STEVEN J. McAULIFFE, District Judge.
Beth St. Hilaire brought suit against her former employer, Morgan Stanley Smith Barney ("MSSB"), alleging that she was subjected to unlawful discrimination and wrongful termination. She says MSSB began discriminating against her after she missed time from work to assist and care for her ailing husband. Those absences, says plaintiff, prompted employees of MSSB to unjustly criticize her work, refuse to provide her with adequate training and support, and, eventually, terminate her employment — all in violation of the Americans with Disabilities Act ("ADA") and New Hampshire's Law Against Discrimination.
Additionally, plaintiff asserts that because MSSB feared she would eventually invoke her right to take unpaid leave under the Family Medical Leave Act (once that right vested, on the one year anniversary of her hiring), it preemptively (and unlawfully) terminated her employment. In other words, she says MSSB anticipatorily retaliated against her to prevent her from acquiring, and then exercising, rights under the FMLA.
MSSB denies that it discriminated against plaintiff, or that it subjected her to a hostile work environment, or that it unlawfully terminated her employment at will. Instead, says MSSB, it fired St. Hilaire for one reason: her well-documented history of carelessness, inattention to detail, and overall poor job performance. It moves for summary judgment, asserting that there are no genuinely disputed material facts and it is entitled to judgment as a matter of law. For the reasons discussed, that motion is granted.
When ruling on a motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor."
Nevertheless, if the non-moving party's "evidence is merely colorable, or is not significantly probative," no genuine dispute as to a material fact has been proved, and "summary judgment may be granted."
MSSB hired St. Hilaire as a Registered Client Service Associate ("CSA") in its Portsmouth, New Hampshire office. In that capacity, she supported three MSSB Financial Advisors by answering the phones, responding to inquiries from their clients, processing paperwork, and updating client accounts. St. Hilaire was hired by MSSB as an employee at will. She began work on August 1, 2008. Her immediate supervisor was Valerie Margaritopoulos, the Operations Manager for the Portsmouth office. One of the Financial Advisors for whom St. Hilaire provided support — Richard Lyons — was the Branch Manager.
When plaintiff began working at MSSB, she received fairly substantial training. But, she did not have the benefit of a "desk buddy" (a nearby, more senior employee to provide on-the-job assistance) and, almost immediately, she struggled with at least some aspects of her job. Ms. Margaritopoulos responded by preparing an "SOS" manual for plaintiff, with specific instructions relating to each of the computer screens she needed to access within MSSB's computer system. Plaintiff also took online training courses offered by MSSB. Nevertheless, MSSB financial advisors, as well as their clients, complained about plaintiff's poor performance. In particular, concerns were voiced about her lack of professionalism when on the phone with clients of the firm, her lack of attention to detail, and her carelessness — performance problems that resulted in errors, like plaintiff placing an improper "market" sell order on behalf of a client, rather than a "limit" order, and incorrectly suggesting to an elderly client that her nearly $2 million account had no money in it (which, perhaps not surprisingly, prompted an anxious and teary phone call from the client to one of the financial advisors). Ms. Margaritopoulos repeatedly discussed those performance issues with plaintiff and explored ways plaintiff could improve. Additionally, other administrators in the office provided St. Hilaire with assistance and further training.
MSSB has documented (with record citations) numerous shortcomings in plaintiff's performance, as well as MSSB's efforts to address them with her, and the court will not chronicle them in detail.
It is sufficient to note that the list of mistakes that plaintiff made while employed at MSSB is substantial. Counsel for MSSB addressed each of those incidents with plaintiff during her deposition and, as to most of them, plaintiff does not deny that they occurred.
By the spring of 2009, two of the financial advisors for whom St. Hilaire provided support were becoming increasingly irritated and troubled by her repeated mistakes and her apparent inability to grasp the essential requirements of her job. Their frustration is well-illustrated in an e-mail from Richard Lyons to Ms. Margaritopoulos in May of 2009:
Exhibit V to St. Hilaire Deposition.
Parenthetically, the court notes that, during her deposition, St. Hilaire admitted that she had no reason to believe that any of the criticisms of her work made by the three financial advisors she supported were related in any way to her use of leave time or her husband's illness.
Although Ms. Margaritopoulos was the operations manager of the Portsmouth office, she lacked the authority to fire plaintiff.
At the end of October, 2008 (approximately three months into plaintiff's employment at MSSB), plaintiff's husband was scheduled for hernia surgery. Two weeks before that surgery, plaintiff e-mailed Ms. Margaritopoulos and asked that she be permitted to take the day off from work. Ms. Margaritopoulos granted that request. On the day of the surgery, St. Hilaire and her husband learned that he had cancer. Plaintiff called Ms. Margaritopoulos to inform her of her husband's diagnosis. Ms. Margaritopoulos responded by telling plaintiff to take whatever time she needed to support her husband and family. St. Hilaire Deposition at 87-88, 151. Plaintiff took the next day off from work and no one spoke to her about, or criticized her for, her absences.
Additionally, plaintiff sought an exception to MSSB's leave policy and requested permission to carry-over 32 hours (approximately four days) of vacation/leave time from 2008 to 2009, so she might accompany her husband to New York for treatment. Exhibit DD to St. Hilaire Deposition. Although MSSB has a policy against permitting employees to carry-over unused paid leave time from year to year (a so-called "use it or lose it" policy), Ms. Margaritopoulos secured authorization from Mr. Gold for plaintiff to do so. Then, between January 28 and February 6, 2009, plaintiff requested and was permitted to miss work for eight days. It appears that she was paid for all eight of those days, even though she had only carried-over four earned days of vacation time from the prior year. St. Hilaire Deposition at 141. Plaintiff was not criticized or reprimanded in any way for having taken that time off.
Because employees become entitled to FMLA leave only after completing one year of work, plaintiff did not qualify for FMLA leave during her tenure at MSSB.
On November 7, 2008 (slightly more than three months after she began working at MSSB, and about two weeks after plaintiff learned of her husband's cancer), plaintiff met with Ms. Margaritopoulos and a representative from MSSB's human resources department to discuss plaintiff's poor job performance. Plaintiff was given a formal verbal warning, and told that her performance would be evaluated over the next 30 days, "with a requirement of vast improvement." Exhibit K to St. Hilaire Deposition. Plaintiff describes that meeting as follows:
Plaintiff's memorandum (document no. 17-1) at 5.
Ms. Margaritopoulos denies having made any such statement. "At no time during this conversation, or at any other time, did I use the word `replace' or `replacement' in terms of ensuring coverage of Plaintiff's duties. My only concern was to ensure that the office had sufficient office coverage by arranging for back up staffing during any period of time that Plaintiff would need to take off from work." Margaritopoulos Affidavit at para. 37. But, for purposes of ruling on MSSB's motion for summary judgment, the court will construe that genuinely disputed material fact in favor of the plaintiff and assume that Ms. Margaritopoulos did, in fact, make the statement about finding a replacement for plaintiff.
That alleged statement is the core of plaintiff's discrimination claims. It is the primary piece of evidence to which she (repeatedly) points in support of her claim that she was the victim of unlawful discrimination. According to plaintiff, Ms. Margaritopoulos' statement about finding a replacement reasonably implied that if plaintiff took any more leave time to assist her husband, her employment would be terminated. St. Hilaire Deposition at 92, 152.
But, as discussed above, plaintiff had a well-documented history of poor job performance that pre-dated her disclosure to MSSB of her husband's illness.
Beyond the "replacement" statement allegedly made by Ms. Margaritopoulos on November 7, 2008, plaintiff relies entirely upon inference and supposition in support of her claims that she was the victim of unlawful discrimination. For example, in her deposition, plaintiff testified as follows:
St. Hilaire Deposition at 149-50. Plaintiff summarizes her claims and the evidence supporting them as follows:
Plaintiff's Sur-reply Memorandum (document no. 27) at 5 (emphasis supplied).
In counts one and two of her complaint, plaintiff asserts that, in violation of the Americans with Disabilities Act (count one) and New Hampshire's Law Against Discrimination (count two), employees of MSSB unfairly criticized her work and, ultimately, terminated her employment "on the basis of her association with a person who was disabled or perceived to be disabled." Complaint (document no. 3) at para. 34.
The "association provision" of the Americans with Disabilities Act protects "qualified individuals from employment discrimination based on the `known disability of an individual with whom the qualified individual is known to have a relationship or association.'"
Because plaintiff has presented no direct evidence of discrimination against her as a result of her husband's illness and her anticipated invocation of FMLA rights, the court applies the burden-shifting analysis. To establish a prima facie case under the ADA's associational anti-discrimination provision, plaintiff must prove by a preponderance of the evidence that: (1) she was subjected to an adverse employment action; (2) she was qualified for her job at the time of the adverse employment action; (3) at the time of the adverse employment action, MSSB knew she had a relative or associate with a disability; and (4) the adverse employment action occurred under circumstances raising a reasonable inference that the disability of the relative or associate was a determining factor in MSSB's decision.
For purposes of summary judgment, MSSB does not dispute that plaintiff can make out the essential elements of a prima facie claim of associational discrimination. Accordingly, it bears the burden "to articulate some legitimate, nondiscriminatory reason for the employee's [termination]," sufficient to raise a genuine issue of fact as to whether it discriminated against her. If MSSB offers such a reason for plaintiff's termination, "the burden shifts back to [plaintiff], and [she] must proffer evidence to establish that [MSSB's] non-discriminatory justification is mere pretext, cloaking discriminatory animus. The ultimate burden of proving unlawful discrimination rests at all times with [plaintiff]."
MSSB has borne its burden of production. That is to say, it has articulated a plausible, non-discriminatory reason for its decision to terminate plaintiff's employment: her ongoing inability to perform her job to the satisfaction of at least two of the three financial advisors she supported (as evidenced by the performance evaluations submitted by Mr. Gerasin and Mr. Lyons, followed soon thereafter by the e-mail from Mr. Lyons). The burden then, reverts to plaintiff, who must point to sufficient evidence to warrant the conclusion that MSSB's proffered explanation is merely a pretext and that the real reason her employment was terminated was her association with her ailing husband. She has failed to carry that burden.
In support of her claims, plaintiff points to three things she says demonstrate that there was a direct causal connection between her discharge and her relationship with her ailing husband: first, Ms. Margaritopoulos's alleged statement about finding a "replacement" if plaintiff planned to take additional time off to assist her husband; second, the temporal proximity between various disciplinary events and days she missed work to assist her husband; and, finally, that MSSB treated other employees who were not engaged in protected activity more leniently than it treated her. But, none of those three contentions holds up to even modest scrutiny.
That plaintiff was never denied requested leave, was afforded more leave than she had accrued in January of 2009 (specifically because she had to care for her ailing husband), and was never admonished for any of her absences, substantially undermines the persuasive value of Ms. Margaritopoulos's alleged "replacement" statement. So, too, does the fact that it occurred more than seven months
But, says plaintiff, there
Finally, plaintiff asserts that she has pointed to evidence demonstrating that MSSB treated other (less capable) employees more favorably than it treated her, thus evidencing a discriminatory animus on the part of MSSB.
Plaintiff's Sur-reply (document no. 27) at 2. Importantly, however, all that can be gleaned from the evidence submitted by plaintiff is that the other Client Service Associate was employed by MSSB before plaintiff began working for MSSB, she received unsatisfactory performance reviews, and the financial advisor referenced in plaintiff's papers (Ms. Landini) believes, "to the best of [her] knowledge" that the woman "eventually resigned." Affidavit of Andrea Landini (document no. 27-1) at para. 7. It is entirely unclear how MSSB responded to that employee's poor job performance or the circumstances under which she left the employ of MSSB (she may, for example, have been permitted to resign, rather than be fired). It is, however, plain that, based upon this sparse record, a trier-of-fact could not reasonably conclude that MSSB treated that other employee more favorably than it treated plaintiff.
In short, even viewing the record in the light most favorable to plaintiff, the evidence suggesting that she was the victim of unlawful discrimination based upon her association with her ailing husband is fatally weak. Evidence that MSSB terminated her employment based upon her poor job performance, however, is compelling. First, plaintiff cannot deny the highly critical performance reviews submitted by two of the three financial advisors she supported (the third review was, at best, neutral). Nor can she deny that one of those financial advisors — Mr. Gerasin — wrote that he had "zero confidence [in plaintiff] at this point," Exhibit S to St. Hilaire Deposition, or that the other — Mr. Lyons — wrote "I feel that I cannot give work to Beth any longer and trust that it will be done correctly." Exhibit T. And, as plaintiff conceded at her deposition, those highly negative comments and performance reviews were entirely unrelated to her relationship to her husband.
Moreover, the only person plaintiff says actually harbored ill feelings toward her based upon her use of leave time — Ms. Margaritopoulos — lacked the authority to fire her. That decision was made by a committee of MSSB employees, including one of the financial advisors for whom plaintiff provided support. And, as noted above, each time plaintiff asked for leave time, Ms. Margaritopoulos granted her request without question (and even obtained permission to allow plaintiff to carry over unused leave time from one year to the next) — hardly behavior indicative of a discriminatory intent.
Construing all plausible inferences in favor of plaintiff, the court cannot conclude that a rational, properly instructed jury could plausibly find that MSSB discriminated against her based upon her association with her ailing husband. MSSB is, then, entitled to summary judgment as to counts one and two of plaintiff's complaint.
In count three of her complaint, St. Hilaire asserts that MSSB terminated her employment as a form of preemptive "retaliation for Plaintiff's husband's illness and Plaintiff's impending qualification for FMLA leave, which the employer anticipated she would use to help with her husband's illness." Complaint at para. 38. For purposes of addressing MSSB's motion for summary judgment, the court will assume, without deciding, that such a claim is cognizable in this circuit.
"The FMLA contains two distinct types of provisions: those establishing substantive rights and those providing protection for the exercise of those rights."
It is beyond dispute that plaintiff was not an "eligible employee" of MSSB when her employment was terminated after approximately ten and one-half months. And, the FMLA permits only "eligible employees" to bring civil actions against their employers for violations of the FMLA. 29 U.S.C. § 2617(a)(1) ("Any employer who violates section 2615 of this title shall be liable to any
In support of her claim, plaintiff relies upon a series of cases that, generally speaking, stands for the following proposition: "an employee may bring a retaliation claim under FMLA if the employee was terminated prior to becoming eligible for FMLA leave, but the employee
Even assuming that those decisions accurately interpret the anti-discrimination provisions of the FMLA, they do not assist plaintiff in this case. First, as she conceded in her deposition, St. Hilaire never requested FMLA leave time nor did she ever inform MSSB that she intended to take FMLA leave time once she became eligible for it. St. Hilaire Deposition, at 149-50.
MSSB is, then, entitled to summary judgment as to count three of plaintiff's complaint.
Finally, in count four of her complaint, plaintiff alleges that she was the victim of wrongful discharge, in violation of New Hampshire's common law. To state a viable common law claim for wrongful discharge, a plaintiff must allege two things:
With respect to the second essential element of St. Hilaire's claim, plaintiff asserts that MSSB terminated her employment because she was engaged in conduct which public policy would encourage: using her accumulated leave time (and, eventually, her FMLA leave time) to tend to her ailing husband. Even if plaintiff has correctly characterized New Hampshire public policy — an issue the court need not address — she cannot avoid the fact that this record does not support the conclusion that MSSB terminated her employment because she used leave time, and would have used FMLA leave, to care for her ill husband, or that MSSB acted "out of bad faith, malice, or retaliation."
For the foregoing reasons, as well as those set forth in defendant's memoranda (documents no.
