaryJudgment Opposition at 19. 1. Adverse Employment Action."Adverse employment actions" for the purposes of claims broughtunderTitle VH (42 U.S.C. § 2000e-2 & 2000e-3) include "demotions,disadvantageous transfers or assignments, refusals to promote,unwarranted negative job evaluations, and toleration of harassment byother employees." Herndndez-Torres v. Intercontinental Trading,Inc., 158 F.3d 43, 47 (1st Cir. 1998). Typically, the employer must either (1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities, or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service.

Blackie v. State of Maine, 75 F.3d 716, 725 (1st Cir.1996) (citations omitted). With respect to her "need to breast feed andpump," the plaintiff asserts that Kalicky "did not offer Plaintiff anyaccommodation." Summary Judgment Opposition at 5. The defendant disputesthis, Reply Memorandum in Support of Motion for Summary Judgment("Reply") (Docket No. 23) at 2, pointing to the undisputed fact that theplaintiff was allowed to leave work early every day for the first twoweeks after she returned from maternity leave to breast feed her child,Defendant's SMF ¶ 34; Plaintiff's Responsive SMF ¶ 34. Whateverthe factual background, however, the plaintiff's argument at this pointdepends on her characterization of the alleged failure to accommodate as"denying Plaintiff a term, condition or privilege of employment." SummaryJudgment Opposition at 20. She cites no authority in support of thisnecessary underpinning of her claim. My own research has generated noauthority for the proposition that accommodating an employee's choice tobreast feed her child by giving her extra paid or unpaid leave on a dailybasis is a term, condition or privilege of employment or that denial ofsuch accommodation is an adverse employment action. It is not somethingthat fits within the parameters of the definitions of those terms as theyare applied by the courts, and I see no justification for expanding thosedefinitions to include this activity. Indeed, the available case lawcounsels to the contrary. See, e.g., Jacobson v. Regent AssistedLiving, Inc., 1999 WL 373790 (D. Or. Apr. 9, 1999), at *11(PDA doesnot cover breast feeding concerns); Fejes v. Gilpin Ventures,Inc., 960 F. Supp. 1487, 1491 (D. Colo. 1997) (same) (citing cases).See also Martinez v. N.B.C., Inc., 49 F. Supp.2d 305, 310-311(S.D.N.Y. 1999)(failure to accommodate need to pump breast milk not gender discriminationunder Title VH). The plaintiff is not entitled to recover on her firsttheory of adverse employment action.

With respect to her second theory, the plaintiff contends that thedefendant "threatened [her] with termination if she exceeded her leave,"citing paragraphs 45 and 48 of her statement of material facts. SummaryJudgment Opposition at 10. Paragraph 48 has been stricken; paragraph 45states only that "Kalicky also said she would not let Plaintiff takeunpaid leave." Plaintiff's SMF ¶ 45. The plaintiff relies onNelson v. University of Maine Sys., 923 F. Supp. 275, 281 (D. Me.1996), to support her assertion that such a threat, standing alone,constitutes an adverse employment action. Even if she had presentedadmissible evidence of such threats,20 however, Nelson willnot bear the weight that the plaintiff seeks to assign to it. In thatcase, this court found that no adverse employment action would occur ifan employer subjected an employee to unsubstantiated complaints of sexualharassment, defamed him as a result of an internal review of hiscomplaints against a colleague, and reprimanded him, causing himprofessional embarrassment and anxiety. Id. at 281. Judge Brodydid note that the Northern District of Texas, in an unreported case, heldthat "a letter threatening suspension if the employee's conduct is notcorrected" constituted adverse employment action, id. at 282,but he did not adopt that reasoning. The Texas case, Rivers v.Baltimore Dep't of Recreation & Parks, 1990 WL 112429 (D. Md.Jan. 9, 1990), states that "a threatened suspension is an adverseemployment action," id. at 10, without any analysis or citationto authority. Like Judge Brody, I believe that the courts should notdefine an "adverse employment action in a manner which discourages opencommunication, critical or otherwise, between employers or supervisorsand their employees as to the employee's employment performance."923 F. Supp. at 281. Informing an employee at will on one occasion that further instances of takingleave without permission may result in discharge is not an adverseemployment action.21 See Hernandez-Torres, 158 F.3d at 46-47(threat to fire plaintiff if caught reading religious matter again notadverse employment action).

The fact that the defendant was not willing to allow the plaintiff tomake up time whenever she wished to do so, so that she could avoidexceeding her allowed leave, also does not constitute an adverseemployment action. Unrestricted ability to make up time at the employee'sdiscretion is not a term, condition or privilege of employment; indeed,the plaintiff's argument would essentially allow at-will employees to settheir own hours without concern for the employer's needs, a plainlyinsupportable position as a practical matter. Again, the plaintiff offersno authority in support of her position and my research has located none.

The plaintiff's third alleged adverse employment action is aconstructive discharge. An objective standard is applied to determinewhether a plaintiff has made a prima facie showing ofconstructive discharge. Serrano-Cruz v. DFI Puerto Rico, Inc.,109 F.3d 23, 26 (1st Cir. 1997). The plaintiff must show that the workingconditions existing at the time she resigned were so difficult orunpleasant, as a result of her pregnancy, that a reasonable person in herplace would have felt compelled to resign. Id. Here, theplaintiff contends that "the overall adverse employment actions" forcedher to resign. Summary Judgment Opposition at 19. She includes in the"overall actions" the failure to accommodate her breast feeding, the "refusal to allow her to preserve leave time," soliciting criticismfrom her co-workers, limiting her to 10 minutes of personal business perday, "falsely accusing her of dishonesty and stealing fifteen hours aweek from the company," "falsely accusing her of excessive internetusage, not allowing her to receive any personal phone calls oremails, . . requiring her to file weekly reports," and hiring someoneelse "to take over her responsibilities and duties and then forcing herto train her own replacement." Id. at 21. None of these actions— most of which are denied by the defendant — other than thefinal item on the list possibly constitutes adverse employment action.See generally Gu v. Boston Police Dep't, 312 F.3d 6, 14-15 (1stCir. 2002); Martin v. Inhabitants of City of Biddeford,261 F. Supp.2d 34, 38-39 (D. Me. 2003).

In addition, the evidence in the summary judgment record does notsupport the assertion that the defendant did not allow the plaintiff toreceive personal phone calls or e-mails. The plaintiff cites paragraph 51of her statement of material facts in support of this assertion, SummaryJudgment Opposition at 9, but that paragraph does not mention theplaintiff's receipt of personal telephone calls or e-mails. Plaintiff'sSMF ¶ 51. The paragraph of the plaintiff's statement of materialfacts that is closest to this assertion merely states that Kalicky toldthe plaintiff to tell her friends not to call her at work. Id.¶ 40. There is no reference at all to personal e-mails, and a requestto tell friends not to call the plaintiff at work is not the equivalentof a refusal to allow the plaintiff to receive any personal telephonecalls.

The plaintiff obviously believes that the defendant hired Ann Petersonto "take over" her job. Summary Judgment Opposition at 16. However, herargument on this point is significantly weakened by her admission thatshe did not apply for the position when it was posted before Peterson washired, Defendant's SMF ¶ 69; Plaintiff's Responsive SMF ¶ 69, andthe fact that she does not offer any evidence that her hours orcompensation were affected by the hiring of Peterson, id. ¶73. Some of the duties assigned to Peterson had been performed by theplaintiff, but some had not. Id. ¶ 68. The fact that a plaintiff's salary remains unchanged by a transfer of jobresponsibilities is one important factor in determining whether aconstructive discharge has occurred. Serrano-Cruz, 109 F.3d at26 (citing cases). The fact that the plaintiff chose not to apply for theposition is also a factor to be considered. Id. at 26-27(considering plaintiff's rejection of offered new position). In addition,if the hiring of Peterson under the circumstances could reasonably becharacterized as an effort to marginalize the plaintiff, "this sort ofinjury to an employee's ego or prestige does not furnish a legallycognizable reason to treat a resignation as a constructive discharge."Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 55 (1st Cir.2000). "[A] reduction in responsibility or a change in the way thatbusiness is done, unaccompanied by diminution of salary or some othermarked lessening of the quality of working conditions, does notconstitute a constructive discharge." Id. The plaintiff has notshown that the hiring of Peterson constituted a constructive discharge.

It is also possible that the combination of events, none of whichstanding alone would be sufficient to cause a constructive discharge as amatter of law, might be sufficient to show constructive discharge.Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 47-48(1st Cir. 1999). Here, the plaintiff has not shown a series of "otherwiseminor slights, relentlessly compounded." Id. at 48. Even"personal animus, hostility, disrespect and ostracism" which "certainlyindicate that the plaintiff's workplace was not an idyllic retreat" donot constitute a material change in the terms, conditions or privilegesof the plaintiff's job or a constructive discharge. Martin,261 F. Supp.2d at 38. The plaintiff in this case has shown nothing more.

The defendant is entitled to summary judgment because the plaintiff hasnot presented evidence of adverse employment actions sufficient to allowa reasonable factfinder to return a verdict in her favor. 2.Different Treatment and Pretext. Given my conclusion that theplaintiff has failed to establish the existence of any adverse employmentaction actionable under the PDA, it is not necessary to reach the defendant's remaining arguments. I will nonetheless make twoobservations about the plaintiff's arguments on the necessary element ofproof of different treatment on which she bears the evidentiary burden.

The plaintiff contends in this regard that "it is undisputed thatDefendant treated Plaintiff differently than the employee MichelleWhitmore." Summary Judgment Opposition at 22. However, the evidenceconcerning Whitmore proffered by the plaintiff is that "Defendant nevergave Plaintiff two thirty minute sessions per day to pump as it had donewith the employee Michelle." Plaintiff's SMF ¶ 18. To the extent thatthe plaintiff's breast feeding claim is cognizable under the PDA,Whitmore must be considered to have been as pregnant as was theplaintiff. This evidence cannot possibly establish that the defendanttreated the plaintiff "differently than it treated other, non-pregnantemployees who had a similar ability or inability to work."Green, 182 F. Supp.2d at 135.

The plaintiff also argues in this section of her memorandum of law that"there is no evidence that Defendant treated its other employees as ittreated Plaintiff," listing some specific areas in which there is no suchevidence. Summary Judgment Opposition at 22-23. This argument reversesthe burden of proof. It is the plaintiff's burden to show that thedefendant treated its other employees differently from the allegedlydiscriminatory manner in which it treated the plaintiff; it is never thedefendant's burden to show that it treated other employees in a similarmanner.

III. Conclusion

For the foregoing reasons, (i) the defendant's motion to strike isGRANTED as to paragraphs 23 and 60 of Attachment 1 to theplaintiff's statement of material facts (Docket No. 16) and paragraphs 8,48 and 89 of the plaintiff's statement of material facts and otherwiseDENIED; and (ii) I recommend that the defendant's motion forsummary judgment be GRANTED. NOTICE

A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommended decisionsentered pursuant to 28 U.S.C. § 636(b)(1)(B) for whichde novo review by the district court is sought,together with a supporting memorandum and request for oral argumentbefore the district judge, if any is sought, within ten (10) days afterbeing served with a copy thereof. A responsive memorandum and any requestfor oral argument before the district judge shall be filed within ten(10) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver ofthe right to de novo review by the district courtand to appeal the district court's order.

1. I note also that portions of paragraph 89 of the defendant'sstatement of material facts, which cites only Exhibit 61 to the secondLoranger affidavit, are presented following a quotation mark, but none ofthe language following the mark appears in that document.

2. The plaintiff purports to deny paragraph 5 of the defendant'sstatement of material facts, which quotes the language of the policy, butthe denial is not responsive, Plaintiff's Responsive SMF ¶ 5, and theparagraph is accordingly deemed admitted, Local Rule 56(e).

3. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts, Plaintiff's Responsive SMF ¶ 6, but thedenial is not responsive and the paragraph is accordingly deemedadmitted, Local Rule 56(e).

4. The plaintiff purports to deny this portion of paragraph 19 ofthe defendant's statement of material facts by asserting that she did notneed to improve in this area. Plaintiff's Responsive SMF ¶ 19. Thatassertion is not responsive to the statement that Laidlaw identified thisas an area for improvement. The defendant's statement is accordinglydeemed admitted.

5. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts, Plaintiff's Responsive SMF ¶ 20, but thedenial is not responsive and the paragraph is accordingly deemedadmitted.

6. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts, which quotes the content of a document,Plaintiff's Responsive SMF ¶ 21, but the denial is not responsive andthe paragraph is accordingly deemed admitted.

7. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts, which quotes the content of a document,Plaintiff's Responsive SMF ¶ 22, but the denial is not responsive andthe paragraph is accordingly deemed admitted.

8. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts based on a memorandum dated three days beforethe date of the letter. Plaintiff's Responsive SMF ¶ 28. That denialis not responsive, and the paragraph is accordingly deemed admitted.

9. The plaintiff admits that Kalicky so testified at her deposition,but purports to deny this paragraph of the defendant's statement ofmaterial facts on the basis of Exhibit 9 to the first Loranger affidavit,Plaintiff's Responsive SMF ¶ 39, an e-mail in which Kalicky statesthat she does not have "hard evidence that too much time during the dayis taken up with personal things like emails/internet usage/phone calls."Exh. 9 to First Loranger Aff. This statement is does not contradict thefactual assertion set forth in paragraph 39 of the defendant's statementof material facts, which is accordingly deemed admitted.

10. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts by asserting that the quality of her work didnot decrease at this time, citing her own affidavit. Plaintiff'sResponsive SMF ¶ 42. This assertion does not respond to the statementthat Vigneault felt otherwise, and the defendant's assertion to thateffect is accordingly deemed admitted.

11. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts based on paragraph 8 of her first affidavit.Plaintiff's Responsive SMF ¶ 44. However, that paragraph of thataffidavit does not mention this factual assertion at all. Affidavit ofRobyn Vachon in Support of Plaintiff's Opposition to Defendant's Separate[sic] Statement of Material Facts ("Plaintiff's First Aff"), Attachment 2to Plaintiff's Responsive SMF, ¶ 8. The paragraph is accordinglydeemed admitted.

12. The plaintiff makes additional factual assertions about thismeeting in paragraphs 39 and 48 of her statement of material facts. Thedocument cited in support of paragraph 39 was not supplied to the court,nor was it supplied to the defendant. Defendant's Responsive SMF ¶39. Accordingly, the factual assertion in that paragraph cannot beconsidered by the court. Paragraph 48 of the plaintiffs statement ofmaterial facts has been stricken.

13. The plaintiff purports to deny paragraph 56 of the defendant'sstatement of material facts, Plaintiff's Responsive SMF ¶ 56, butthat denial is unresponsive and the paragraph accordingly is deemedadmitted.

14. The plaintiff purports to deny this portion of paragraph 59 ofthe defendant's statement of material facts, Plaintiff's Responsive SMF¶ 59, but the material cited in support of that deny does notnecessarily contravene the testimony. The sentence is accordingly deemedadmitted.

15. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts, Plaintiff's Responsive SMF ¶ 62, but thedenial is not responsive and the paragraph accordingly will be deemedadmitted.

16. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts, Plaintiff's Responsive SMF ¶ 65, but thedenial is based on a conclusory assertion about Laidlaw's motive that isan expression of opinion rather than a statement of fact. The defendant'sfactual assertion is therefore not denied and is deemed admitted.

17. The plaintiff purports to deny this paragraph of the defendant'sstatement of material facts, Plaintiff's Responsive SMF ¶ 66, but thedenial is not responsive and the paragraph is accordingly deemedadmitted.

18. The plaintiff contends that "[t]he cited evidence does notsupport the fact" stated in this paragraph of the defendant's statementof material facts, Plaintiff's Responsive SMF ¶ 75, but the citeddocument does in fact support the statement, Laidlaw Aff. ¶ 26.

19. I will follow this course in my analysis of the defendant'smotion for summary judgment in this case, although I note that the statestatute apparently applies only to discrimination that occurs while theplaintiff is pregnant, 5 M.R.S.A. § 4572-A(2) & (3), while thefederal act applies to plaintiffs who are "affected by" pregnancy and todiscrimination "because of" pregnancy, 42 U.S.C. § 2000e-2(a)(1),regardless of when it occurs. See, e.g., Donaldson v. American BancoCorp., 945 F. Supp. 1456, 1464 (D. Colo. 1996) (plain language ofPDA does not require plaintiff to be pregnant when alleged discriminationoccurs). Neither party addresses the possible significance of thisdifference.

20. The plaintiff later refers to paragraphs 71, 75 and 77 of herstatement of material facts in support of a similar argument. SummaryJudgment Opposition at 12. Of these paragraphs, only paragraph 75 canreasonably be read to allege that such a threat was made, on April 5,2002.

21. The plaintiff bases a later argument on the contention that thedefendant's alleged threats of termination were invalid because thedefendant did not have a written policy providing that termination mightresult from the taking of excessive leave. Summary Judgment Opposition at22-23. However, the plaintiff offers no evidence that she had anemployment contract with the defendant, nor does she argue that thedefendant's employee manual was a de facto employment contract.For all that appears in the record, she was an employee at will. UnderMaine law, such an employee may be terminated for any reason nototherwise unlawful. See, e.g., Taliento v. Portland W. NeighborhoodPlanning Council, 705 A.2d 696, 699 (Me. 1997); Libby v. CalaisReg'l Hosp., 554 A.2d 1181, 1183 (Me. 1989). Neither Maine norfederal law prohibits discharge of an employee for absenteeism. Theplaintiff takes nothing from her arguments concerning the absence of awritten "excessive leave" policy.

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