Autumn O'Rourke v. Boyne Resorts 12-CV-445-SM 2/7/14 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Autumn O'Rourke, Plaintiff
v. Case No. 12-cv-445-SM Opinion No. 2014 DNH 024 Boyne Resorts d/b/a Loon Mountain Recreation Corporation, Defendant
O R D E R
Plaintiff, Autumn O'Rourke, brings this action against her
former employer, Boyne Resorts, d/b/a Loon Mountain Recreation
Corporation ("Loon Mountain" or "Loon") . She seeks damages for
alleged acts of discrimination. More specifically, she says Loon
violated Title VII, 42 U.S.C. § 2000e, by terminating her
employment on account of her pregnancy. She also alleges that
Loon retaliated against her fiance's mother because O'Rourke
filed a discrimination charge with the state human rights
authority. In addition, O'Rourke advances several state common
law and statutory claims. Loon moves for summary judgment, doc.
no. 17, asserting that there are no genuinely disputed issues of
material fact and that it is entitled to judgment as a matter of
law . Standard of Review
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." Griggs-Ryan v. Smith, 904 F.2d 112, 115
(1st Cir. 1990). Summary judgment is appropriate when the record
reveals "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). In this context, "a fact is 'material' if it
potentially affects the outcome of the suit and a dispute over it
is 'genuine' if the parties' positions on the issue are supported
by conflicting evidence." Int'l Ass'n of Machinists & Aerospace
Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted). 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." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations
omitted).
The key, then, to defeating a properly supported motion for
summary judgment is the non-movant's ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party. See generally
Fed. R. Civ. P. 56(c). It naturally follows that while a
2 reviewing court must take into account all properly documented
facts, it may ignore a party's bald assertions, speculation, and
unsupported conclusions. See Serapion v. Martinez, 119 F.3d 982,
987 (1st Cir. 1997) . See also Scott v. Harris, 550 U.S. 372, 380
(2007) ("When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.").
Background
Except where noted, the following facts are undisputed.
Loon Mountain is a year-round resort located in Lincoln, New
Hampshire. In November of 2010, Loon Mountain hired O'Rourke as
a seasonal employee in its Food and Beverage Department. A few
weeks later. Loon also hired O'Rourke as a seasonal employee in
its Accounting Department. O'Rourke split her time between the
two departments. Seasonal employment at Loon Mountain coincides
with the ski season, which usually runs from November to late
March or early April.
Although O'Rourke's employment in the Food and Beverage
Department normally involved serving food and beverages at the
Octagon Lodge, she was assigned to work at Java Junction on
Saturday and Sunday, January 22 and January 23, 2011. Java
3 Junction is located in a separate building from the Octagon
Lodge. It is not a busy venue, and is generally staffed by a
single employee. Part of the Java Junction employee's job is to
transport products from the Octagon Lodge to Java Junction,
including soda, water, and other items. Plaintiff had not
previously worked at Java Junction.
At the end of the workday on Saturday January 22, O'Rourke
told her assistant manager, Julia Cyr, that she was pregnant and
that the pregnancy was high-risk. She told Cyr that she would,
therefore, need assistance moving product from Octogon Lodge to
Java Junction. According to O'Rourke, Cyr seemed "very offset,
set back" upon hearing that O'Rourke was pregnant. At her
deposition, O'Rourke explained that "my feeling was that it was
slightly irritating because of the time of year. We were coming
into a vacation week, it was very busy, and my feeling was that
it was an inconvenience at the time." O'Rourke Dep., doc. no.
17-4, at 45.
Cyr agreed to have someone help O'Rourke move product from
Octagon Lodge to Java Junction the next day, although she noted
that Loon was short-staffed and that there might be a delay in
getting assistance. Given the seasonal nature of O'Rourke's
employment with Loon, O'Rourke would not have worked for Loon
during most of her pregnancy. O'Rourke's seasonal employment was
4 scheduled to end in less than three months - approximately the
beginning of April. Her delivery due date was in September,
about five months after her seasonal employment was expected to
end.
O'Rourke worked at Java Junction the next day, Sunday
January 23. A co-worker assisted her in moving soda and water
from the Octagon Lodge to Java Junction. Later that morning, Cyr
visited Java Junction as part of her normal rounds. When she
entered the cafe, there were no customers and she could not see
O'Rourke. According to Cyr, she looked around the corner and saw
O'Rourke crouched behind the counter with a can of whipped cream
in her hands and between her legs, with the top of the can
pointed upward. Another can of whipped cream and spilled whipped
cream were on the floor near her. According to Cyr, O'Rourke
seemed "startled" when she saw Cyr. The two chatted for a few
minutes and Cyr left the cafe.
Cyr testified at her deposition that she suspected that
O'Rourke had been doing a "whippit."1 Cyr was aware that Loon
had recently experienced losses of whipped cream from inventory
at other Loon locations, and that Loon management was concerned
1 Whipped cream cans contain nitrous oxide, which is used as a propellant. "Doing a whippit" entails releasing the nitrous oxide into one's mouth and inhaling it to attain a temporary feeling of intoxication (or "high").
5 that some employees had been using the whipped cream to do
whippits.
Cyr testified that she wanted to make additional inquires
before confronting O'Rourke. It is undisputed that Cyr returned
to the Octagon Lodge and asked an employee to explain how a
whippit is performed. The employee described the process, which
was consistent with what Cyr says she saw O'Rourke doing at Java
Junction. Cyr then asked two Food and Beverage Department
employees to go to Java Junction to observe and report back to
Cyr anything that seemed unusual. The first employee reported to
Cyr that O'Rourke was not at Java Junction and that there was
whipped cream on the floor. The second employee reported to Cyr
that O'Rourke was at Java Junction, but was flustered and making
odd statements about whipped cream.
Cyr then went to the Octagon Lodge and checked the product
transfer sheet for Java Junction. The transfer sheet showed that
seventeen cans of whipped cream had been transferred to Java
Junction on the previous day, Saturday, January 22. Cyr informed
Loon's human resources department. She was advised to return to
Java Junction with another employee, as a witness, and to
question O'Rourke. Cyr returned to the cafe with Shannon
Hartwell, another Food and Beverage Department manager. Cyr did
not explain the situation to Hartwell because, she says, she
6 wanted Hartwell to be an unbiased witness. Cyr approached
O'Rourke and told her that there was "an inventory control
problem with whipped cream" and that Cyr "suspected that she
caught [O'Rourke] inhaling the whipped cream." O'Rourke Dep.,
doc. no. 24-2, at 29. O'Rourke did not give Cyr any explanation.
Instead, she asked Cyr "Why would I ever do something like that"
while pregnant? M. at 30. She also asked, "if you thought I
was impaired . . . why would you let me stay for hours?" M. at
32 .
Cyr then asked O'Rourke to count the number of cans of
whipped cream that were in inventory at Java Junction. Only four
of the seventeen cans that had been brought over from the Octagon
Lodge the day before remained in inventory. The thirteen cans
that were no longer in inventory represented an unusually high
amount of whipped cream use for a single day at Java Junction.
Although several days later O'Rourke told other Loon authorities
that she found used cans of whipped cream in the trash when she
arrived at Java Junction that morning, she did not mention that
purported fact to Cyr at the time Cyr guestioned her.
Cyr then told O'Rourke that she would be sent home, but that
O'Rourke first needed to meet with Ralph Lewis, Director of
Operations, to discuss the situation. Cyr and Hartwell then
accompanied O'Rourke to Lewis's office. Lewis asked O'Rourke
7 what she had been doing with the whipped cream. O'Rourke did not
offer any explanation, but said "Ralph, you know me. This isn't
. . . something I would do. You know, like, I handle all the
money for the resort. Stealing whipped cream or doing whipped
cream . . . [is] not something in my character or something I
would do." iId. at 34.2 Lewis told O'Rourke there would be a
further investigation before a decision was made regarding her
continued employment. Crediting O'Rourke's version of the facts,
it also appears that O'Rourke offered to take a drug test, have
her bag searched, and take a lie detector test. Those reguests
were ignored.
Because Lewis was concerned that O'Rourke might be under the
effects of nitrous oxide, he arranged for a security officer to
take O'Rourke home. At her reguest, O'Rourke was taken instead
to a local store.3
2 It is undisputed that O'Rourke did not provide Lewis with an explanation. Lewis swore to that fact in his declaration. At her deposition, O'Rourke testified that she could not remember exactly what she told Lewis in response to his guestioning and could recall only insisting that she would not do such a thing given her responsibilities in the accounting department and her character. Lewis's averment that O'Rourke did not explain what she had been doing with the whipped cream is, therefore, uncontradicted.
3 The parties dispute how long O'Rourke had to wait before being transported and whether she was being involuntarily detained. Because those facts are relevant only to plaintiff's state law claims, over which the court declines to exercise supplemental jurisdiction, they are not discussed here in detail. At some point on Sunday, Mary Aylward, a Loon seasonal
employee (and the mother of O'Rourke's fiance) approached Cyr to
find out what was happening with O'Rourke. At her deposition,
Aylward recounted the following exchange with Cyr:
Q. And what happens when Julia [Cyr] returns?
A. I went downstairs with her and I asked her what was going on.
Q. And what was her response?
A. Her response what that if she was doing what I think she was doing, especially being pregnant - I forget the exact words, but I know my response was, you think she was doing it? And she said, yes."
Aylward Dep., doc. no. 24-4, at 9.
On Tuesday, January 25, Ruth Berkeley, Loon's Director of
Human Resources, and Steven Bromley, Loon's Food and Beverage
Manager, met to discuss O'Rourke's situation. Neither Berkeley
nor Bromley had been at work on Sunday or Monday. The two
discussed Cyr's reported observations; the fact that thirteen
whipped cream cans were missing from Java Junction's inventory;
and the fact that O'Rourke had not provided any explanation for
what she had been doing with the whipped cream.
Berkeley and Bromley telephoned O'Rourke later that day.
They asked her if she could explain Cyr's observations or explain
the missing whipped cream cans. O'Rourke stated, for the first
time, that when she had arrived at Java Junction on Sunday, there were several used cans of whipped cream in the trash. Berkeley
told O'Rourke that her employment with Loon was terminated for
misuse and misappropriation of whipped cream.
O'Rourke denies that she was doing a whippit when Cyr
entered Java Junction on Sunday, January 22. During her
deposition, O'Rourke testified that she had not been, as Cyr
claims, crouched under the counter. Rather, she says, she was
standing and leaning to one side to see if plates had been
stocked under the counter, and was holding a cup of coffee in her
left hand into which she had just placed whipped cream. And,
O'Rourke has produced evidence that Loon security and maintenance
personnel had access to the inventory of whipped cream at Java
Junction during off-hours.
O'Rourke has also produced evidence about a prior incident
involving a male employee. At his deposition, Lewis testified
that in some previous year (he does not specify the date), he
interviewed a male employee whom he suspected had been using
Loon's whipped cream to do whippits. The full sum of the
evidence plaintiff has produced relating to this prior incident
consists of the following deposition testimony:
Q. Okay. And were any people, any employees interviewed about the missing whipped cream?
10 A. I believe I spoke to a security officer about it that I had suspected possibly he was doing it.
Q. Which security officer is that?
A. I don't know.
Q. There's no record of the meeting?
A. No, there wouldn't be.
Q. So you have no idea who you interviewed about it?
A. I would have to go back through thenames. It's been a while. And the security force changes year to year.
Q. So this meeting with the security officer, tell me about that? What did you say to him?
A. I asked him if he knew anything about it. He said no. And I asked a supervisor to watch him.
Q. Which supervisor?
A. Joe Chivell.
Q. So he denied it, so you didn't have anyevidence?
A. No.
Lewis Dep., doc. no. 24-6, at 3-4.
And, O'Rourke has produced some evidence suggesting that her
fiance's mother, Mary Aylward, was not hired back for seasonal
work with Loon in 2011 in retaliation for O'Rourke having filed a
pregnancy discrimination charge with the New Hampshire Commission
for Human Rights.
Discussion
O'Rourke brought this suit against Loon in New Hampshire
Superior Court, alleging violations of numerous state laws and
11 pressing two federal claims under Title VII, 42 U.S.C. § 2000e.
Loon timely removed the case to this court. After the close of
discovery. Loon moved for summary judgment on all counts. For
the reasons given below, the motion is granted with respect to
the federal claims (Counts II and IV), and, consistently with
normal practice, the court declines to exercise supplemental
jurisdiction over the remaining state law claims.
In Count II of her complaint, O'Rourke alleges that she "was
terminated because of her gender/pregnancy, and that the
allegations regarding her ''inhaling' whipped cream were
pretextual." Complt., doc. no. 1-1, at 55 23, 28. She denies
that she inhaled nitrous oxide from the whipped cream can, and
she argues that Loon actually fired her because of the
inconvenience her pregnancy would cause Loon's operations. Pi.
Br., doc. no. 24-1, at 2, 12-13. In Count IV, O'Rourke alleges
that Loon refused to rehire Mary Aylward, her fiance's mother, in
retaliation for O'Rourke's having filed a pregnancy
discrimination charge with the New Hampshire Commission for Human
Rights.
I. Pregnancy Discrimination
Title VII prohibits covered employers from discriminating
"against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
12 individual's . . . sex." 42 U.S.C. Sec. 2000e-2 (a) (1) . The
Pregnancy Discrimination Act of 1978 "extended Title VII's
protection against discrimination to specifically include
discrimination 'on the basis of pregnancy.'" Martinez-Burgos v.
Guayama Corp., 656 F.3d 1 , 12 (1st Cir. 2011) (guoting 42 U.S.C.
Sec. 2000e(k)). "A pregnant employee may be discharged, however,
if the employer 'does so for legitimate reasons unrelated to her
pregnancy.'" M. (guoting Smith v. F.W. Morse & Co., 76 F.3d
413, 424 (1st Cir. 1996)).
Under the familiar burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), O'Rourke,
who does not have direct evidence of discrimination,4 must make
out a prima facie case of pregnancy discrimination by showing
that: "(1) she [was] pregnant . . ., (2) her job performance
[had] been satisfactory, but (3) the employer nonetheless
dismissed her from her position . . . while (4) continuing to
have her duties performed by a comparably gualified person."
Smith, 76 F.3d at 421. If she succeeds. Loon must articulate a
4 O'Rourke argues that Cyr's comment to Aylward ("If she was doing what I think she was doing, especially being pregnant") is direct evidence of discriminatory motive. It is not. "'Direct evidence of discriminatory intent in pregnancy discrimination cases generally is in the form of an admission by a supervisor or decision maker that the employee was [disciplined] because she was pregnant.'" Vasconcellos v. Pier 1 Imports (U.S.), Inc., 2008 WL 4601036,at *4 (D.R.I. April 28, 2008) (guoting Kennedy v. Schoenberg, Fisher & Newman, Ltd., 140 F .3d 716, 723 (7th Cir. 1998)).
13 legitimate, non-discriminatory reason for its decision. If Loon
carries that production burden, the initial presumption of
discrimination disappears, and the burden shifts back to O'Rourke
"to point to sufficient evidence to demonstrate that" Loon's
"proffered reason is mere pretext and that the true reason is
discriminatory." Martinez-Burgos, 656 F.3d at 12.
O'Rourke has carried her modest burden of making out a prima
facie case of unlawful discrimination. In response. Loon has
proffered a legitimate, non-discriminatory reason for the
termination, specifically, that it believed O'Rourke had
performed a whippit during working hours and that she
misappropriated whipped cream from Loon's inventory to do so.
Evidence supporting Loon's proffered reason is substantial, and
includes Cyr's report of what she saw; observations by employees
sent to Java Junction; confirmatory information provided by
employees regarding how a whippit is performed; the fact that
thirteen cans of whipped cream were inexplicably missing from the
cafe only one day after being transferred there; and the fact
that O'Rourke did not provide any explanation regarding Cyr's
observations and the whipped cream can, much less a plausible
one, when initially confronted by management, and only offered
her plainly contradictory version of events (whipped cream cans
in trash) two days after the incident.
14 In other words. Loon has presented evidence supporting its
claim to have discharged O'Rourke for reasons entirely unrelated
to her pregnancy. The burden of proof, therefore, reverts to
O'Rourke to point to sufficient evidence in the record from which
a rational jury could reasonably find that Loon's proffered
reasons for discharging her were pretextual, and that it fired
her because she was pregnant. O'Rourke has failed to carry that
burden.
O'Rourke "has to clear two significant hurdles before [s]he
is able to show pretext." Tobin v. Libery Mut. Ins. Co., 433
F.3d 100, 105 (1st Cir. 2005). First, O'Rourke "must refute"
Loon's rather clear evidence that it believed she had been doing
a whippit and that "constituted the real reason for [her]
termination." I_d. She may call Loon's proffered justification
into guestion by pointing to "weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in" the
justification sufficient to allow a factfinder to reasonably
"infer that [Loon] did not act for the asserted non-
discriminatory reasons." Martinez-Burgos, 656 F.3d at 14
(internal guotation marks omitted). Second, O'Rourke "must
advance evidence of [her] own showing that" Loon's "asserted
reason was a pretext for hiding discrimination." Tobin, 433 F.3d
at 105 (emphasis added). In other words, she must point to
evidence from which a jury could reasonably find that "the
15 reasons given for [firing] her were both a sham, and a sham
intended to cover up a discriminatory motivation." Taite v.
Shineski, 2010 WL 745160, at *11 (D.N.H. Mar. 1, 2010) . See also
Mesnick v. Gen. Elec. Co., 950 F.2d 816, 824 (1st Cir. 1991) ("It
is not enough for a plaintiff merely to impugn the veracity of
the employer's justification; he must elucidate specific facts
which would enable a jury to find that the reason given is not
only a sham, but a sham intended to cover up the employer's real
motive: age discrimination.") (internal guotation marks omitted).
O'Rourke argues that Loon's "claim that Plaintiff was caught
doing a whippit is beyond implausible." Pi. Br., doc. no. 24-1,
at 12. It is implausible in part, she says, because she did not,
in fact, do a whippit. But "[i]n assessing pretext, a court's
focus must be on the perception of the decisionmaker, that is,
whether the employer believed its stated reason to be credible."
Mesnick, 950 F.2d at 824 (internal guotation marks omitted).
Whether O'Rourke did or did not use the whipped cream cans to
recreationally inhale nitrous oxide while at work is not really
the guestion. The important guestion is whether Loon thought she
did, and imposed discipline for that reason.
O'Rourke argues that Loon could not reasonably have believed
that she had done a whippit because she told Cyr that her
pregnancy was high-risk. But a pregnant woman - even one with a
16 high-risk pregnancy - might irresponsibly use nitrous oxide for
recreational purposes. O'Rourke also points to the fact that
Loon management did not take her up on her offers to have her
purse searched, take a lie detector test, and be transported to a
hospital for drug testing. O'Rourke does not explain, however,
what pertinent or relevant information might have been gleaned
from searching her purse. And the fact that Loon did not take
the more extraordinary (and presumably costly) steps of arranging
for a polygraph examination or a trip to the hospital for drug
testing, does not call into guestion Loon's proffered reason for
imposing discipline. See Wierman v. Casey's Gen. Stores, 638
F.3d 984, 997 (8th Cir. 2011) (rejecting plaintiff's argument
that pretext was shown by employer's "failure to ask for her
purchase receipts or her side of the story when terminating her,"
noting that "shortcomings in an investigation do not by
themselves support an inference of discrimination.") (internal
guotation marks omitted).
O'Rourke asserts, as well, that Loon's proffered
justification is called into guestion by the fact that O'Rourke
was not relieved of her duties at Java Junction immediately, but
instead was allowed to continue working there for two to three
hours after Cyr purportedly observed her doing a whippit. On its
face. Loon's delay might be construed as inconsistent with a
17 belief that O'Rourke had been doing a whippit and was under the
influence of nitrous oxide. But context is important.
Cyr testified that she did not immediately confront O'Rourke
because she wanted to gather confirmatory information first, and
her actions were entirely consistent with that approach. After
leaving Java Junction, Cyr returned to the Octagon Lodge and
asked an employee (presumably one who might know) to explain how
a whippit is performed. She then sent two employees to Java
Junction to observe O'Rourke and report back to her. Cyr also
checked the product transfer sheet at the Octagon Lodge to
determine how many cans of whipped cream had been delivered to
Java Junction the day before. Cyr then understandably contacted
the human resources department to report the facts as she
believed them to be and to receive instructions. Consistent with
the instructions she was given, Cyr recruited another employee to
accompany her back to Java Junction to guestion O'Rourke. Having
gathered sufficient information, Cyr confronted O'Rourke. After
speaking with O'Rourke, and having determined that thirteen cans
of whipped cream were inexplicably missing, and having been given
no explanation by O'Rourke, Cyr told O'Rourke that she was to see
Lewis and would be sent home thereafter.
The limited delay between Cyr's first observation of
O'Rourke and her return to Java Junction does not reasonably call
18 Loon's proffered justification into question. During that time
period Cyr conducted a brief but prompt investigation, gathered
pertinent information, appropriately informed management of the
pending circumstances, and arranged to confront O'Rourke. Cyr's
conduct was fully consistent with a careful and fair approach to
a probable case of employee misconduct.
Finally, O'Rourke argues that Loon's dissimilar treatment of
a male employee suggests that Loon's proffered reason for
discharging her was pretextual. It is true that "[a] plaintiff
can demonstrate that an employer's stated reasons are pretextual
. . . by producing evidence that plaintiff was treated
differently from similarly situated employees." Garcia v.
Bristol-Myers Squibb Co., 535 F.3d 23, 31 (1st Cir. 2008)
(internal quotation marks omitted). O'Rourke has not, however,
produced any evidence that she was similarly situated to another
employee but was treated differently. See id. ("The comparison
cases need not be perfect replicas, but . . . they must closely
resemble one another in respect to relevant facts and
circumstances.") (internal quotation marks omitted). To the
contrary, what evidence O'Rourke has produced suggests the
opposite, i.e., that the male employee she points to for
comparison was not in the same situation as she. Loon's
management questioned that male employee based on its mere
suspicion, without any evidence, that the employee had been doing
19 whippits, misappropriating Loon's inventory of whipped cream.
The male employee denied it, and, lacking any contrary evidence.
Loon's management did not take any action against him (although
it did increase its supervision). In contrast, with respect to
O'Rourke, Loon had solid evidence - and not mere suspicion - that
O'Rourke had used nitrous oxide from misappropriated whipped
cream cans while working in Java Junction.
In sum, the evidence here does not even paint a "merely
colorable" claim of pretext, and therefore, does not present a
triable issue for a jury. Anderson, 477 U.S. at 249. But, even
assuming, for argument's sake, that O'Rourke met her burden with
respect to pretext, she has not pointed to evidence that is
"significantly probative," id., of a discriminatory motive.
O'Rourke argues that a reasonable inference of discriminatory
motive arises from: (1) the purported fact that her pregnancy was
an inconvenience to Loon; (2) the fact that Cyr seemed "set back"
or "surprised" when O'Rourke told her she was pregnant; (3) Cyr's
response to Aylward's inguiry about what was happening with
O'Rourke ("if she was doing what I think she was doing,
especially being pregnant"); and (4) the supposed fact that Loon
fired O'Rourke the day after she told Cyr that she was pregnant.
Although there is some evidentiary dispute about whether
O'Rourke was fired on Sunday or the following Tuesday, the
20 inference will be drawn in O'Rourke's favor, and the court will
assume that O'Rourke's employment was terminated on Sunday, the
day following her announcement to Cyr that she was pregnant.
Although close temporal proximity may help establish pretext and
discriminatory motive, it is not sufficient by itself to create a
jury guestion. See generally Horstkotte v. Comm'r, New Hampshire
Dept, of Corrections, 2010 WL 1416790, at *5 (D.N.H. April 2,
2010) (relying on Layne v. Vinzant, 657 F.2d 468, 476 (1st Cir.
1981)). That is especially true here, where the significance of
the timing is diminished by Loon's strong evidence of employee
misconduct by O'Rourke and the fact that the alleged misconduct
"came even closer in time" to her termination than her pregnancy
announcement. Vasconcellos, 2008 WL 4601036, at *5 (finding
plaintiff's intervening act of dishonesty, even if disputed,
diminished the causal connection between her pregnancy
announcement and her termination) citing Kiel v. Select
Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999).
O'Rourke's attempt to show more than just temporal proximity
fails. O'Rourke posits that Loon's management fired her because
her high-risk pregnancy would inconvenience Loon's operations
during the busy ski season. But evidence of inconvenience is
scant at best, consisting only of Cyr's statement to O'Rourke
that it might be a while before Cyr could get another employee to
help O'Rourke move soda and water to Java Junction. There is no
21 evidence that that contemporaneous circumstance posed an ongoing
problem for Loon. To the contrary, the fact that a co-employee
helped O'Rourke move water and soda to Java Junction the next
day, seemingly without incident or hassle, suggests that any
inconvenience was slight. That posited but minimal
inconvenience, therefore, simply cannot suggest a motive to fire
0'Rourke.
Similarly weak is the evidence that Cyr seemed "set back" or
"surprised" when O'Rourke told her that she was pregnant.
O'Rourke argues that Cyr's non-verbal reaction supports a
reasonable inference that Cyr was hostile to the news of
O'Rourke's pregnancy. The inference, however, is not reasonable
because it is entirely too speculative. See Vasconcellos, 2008
WL 4601036, at *6 (finding that plaintiff "offered no objective
evidence to support her claim that [her supervisor] 'seemed put
off by her being pregnant'"; plaintiff relied only on "vague
allegations regarding [her supervisor's] tone and mannerisms but
point[ed] to nothing specific"); Keyes v. Catholic Charities,
2011 WL 713640, at *4 (3d Cir. March 2, 2011) (plaintiff's
"speculative perception that his supervisors changed their
attitude towards him when they heard about his sleep apnea" based
on their "'non-verbal reactions'" to him, "in no way" raised a
triable issue).
22 O'Rourke also relies on Aylward's testimony that Cyr used
the phrase "if she [O'Rourke] was doing what I think she was
doing, especially being pregnant." Regarding the relevance of
that phrase to the issue of motive, O'Rourke's only argument is
that Cyr "used the words pregnant and termination in the same
sentence, so it obviously was part of her reasoning." PI. Br.,
doc. no. 24-1, at 10. The record reveals, however, that Cyr did
not use the word "termination." Notably, O'Rourke has not
presented any further argument or theory that would tie Cyr's
comment to Loon's decision to terminate O'Rourke's employment,
and the record probably would not support it in any event.
Instead of demonstrating pretext and discriminatory motive,
the evidence shows guite clearly that Loon took steps to
accommodate O'Rourke's pregnancy, and did not discipline her for
it. The evidence does not reasonably suggest that Loon fired
O'Rourke for any reason other than its belief that she had been
misappropriating company inventory to engage in recreational drug
use on company time.
The evidence is insufficient to support a determination, by
a rational and reasonable jury, that Loon's stated reasons for
terminating O'Rourke - serious misuse and misappropriation of
company property - were pretexts for pregnancy discrimination.
And even assuming the existence of a triable issue regarding
23 pretext, the evidence is insufficient to allow a reasonable jury
to conclude, with respect to the ultimate issue, that O'Rourke's
pregnancy motivated Loon to terminate her employment.
II. Retaliation
Title VII states that:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.
42 U.S.C. § 200Oe-3 (a) .
Under the anti-retaliation provision, an employer may not
take adverse action against an employee who complains of
discrimination. Thompson v. N. Am. Stainless, L.P., U.S. ,
131 S. C t . 863, 870 (2011). The provision also prohibits an
employer, under limited circumstances, from taking an adverse
employment action against a third-party in retaliation for the
employee's complaint. iId. Such third-party retaliation claims
are brought by the third party, not the complaining employee, see
id., as O'Rourke seeks to do here.
O'Rourke asserts a claim under Title VII's anti-retaliation
provision based upon Loon's subseguent decision not to rehire her
fiance's mother. She alleges that Loon took that action in
24 retaliation for O'Rourke's having filed her own charge of
discrimination with the New Hampshire Commission for Human
Rights. O'Rourke's claim necessarily fails as a matter of
straight-forward application of existing law.
O'Rourke has not offered any principled argument, or pointed
to any legal authority, supportive of her contention that she is
entitled to press a retaliation claim on her own behalf for
Loon's alleged subseguent adverse action against Aylward. Nor
could she. To prevail on such a retaliation claim, O'Rourke must
not only prove that she engaged in protected activity, but she
must also show that she "suffered a material adverse employment
action" brought on by her protected activity. Gomez-Perez v.
Potter, 2011 WL 6445569, at *8 (1st Cir. Dec. 22, 2011) .
O'Rourke is not able to make that showing because the adverse
employment action that she points to was adverse to Aylward, not
to her. Indeed, by the time O'Rourke filed her discrimination
charge, she was no longer employed by Loon, and so could not
experience an adverse employment action linked to her protected
activity.
For these reasons, judgment as matter of law in favor of
Loon on O'Rourke's retaliation claim (Count IV), is necessarily
warranted.
25 C o nc lu s i o n
For these reasons. Loon''s motion for summary judgment, doc.
no. 17, is granted as to 0 ,Rourke/'s federal claims (Counts II; and
IV). Because the court declines to exercise supplemental
jurisdiction over the remaining state law claims. Loon's motion
for summary judgment is denied as to those claims.
SO ORDERED.
Steven J/McAuliffe United States District Judge
February 7, 2014
cc: Leslie H. Johnson, Esq. Donald L. Smith, Esq. Margaret A. O'Brien, Esq.