United States District Court, D. Rhode Island
PATRICIA J. REILLY, Plaintiff,
COX ENTERPRISES, INC., et al., Defendants.
MEMORANDUM AND ORDER
WILLIAM E. SMITH, Chief District Judge.
Before the Court is Defendants' Motion for Summary Judgment ("Motion, " ECF No. 43). Plaintiff filed an Opposition ("Pl.'s Opp'n, " ECF No. 48) and Defendants filed a Reply ("Defs.' Reply, " ECF No. 52). After careful consideration, Defendants' Motion is GRANTED for the reasons that follow.
Plaintiff, Patricia Reilly, is suing her former employer, CCI Corporate Services, Inc., CoxCom, LLC New England, and affiliated entities (collectively, "Cox"), and two former supervisors, Jonathan LaCroix and Mark Scott, for allegedly terminating her employment after she informed them that she planned to take a medical leave to have hip surgery, in violation of the Family Medical Leave Act ("FMLA"). Reilly also alleges gender and disability discrimination in violation of the Rhode Island Civil Rights Act ("RICRA"), R.I. Gen. Laws § 42-112-1, and the Rhode Island Fair Employment Practices Act ("FEPA"), R.I. Gen. Laws § 28-5-1 et seq.
Reilly was hired by Cox in June 2004. (Defs.' Statement of Undisputed Facts ("SUF") ¶ 1, ECF No. 44.) It is undisputed that throughout her tenure she received exceptional performance reviews. (Id. ¶ 43.) It is also undisputed that in 2006, Reilly received a written warning that cited an "ongoing pattern of Communication that [was] unprofessional" and was "leading to decreased morale and effectiveness on [her] team and within the department." (Id. ¶ 11-16.) In 2010, one of Reilly's direct reports, Joseph Petrucci, filed a petition in the Rhode Island Workers' Compensation Court, alleging he had suffered a "psychological/work-related acute stress disorder" caused by "repetitive harassment and verbal abuse" by Reilly (id. ¶¶ 28-29); however, Reilly notes that Petrucci's claim was denied, and she did not receive any written or verbal warning from Cox as a result of it. (Pl.'s Separate Statement of Undisputed Facts ("SSUF") ¶¶ 109-10, ECF No. 50.)
On July 18, 2012, Cox alleges that Reilly approached a co-worker, Dennis Hawley, and proceeded to reprimand him in a loud, harsh, and condescending manner. (Defs.' SUF ¶¶ 44-48, ECF No. 44.) Reilly admits that a conversation occurred, but disputes that she behaved inappropriately during it. (Pl.'s Statement of Disputed Facts ("SDF") ¶ 46, ECF No. 49.) On July 28, after receiving a report from Hawley's direct supervisor, Russ O'Connor, Reilly's former supervisor, Mark Scott, referred the matter to Michelle Joseph in Cox's Human Resources ("HR") Department. (Defs.' SUF ¶ 50, ECF No. 44.) Cox's HR Department began an investigation of the incident on August 1, and Debra Cornish, Director of HR, requested a copy of Reilly's personnel file. (Id. ¶ 53.) Cornish testified at her deposition that she became involved in the investigation of the Hawley incident because "[Plaintiff] had a reputation for being abusive... to people, " but "also had a reputation for being a very good sales person and a solid producer, " so that Cornish "expected that [HR] would get resistance from the leadership team if there were any disciplinary actions taken or recommended." (Id. ¶ 51.)
Joseph began conducting interviews of Hawley and four other employee witnesses to the incident, and also began preparing a written summary of the investigation around August 7 or 8. (Id. ¶¶ 54, 56.) According to Joseph's notes, Hawley indicated in his witness statement that Reilly was "dictatorial" and that the way she had behaved was "completely inappropriate" and "not acceptable"; he also indicated that "she still does what she does" because "she produces." (Id. ¶ 55.) The four other witnesses likewise described Reilly's tone during the July 18 incident as "demeaning and uncomfortable, " "loud and condescending, " "inappropriate, " and "belittling [and] degrading." (Id. ¶¶ 57-60.) Joseph's written summary of this investigation noted, "I know Mark Scott's recommendation is Final Written Warning. I cannot see any action less than this, but I think this may warrant termination of employment." (Pl.'s SDF ¶ 61, ECF No. 49.)
On August 15, Cornish called Reilly's supervisor, Jonathan LaCroix, and informed him that "we could possibly be looking at a termination for Patricia." (Id. ¶ 64.) According to Cox, LaCroix expressed concern that Reilly's termination would have detrimental effects on Cox's business because she was such a high performer. (Defs.' SUF ¶ 64, ECF No. 44.) On August 22, Cornish and Joseph spoke with LaCroix and Scott concerning HR's investigation and recommendation. (Id. ¶¶ 68-69.) Cornish testified that "[i]t was at that meeting, or thereabouts, that we firmed up our recommendation to terminate Patricia Reilly's employment." (Pl.'s SDF, Ex. 12 [Cornish Dep.] at 69:17-19, ECF No. 49-12.) LaCroix likewise testified that "as of the 22nd, I was very aware that the recommendation coming from HR was termination, and so we were preparing documentation around [Reilly's] exit." ( Id., Ex 14 [LaCroix Dep.] at 85:14-17, ECF No. 49-14.) That same day, Reilly had dinner with LaCroix, during which Reilly alleges that she told LaCroix she was planning to have hip surgery, and that it was tentatively scheduled for October 4. (Id. ¶ 80.) At his deposition, LaCroix testified that after the August 22 dinner meeting, he had discussions with most of the "major players" to inform them of Reilly's plan to have hip surgery. (Id.)
On August 27, LaCroix's supervisor, Jeremy Bye, sent Scott an email in which he wrote that "[i]t seems that a Final Written would be the next step, but not sure of other considerations, " and that he wanted to "set a call" with the "HR VP" so that they could "discuss the situation." (Id. ¶ 72; Defs.' SUF ¶ 72, ECF No. 44.) Later that day, Cox contends that Cornish had a conversation with Bye, LaCroix, and others "to discuss HR's decision to terminate Reilly." (Id.; see also Pl.'s SDF, Ex. 13 [LaCroix Interr. Resp.] at 5, ECF No. 49-13.) The next day, Reilly alleges that she informed LaCroix that her surgery date of October 4 had been confirmed, and he in turn "informed all of the relevant decisions-makers of the surgery date." (Pl.'s SDF ¶ 81, ECF No. 49.) That afternoon, there was another conversation between HR, Bye, and others in which Reilly alleges the decision to terminate her was made. (Id. ¶ 81; see also id., Ex. 13 [LaCroix Interr. Resp.] at 5, ECF No. 49-13.) On August 30, Cox informed Reilly she was being discharged. (Defs.' SUF ¶ 78, ECF No. 44.)
Summary judgment is appropriate "if 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). An issue of fact is only considered "genuine' if it may reasonably be resolved in favor of either party.'" Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997) (quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 581 (1st Cir. 1994)). When deciding a motion for summary judgment, the court must "examine the entire record in the light most flattering to the nonmovant and indulg[e] all reasonable inferences in that party's favor.'" Id. at 959 (quoting Maldonado-Denis, 23 F.3d at 581).
A. FMLA Retaliation Claim
To state a claim for "retaliation" under the FMLA, a plaintiff must prove "by a preponderance of the evidence that the employer's adverse employment action was in retaliation for exercise of protected rights." Colburn v. Parker Hannifin/Nichols Portland Div., 429 F.3d 325, 332 (1st Cir. 2005); see also Pagan-Colon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8 (1st Cir. 2012) (observing that, "a crucial component of an FMLA retaliation claim is some animus or retaliatory motive on the part of the plaintiff's employer that is connected to protected conduct"). In this case, Plaintiff claims that Cox fired her because she informed them that she would be taking a medical leave, which is protected under the FMLA.
Where a plaintiff, like Reilly, has no direct evidence that she was retaliated against for exercising her FMLA rights, the analysis of her retaliation claim proceeds under the McDonnell Douglas burden-shifting framework. See Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 160 (1st Cir. 1998). The first step of McDonnell Douglas requires Reilly to establish a prima facie case of retaliation: "(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). If Cox articulates a non-retaliatory reason for the discharge, "the ultimate burden of proof remain[s] on the plaintiff to prove by a preponderance of the evidence that the employer's adverse employment action was in retaliation for exercise of protected rights." Colburn, 429 F.3d at 332. Alternatively, courts sometimes use a "modified version" of McDonnell Douglas, which "focus[es] instead on whether the evidence as a whole is sufficient to make out a question for a factfinder as to pretext and discriminatory animus." Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 26 (1st Cir. 2004).
Cox's argument assumes, arguendo, that Reilly can make her prima facie case of retaliation. It focuses instead on the fact that her only evidence of pretext is the timing of her termination, and the First Circuit has held that temporal proximity alone is not enough to rebut an employer's stated non-discriminatory reason. (See Defs.' Mot. 16, ECF No. 43 (citing Carrero-Ojeda, 755 F.3d at 720).) Plaintiff disagrees with this characterization of the law, and asserts that "First Circuit precedent is clear that a showing of very close' temporal proximity between the protected conduct and the adverse employment action, standing alone, is sufficient." (Pl.'s Opp'n 11.) Yet the cases cited by Plaintiff only hold that timing is sufficient to establish the causation prong of the prima facie analysis; none of these cases hold that temporal proximity alone is enough to rebut a proffered non-discriminatory reason under either McDonnell Douglas or the "modified framework." Indeed, in Calero-Cerezo, after noting that temporal proximity was sufficient to state a prima facie case, the First Circuit went on to find that "[s]ince Calero has failed to point to specific facts that would demonstrate any sham or pretext intended to cover up defendants' retaliatory motive, we will affirm the dismissal of her retaliation claim under Title VII." 355 F.3d at 26; see also Pagan-Colon, 697 F.3d at 10 (explaining that the "close temporal proximity between Pagán's FMLA-protected leave and his termination suggests a causal connection between ...