LEO T. SOROKIN, District Judge.
Plaintiff Jo Anne Gourdeau objects to Magistrate Judge Cabell's Report and Recommendation, Doc. No. 61, recommending that Defendants City of Newton and Newton Police Department's Motion for Summary Judgment, Doc. No. 37, be granted in part and denied in part. Doc. No. 63. Gourdeau, a Newton Police Officer, sued the City of Newton and the Newton Police Department after she applied to be a Traffic Officer and a male applicant was selected instead. She claims three violations: first, gender discrimination because Defendants selected a male colleague over her for the position of Traffic Officer in violation of Mass. Gen. Laws ch. 151B, § 4 (Count I); second, retaliation against her for complaining about gender discrimination in violation of Mass. Gen. Laws ch. 151B, § 4 (Count II); and third, considering protected Family and Medical Leave Act leave in the hiring decision in violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601-2619 (Count III). After discovery, Defendants moved for summary judgment on all claims. Doc. No. 37. Pursuant to a referral, Magistrate Judge Cabell issued a Report and Recommendation, Doc. No. 61 in which he recommends granting the City's Motion as to Counts I and II while denying it as to Count III. Gourdeau has filed a lengthy objection to Judge Cabell's recommendation on Counts I and II. Doc. No. 63.
The Court has undertaken a careful de novo review of Judge Cabell's comprehensive Report and Recommendation as well as all of the specific objections raised by Gourdeau and the underlying documents she cites in support of her objections. Regarding the retaliation claim expressed in Count II, the Court ALLOWS the Motion for Summary Judgment for the reasons set forth in Judge Cabell's Report and Recommendation. Several additional points bear comment. Gourdeau cites admissible evidence (in the form of her own testimony) that she suffered in various ways in the period after she complained of discrimination in her non-selection for the position of Traffic Officer.
For example, Gourdeau asserts that friendships with colleagues soured as a result of her complaints. Gourdeau's mere assertion that a friendship with a colleague soured suffices at summary judgment to establish that the friendship soured. But it is not enough, either alone or coupled with her conclusory statement that it soured because of her protected activity, to establish causation at least where, as here, she has not submitted evidence supporting her personal knowledge of the causation connection or any other basis to drawn the inference. Based on the assertions in her testimony, Gourdeau has personal knowledge that the friendships soured; she has not advanced evidence regarding why they soured.
Next, Gourdeau asserts in her objection to the Report and Recommendation that the collection of all the various things she has identified constituted a retaliatory "hostile environment" in the Traffic Bureau arising after her complaints of gender discrimination. Doc. No. 63 at 11. Establishing a hostile work environment requires showing that Gourdeau was "subjected to severe or pervasive harassment that materially altered the conditions of her employment."
At first blush, Gourdeau mounts a strong objection to the recommendation on Count I. Gourdeau cites myriad evidence in support of her assertion that Judge Cabell erred in recommending that she failed, at step three of the McDonnell Douglas burden shifting analysis, to submit admissible evidence giving rise to an inference of pretext or discrimination. Gourdeau's best argument arises out of
On December 26, 2012, Captain Gromada recommended that Chief Mintz select Officer Dennis O'Brien for the Traffic Officer position, focusing on the general requirements of the job with specific mention, among other points, that the recommended (male) officer had high "ticket production".
Gourdeau points to these various statements given by the Defendants explaining why she did not receive the Traffic Officer position as sufficient to establish that the legitimate reasons for her non-selection advanced by defendants were pretext. The Court disagrees. While using different words, most of the statements convey the same explanation. That the selected person was the "better choice,", that he was "high productivity", that he showed "more `enthusiasm'", and that he "was the second highest producer of tickets in the Patrol Bureau," in the context of this case all make the same point—the department selected the person with the strongest track record of vigorous enforcement of the traffic rules.
For the foregoing reasons, as well as the reasons advanced in the Report and Recommendation, Defendants' Motion for Summary Judgment is ALLOWED as to Counts I and II, but DENIED as to Count III. Within fourteen days, the parties shall file a joint status report stating (a) the anticipated duration of trial; (b) whether the parties anticipate any mediation process and, if so, the amount of time needed for such a process (either in the Court's mediation program or otherwise as the parties prefer); and (c) whether all parties consent to the exercise of jurisdiction by the magistrate judge assigned to this case (the parties shall not report their individual positions and the failure to consent shall not result in any adverse substantive consequence).
SO ORDERED.
CABELL, U.S.M.J.
Newton Police Department Officer Jo Anne Gourdeau ("Gourdeau" or "the plaintiff") contends that she was passed over for an internal position in favor of a male colleague because she is a woman, and because she previously took time off from work to care for a family member. She has brought two claims against the City of Newton and the Newton Police Department ("the defendants") for gender discrimination, in violation of M.G.L. c. 151B, and one claim for violation of the Family and Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq. The defendants have moved for summary judgment on all counts. For the reasons explained below, I recommend that summary judgment be granted with respect to the gender discrimination claims but denied with respect to the FMLA claim.
In 1998 the plaintiff was hired as a Newton Police Department ("NPD") patrol officer. (Statement of Undisputed Facts in Support of Motion for Summary Judgment by Defendants, Dkt. No. 41, ¶ 12). In 2004, the plaintiff successfully applied to fill an internal specialist Traffic Officer position and she served in that position until 2009. In 2009 she successfully applied to fill another specialist position, this one as a Safety Officer, and served in that position until 2014. (Id. at ¶ 17).
In November of 2012, and while the plaintiff was serving as a Safety Officer, the NPD posted an opening for a temporary Traffic Officer position. The plaintiff and three other NPD officers applied for the position. The selection process included consideration of a number of criteria, including each applicant's resumé and application packet, the number of citations the officer had issued in the past, and the officer's performance evaluations. The process also included consideration of the amount of sick leave the officer had used over the preceding five years. (Id. at ¶¶ 34, 38). The plaintiff had during the course of her employment taken two maternity leaves, as well as sick time and personal leave. Notably, and as the defendants were aware, the plaintiff had taken leave during the preceding five years to care for her sick mother. (Id. at ¶¶ 13-14; Dkt. No. 38, p. 26).
NPD Captain Mark Gromada was the head of the Traffic Bureau at the time and he presided over the selection process with NPD Sergeant John Babcock. Reportedly, Sergeant Babcock and the plaintiff did not get along well. (Dkt. No. 41, ¶ 37; Dkt. No. 48-4, p. 5). Captain Gromada and Sergeant Babcock interviewed all four candidates and subsequently recommended that a male officer, NPD Officer Dennis O'Brien, be selected to fill the position. (Dkt. No. 41, ¶ 37). Captain Gromada noted in a memorandum recommending Officer O'Brien's selection that Officer O'Brien had a strong interview, had a high ticket production, had a below average use of sick leave, had strong report writing skills, and had engaged in volunteer activities. (Id. at ¶¶ 39-40). In contrast, the plaintiff's ticket production was below average when she was a Traffic Officer and her application was less complete than Officer O'Brien's was. Further, Captain Gromada and Sergeant Babcock assessed the plaintiff's organizational skills as subpar and felt that she made unprofessional comments during her interview. (Id. at ¶¶ 35, 39). The NPD Chief accepted Captain Gromada and Sargent Babcock's recommendation and Officer O'Brien began serving as the Traffic Officer on January 2, 2013. (Id. at ¶¶ 41, 43).
The plaintiff disagreed with the decision and asked why she had not been selected. Captain Gromada initially said that he wanted to give the junior guy a chance. (Plaintiff's Concise Statement of the Material Facts of Record, Dkt. No. 48, ¶¶ 24-25). Chief Mintz pointed to O'Brien's enthusiasm. Several years later, in depositions given in connection with this litigation, Sergeant Babcock testified that his decision primarily focused on ticket writing. (Id. at ¶ 30.) Sergeant Babcock and Captain Gromada also noted that O'Brien had given a better interview than the plaintiff and specifically mentioned that the plaintiff had referred to Chief Mintz by an inappropriate name during her interview, though they differed in their recollection of the exact term used. (Id. at ¶¶ 31-32).
The plaintiff remained upset over Officer O'Brien's selection and complained to her union, which subsequently filed a grievance on her behalf. Rather than alleging gender discrimination, however, the union claimed that the NPD had failed to follow the language of a 2012 settlement with the union regarding "shift bidding," the method put in place for filling internal shift assignment vacancies within a specialist bureau. The grievance was eventually settled and the plaintiff received a modest cash settlement. (Dkt. No. 41, ¶¶ 46-51).
With respect to possible gender discrimination, however, the plaintiff elevated her concerns beyond the Newton Police Department. On January 9, 2013, the plaintiff sent an e-mail to the Mayor of Newton detailing her belief that she had been bypassed for the Traffic Officer position because of gender discrimination. (Dkt. No. 48, ¶ 33). On June 10, 2013, the plaintiff filed an administrative complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging gender discrimination.
The plaintiff then came to experience things she believes were acts of retaliation for having complained about gender discrimination. Among other things, some colleagues shunned her and some colleagues took supplies from her desk and put nails in her tires. (Dkt. No. 48, ¶ 35). The plaintiff eventually transferred out of the Traffic Bureau.
Count One of the complaint alleges that the defendants failed to select the plaintiff for the Traffic Officer position because she is a woman, and thus discriminated against her on the basis of her gender, in violation of M.G.L. c. 151B, § 4.
Count Two alleges that the defendants retaliated against the plaintiff because she complained to the Mayor and others, and filed a complaint with the MCAD, also in violation of M.G.L. c. 151B, § 4.
Count Three alleges that the defendants retaliated against the plaintiff in violation of the FMLA because they counted her protected leave against her during the selection process.
The defendants have moved for summary judgment on all counts of the complaint. They contend that Officer O'Brien was selected for the specialist position because he had the best overall application package, and deny that anyone discriminated against the plaintiff because of her gender. They argue that the plaintiff relies on "speculation, rumor, and opinion" to support her claims and has failed to produce sufficient evidence to create a triable issue of fact with respect to any of her claims.
The plaintiff counters that she is entitled to a trial on all claims. Regarding Count One, she argues that she has made out a prima facie case that she was passed over for the specialist position because she is a woman. She argues that the defendants have given many different and at times incredulous explanations for why they did not select her and that this raises a trial issue as to whether the various explanations were merely a pretext. Regarding her retaliation claim in Count Two, the plaintiff argues that there is ample evidence to merit a trial on whether the defendants punished her for complaining by reducing her overtime, assigning her unnecessary work, and encouraging and rewarding her colleagues to treat her poorly. With respect to the FMLA claim in Count Three, the plaintiff argues that there is sufficient evidence to proceed to trial where the record shows the defendants considered her use of protected FMLA leave when evaluating her application.
Federal Rule of Civil Procedure 56 provides that a party may move for summary judgment as to any claim, or part of a claim. FED. R. CIV. P. 56(a). The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Johnson v. Gordon, 409 F.3d 12, 16-17 (1st Cir. 2005) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving party to show "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a).
A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party." Id.
Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing summary judgment may not rest on mere allegations or denials of his pleadings and must produce "definite, competent evidence" on issues for which she bears the ultimate burden of proof. Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991); see also FED. R. CIV. P. 56(c)(4) (stating that "[a]n affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated).
A non-movant may of course offer her own testimony to support her case and it "is treated no differently than [the testimony] of any other potential trial witness." Simas v. First Citizens' Fed. Credit Union, 170 F.3d 37, 50 (1st Cir. 1999). But, to "pass muster," the nonmovant's statements must: (1) be "made `on personal knowledge' of the facts or events described; and (2) neither depend on inadmissible hearsay nor (3) purport to examine the movant's thoughts as well as their actions." Id. at 50-51 (quoting Maiorana v. MacDonald, 596 F.2d 1072, 1079-80 (1st Cir. 1979)). Conversely, the non-movant's "uncorroborated self-serving testimony cannot support a claim if the testimony is based on `speculation, intuition or rumor.'" Darchak v. City of Chicago Bd. of Ed., 580 F.3d 622, 631 (7th Cir. 2009) (finding that plaintiff's testimony that her boss used ethnic slurs was sufficient to withstand summary judgment even though disputed by the defendant because the testimony was based on the plaintiff's "first-hand experience").
In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court first articulated the allocation of burdens and order of presentation of proof in disparate treatment cases under Title VII of the Civil Rights Act of 1964. The same burden shifting framework applies in gender discrimination and retaliation cases under M.G.L. c. 151B, § 4, as well as FMLA cases. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440 (1995) (in chapter 151B cases, Massachusetts courts "follow the three-stage order of proof set forth . . . under the Federal antidiscrimination provisions of Title VII"); Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 335-36 (1st Cir. 2005) (stating that where there is no direct evidence of retaliatory intent, the plaintiff may still prove retaliation through an "inferential model" based on a "modified version of the framework established in McDonnell Douglas Corp."). Under this paradigm, the plaintiff must first establish a prima facie case of gender discrimination (or a violation of the FMLA). If the plaintiff is able to make such a showing the burden shifts to the defendant to articulate, with supporting evidence, specific lawful, nondiscriminatory reasons for its actions. If the defendant is able to do so the burden shifts back to the plaintiff to prove that the defendant's proffered reasons are pretextual. McDonnell Douglas Corp., 411 U.S. at 802.
M.G.L. c. 151B, § 4 provides that it is "an unlawful practice . . . [f]or an employer, by himself or his agent, because of the . . . sex . . . of any individual . . . to discriminate against such individual . . . in terms, conditions or privileges of employment . . . unless based upon a bona fide occupational qualification." M.G.L. c. 151B, § 4(1). In order to prove a prima facie case of gender discrimination under Chapter 151B, Gourdeau must show that (i) she belongs to a protected class; (ii) she applied and was qualified for a job for which the employer was seeking applicants; (iii) the employer took an adverse action against her (by not selecting her); and (iv) the position remained open or was filled by a person with similar qualifications. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995) (explaining elements of prima facie case in age discrimination context). This initial burden "is not intended to be onerous." Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45 (2005).
The plaintiff meets this burden. She is female, she applied for the open Traffic Officer position, and she was by all accounts qualified for the position. Despite her qualifications, however, Officer O'Brien, a male colleague, was selected over her (and the other two male applicants) for the position.
To be sure, the defendants argue that the plaintiff's non-selection is too de minimis to constitute an "adverse employment action" but that argument fails here. As other courts have noted, the phrase "adverse employment action" does not appear in M.G.L. c. 151B, § 4. See, e.g., King. v. City of Boston, 71 Mass.App.Ct. 460, 468-69 (2008) (reversing trial court decision granting summary judgment in favor of employer). Some courts have used the phrase in considering a plaintiff's claim of discrimination under Chapter 151B, but those have been cases where the court was concerned with screening out claims involving issues so trivial that they cannot properly be the subject of a discrimination action. Id. In practice, the plaintiff's burden is only to demonstrate that she suffered a "real harm," as distinguished from "subjective feelings of disappointment and disillusionment." Id. (citing MacCormack v. Boston Edison Co., 423 Mass. 652 (1996)). The Court is satisfied here that failing to select the plaintiff for a position that was demonstrably coveted by several officers constitutes an adverse action for purposes of the plaintiff's gender discrimination claim, especially in light of cases that have extended coverage to lesser slights and indignities. Id. at 470-72 (holding that failure to provide rank specific locker rooms to female police officers was an adverse action under c. 151B where male officers were provided such facilities); Trustees of Health and Hospitals of the City of Boston, Inc. v. Mass. Com'n Against Discrimination, 65 Mass.App.Ct. 329, 331-32 (2005) (escorting African American female employees off the premises within thirty minutes of their layoff was an adverse action under Chapter 151B where white male employee who was laid off at the same time was given one month's notice and allowed to come and go freely until his last day).
Because the plaintiff has established a prima facie case of discrimination, the burden shifts to the defendants to provide a legitimate nondiscriminatory reason for selecting Officer O'Brien rather than her for the specialist position. "This entails only a burden of production, not a burden of persuasion; the task of proving discrimination remains the claimant's at all times." Mesnick v. Gen. Elec. Co., 950 F.2d 816, 823 (1
The burden thus shifts back to the plaintiff to show by a preponderance of the evidence that the defendants' proffered reasons for not selecting the plaintiff were not real and have no reasonable support in the evidence. See Wheelock Coll., 371 Mass. 130, 138 (1976). The plaintiff argues that proof of pretext can be inferred from the many, inconsistent reasons that have been offered to explain why she was not selected. These explanations, she contends, have included that that the NPD wanted someone who would write a lot of tickets, that Officer O'Brien was a "better choice," that they wanted to "give the junior guy a chance," and that Officer O'Brien showed more enthusiasm. The plaintiff relies on the Supreme Judicial Court's decision in Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91 (2009) for the proposition that these "inconsistencies and shifting in position" can and should be considered in considering whether the proffered explanations were in fact pretextual.
In Haddad, a pharmacy manager terminated the plaintiff, who in turn sued for gender discrimination. The manager initially testified that he fired the plaintiff "because she had not properly monitored store charge accounts" but his explanation changed over time and he subsequently testified at various points that the "plaintiff was terminated for allowing controlled drug losses," "for her failure to secure the pharmacy," and because he was instructed by his own supervisor that the plaintiff had committed unspecified "gross misconduct." Haddad, 455 Mass. at 96-97. Following a verdict in the plaintiff's favor, the SJC affirmed the trial court's denial of the defendant's motion for judgment notwithstanding the verdict, reasoning that the defendant's inconsistent explanations for the plaintiff's firing suggested that his explanations were pretextual. Id. at 115.
This case is easily distinguishable from the facts of Haddad, however. For one, Haddad involved a single person, the manager who fired the plaintiff, who made inconsistent comments over time regarding the single issue of why he had fired the plaintiff. In this case, though, the plaintiff points to comments which were made by a number of people — Chief Mintz, Captain Gromada and Sergeant Babcock — and for a number of reasons, including, during the selection process, why Officer O'Brien should be selected over the other applicants for the position, and later, after the decision was made, why Officer O'Brien was selected for the position over the plaintiff, and why Officer Gourdeau was not selected for the position. More generally, though, there is just no real inconsistency in the Court's view among the various statements offered to explain the selection of Officer O'Brien over the other three applicants. The defendants have consistently maintained that their hiring decision can best be understood as an affirmative selection of Officer O'Brien as the best candidate rather than the conscious non-selection of the plaintiff as the presumptive selectee. In that light, the various explanations are consistent with the decisionmakers' conclusion that Officer O'Brien was the best candidate for the position because, as the various comments convey, he wrote many tickets, showed enthusiasm, submitted a complete application, gave a stronger interview, and outperformed the other applicants when those factors were considered as a whole.
The plaintiff attacks the proffered reasons themselves as "inaccurate," borderline "absurd" and disingenuous. She contends that she was demonstrably more qualified for the position than Officer O'Brien because she had more training and experience than he did, and had previously worked as a Traffic Officer. She argues also that it should have been irrelevant that Officer O'Brien submitted a more complete application than she did where all of the applicants were well known to the decision makers. She argues further that the selection process was tainted because Sergeant Babcock was biased in favor of Officer O'Brien from the beginning, and conversely did not like her, and moreover had received complaints of mistreatment by other female employees.
This argument, while certainly not frivolous, ultimately fails, for three reasons. First, even accepting that the plaintiff was qualified for the position, the defendants' proffered reasons for selecting Officer O'Brien over her do find support in the record. (Dkt. No. 41, ¶¶ 39-40). Second, and by contrast, the plaintiff has not put forth any evidence (beyond her own unsupported assertions) to suggest that Sergeant Babcock was biased in favor of Officer O'Brien or mistreated female employees or the plaintiff because of their gender. For example, the plaintiff claims that at least two other women raised complaints about Sergeant Babcock but her only support for this assertion is her own testimony; she has not for example submitted a declaration or deposition transcript containing the testimony of either of the women who reportedly made the complaints. (Dkt. No. 48, ¶ 18 [citing only to the plaintiff's own deposition testimony]). Finally, the plaintiff's insistence that she was better qualified to fill the position than Officer O'Brien misstates the relevant inquiry. The question is not which candidate was better qualified, but, rather, whether the employer's stated reasons for selecting Officer O'Brien were pretextual. See Hicks v. Napolitano, No. 11-11517-RGS, 2013 WL 1992204, *3 (D. Mass. May 10, 2013). As noted above, the defendants' reasons for selecting Officer O'Brien find support in the record.
In sum, the plaintiff has made a prima facie case for gender discrimination based on the selection of Officer O'Brien over her but the defendants have proffered legitimate nondiscriminatory reasons for that decision, and there is no evidence in the record that would allow a jury to find by a preponderance of the evidence that those reasons were pretextual. Judgment should therefore be entered in the defendants' favor with respect to Count One.
Count Two alleges that the defendants retaliated against the plaintiff for complaining about gender discrimination within the NPD. M.GL. c. 151B, § 4 "prohibits retaliation by making it unlawful for `any person . . . to discharge, expel or otherwise discriminate against any person because he has opposed any practices' forbidden under G.L. c. 151B." Abramian v. Presidents & Fellows of Harvard Coll., 432 Mass. 107, 121 (2000) (citing M.G.L. c. 151B, § 4). Absent direct evidence of retaliatory motive, a plaintiff must prove that: 1) she engaged in a protected activity; 2) her employer was aware of the protected activity; 3) she subsequently suffered an adverse employment action; and 4) the adverse employment action closely followed her protected activity such that a retaliatory motive can be inferred. See Ritchie v. Dept. of State Police, 60 Mass.App.Ct. 655, 664 (2004); Tate v. Dep't of Mental Health, 419 Mass. 356, 364 (1995). To show an adverse employment action in this context, the plaintiff must set forth "objective evidence" that she was disadvantaged in respect to "salary, grade, or other objective terms and conditions of employment," and that she suffered "real harm" as opposed to "subjective feelings of disappointment and disillusionment." MacCormack, 423 Mass. at 663, 664.
The plaintiff contends that the defendants retaliated against her for complaining to the mayor and NPD personnel by: 1) encouraging colleagues and friends to turn against her; 2) rewarding officers who retaliated against her with more overtime; 3) reducing her overtime; 4) denying her some training opportunities; 5) intentionally attaching an inappropriate photo of her husband to an MCAD filing to embarrass the plaintiff
First, there is no evidence in the record to suggest that the defendants took action to punish the plaintiff for having complained to officials inside or outside the NPD. Rather, most if not all of the allegations of official retaliation are based on the plaintiff's own testimony, testimony which in turn is based on hearsay and speculation rather than her own personal knowledge. For example, the plaintiff contends that NPD Officers Marini and LaValle were given more overtime as a reward for mistreating her but the only evidence she has submitted is her own testimony that they called her names along with evidence of the number of overtime hours each officer worked. There is simply no admissible evidence from anyone or anywhere to suggest that either officer received overtime because they name-called the plaintiff. See Lewis v. Gillette Co., 22 F.3d 22, 25 (1
Second, aside from the allegations that the defendants officially punished the plaintiff through reduced overtime and by encouraging co-workers to ostracize her, which the Court finds no basis to credit, most of the things the plaintiff complains about are irritating but relatively minor events that did not affect the objective terms of her employment, and thus do not constitute "an `adverse employment action' which materially disadvantaged" her. See, e.g., MacCormack, 423 Mass. at 663 (change in work assignments unaccompanied by reduction in salary or change in title was not an adverse employment action notwithstanding employee's subjective belief that he was no longer getting the choice assignments he once did); Tuvell v. Int'l Bus. Machines, Inc., No. 13-CV-11292-DJC, 2015 WL 4092614, at *12 (D. Mass. July 7, 2015) (granting summary judgment on retaliation claim where denying the plaintiff access to the company network while he was on leave and sending him a formal warning letter "did not have any effect on [his] pay, benefits, title or any other term or condition of employment).
In short, there is no evidence that the defendants retaliated against the plaintiff for complaining about gender discrimination within the NPD. Judgment should therefore be entered in the defendants' favor on Count Two.
The FMLA provides employees with two types of protection. First, it requires covered employers (including the defendants) to provide their employees with unpaid leave for qualified medical and family-related reasons; caring for a sick family member is one such reason. 29 U.S.C. §§ 2601 et seq. Second, it "prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights." 29 C.F.R. § 825.220(c). For example, "employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under no fault attendance policies." Id. A plaintiff "may pursue a retaliation claim even if there is no claim of violation of substantive rights to leave." Colburn, 429 F.3d at 333. In other words, a plaintiff who has been granted all FMLA leave to which she is entitled may nonetheless have a claim for retaliation under the FMLA if her leave taking is used against her.
The plaintiff advances a retaliation claim here. She contends that because her attendance and leave records were used as a factor in the selection process for the Traffic Officer position, and because some of that leave was protected leave under the FMLA, the defendants necessarily made the plaintiff's use of FMLA leave a factor in a hiring decision. "To make out a prima facie case of FMLA retaliation, an employee must show: (1) she availed herself of a protected FMLA right; (2) she was `adversely affected by an employment decision;' and (3) `there was a causal connection between [her] protected conduct and the adverse employment action.'" Carrero-Ojeda v. Autoridad de Energia Electrica, 755 F.3d 711, 719 (1st Cir. 2014).
Applied here, there is no real dispute that the plaintiff availed herself of a protected FMLA right when she took time off from work to care for her ailing mother. There is also no meaningful dispute that the plaintiff was adversely affected by the defendants' decision not to select her for the Traffic Officer position. As noted previously, the Court deems the defendants' decision not to select the plaintiff to be an adverse employment action where it is undisputed that the Traffic Officer position was pursued by several officers and provided opportunities not then presently available to the plaintiff.
With respect to the last element, there is direct evidence in the record that the defendants did consider the plaintiff's attendance records, and thus her protected leave, as part of the process. Captain Gromada stated in a memorandum regarding the Traffic Officer position that candidates should "have a good sick time record," and his assessment of the plaintiff specifically mentioned that she used sick time because "her mother was very sick." (Dkt. No. 48-4, pp. 74-75; Dkt. No. 39-17, p. 2). The defendants contend, though, that the plaintiff's leave use was not the dispositive factor in the selection process because "the final decision came down to ticket writing productivity" and because there were a number of other reasons unrelated to leave use for the plaintiff's non-selection, including her sparse application and her poor interview. (Dkt. No. 44). However, because there is evidence that the plaintiff's leave-taking may have been considered at some level, there is a dispute of fact as to whether the ultimate decision to select Officer O'Brien over the plaintiff and others was motivated in part by the plaintiff's exercise of her rights under the FMLA. Because a reasonable jury could find that the plaintiff's use of FMLA leave contributed to her non-selection for the Traffic Officer position, the defendants are not entitled to summary judgment on this claim. Gonzalez-Rodriguez v. Potter, 605 F.Supp.2d 349, 371 (D.P.R. 2009) (evidence that plaintiff who had taken FMLA leave was denied a transfer for "unacceptable attendance" and had received negative evaluations stating that she was using her "FMLA case" to "support her absenteeism" sufficient to raise an issue of material fact regarding whether exercise of FMLA rights caused the adverse employment action).
For the foregoing reasons, it is recommended that summary judgment be GRANTED on Counts I and II and DENIED with respect to Count III. The parties are hereby advised that under the provisions of Federal Rule of Civil Procedure 72(b), any party who objects to this recommendation must file specific written objections thereto with the Clerk of this Court within 14 days of the party's receipt of this Report and Recommendation. The written objections must specifically identify the portion of the proposed findings, recommendations, or report to which objection is made and the basis for such objections. The parties are further advised that the United States Court of Appeals for this Circuit has repeatedly indicated that failure to comply with Rule 72(b) will preclude further appellate review of the District Court's order based on this Report and Recommendation. See Keating v. Secretary of Health and Human Servs., 848 F.2d 271 (1st Cir. 1988); United States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980); United States v. Vega, 678 F.2d 376, 378-379 (1st Cir. 1982); Scott v. Schweiker, 702 F.2d 13, 14 (1st Cir. 1983); see also Thomas v. Arn, 474 U.S. 140 (1985).
