JOHN A. WOODCOCK, Jr., Chief District Judge.
Susan Fairweather brought this lawsuit under the Maine Human Rights Act, alleging that Friendly's Ice Cream, LLC (Friendly's), her employer, wrongfully terminated her because of her age. Friendly's moved for summary judgment. Viewing the evidence as a whole in the light most favorable to Ms. Fairweather, the Court concludes she has raised genuine issues of material fact that must be resolved by a jury and therefore denies Friendly's Motion for Summary Judgment.
Ms. Fairweather's claim of age discrimination sounds under the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq. (MHRA). Notice of Removal Attach. 1 Pl.'s Compl. for Age Discrimination, at ¶ 22 (ECF No. 1). Maine Courts interpret the MHRA by "apply[ing] the burden-shifting analysis first described in McDonnell Douglas [Corp. v. Green]." Cookson v. Brewer Sch. Dep't, 2009 ME 57, ¶ 14, 974 A.2d 276 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973)).
Although Maine statutory law supplies Ms. Fairweather's substantive right to be free from age discrimination and Maine caselaw determines the analytical framework, this Court applies the summary judgment standards of the Federal Rules of Civil Procedure and federal decisional law. See Hanna v. Plumer, 380 U.S. 460, 471-72 (1965). Under these federal standards, summary judgment is appropriate when "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). For summary judgment purposes, "genuine" means that "a reasonable jury could resolve the point in favor of the nonmoving party," and a "material fact" is one whose "existence or nonexistence has the potential to change the outcome of the suit." Tropigas de P.R., Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56 (1st Cir. 2011) (internal quotations omitted). Once the moving party has made this preliminary showing, the nonmoving party must "produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue." Triangle Trading Co. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (internal quotations and alterations omitted); see also FED. R. CIV. P. 56(e).
Although the Court "view[s] the evidence in the light most favorable to the nonmovant, `as to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.'" In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (internal alterations and quotations omitted). "Even in employment discrimination cases where elusive concepts such as motive or intent are at issue, summary judgment is appropriate if the non-moving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st Cir. 2003) (internal quotations omitted).
Friendly's moved for summary judgment on February 14, 2014. Def. Friendly's Ice Cream, LLC's Mot. for Summ. J. (ECF No. 29) (Def.'s Mot.). Friendly's filed with its motion a statement of material facts. Statement of Material Facts in Support of Def. Friendly's Ice Cream, LLC's Mot. for Summ. J. (ECF No. 30) (DSMF). The parties also agreed to a small number of stipulations pursuant to District of Maine Local Rule 56(b). Stips. Pursuant to LR 56(b) (ECF No. 31) (Stips.).
Ms. Fairweather opposed Friendly's motion on March 20, 2014. Pl.'s Opp'n to Def.'s Mot. for Summ. J. (ECF No. 34) (Pl.'s Opp'n). Ms. Fairweather also filed a reply statement to Friendly's statement of material facts, Pl.'s Resp. to Def.'s Statement of Material Facts (ECF No. 35) (PRDSMF), and her own statement of additional material facts. Pl.'s Statement of Material Facts (ECF No. 36) (PSAMF). Guy D. Loranger, counsel for Ms. Fairweather, filed an affidavit in support of her opposition. Aff. of Guy D. Loranger (ECF No. 37) (Loranger Aff.) Friendly's replied to Ms. Fairweather's opposition on March 31, 2014, Def. Friendly's Ice Cream, LLC's Reply to Pl.'s Opp'n to Mot. for Summ. J. (ECF No. 42) (Def.'s Reply), and also replied to her statement of additional material facts. Def.'s Reply to Pl.'s Statement of Material Facts (ECF No. 43) (DRPSAMF).
Friendly's was founded in 1935 in Springfield, Massachusetts. Stips. ¶ 1. From 1947 through 2011, Friendly Ice Cream Corporation operated the Friendly's system of restaurants. Id. ¶ 2.
Ms. Fairweather was born in 1957. DSMF ¶ 8; PRDSMF ¶ 8. Friendly Ice Cream Corporation hired her on or about August 1, 1988 as a server at the Portland, Maine Friendly's restaurant. Stips. ¶ 6. Friendly's employees usually referred to this restaurant as the "Westgate" Friendly's. Id. Cathy Dipietrantonio was born in 1958. DSMF ¶ 10; PRDSMF ¶ 10. Friendly Ice Cream Corporation hired Ms. Dipietrantonio or about November 2, 1993 as a server at the Westgate Friendly's. Stips. ¶ 7.
Ms. Fairweather filled many roles, covered shifts, and would work late when others called out. PSAMF ¶ 1; DRPSAMF ¶ 1.
When Friendly Ice Cream Corporation closed the Westgate restaurant in or about December 2005, Stips. ¶ 8, both Ms. Fairweather and Ms. Dipietrantonio were transferred to the South Portland, Maine Friendly's restaurant. Id. ¶ 9. Ms. Fairweather exclusively worked breakfast and lunch shifts and did not work the evening shift. DSMF ¶ 78; PRSDMF ¶ 78. While she was at the South Portland restaurant, the "regular" servers with whom she frequently worked the breakfast shift were Ms. Dipietrantonio and Susan Kallio. DSMF ¶ 79; PRDSMF ¶ 79. Ms. Kallio was born in 1956 and hired by Friendly's in 1989. DSMF ¶ 80; PRDSMF ¶ 80.
Shortly after Ms. Fairweather transferred to South Portland, Bonnie Coutts became the Training General Manager for the South Portland Friendly's. Stips. ¶ 10. Ms. Coutts was born in 1964.
At the time of Ms. Fairweather's termination on May 14, 2012, Ms. Coutts reported to her District Manager, Patricia Newell. Stips. ¶ 12. Ms. Newell was born in 1961. DSMF ¶ 15; PRDSMF ¶ 15. At that time, Ms. Newell reported to her Regional Director, Todd Mosher. Stips. ¶ 13.
For approximately three months, beginning in or around October 2010, Ms. Coutts was transferred to the Friendly's restaurant in Waterville, Maine. DSMF ¶ 18; PRDSMF ¶ 18. During this time, one D.K. Green
Ms. Coutts testified that "over the years" Ms. Dipietrantonio complained "a couple" of times about how Ms. Fairweather talked to and treated her; however, Ms. Coutts also testified that she did not document these incidents because there was "nothing to document." PSAMF ¶ 121; DRPSAMF ¶ 121.
The guest communications and complaints to Friendly's are tracked by a system formerly called the "WOW system," now the "Guest Track System." PSAMF ¶ 10; DRPSAMF ¶ 10. The restaurant receives copies of the customer communications and complaints. PSAMF ¶ 11; DRPSAMF ¶ 11. Ms. Coutts and the managers at the restaurant check the customer complaints every day. PSAMF ¶ 12; DRPSAMF ¶ 12. The District Manager will contact guests who want to be contacted, but guests are not contacted unless they state they want to be contacted. PSAMF ¶ 13; DRPSAMF ¶ 13. To appease a complaining customer, Ms. Newell will generally give him or her a $15.00 gift certificate. PSAMF ¶ 29; DRPSAMF ¶ 29.
Guest complaints result in some kind of documentation to the employee's file. PSAMF ¶ 14; DRPSAMF ¶ 14. The documentation involves speaking to the server to coach him or her on how to handle the situation. PSAMF ¶ 15; DRPSAMF ¶ 15.
Friendly's also tracks customer complaints through the Service Management Group ("SMG"). PSAMF ¶ 16; DRPSAMF 16. Ms. Newell receives notice of the SMG's service results daily by logging in to a website. PSAMF ¶ 17; DRPSAMF ¶ 17. For the nine stores she supervises, Ms. Newell receives a customer complaint, on average, once a week. PSAMF ¶ 18; DRPSAMF ¶ 18.
Surveys "come in all the time saying [servers] are rude all the time." PSAMF ¶¶ 21, 28; DRPSAMF ¶¶ 21, 28.
Friendly's also tracks its guest complaints over a four week period. PSAMF ¶ 31; DRPSAMF ¶ 31. In one four week period for stores under Ms. Newell's supervision, she had 16.5 customer complaints per 100,000 customers. PSAMF ¶ 32; DRPSAMF ¶ 32.
Friendly's also tracks how customers rate the friendliness of staff and the attentiveness of the server. PSAMF ¶ 34; DRPSAMF ¶ 34. In one tracking, 21% of the customers were not highly satisfied. PSAMF ¶ 35; DRPSAMF ¶ 35.
At some point in the two years before Ms. Fairweather's termination, someone noted a customer complaint as follows: "the guest stated that they had a server named Joanne . . . was rude to the guest [sic]." PSAMF ¶ 49; DRPSAMF ¶ 49.
Before Ms. Fairweather's termination, one customer wrote to complain that "THE FOOD IS AWFUL, and the service by high school children and the circus element was pathetic and the restaurant was dead — no excuses." PSAMF ¶ 50; DRPSAMF ¶ 50.
PSAMF ¶ 52; DRPSAMF ¶ 52.
Some customers did complain of rudeness by servers in this period. One customer complained that "our waitress was extremely rude and we were made to feel rushed and unwelcomed . . . we were so disgusted that we asked for our check and left, if we complained we would have been made to wait another forty minutes, that was just not an option." PSAMF ¶ 55; DRPSAMF ¶ 55.
Another customer wrote:
PSAMF ¶ 59; DRPSAMF ¶ 59.
Friendly's maintains an Employee Manual that contains policies applicable to Friendly's employees, as well as Friendly's disciplinary procedure. DSMF ¶ 72; PRDSMF ¶ 72. Ms. Fairweather reviewed the manual and the discipline policy at some point, but she could not recall when; it remained available and accessible to employees in the South Portland restaurant during Ms. Fairweather's employment at Friendly's. DSMF ¶ 73; PRDSMF ¶ 73.
Friendly's uses a "progressive discipline policy." PSAMF ¶ 6; DRPSAMF ¶ 6. Severe incidents, such as stealing, swearing, and "guest incidents," may warrant immediate termination. PSAMF ¶ 7; DRPSAMF ¶ 7.
Friendly's maintains a policy mandating the respectful treatment of guests by employees. DSMF ¶ 74; PRDSMF ¶ 74.
The Employee Manual also sets forth a "non-exclusive list of specific violations that will likely result in termination of employment upon the first offense." DSMF ¶ 76; PRDSMF ¶ 76.
Friendly's harassment policy prohibits verbal harassment toward a co-worker or subordinate. PSAMF ¶¶ 139, 149; DRPSAMF ¶¶ 139, 149. The policy states that "supervisors have a special responsibility to act immediately upon learning of any harassment." PSAMF ¶ 140; DRPSAMF ¶ 140. It also states that "it is company policy to promptly and thoroughly investigate complaints." PSAMF ¶ 141; DRPSAMF ¶ 141.
Since becoming a district manager in or about 2009, Ms. Newell has only fired "a couple of employees" for being rude to a customer. PSAMF ¶ 30; DRPSAMF ¶ 30.
On February 18, 2011, Ms. Coutts issued a note to file to employee Michelle Robertson. PSAMF ¶ 40; DRPSAMF ¶ 40.
On October 19, 2010, Mr. Green filled out an Employee Discipline Notice indicating that he had spoken with Ms. Fairweather "regarding the way she talks to teammates." DSMF ¶ 21; PRDSMF ¶ 21.
One month later, supervisor Amy Barter wrote a note to Ms. Fairweather's file stating: "I witnessed Sue F. talking inappropriately to another server in front of customers. `Are you the one crying about not getting any tables.' I did not approach her at this time, will monitor behavior. DK is aware and has been notified." DSMF ¶ 24; PRDSMF ¶ 24.
On March 15, 2011, Ms. Newell and Mr. Mosher received an email indicating that an electronic complaint had been filed. DSMF ¶ 27; PRDSMF ¶ 27; PSAMF ¶¶ 4-5; DRPSAMF ¶¶ 4-5.
DSMF ¶ 27; PRDSMF ¶ 27. Mr. Mosher forwarded the complaint to Ms. Coutts with the message: "Aren't we better than this? This is disappointing. Time. Urgency. Speed. . . ." DSMF ¶ 28; PRDSMF ¶ 28.
Ms. Coutts never previously issued discipline to Ms. Fairweather for "the way she served the customers." PSAMF ¶ 135; DRPSAMF ¶ 135.
On October 5, 2011, Friendly Ice Cream Corporation filed a voluntary petition under Chapter 11 of the Bankruptcy Code in the United States Bankruptcy Court for the District of Delaware. Stips. ¶ 3. On January 9, 2012, the former Friendly Ice Cream Corporation sold its assets to Friendly's Ice Cream, LLC in an Order approved by the Bankruptcy Court. Id. ¶ 4. One hundred and two restaurants were closed during the bankruptcy, and approximately 2,500 employees were laid off. DSMF ¶ 5; PRDSMF ¶ 5. All employees who continued to work for the newly-emerged Friendly's were rehired by Friendly's Ice Cream, LLC. Stips. ¶ 5.
On January 2, 2012, before Friendly's emerged from bankruptcy, the South Portland Friendly's terminated Ms. Roberge. PSAMF ¶ 66; DRPSAMF ¶ 66.
Ms. Fairweather believed that prior to her termination, management was trying to "get rid of her" by checking all her slips at work, making her customers feel uncomfortable, and making rude comments about her family. PSAMF ¶ 85; DRPSAMF ¶ 85. Beginning on or around July 2011, Ms. Coutts began making comments and acting in a manner toward Ms. Fairweather that Ms. Fairweather perceived as picking on her and trying to force her to quit. DSMF ¶ 31; PRDSMF ¶ 31; PSAMF ¶ 86; DRPSAMF ¶ 86. Sometime after July 2011, Ms. Coutts "gave [Ms. Fairweather] a hard time" about leaving her shift early to pick up a grandson. DSMF ¶ 32; PRDSMF ¶ 32. Toward the end of her employment, Ms. Coutts would also give Ms. Fairweather a hard time about leaving when her shift was up. PSAMF ¶ 87; DRPSAMF ¶ 87. She did not do that with other servers. PSAMF ¶ 87; DRPSAMF ¶ 87. Ms. Coutts would also single out Ms. Fairweather for additional work, such as wiping down all the shelves. PSAMF ¶ 88; DRPSAMF ¶ 88.
Ms. Coutts would, during the last six months to a year prior to Ms. Fairweather's termination, "give [Ms. Fairweather] a hard time" about leaving early; ask her to do additional tasks; and check her section very closely to ensure that it was clean and organized. DSMF ¶ 34; PRDSMF ¶ 34.
In the months prior to her May 2012 termination, Ms. Coutts on two occasions made Ms. Fairweather's customers feel uncomfortable by checking the food that they had ordered against what Ms. Fairweather had charged them. DSMF ¶ 39; PRDSMF ¶ 39; PSAMF ¶¶ 77-78; DRPSAMF ¶¶ 77-78. The two customers in question were Ms. Fairweather's husband and her close friend, Beth Mooney. DSMF ¶ 39; PRDSMF ¶ 39; PSAMF ¶¶ 77-78; DRPSAMF ¶¶ 77-78. In the second incident, Ms. Fairweather claims that Ms. Coutts "screamed" at her for substituting sausage for bread on her husband's order. DSMF ¶ 40; PRDSMF ¶ 40; PSAMF ¶ 77; DRPSAMF ¶ 77. Ms. Fairweather checked to see if Ms. Coutts was performing "random audits" throughout the restaurant, but she only saw Ms. Coutts behaving that way towards Ms. Fairweather's tables. PSAMF ¶ 79; DRPSAMF ¶ 79.
Steve Rupard became the shift supervisor and lead cook at the South Portland restaurant in 2010 or 2011. PSAMF ¶ 142; DRPSAMF ¶ 142.
The second time Ms. Fairweather complained to Ms. Coutts about the name calling, Ms. Fairweather said that the behavior by Mr. Rupard had to stop or she would file a complaint with Friendly's corporate organization. PSAMF ¶ 155; DRPSAMF ¶ 155. Ms. Coutts then called Ms. Fairweather and Mr. Rupard into her office and told Mr. Rupard to stop the behavior. PSAMF ¶ 156; DRPSAMF ¶ 156. After this meeting, Ms. Coutts thought that the behavior had stopped, but Mr. Rupard continued to call Ms. Fairweather names. PSAMF ¶ 157; DRPSAMF ¶ 157.
Ms. Fairweather claims that no one at Friendly's other than Ms. Coutts and Mr. Rupard treated her differently because of her age. DSMF ¶ 46; PRDSMF ¶ 46.
On May 10, 2012, Friendly's received a guest complaint regarding Ms. Fairweather through its online guest comment system. DSMF ¶ 48; PRDSMF ¶ 48.
DSMF ¶ 48; PRDSMF ¶ 48; PSAMF ¶¶ 102, 109; DRPSAMF ¶¶ 102, 109.
The incident reported in the complaint happened in the late morning of May 10, between 10:00 AM and 11:00 AM. DSMF ¶ 49; PRDSMF ¶ 49. Ms. Coutts was at the restaurant at the time of the incident but testified that she did not see or hear it. PSAMF ¶ 98; DRPSAMF ¶ 98. The customers who had sent the complaint were a couple in their late 80s who had, in the months before the incident, become regulars of Cathy Dipietrantonio and would eat at the South Portland Friendly's approximately once a week. DSMF ¶ 50; PRDSMF ¶ 50; PSAMF ¶ 112; DRPSAMF ¶ 112.
Ms. Newell and Mr. Mosher also read the guest complaint. DSMF ¶ 56; PRDSMF ¶ 56. The following day, Ms. Coutts met with Ms. Newell and Mr. Mosher during a district meeting, and they informed Ms. Coutts that she needed to look into the incident. DSMF ¶ 57; PRDSMF ¶ 57; PSAMF ¶¶ 106-07; DRPSAMF ¶¶ 106-107. Ms. Coutts next spoke with Ms. Dipietrantonio, because she was involved in the incident, and Ms. Dipietrantonio confirmed the substance of the guest complaint. DSMF ¶ 58; PRDSMF ¶ 58; PSAMF ¶ 108; DRPSAMF ¶ 108.
On Monday, May 14, 2012, Ms. Newell spoke with Ms. Dipietrantonio to confirm the substance of the complaint. DSMF ¶ 64; PRDSMF ¶ 64.
Ms. Fairweather responded that she had no idea what the complaint was about. PSAMF ¶ 129; DRPSAMF ¶ 129. She told Ms. Coutts and Ms. Newell that the incident did not happen. PSAMF ¶ 129; DRPSAMF ¶ 129. She also stated that "it didn't happen that way" and that "she didn't talk to people like . . . that." DSMF ¶ 62; PRSDMF ¶ 62; PSAMF ¶¶ 130-31; DRPSAMF ¶¶ 130-31; Coutts Dep. at 38:7-8, 14-15.
Ms. Fairweather does not deny that the incident in question happened; however, she has a different recollection of the incident. DSMF ¶ 66; PRDSMF ¶ 66.
Ms. Fairweather claims that she greeted the complaining customers after they came in and that they asked to sit in Ms. Dipietrantonio's section. DSMF ¶ 67; PRDSMF ¶ 67; PSAMF ¶ 93; DRPSAMF ¶ 93.
To the extent the complaining guest claimed to have been patronizing the South Portland Friendly's restaurant "for years," his complaint is inaccurate. PSAMF ¶ 103; DRPSAMF ¶ 103.
This complaint, which resulted in Ms. Fairweather's termination, was the only customer complaint against her alleging rudeness, received through the computerized system, of which she was aware. PSAMF ¶ 27; DRPSAMF ¶ 27.
Following Ms. Fairweather's termination, the "regular" servers who work the breakfast and lunch shifts continue to be Ms. Dipietrantonio and Ms. Kallio, as well as Nicole Dipietrantonio and Patrick Phippin. DSMF ¶ 81; PRDSMF ¶ 81; PSAMF ¶ 159; DRPSAMF ¶ 159.
Ms. Fairweather believes that two younger servers were hired at the South Portland Friendly's in 2012 prior to her termination. DSMF ¶ 84; PRDSMF ¶ 84. These servers were hired for the evening shift, not the breakfast/lunch shift that Ms. Fairweather worked. DSMF ¶ 84; PRDSMF ¶ 84.
In 2012, the South Portland restaurant hired twenty-seven food servers. PSAMF ¶ 84; DRPSAMF ¶ 84.
While servers hired following Ms. Fairweather's termination in 2012 were generally younger than her, they were hired primarily for evening shifts, which Ms. Fairweather did not work. DSMF ¶ 85; PRDSMF ¶ 85.
Friendly's continues to employ Ms. Kallio and Ms. Dipietrantonio. DSMF ¶ 88; PRSDMF ¶ 88. In addition, the South Portland Friendly's continues to employ as servers Muriel Sanborn, born in 1953, and Patricia Chadbourne, born in 1950. DSMF ¶ 88; PRDSMF ¶ 88.
Ms. Kallio, who is a year older than Ms. Fairweather and worked with her for many years, believed that Ms. Fairweather could be rude and bossy toward her coworkers. DSMF ¶ 89; PRDSMF ¶ 89.
Friendly's basic position is that the customer complaint of March 10, 2014 was a valid business reason to terminate Ms. Fairweather, and the summary judgment record cannot create a reasonable inference that its reason was a pretext. Def.'s Mot. at 10-20. Friendly's first addresses the comments by Ms. Coutts and Mr. Rupard. Id. at 12. It urges the Court to disregard most of the comments, either because they were made by Mr. Rupard, who had no role in Ms. Fairweather's termination, or because they were not age related. Id. at 12-14. This leaves two age-related comments by Ms. Coutts. Id. at 14. Friendly's argues that these comments are "the precise types of stray comments that courts disregard in a pretext analysis." Id. at 15 (citing Bonefont-Igaravidez v. Int'l Shipping Corp., 659 F.3d 120, 125 (1st Cir. 2011)). Because, in its view, the two comments by Ms. Coutts were "isolated," they "`demonstrate nothing' in a pretext analysis." Id. (quoting Webber v. Int'l Paper Co., 326 F.Supp.2d 160, 170 (D. Me. 2004)). Friendly's offers the case of Mello v. Calais Regional Hosp., No. Civ. 99-0118-B, 2000 WL 762026 (D. Me. Mar. 8, 2000) (unreported), aff'd, Order Affirming Recommended Decision (ECF No. 24), Mello v. Calais Regional Hosp., No. 1:99-cv-00118-DBH (D. Me. May 4, 2000), as an example of a case where two age-related comments, made within five months of an employee's termination, "lack[ed] sufficient temporal proximity . . . to the decision[-]making process to demonstrate that discriminatory animus was the reason for termination." Id. (citing Mello, 2000 WL 762026, at *5, 7). Finally, on the topic of Ms. Coutts' comments, Friendly's also argues that the comments must be in some way "connected to the decision[-]making process." Id. at 15-16 (citing Mello, 2000 WL 762026, at *7; Rivera-Aponte v. Rest. Metropol #3, Inc., 338 F.3d 9, 12 (1st Cir. 2003); and Ridge v. Cape Elizabeth Sch. Dep't, 77 F.Supp.2d 149, 166-67 (D. Me. 1999)).
Friendly's also disputes that Ms. Fairweather's "demographic evidence" supports her pretext claim. Id. at 16-17. It contends that "[m]erely pointing to the fact that younger individuals were retained or hired following [Ms. Fairweather's] discharge is insufficient evidence of pretext to survive summary judgment." Id. at 16 (citing Mello, 2000 WL 762026, at *8 and Deslauriers v. Napolitano, 738 F.Supp.2d 162, 183 (D. Me. 2010)). Furthermore, Friendly's argues that the evidence that it hired servers in their 30s in 2012 reflects the fact that it was hiring servers for evening shifts, which are generally preferred by younger workers and disfavored by older workers. Id. at 17. Friendly's also places weight on the fact that Ms. Dipietrantonio and Ms. Kallio, who were within one year of Ms. Fairweather's age, continue to work the breakfast shift at the South Portland Friendly's. Id. It argues that this "strongly undercuts any inference of discrimination." Id. (citing Rivera-Aponte, 338 F.3d at 12).
Friendly's vigorously opposes any suggestion that its investigation of Ms. Fairweather, or its reason for terminating her, was insufficient, giving rise to an inference of discrimination. Id. at 17-20. In its view, it had no reason to doubt the customer's complaint, and verified the substance of the complaint with the only employee to witness the incident. Id. at 18. It also disagrees with Ms. Fairweather's view that its discipline of her was inconsistent with the progressive discipline policy; it points out that its own Employee Manual indicated that rudeness to a guest was grounds for immediate termination. Id. at 19. Friendly's further points out that this was not Ms. Fairweather's first warning for rude or discourteous conduct. Id. It views as irrelevant Ms. Fairweather's disagreement about the facts of the incident; what is important, in Friendly's view, is that the customer made the complaint, Friendly's received it, and Ms. Coutts verified the basic details. Id. at 19-20.
Ms. Fairweather begins by cautioning that pretext, in an employment discrimination case, is an issue usually appropriate for a fact-finder. Pl.'s Opp'n at 12. She argues that there are "many evidentiary paths" to prove pretext, and points out that the First Circuit has held that "`there is no mechanical formula for finding pretext.'" Id. at 13 (citing Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003)).
Ms. Fairweather proffers a number of inferences that, she claims, the factfinder could reasonably reach to arrive at the ultimate conclusion that her firing was pretextual. Id. at 14-15. The fact-finder could infer, she contends, that the South Portland Friendly's "constantly" received customer complaints of rudeness but never disciplined or terminated the accused, or only issued notes to file; this would render the basis for Ms. Fairweather's termination "weak and inconsistent and a departure from policy." Id. at 14-15. She contends that the fact-finder could reasonably conclude that Ms. Newell's claim, that complaints of rudeness always result in termination, is false, or that Ms. Fairweather's termination was a departure from the progressive discipline policy. Id. at 15. She next argues that it would be reasonable to conclude that Ms. Fairweather's version of the incident is credible, and that Friendly's had no actual reason to terminate her. Id. at 15, 16. Alternatively, she contends, the fact-finder could conclude that Ms. Coutts' investigation was insufficient and cursory. Id. at 15
Ms. Fairweather also sees in the summary judgment record a reasonable inference that Friendly's had a secret plan to create a new image for itself by hiring younger servers and discharging older servers. Id. She sees further evidence of this in the age related comments by Ms. Coutts and Mr. Rupard. Id. She also suggests that Friendly's hiring of a majority of servers under the age of thirty in 2012 strengthens this inference. Id. at 16. Ms. Fairweather suggests that her own termination is also evidence to support this inference. Id.
Ms. Fairweather contends that it would be reasonable to infer that Ms. Coutts' "differential treatment" of Ms. Fairweather in the months before her termination, along with Coutts' "refus[al] to take action to remedy the harassment," is evidence that Ms. Coutts was trying to force her to resign. Id.
In reply, Friendly's first argues that Ms. Fairweather's own version of the facts of the incident leading to her termination is immaterial to the pretext analysis. Id. at 2. It renews its previous argument that what matters is Friendly's notice of the complaint and investigation, not what actually did or did not happen on May 10, 2012. Id. at 2-3. Next, Friendly's argues that Ms. Fairweather has not shown that similarly situated, younger employees were disciplined for similar offenses in a manner inconsistent with her. Id. at 4. Friendly's disputes that there is any evidence of a "plan" to eliminate older waitresses, particularly in light of the fact that Ms. Dipietrantonio and Ms. Kallio continue to be retained by Friendly's. Id. at 6. Finally, Friendly's disputes that Ms. Roberge's "untested" claim against Friendly's, filed while it was laying off thousands of employees during bankruptcy, gives rise to an inference of age discrimination against Ms. Fairweather. Id. at 7.
As the First Circuit recently wrote, the courts apply the McDonnell Douglas burden-shifting analysis "to help the parties `sharpen the inquiry into the elusive factual question' of the employer's motivation." Ahmed v. Johnson, No. 13-1054, 2014 U.S. App. LEXIS 9454, *10-11 (1st Cir. May 21, 2014) (quoting Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 n.8 (1981)). Under the McDonnell Douglas framework, the plaintiff bears the initial burden to make a prima facie showing of discrimination. Vélez v. Thermo King de P.R., Inc., 585 F.3d 441, 447 (1st Cir. 2009).
Id.
Once the employer sustains this burden of production, the burden shifts back to the plaintiff to prove that the proffered non-discriminatory reason was, in fact, a pretext for illegal discrimination. Melendez v. Autogermana, Inc., 622 F.3d 46, 52 (1st Cir. 2010).
Mesnick, 950 F.2d at 824 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)). In the summary judgment context, "[t]he ultimate question. . . is `whether or not the plaintiff has adduced minimally sufficient evidence to permit a reasonable factfinder to conclude that he was fired because of his age.'" Vélez, 585 F.3d at 452 (quoting Dávila v. Corporación de P.R. Para la Difusión Pública, 498 F.3d 9, 16 (1st Cir. 2007)).
The first two volleys in the McDonnell Douglas framework are straightforward in this case. The fact-finder could readily and reasonably conclude that (1) Ms. Fairweather was over forty years old when Friendly's fired her, Section II.B.1, supra; (2) she was qualified for the position she held, Sections II.B.1 to II.B.2, supra; (3) Friendly's fired her, Section II.B.10, supra; and (4) Friendly's replaced her with the twenty-three year old Nicole Dipietrantonio. Section II.B.11, supra. This meets Ms. Fairweather's burden to establish a prima facie case of age discrimination.
Even viewing the summary judgment record in the light most favorable to Ms. Fairweather, a fact-finder could also reasonably conclude that Friendly's had met its burden to produce a legitimate, non-discriminatory reason to fire her. She had records of several instances of discipline in her file (notwithstanding that she was apparently aware of only one of them), Sections II.B.7, II.B.10, supra; a customer reported an instance of serious rudeness by Ms. Fairweather, Section II.B.10, supra; Ms. Coutts confirmed the substance of the complaint, id.; and Friendly's disciplinary policy allowed for immediate termination for an incident involving rudeness to a guest. Section II.B.5, supra. This is a legitimate, non-discriminatory reason for Friendly's to have fired Ms. Fairweather, and it rebuts the inference of her prima facie case. Consequently, the burden shifts back to her to show—with the benefit of all evidence viewed in a light most favorable to her and all reasonable inferences— that there is a genuine issue of material fact as to whether Friendly's proffered reason is a sham, and it actually terminated her because of her age. Mesnick, 950 F.2d at 824.
Whether Ms. Fairweather has shown that her termination was a pretext for age discrimination is an extremely close and difficult question. It requires an evaluation of what inferences are reasonable for a fact-finder to draw based on the historical facts of the summary judgment record. Ms. Fairweather supplies a variety of inferences that, in her view, are reasonable on the record and would lead to a finding of pretext.
Evaluating the reasonableness of these inferences is inevitably an evidenceintensive inquiry, and the Court begins with an examination of cases where summary judgment of a pretext claim has and has not been held appropriate. To reiterate an earlier point: although Maine law supplies the substantive right at issue here, federal procedural law supplies the standard by which the Court evaluates the reasonableness of Ms. Fairweather's proposed inferences. Hanna, 380 U.S. at 471-72. Therefore, the Court looks to federal summary judgment decisions on pretext in discrimination cases.
In Bonefont-Igaravidez, the First Circuit upheld a district court's grant of summary judgment to a defendant in an age discrimination case under the Federal Age Discrimination in Employment Act (ADEA). 659 F.3d at 126-27. The plaintiff, a stevedore, alleged that in the months before his termination his co-workers called him "an old, sick man; asked him why he had not retired; told him that he was too old to perform his job duties; and urged him to stay home to watch soap operas and care for his grandchildren." Id. at 122. None of the plaintiff's supervisors made any remarks about his age. Id. After several months, the plaintiff was terminated for fighting with a co-worker. Id. at 123. He also alleged that there were inconsistencies in his employer's incident reports documenting the event. Id. at 124-25. Finally, he alleged that other, younger co-workers had also fought each other and had not been terminated. Id. at 126. The plaintiff argued that these events gave rise to an inference of pretext. Id. at 124-26.
The First Circuit rejected all of these inferences. Id. First, it observed that the inconsistencies in the employer's documentation did "nothing to unveil any ulterior, discriminatory motive." Id. at 125. Second, it held that the disparaging remarks by the plaintiff's co-workers, though potentially relevant to pretext and close in time to the termination, "were made by [the plaintiff's] fellow stevedores in circumstances unrelated to the altercation and subsequent termination." Id. Furthermore, there was no evidence that the person who actually made the termination decision "relied on information from any . . . employee who may have demonstrably possessed a discriminatory animus." Id. Finally, as to the different treatment of younger workers, the Court held that "[f]or such disparate treatment to be probative of a discriminatory motive, . . . it must be shown that the incidents were `similarly situated in material respects [to the proposed analogue].'" Id. at 126 (quoting Vélez, 585 F.3d at 451).
The Bonefont-Igaravidez Court offered one further piece of guidance:
Id. (internal quotations and citations omitted).
In Webber, the First Circuit upheld a district court's grant of summary judgment in a disability discrimination case, also applying the McDonnell Douglas framework. 417 F.3d at 240-41. In that case, a manager in an engineering position who lacked an engineering degree was terminated as part of a workforce reduction initiative by his employer. Id. at 232-33. The employee had disabling injuries to his knees that required the employer to make special accommodations for him in the workplace. Id. The employer claimed that the plaintiff was terminated because he lacked an engineering degree and had not produced work of sufficient quantity or quality. Id. at 233. The employee, however, alleged disability discrimination, citing disability-related comments and ridicule by his immediate supervisors four years before his termination, and a query from his supervisor in the month before his termination as to how long it would take him to heal from his latest surgery. Id. at 232-33. The decision to terminate the employee was made by his mill manager, not his immediate supervisor, though the manager received input from the supervisors who had ridiculed the employee. Id. at 233.
The First Circuit refused to allow an inference of pretext on these facts. The Court found no evidence that the supervisors who had ridiculed the employee "conveyed any alleged discriminatory animus to . . . the decision[-]maker of record." Id. at 236. Furthermore, although the manager consulted two of the supervisors who had made comments, they merely remained silent as to the employee, declining to give an opinion one way or another. Id. at 237. The Webber Court held that mere acquiescence by the supervisors, who had made discriminatory comments, was not enough to create an inference that the decision-maker terminated the employee for a discriminatory purpose. Id. The Court also rejected the plaintiff's allegation of a covert, company-wide policy to get rid of disabled workers, based on a comment among employees that "salaried people do not get hurt." Id. at 239.
In Che, the First Circuit affirmed a district court's denial of judgment as a matter of law to the defendant state agency, following a jury verdict in favor an Asian plaintiff who claimed his supervisor discriminated against him because of his race. 342 F.3d at 35-37.
The Court found that this evidence could generate an inference of pretext in one of two ways. First, the jury could reasonably have inferred that the Asian employee received different treatment than similarly situated white employees because of his race. Id. at 39. Second, the jury could have inferred that the employer's proffered reason for the demotion—insubordination—was "unworthy of credence" in light of the evidence that the supervisor had later withdrawn his instruction not to write in the assignment block. Id. The Court affirmed the district court's denial of judgment as a matter of law, holding that this evidence was sufficient to support the jury's verdict that the agency had discriminated. Id. at 39-40.
In Hall, this Court granted summary judgment in favor of a defendant company accused of age discrimination against one of its former employees in violation of ADEA. 895 F. Supp. 2d at 246. The plaintiff, who was ostensibly fired for permitting a mentally disabled employee under his supervision to be sexually harassed for a year in violation of the company's harassment policy, argued that this was a sham reason designed to conceal the true reason for his termination—his age. Id. at 274. The plaintiff conceded that no one at the company had ever made any comments about his age but pointed out that another employee had sued the company for age discrimination and argued that the employer's investigation of the incident was faulty and arbitrary. Id. at 274-75. Specifically, he alleged that the behavior of his direct report employees who harassed the mentally disabled man was not "sexual harassment" within the meaning of the company's policy, that other employees who were aware of and failed to report the harassment were not terminated, and that the plaintiff's own supervisor was also aware of the harassment and was not terminated. Id. The plaintiff urged the Court to find that he had generated a permissible inference of pretext based on this evidence. Id.
This Court rejected all of those arguments. Id. at 275. It held that the evidence was "consistent on the essential point" that the behavior of the plaintiff's own direct report employees was "lewd, dirty, vulgar, and inappropriate," in violation of the harassment policy. Id. It further held that, "[e]ven if [the plaintiff] were to show that [the company's] decision to fire him were `unfair or unwise,' he would be entitled to no relief under the ADEA because he has failed to raise a reasonable inference that age discrimination was the real reason for his firing." Id. The Court found it particularly telling that the plaintiff had produced no evidence of references to his age at all, much less in connection with his termination, nor had he produced any "statistical evidence showing a correlation between age and the likelihood of termination." Id. at 276 (citing Phair v. New Page Corp., 708 F.Supp.2d 57, 68 (D. Me. 2010)).
The Court turns to Ms. Fairweather's proposed inferences of pretext. Pretext, to repeat, requires proof that both (1) Friendly's proffered reason for termination was a sham and (2) the actual reason for the termination was Ms. Fairweather's age. Mesnick, 950 F.2d at 824. Under appropriate factual circumstances, the second may be implied from the first. DeCaire v. Mukasey, 530 F.3d 1, 19-20 (1st Cir. 2008).
Ms. Fairweather argues that the fact-finder could reasonably infer that the South Portland Friendly's "constantly" received customer complaints of rudeness but never disciplined or terminated the accused, or only issued notes to file. Pl.'s Opp'n at 14-15. This, she contends, would render the basis for Ms. Fairweather's termination "weak and inconsistent and a departure from policy." Id.
Viewing the evidence in the light most favorable to her, the record supports Ms. Fairweather's contention that Friendly's received a fairly regular stream of customer complaints. The customer survey reports, Guest Track System and SMG, indicate that Friendly's received a customer complaint about once per week and that the district for which Ms. Newell was the manager, including the South Portland store, did not fare well in the surveys. Sections II.B.3, II.B.4, supra. The Friendly's records also confirm, however, that customers complained about many things other than the rudeness of the server, and, as is common in restaurants, the customers occasionally blamed the server for the sins of the cook or for the restaurant's inherent inefficiencies. Id. For example, the Court does not view the complaint that "THE FOOD IS AWFUL, and the service by high school children and that circus element was pathetic and the restaurant was dead — no excuses" as a complaint about the rudeness of the wait staff. Section II.B.4, supra. Other complaints, such as inattention by servers, inflexible menu options, and inaccuracies in orders, are not about rudeness. Id.
Focusing on server rudeness—as opposed to undercooked food, melted ice cream, or slow service—there is more limited evidence of this subcategory of complaint and Friendly's response to such complaints. The record contains reference to a complaint of rudeness involving "Joanne," presumably Joanne Roberge, who was 63 in January 2012. PSAMF ¶ 49; DRPSAMF ¶ 49 ("the guest stated that they had a server named Joanne . . . was (sic) rude to the guest"); PSAMF ¶ 73; DRPSAMF ¶ 73. Friendly's terminated Ms. Roberge's employment in January 2012. PSAMF ¶ 73; DRPSAMF ¶ 73. The significance of Ms. Roberge's employment history with Friendly's is complicated. The record contains no information about when the rudeness complaint took place, other than that it was at some time in the two-year period before Ms. Fairweather's termination. Therefore the Court has no basis to tie the rudeness complaint to her termination. Furthermore, according to the record, Friendly's terminated Ms. Roberge because she exceeded the acceptable number of customer walk-outs, PSAMF ¶ 74; DRPSAMF ¶ 74, not because of the rudeness complaint. Accordingly, again viewing the evidence in the light most favorable to Ms. Fairweather, Friendly's failure to terminate Ms. Roberge for her rudeness to a customer is some evidence that Friendly's did not apply consistent standards for dismissal. At the same time, this evidence is equivocal regarding Ms. Fairweather's claim that Friendly's used the rudeness complaint to terminate her because of her age; Friendly's apparently did not terminate Ms. Roberge, a sixty-three year old server, for rudeness to a customer.
A second rudeness incident, this time involving an employee named Daniel Goodling, took place on December 30, 2011. PSAMF ¶ 43; DRPSAMF ¶ 43. Mr. Goodling was around 34 at the time. Stip. Attach 1, at 2 (Employee Census). Mr. Goodling was given a disciplinary notice for "[r]ude/discourteous treatment of Guests/coworkers." PSAMF ¶ 43; DRPSAMF ¶ 43. Ironically, the disciplinary notice describes Mr. Goodling as having been "loud and confrontational to [Ms.] Fairweather in front of customers. Tempers flared." PSAMF ¶ 44; DRPSAMF ¶ 44. Friendly's terminated Mr. Goodling less than two weeks after this incident. DRPSAMF ¶ 44.
It is difficult to know what to make of this episode. Although Friendly's terminated Mr. Goodling two weeks after this incident, Friendly's does not say that it terminated him because of the incident. Mr. Goodling's loud and confrontational behavior was directed to a co-worker, not a customer, but it was in front of a customer. Despite this behavior, at least from the summary judgment record, Mr. Goodling received only a disciplinary write-up. Again, viewing the evidence in the light most favorable to Ms. Fairweather, Friendly's handling of the Goodling incident is some evidence of an inconsistent application of discipline, favoring a younger worker, who had engaged in inappropriate conduct.
A third rudeness complaint involved a manager with the first name Amy, perhaps Amy Barter, a Friendly's manager who was twenty-nine years old in 2012. PSAMF ¶ 54; DRPSAMF ¶ 54; Employee Census at 2. A customer telephoned Ms. Barter to complain about something that had happened at Friendly's earlier that day, and the customer later complained that Ms. Barter was rude on the phone. PSAMF ¶ 55; DRPSAMF ¶ 55. Friendly's terminated Ms. Barter on January 13, 2012. DRPSAMF ¶ 54. Again, there is nothing in the record to establish when the rudeness complaint was lodged against Ms. Barter and nothing to indicate that Ms. Barter was terminated for this conduct. This apparently lenient treatment of twenty-nine year old Ms. Barter is some evidence that it handled the rudeness complaint against fiftyfive year old Ms. Fairweather more harshly than that of her younger colleague.
Ms. Fairweather submitted statements about other employee misconduct and the resulting discipline. For three, there is so little information about the incidents and their comparability to Ms. Fairweather's situation that the Court has not considered them. On February 18, 2011, Bonnie Coutts issued a note to file to employee Michelle Robertson.
Ms. Fairweather also points to an incident involving a forty-four year old employee, Todd Woodsome. PSAMF ¶¶ 45-47; DRPSAMF ¶¶ 45-47; Employee Census at 3. On February 23, 2012, a customer sent a complaint about Mr. Woodsome to Friendly's, complaining about the food and Mr. Woodsome's service.
Ms. Fairweather has set forth one other rudeness complaint. PSAMF ¶ 55; DRPSAMF ¶ 55. But the server is not named and there is no information in the record as to the server's age and whether Friendly's took disciplinary action against the rude server.
Finally, Ms. Fairweather itemized a number of other customer complaints, ranging from inattentiveness to long wait times to inaccurate orders. PSAMF ¶¶ 57-62; DRPSAMF ¶¶ 57-62. These episodes are some evidence that customer complaints were not all that uncommon, but they have minimal probative value for determining whether Friendly's terminated Mr. Fairweather due to her age.
Of the customer complaints proffered by Ms. Fairweather, four actually alleged rudeness—one by a manager, and three by servers. See Section II.B.4, supra. The record also demonstrates two discipline notices to employees' files for rudeness. Section II.B.6, supra.
Although hardly robust, the Court concludes that Ms. Fairweather has produced some evidence that, when viewed in the light most favorable to her, could generate an inference that her firing was pretextual. Friendly's customers complained about the rudeness of Mr. Goodling and Ms. Barter and there is no evidence in this record that Friendly's took the same disciplinary action against these employees that it took against Ms. Fairweather. Thus, she has produced evidence that Friendly's treated at least two "similarly situated" employees outside the protected class more favorably than her. Bonefont-Igaravidez, 659 F.3d at 126; Deslauriers, 783 F. Supp. 2d at 180-81.
Ms. Fairweather claims that a fact-finder could reasonably infer that it was not actually Friendly's policy to immediately terminate an employee for rudeness on the first offense. Pl.'s Opp'n at 15. In response, Friendly's points to language in the Employee Manual that warns its employees, including Ms. Fairweather, that rude treatment of a guest was a violation of company policy and "could result in immediate discharge on a first offense." Def.'s Mot. at 19. Furthermore, Friendly's asserts that "this incident was not Plaintiff's first warning for rude or discourteous treatment of a guest." Id. Friendly's argument reveals a contradiction. Friendly's did not enforce its supposed "no tolerance" policy toward server rudeness to a guest when it gave Ms. Fairweather a warning for a prior episode of rudeness. At the same time, as will be explained, the Court agrees with Friendly's that Ms. Fairweather cannot manufacture a genuine issue of material fact simply by denying that the conduct underlying the documented personnel action ever actually took place.
Ms. Fairweather argues that a fact-finder could reasonably infer that the incident did not actually take place as the customer said it did, and that Friendly's had no reason to terminate her. Pl.'s Opp'n at 15. This focuses on the wrong point. The question, when determining whether there is an inference of pretext, is what the employer knew and intended, not what actually happened. If what actually happened impacted the employer's knowledge, then it is relevant; if it did not, it is irrelevant.
The summary judgment record shows that Friendly's received a complaint, credible on its face, alleging rudeness to a customer by Ms. Fairweather. Section II.B.10, supra. Ms. Coutts investigated the complaint and confirmed its "substance" with Ms. Dipietrantonio, who witnessed the incident. Id. Ms. Coutts attempted to interview other employees, but discovered no additional information. Id. She and Ms. Newell gave Ms. Fairweather an opportunity to explain her version of events on May 14, 2012, listened to what she had to say, and then decided to fire her anyway. Id. Nothing in the record shows that it was patently unreasonably for them to believe the customer and Ms. Dipietrantonio over Ms. Fairweather when making their decision. This is not a case, as in Che, where the record shows that the supervisor was actually aware of the inaccuracy of the alleged offense. Che, 342 F.3d at 38-39.
Ms. Fairweather may be entirely correct that her behavior was benign and polite, that the customer was rude and unreasonable, and that Ms. Dipietrantonio "screamed" at her at the podium. Section II.B.10, supra. Nothing about her own recollection of events controverts the facts that Friendly's received the complaint, investigated, and decided to fire Ms. Fairweather after performing an investigation. Nor do any later revelations that certain details of the customer's complaint were incorrect. Id. To raise an inference of pretext by showing that the customer's and Ms. Dipietrantonio's versions were factually incorrect, Ms. Fairweather would have to show evidence that the decision-maker or one influencing her—Ms. Newell or Ms. Coutts—was actually aware that the incident did not occur as it was reported, or could not reasonably have believed the evidence that led them to their final conclusion. See Mello, 2000 WL 762026, at *5 (holding that information reported to the decision-maker, later proved to be incorrect, does not generate an inference that the decision-maker had the correct information at the time of the decision).
Ms. Newell was not in the restaurant at the time of the incident and Ms. Coutts did not personally witness it. Section II.B.10, supra. Ms. Coutts, whose investigation influenced Ms. Newell's decision, had credible evidence that the incident occurred as the customer said it did. Id. Consequently, Ms. Fairweather cannot raise an inference of pretext with evidence that the information on which Friendly's relied was factually incorrect.
Ms. Fairweather also proposes an inference that Ms. Coutts' investigation was inadequate, which, she argues, supports the further inference of pretext. She claims that Ms. Burke, who received the first corroborating complaint from Ms. Dipietrantonio, did not actually work on May 10, Pl.'s Opp'n at 6—but the Court has ruled that Ms. Fairweather has not established that fact. See Section II.B.10 & n.72, supra. Ms. Fairweather also claims that the investigation was faulty because Ms. Coutts did not interview Ms. Fairweather herself or Mr. Rupard. Id. at 6-7. She attacks the factual accuracy of Ms. Dipietrantonio's reported version of the events, id. at 7, but the Court has already addressed that issue above. See Section IV.C.2.c, supra. If there were factual inaccuracies in what Ms. Dipietrantonio told Ms. Coutts, Ms. Fairweather has not shown that Ms. Coutts or Ms. Newell were aware of them on or before May 14, 2012.
It is true that Friendly's was limited by the fact that Ms. Dipietrantonio was the only person to actually observe the incident. Section II.B.10, supra. Ms. Coutts interviewed the other servers who were working that morning, who were in a position to observe the incident. Id. Only Ms. Dipietrantonio witnessed it, and she confirmed the substance of the complaint. Id. Ms. Coutts did not interview Mr. Rupard, but this was at least a plausible decision, given that he was working behind the grill and was not in a position to observe the podium. Id.
The more difficult issue is whether a question of pretext is generated by the fact that Ms. Coutts did not interview Ms. Fairweather before writing up her termination papers. Instead, Ms. Fairweather was called in on her day off and met with both Ms. Coutts and Ms. Newell. When she sat down, the two women threw the survey across the table at Ms. Fairweather and asked her to explain it. Ms. Fairweather saw the termination paper on the folder on the table and became very upset. Ms. Fairweather said that the incident did not happen and that it did not happen that way. She denied speaking rudely to the customer. Ms. Coutts and Ms. Newell fired Ms. Fairweather.
Neither Ms. Fairweather nor Friendly's has presented the Court with any caselaw that holds an employer's failure to interview an employee before terminating her generates a material fact about the adequacy of an investigation sufficient to escape summary judgment. The Court doubts that there is any such hard and fast rule. For example, if numerous witnesses confirmed that an employee physically assaulted a co-worker, the employer might well conclude that the offense justified termination despite not hearing the assaulter's side.
Here, the Court concludes that Ms. Fairweather has raised a genuine issue of material fact as to whether Friendly's conducted an adequate investigation. Ms. Fairweather was, after all, a twenty-four year veteran employee of Friendly's, Friendly's had interviewed only one confirming witness, and from the evidence, a jury could conclude that before Ms. Coutts and Ms. Newell sat down with Ms. Fairweather, they had decided to fire her. Again, although not the strongest case, the Court concludes that a fact-finder could reasonably conclude that Friendly's did not conduct a proper investigation of the incident before terminating Ms. Fairweather.
Ms. Fairweather argues that a fact-finder could infer that following Friendly's emergence from bankruptcy on January 9, 2012, its effort to change its image included an unstated effort to shed older servers and hire younger ones. Pl.'s Opp'n at 2-3, 15. She finds support for this inference in Ms. Coutts' and Mr. Rupard's workplace comments about Ms. Fairweather's age; demographics showing Friendly's hiring a number of young servers in 2012; the termination of Joanne Roberge; Ms. Coutts' "differential" treatment of Ms. Fairweather in the months prior to her termination; Mr. Rupard's harassment of Ms. Fairweather and Ms. Coutts' response; and Ms. Fairweather's long tenure at Friendly's. Id. at 15-16.
Certain of these bases for the inference of an internal conspiracy are thin. Ms. Fairweather's long-time employment at Friendly's suggests that she must have performed her job reasonably well for an extended period and that she must have had some degree of institutional loyalty to her employer. It is also true, however, that even a long term employee can run into discipline problems, and a short term employee, who happens to be over a certain age, may be terminated because of illegal age discrimination. Likewise, Ms. Roberge's termination is not relevant to an inference of a conspiracy; she was terminated before Friendly's emerged from bankruptcy, and she had a history of discipline problems including rudeness to guests. Section II.B.8, supra.
In this case, the hiring demographics also do not contribute to any inference of a plan to replace older servers with younger ones. Taking the demographics as true, Section II.B.11, supra, Ms. Fairweather has shown no evidence that the 2012 hiring demographics are different from the hiring demographics of the South Portland Friendly's restaurant at any other time in its existence. Without significantly more detailed statistical analysis than Ms. Fairweather offers, a fact-finder could not reasonably infer from one year worth of hiring data a nefarious plan to eliminate older servers.
This leaves three categories of evidence to support the proposed inference: age-related comments by Ms. Coutts and Mr. Rupard; hostile, non-age related comments by Ms. Coutts and Mr. Rupard; and hostile behavior by Ms. Coutts. Section II.B.9, supra. Like Ms. Roberge's termination, many of these incidents occurred before the emergence from bankruptcy, but some occurred after, and are potentially relevant.
The record suggests that Ms. Coutts developed an intense dislike of Ms. Fairweather, and made her life difficult at Friendly's. Id. It also suggests that Mr. Rupard made a number of remarks plainly inappropriate for a professional workplace. Id. However, although these words and actions directed to Ms. Fairweather were hostile, the only one that was actually age related was Mr. Rupard's comment that Ms. Fairweather was "so old that she could have served the Last Supper." Id. These remarks and actions, targeted at Ms. Fairweather herself, do not mesh logically with a conspiracy to eliminate older servers, because Ms. Fairweather has not shown any evidence that other older servers were subjected to similar abuse. Indeed, Ms. Fairweather says repeatedly that Ms. Coutts' poor treatment of her stood out as unique; she did not treat any other servers in the same way. Id. The record also shows that Ms. Coutts' hostile behavior began in July 2011, approximately six months before Friendly's emerged from bankruptcy. Id. This evidence would certainly support an inference that Ms. Coutts was trying to get rid of Ms. Fairweather, but absent similar treatment of other older servers it supports precisely the opposite inference with regard to the older servers as a group. In other words, Ms. Coutts' dispute seems to have been with Ms. Fairweather personally, not with the older servers generally. Consequently, the Court discards from its analysis the hostile, non-age related statements and behavior by Ms. Coutts and Mr. Rupard toward Ms. Fairweather.
This leaves the age related comments. There were three squarely age-related comments from Ms. Coutts and one from Mr. Rupard. Two of Ms. Coutts' comments were approximately the same, and occurred at some time in the year before Ms. Fairweather's termination: Ms. Coutts said that if people were too old to do their jobs, she would find somebody else who could. Id. The third came in mid- to late January 2012, following the bankruptcy: "[L]isten up, all you older servers, you have to be on top of your game now because I can no longer protect you." Id. She did not elaborate on any of these comments. Id. Mr. Rupard—who held some form of shift supervisor role—also said that Ms. Fairweather was so old that she probably served at the Last Supper. Id.
The question, as it boils down, is whether three age related comments by Ms. Coutts in the year before Ms. Fairweather's termination, and one by Mr. Rupard, generate a reasonable inference of a company-wide—or perhaps region-wide, or district-wide—conspiracy to eliminate older servers. Taken in isolation, these comments alone would not support Ms. Fairweather's conspiracy claim.
The evidence discussed above with respect to an inference of conspiracy could also conceivably support an inference that Ms. Coutts harbored age-based animus against Ms. Fairweather personally, and imputed that animus to Ms. Newell's decision to terminate Ms. Fairweather. See Dávila, 498 F.3d at 17 n.3. Ms. Fairweather did not squarely raise this argument in her opposition to the motion for summary judgment, see Pl.'s Opp'n at 12-16, but the cases she cites implicate it. The argument would run something like this: Ms. Coutts made three age-related comments in the year before Ms. Fairweather's termination, and also used her position as a supervisor to make Ms. Fairweather's life difficult at work. This, the argument would go, gives rise to an inference that Ms. Coutts wanted Ms. Fairweather personally to be terminated because of her age (rather than to get rid of older servers in general). Because Ms. Coutts had extensive input into Ms. Newell's decision to terminate Ms. Fairweather, this animus should be imputed to Ms. Newell. Bonefont-Igaravidez, 659 F.3d at 125-26.
Factually, Webber is somewhat similar to this case, but it is not close enough to be decisive. As in Webber, where supervisors of the plaintiff had made discriminatory remarks in the past and then had input into the decision-maker's choice to fire the plaintiff, 417 F.3d at 232-33, here Ms. Fairweather's supervisor made age-related remarks in the past and then had input into her termination. The Webber Court noted that the plaintiff could not produce any evidence that the supervisors who had made suspect remarks "affirmatively conveyed any alleged discriminatory animus to . . . the decision[-] maker of record." Id. at 236. The same is true here. The Webber Court then concluded that any inference that the discriminating supervisor influenced the decision-maker would be "excessively speculative"—despite the fact that one supervisor testified that "he `believed' that he could have changed [the decision-maker's] mind regarding the termination." Id. at 237.
The reason Webber is factually inapposite is that in Webber the decision-maker had already made a decision before consulting the discriminating supervisor. Id. Here, by contrast, Ms. Newell made her decision based on both the customer complaint and Ms. Coutts' follow-up investigation. Section II.B.10, supra. In Webber the discriminating supervisor's role was to supply additional facts that might challenge a decision already reached by the ultimate decision-maker; he declined to do so. Webber, 417 F.3d at 237. By contrast, Ms. Coutts supplied the facts of her investigation to Ms. Newell, and Ms. Newell exercised her ultimate responsibility for terminating Ms. Fairweather based largely on Ms. Coutts' facts. Section II.B.10, supra. In sum, Webber does not require a result in Friendly's favor based on the relationship between Ms. Coutts and Ms. Newell, but it also does not forbid it.
The Court turns to the nature and timing of the age-related comments themselves, rather than the relationship between Ms. Coutts and Ms. Newell, to resolve this issue. The totality of the comments by both Ms. Coutts and Mr. Rupard strongly suggests age-related bias against Ms. Fairweather: "If people are too old to do their jobs, I will find somebody else who could"; "Why do you even bother to work, you don't need to"; "Listen up, all you older servers, you have to be on top of your game now because I can no longer protect you"; "We are a whole new Friendly's; we are changing our image"; and four or five references to being so old that she probably served the Last Supper.
The next question is when the comments took place in relationship to her termination. Under Bonefont-Igaravidez and Mello, if the comments are "temporally remote from the date of the employment decision in question," they may not be deemed "related to the employment decision." Bonefont-Igaravidez, 659 F.3d at 125 (quoting McMillan v. Mass. Soc'y for Prevention of Cruelty to Animals, 140 F.3d 288, 301 (1st Cir. 1998)). In Mello, the plaintiff, a security guard, was fired for dereliction of duty on May 18, 1996, and the age-related comments occurred in January and February of that year. Mello, 2000 WL 762026, at *5, 7. The first occurred when the plaintiff was working on stripping and polishing a floor, and the second when he reported a complaint from another employee. Id. at *7. The Court in Mello held these comments to be "not connected in any way . . . to the decision[-]making process." Id. In Bonefont-Igaravidez, by contrast, the comments were "not temporally remote" from the termination, but were made by "fellow [workers] in circumstances unrelated to the . . . termination." Bonefont-Igaravidez, 659 F.3d at 125.
Here, Ms. Coutts made the comments in either the six months or the year before Ms. Fairweather's termination, and the comments had, on their face, a relationship to her employment. Ms. Coutts' age-related comments occurred at the latest about five months before Ms. Fairweather's termination and are therefore of approximately the same "temporal[] remote[ness]" as the comments in Mello, which the Court held not to generate an inference of pretext. Mello, 2000 WL 762026, at *7. The difference here is that following these comments, Ms. Coutts engaged in a persistent and determined campaign to pester Ms. Fairweather. A jury would be entitled, though not required, to infer that Ms. Coutts' harassment of Ms. Fairweather was related to the age-related bias Ms. Coutts demonstrated in her earlier comments.
In sum, viewing all the evidence together in a light most hospitable to Ms. Fairweather and drawing all reasonable inferences in her favor, the Court concludes that, in the context of this case, the age-related comments support an inference that the ostensible reason for her termination was a pretext to fire her for her age.
This motion demonstrates the danger of breaking down and inspecting each subpart of a plaintiff's case, holding it up, poking at it, and finding it wanting without treating the evidence—as a jury would—as a whole. Here, even though Ms. Fairweather does not have an overwhelming case of discrimination by Friendly's, taken as a whole she has presented sufficient facts to survive summary judgment: probative evidence of (1) inconsistent discipline, (2) inconsistent application of the first offense termination policy, (3) an inadequate investigation by Friendly's before termination, and (4) age-related comments by supervisors followed by a prolonged period of managerial harassment. Taking these together, the Court concludes that Ms. Fairweather has presented sufficient evidence to be entitled to her day in court before a jury.
The Court DENIES Friendly's Motion for Summary Judgment (ECF No. 29).
SO ORDERED.
Friendly's also objects to the foundation for the statement, but the Court also overrules this objection for the same reasons; the statement is based on Ms. Cressey's direct personal observations. However, portions of the statement assert subjective and conclusory assertions as "fact," and the Court has reworded the statement to show that it reflects Ms. Cressey's personal opinion. The Court deems the modified assertion admitted under Local Rule 56(f), (g).
Friendly's interposes a qualified response: "[Ms. Fairweather] could not recall specifics of what the allegedly rude servers' conduct was, but generally stated that customers would complain about the server not paying attention of the food taking too long." DRPSAMF ¶ 21 (citing Fairweather Dep. 2 at 125:8-12, 126:21-127:25). Ms. Fairweather's testimony in these passages supports the assertion of her paragraph 21, and the qualification does not render the assertion inaccurate. The Court deems Ms. Fairweather's paragraph 21 admitted under Local Rule 56(f), (g).
Friendly's also interposes a qualified response to Ms. Fairweather's paragraph 28, but the qualification does not render the assertion inaccurate or misleading. See DRPSAMF ¶ 28. The Court has elsewhere noted the facts constituting the qualification, and deems paragraph 28 admitted under Local Rule 56(f), (g).
In paragraphs 46 through 48, Ms. Fairweather refers to additional customer complaints. These paragraphs cite (1) "D's response to Pl's document production set 2, #2, D's [B]ate-stamp document 001402-03"; (2) the same phrase but referring only to "D's [B]ate-stamp document 001403"; and (3) the same phrase but referring to "D's [B]ate-stamp document 001729." PSAMF ¶¶ 46-48. Paragraph 46 purports to describe a customer complaint about Todd Woodsome and refers to pages Bates-stamped 001402 and 001403. However, the Court cannot locate any page marked 001403 among Exhibits 2 or 3 to Mr. Loranger's affidavit (or anywhere else in the summary judgment record), while FICL 001402 does not mention Todd Woodsome. See Loranger Aff. Attachs. 2-4, at FICL 001402 (ECF No. 37) (Disciplinary Notices). Paragraph 47 expands on the alleged complaint about Mr. Woodsome, citing a page Bates-stamped 001403; this page, as noted, is not available. Paragraph 48 purports to quote another customer email complaint, citing a page Bates-stamped 001729. This page is available, see Customer Complaints at FICL 001729, but it does not include the text of paragraph 48 or anything close to it. Compare PSAMF ¶ 48 with Customer Complaints at FICL 001729. "The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts." D. ME. LOC. R. 56(f). Ms. Fairweather has not provided record support for the assertions of paragraphs 46, 47, or 48, and the Court does not credit them. D. ME. LOC. R. 56(b), (f).
However, even if it were properly supported, Ms. Fairweather's paragraph 74 does not controvert the assertion of Friendly's paragraph 74. Ms. Fairweather was an employee, not a guest of the restaurant. Whatever Mr. Rupard's behavior to her might have been, it would not have violated a rule mandating polite treatment of guests. The Court deems Friendly's paragraph 74 admitted under Local Rule 56(f), (g).
In paragraph 42, Ms. Fairweather asserts that: "On 12/30/11 management issued a warning to server Daniel Goodlin[g] for `behavior towards MOD and fellow staff members, short, discourteous . . . service to customers seemed rushed. Need to slow down and be aware of your surroundings, act in a friendly manner to co-workers.'" PSAMF ¶ 42 (citing "D's response to Pl's document production set 2, #2, D's bate-stamp document 001385"). Exhibit 2 to Mr. Loranger's affidavit includes pages with Bates-stamps in a range from FICL 001356 to FICL 001408, but it does not contain a page stamped 001385. Because Ms. Fairweather has not provided record material to support the assertion of her paragraph 42, the Court does not credit it. D. ME. LOC. R. 56(b), (f).
DRPSAMF ¶ 162. The Court is required to view the evidence in a light most favorable to Ms. Fairweather and draw all reasonable inferences in her favor. Friendly's may not oppose Ms. Fairweather's factual assertion, otherwise supported by the record, by claiming that it could not locate any other records within its own custody. The Court concludes that the four instances of "Note-to-File" discipline were all of those that resulted at the South Portland restaurant from customer complaints in the period, and deems Ms. Fairweather's paragraph 162 admitted under Local Rule 56(f), (g).
DSMF ¶ 21. Ms. Fairweather denied this paragraph, asserting that she did not engage in this behavior, did not sign the acknowledgement form, and had never seen the form before her deposition. PRDSMF ¶ 21 (citing Fairweather Dep. at 116, 117:21-118:25). In these passages, Ms. Fairweather primarily testified that she did not recall the documented misbehavior and did not recall the conversation with Mr. Green. See Fairweather Dep. at 117:21-118:21. She also denied outright that she had "[]ever been at all abusive to co-workers." Id. at 118:14-15.
However, Friendly's paragraph 21 asserts that Mr. Green documented his interaction with Ms. Fairweather, not that she engaged in the underlying conduct. See DSMF ¶ 21 (citing DSMF Attach. Friendly's Restaurant Employee Discipline Notice (ECF No. 30) (Oct. 19, 2010) (Green Discipline Notice)). Friendly's properly supports the assertion of its paragraph 21 with record material, Green Discipline Notice, and Ms. Fairweather stipulated to the authenticity of that material. Stips. ¶ 14(b); DSMF Attach. 13, at FICL 000056 (ECF No. 30) (Fairweather Personnel File). Ms. Fairweather has also not shown any record material that controverts the assertion of Friendly's paragraph 21. See PRDSMF ¶ 21. The Court deems Friendly's paragraph 21 admitted under District of Maine Local Rule 56(f), (g).
In Ms. Fairweather's paragraph 5, she claims that "[t]he incident involved a guest calling in about their experience." PSAMF ¶ 5 (citing Coutts Dep. at 22:14-23). Friendly's interposes a qualified response to the effect that the guest wrote in using Friendly's electronic comment system. DRPSAMF ¶ 5. Ms. Coutts testified that "[w]hat happens is we have a commentary system and a guest can write in about their experience." Coutts Dep. at 22:19-21. Then, "the guest is called and we have a discussion of what happened and then we go over it with employees." Id. at 22:21-23. The passage cited by Ms. Fairweather does not support her assertion that the guest called in the complaint; rather, it supports Friendly's qualification. Friendly's paragraph 27 captures the substantive meaning of Ms. Fairweather's paragraphs 4 and 5.
PRDSMF ¶ 30.
This characterization of Ms. Fairweather's deposition statements misses several important points. First, when asked "are those your initials down at the bottom [of deposition Exhibit 10, here Fairweather Personnel File at FICL 000051]," Ms. Fairweather replied "Yes." Fairweather Dep. at 129:14-15. She later reaffirmed this answer. Id. at 130:3-4. She did indicate she could not tell the date that she made the initials. Id. at 130:1-2. She did not state that "I don't believe any of this in here" as she now claims; what she actually said, in response to a question about the date, was "I have no idea. I think we have a copy of this and I don't believe any of this is in here." Id. at 129:20-21 (emphasis added). The word "is" that Ms. Fairweather omitted in her quotation of the deposition transcript substantially changes the meaning of the quote; rather than expressing denial of what was then Exhibit 10, it simply shows that she did not believe she had previously seen the Exhibit. She also admitted that "Bonnie [Coutts] talk[ed] to you . . . about this complaint." Id. at 130:11-15.
Friendly's cites this passage of Ms. Fairweather's deposition, and also a passage from Ms. Coutts' deposition, in support of the assertion of paragraph 30. DSMF ¶ 30 (citing Fairweather Dep. at 129:8-130:25; Fairweather Personnel File at FICL 000051; and Coutts Dep. at 22:4-23:1). In her deposition, Ms. Coutts did not describe this specific incident, but did describe the general process that she follows when handling a guest complaint. See Coutts Dep. at 22:4-26:25. However, Ms. Fairweather's own deposition and the Exhibit are sufficient to support the assertion of paragraph 30. Because the assertion finds record support and Ms. Fairweather has not shown record material to controvert it, the Court deems Friendly's paragraph 30 admitted under Local Rule 56(f), (g).
Fairweather Dep. at 116:1-7. The Court adjusted the paragraph to reflect approximately what Ms. Fairweather said in these lines, viewing the evidence in a light most favorable to her and drawing all reasonable inferences in her favor. Friendly's also interposes a qualified response, but the Court has elsewhere noted the facts of the qualification, and they do not render the modified assertion inaccurate or misleading. See DRPSAMF ¶ 137. The Court deems the modified assertion admitted under Local Rule 56(f), (g).
In her paragraph 138, Ms. Fairweather claims that "[Ms. Fairweather's] termination did not comply with [Friendly's] progressive discipline policy." PSAMF ¶ 138 (citing "Fairweather dep. ex. 5, p. 3 answer to interrogatory 5"). Ms. Fairweather did not include Exhibit 5 to her deposition with her statement of additional material facts. The Court does not credit her paragraph 138 because she did not provide record support for the statement. D. ME. LOC. R. 56(c), (f).
More problematic, however, is Ms. Fairweather's attempt to establish a legal conclusion as "fact": whether Friendly's complied with its own discipline policy. This is improper. The non-moving party may not "rest[] merely upon conclusory allegations," Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990), and the Court is not required to credit bald legal argument as "fact" or to controvert a factual assertion by the other side.
Friendly's objects to this assertion claiming that (1) the termination occurred on January 2, 2012, when Friendly's was still in bankruptcy, DRPSAMF ¶ 66 (citing Charge of Discrimination and Stips. ¶¶ 4-5); and (2) Ms. Roberge had a history of disciplinary problems, including rudeness to guests. Id. (citing Charge of Discrimination and Loranger Aff. Attach. 5, at FICL 001750, FICL 001814 (ECF No. 37)). Friendly's argues that this makes Ms. Roberge's termination irrelevant to Ms. Fairweather's charge of age discrimination. The Court disagrees; Ms. Roberge's termination is relevant to Ms. Fairweather's charge of pretextual discharge. However, the Court has inserted these additional facts as qualifications. The Court otherwise deems Ms. Fairweather's paragraph 66 admitted under Local Rule 56(f), (g).
Friendly's qualifies Ms. Fairweather's paragraph 68, noting that the other older employees who heard this statement continue to work at Friendly's. DRPSAMF ¶ 68 (citing Fairweather Dep. at 34:19-35:12; 91:3-9; 140:10-13; and Coutts Aff. ¶ 13). This is true, and the Court has noted it elsewhere, but it does not render the assertion of Ms. Fairweather's paragraph 68 inaccurate or misleading.
In Ms. Fairweather's paragraph 73, she claims that "[Ms.] Coutts['] admonition took place shortly after Joanne Roberge, a server who was 63, was terminated in early January of 2012." PSAMF ¶ 73. This sequence of events is clear from Ms. Fairweather's statements that the Court has credited, and repeating it as a separate statement of fact is unnecessary and repetitive. D. ME. LOC. R. 56(b). A statement of facts is not the proper platform for Ms. Fairweather to make legal arguments.
In Ms. Fairweather's paragraph 69, she claims that "[Ms.] Coutts made comments reflecting Friendly's plan to get rid of older wait-staff as part of its desire to change its image." PSAMF ¶ 69 (citing "Fairweather dep. ex. 5 p. 3 answer to interrogatory 5"). Ms. Fairweather did not include Exhibit 5 from her deposition with her statement of additional material facts, so this assertion fails under Local Rule 56(c), (f). Additionally, the statement is bald legal conclusion, not historical fact; the Court would not credit it even if it were supported in some way. Medina-Munoz, 896 F.2d at 8. Finally, Ms. Fairweather is not competent to testify to the state of mind of Friendly's or any of its managers. The Court does not credit her paragraph 69.
Ms. Fairweather's attempt to controvert paragraph 46 also fails because her allegedly controverting "fact" is actually a legal conclusion: that Friendly's terminated her because of her age. Ms. Fairweather may not establish a factual dispute by asserting a bald legal conclusion as "fact." Medina-Munoz, 896 F.2d at 8.
When asked at her deposition whether "anyone else at Friendly's treated you differently because of your age," Ms. Fairweather replied "No." Fairweather Dep. at 97:9-12. This is sufficient to support the assertion of Friendly's paragraph 46, and Ms. Fairweather has not produced any record evidence to controvert her own statement. The Court deems paragraph 46 admitted under Local Rule 56(f), (g).
Ms. Fairweather also denies Friendly's paragraph 48, but her denial does not controvert the assertion. See PRDSMF ¶ 48. Although Ms. Fairweather produces voluminous statements from Ms. Fairweather, and one from Ms. Dipietrantonio, that dispute the substance of the customer's complaint, nothing she offers controverts the factual assertion that the customer sent the complaint as written and Friendly's received it. In other words, the fact that Ms. Fairweather disagrees with the customer's negative assessment of her behavior does controvert Friendly's claim that the customer sent it. The Court deems Friendly's paragraph 48 admitted under Local Rule 56(f), (g).
In paragraph 52, Friendly's claims that "[a]fter the customers were seated, the husband asked [Ms.] Dipietrantonio `Why did she treat me like that up there.' Dipietrantonio responded `She is just mad at me today. She's not mad at you. I'm really sorry she treated you like that.'" DSMF ¶ 52 (quoting Dipietrantonio Dep. at 26:9-17). In paragraph 53, Friendly's claims that "[t]he customer also noticed that Dipietrantonio was visibly upset and said to her `You shouldn't have to put up with somebody treating you like that at work.'" DSMF ¶ 53 (quoting Dipietrantonio Dep. at 33:11-17). Ms. Fairweather objects to both of these statements as hearsay, PRDSMF ¶¶ 52-53, and Friendly's does not provide any explanation for why they are not. See Def.'s Reply; DRPSAMF. Hearsay statements are not competent summary judgment evidence. Dávila v. Corporación de P.R. Para la Difusión Pública, 498 F.3d 9, 17 (1st Cir. 2007). Because the husband's statements, reported by Ms. Dipietrantonio, appear to be out of court statements offered for the truth of the matter asserted, FED. R. EVID. 801(c), not subject to any exceptions to the rule against hearsay, FED. R. EVID. 802-804, the Court has not considered them.
Friendly's interposes a qualified response to Ms. Fairweather's paragraph 99, but the qualification does not render the assertion of either Ms. Fairweather's paragraph 99 or Friendly's paragraph 58 inaccurate or misleading. See DRPSAMF ¶ 99. The Court deems Ms. Fairweather's paragraph 99, as rephrased above, admitted under Local Rule 56(f), (g).
Finally, the Court does not credit Ms. Fairweather's paragraph 100, in which she claims that "[Ms.] Burke could not have told [Ms.] Coutts what took place as she did not work on May 10th." PSAMF ¶ 100 (citing Work Schedules at FICL 001176).
Newell Dep. at 44:8-12. However, Ms. Dipietrantonio, when asked "[a]fter you spoke to Bonnie Coutts about the incident, did you speak to anybody else in management about the incident?" responded: "Patty Newell came in in the morning, one morning . . . and she called me in the office and she said, I want to know what happened, and I told her, so I did talk to Patty Newell." Dipietrantonio Dep. at 40:20-41:3. Even viewing this testimony in a light most favorable to Ms. Fairweather, the Court concludes that Ms. Newell did, in fact, talk to Ms. Dipietrantonio about the incident. Ms. Newell's affirmative but slightly uncertain statement is bolstered by Ms. Dipietrantonio's own testimony. Because Ms. Fairweather has not controverted the assertion of Friendly's paragraph 64, the Court deems the paragraph admitted under Local Rule 56(f), (g).
In Ms. Fairweather's paragraph 89, she claims that "[t]he morning core crew consisted of [Ms.] Fairweather, [Ms.] Dipietrantonio[,] and [Ms.] Kallio. The morning core group got along great." PSAMF ¶ 89 (citing Rupard Dep. 2 at 16:23-17:2). The cited deposition testimony does not mention any names other than Ms. Fairweather. Furthermore, Mr. Rupard did not testify that the "morning core group" got along great; he testified that "I got along great," but that Ms. Fairweather got along "[s]ometimes good, sometimes not so good." Rupard Dep. 2 at 17:2-5 (emphasis added). Ms. Fairweather's cited evidence does not support the assertion of her paragraph 89, and the Court does not credit it. D. ME. LOC. R. 56(c), (f).
In her paragraph 92, Ms. Fairweather claims that Ms. Burke did not work on May 10, 2012. PSAMF ¶ 92 (citing Work Schedules at FICL 001176). Friendly's denies this claim, pointing out that Ms. Fairweather and Ms. Dipietrantonio both testified that Ms. Burke did actually work the morning of May 10. DRPSAMF ¶ 92 (citing Fairweather Dep. at 70:3-12; Fairweather Dep. 2 at 75:16-22; Dipietrantonio Dep. at 27:16-29:25, 38:2-39:16). The Court agrees; the deponents consistently testified that Ms. Burke was working that morning. Even viewing all the evidence in a light most favorable to Ms. Fairweather, the Court does not conclude that Ms. Burke did not work on the morning of May 10. Rather, it concludes that she was not scheduled to work that morning, but did anyway, as managers of a business often do. The Court has adjusted Ms. Fairweather's paragraph 92 to reflect that.
Friendly's interposes a qualified response to Ms. Fairweather's paragraph 97, DRPSAMF ¶ 97, but the Court deems the paragraph admitted under Local Rule 56(f), (g). See supra note 85 (discussing DRPSAMF ¶ 93).
