Boisvert v . Sears, Roebuck & C o . CV-96-495-M 03/24/98 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Jeanie T . Boisvert
v. Civil N o . 96-495-M
Sears, Roebuck & C o .
O R D E R
Plaintiff, Jeanie Boisvert, brought suit pursuant to Title
VII, 42 U.S.C.A. § 2000e, against her former employer, Sears,
Roebuck & Co., alleging discrimination in Sears’s decisions to
terminate her employment and not to rehire her. Sears moves for
summary judgment on grounds that Boisvert did not file her
administrative complaint in a timely fashion, and alternatively,
because Boisvert cannot show discriminatory intent on Sears’s
part. For the reasons that follow, Sears’s motion for summary
judgment is granted in part and denied in part.
Standard of Review
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, 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(c). The moving party first must show the absence of a genuine
issue of material fact for trial. Anderson v . Liberty Lobby,
Inc., 477 U.S. 2 4 2 , 256 (1986). If that burden is met, the opposing party can avoid summary judgment on issues that it must
prove at trial only by providing properly supported evidence of
disputed material facts that would require trial. Celotex Corp.
v . Catrett, 477 U.S. 3 1 7 , 322 (1986). The court interprets the
record in the light most favorable to the nonmoving party and
resolves all inferences in its favor. Saenger Organization v .
Nationwide Ins. Assoc., 119 F.3d 5 5 , 57 (1st Cir. 1997). Thus,
summary judgment will be granted if the record shows no
trialworthy factual issue and if the moving party is entitled to
judgment as a matter of law. EEOC v . Green, 76 F.3d 1 9 , 23 (1st
Cir. 1996).
Background
Plaintiff Jeanie Boisvert began working at the Manchester
Sears store in 1977, moving to the automotive department in April
of 1979. In January 1993, Sears announced a nationwide
reorganization of the company that affected Sears automotive
departments. The Manchester Sears automotive department
eliminated a number of positions, including sales and service
positions, some of which were reorganized into new positions called customer service consultants. David Emond managed the
automotive department in Manchester. Jeanie Boisvert was
notified on February 3 , 1993, that her position was being
eliminated as part of the reorganization; she was not offered
another position at Sears.
2 Instead, Sears offered Boisvert a reorganization severance incentive package that included an “Associate Job Preference Interview Form.” She was required to sign a release before receiving the package’s benefits. The job preference form asked for the associate’s work history, work preferences, and location preferences. The form also prominently displayed the following statement: “Important: Explain that the company will attempt to find jobs for associates. Because openings are somewhat scarce, it will not be possible to place everyone.”
Boisvert immediately met with an attorney to discuss her options related to the package and her employment at Sears. She told the attorney that she thought it was possible that Sears had discriminated against her in the termination of her employment. Nevertheless, Boisvert indicated that her first priority was to work at Sears. Based on the attorney’s advice and given her own interests, Boisvert decided to accept the severance package rather than pursue legal action.
Accordingly, Boisvert met with Margaret Otis, of Sears, on February 2 4 , 1993, to complete paper work related to the
severance package. During the meeting, Otis completed and signed the “Associate Interview Form” that included a direction to complete the job preference form “if the associate is interested in remaining with Sears.” Boisvert remembers that Otis told her that if jobs became available at Sears, she would be considered. Boisvert also remembers that Otis told her she would not have to
3 reapply for a new position and that she would be eligible for rehire for one year after her employment termination. Boisvert saw advertisements in the Manchester Union Leader between March and August of 1993, for customer service consultants in the Manchester Sears automotive department. Boisvert did not reapply for the position or contact anyone at Sears because she believed her application was on file at Sears. On August 2 4 , 1993, after seeing recent Sears advertisements and having heard nothing from Sears, Boisvert filled out an employment application — on the assumption that her paperwork must have been lost.1 She met with Virginia Frain, of the human resources department at Sears, who told Boisvert that she would put the application on David Emond’s (the automotive department manager’s) desk. Two days later, Boisvert found a message on her answering machine from Frain saying that the sales positions were only part-time and had been filled. Frain also said that she would put Boisvert’s application in Emond’s file to be considered when positions were available. Boisvert never again heard from Frain, Emond, or Sears.
Boisvert filed a discrimination claim with the New Hampshire Human Rights Commission that was docketed on March 2 9 , 1994.
1 Although Boisvert alleges that she saw advertisements for full time positions, the copies of advertisements she has submitted with her objection to summary judgment appear to offer both full and part time positions in the automotive department.
4 Discussion
Boisvert alleges that Sears discriminated against her
because of her gender both in terminating her employment during
the reorganization in February 1993, and again in failing to
rehire her when she applied for a customer sales consultant
position in August. Sears argues that Boisvert’s claims are time
barred, since she did not file her administrative claim within
300 days of her termination, that her claim based on wrongful
termination is also barred by the release she signed as
consideration for the severance package, and that both claims are
legally insufficient because she cannot show that Sears
discriminated against her.
A. Timely Filing
Title VII requires a plaintiff to exhaust administrative
remedies before filing suit in federal court. Lawton v . State
Mutual Life Assurance C o . of America, 101 F.3d 2 1 8 , 221 (1 st Cir.
1996). The general rule requires complaints to be filed with the
Equal Employment Opportunity Commission (“EEOC”) within 180 days
of the discriminatory act, unless the complaint is first filed with an authorized state agency, in which case it must be filed
within 300 days. 42 U.S.C.A. § 2000e-5(e); EEOC v . Commercial
Office Products Co., 486 U.S. 1 0 7 , 110 (1988). The work sharing
agreement between the New Hampshire Commission on Human Rights
and the EEOC in effect in 1994, when Boisvert filed her
complaint, has been construed to provide the full 300-day filing
5 period. See Madison v . S t . Joseph Hospital, 949 F. Supp. 953,
957-58 (D.N.H. 1996). Therefore, to be timely, Boisvert must
have filed her complaint with the NHCHR no more than 300 days
after the date of the alleged discriminatory act.
1. Termination – Count I
The parties agree that Boisvert did not file her complaint
with the NHCHR within 300 days after her termination on February
3 , 1993. Boisvert argues, however, that her termination was part of a continuing series of discriminatory acts that included
Sears’s failure to rehire her in August 1993, which did occur
within 300-days preceding her complaint. Alternatively, Boisvert
argues that Sears should be equitably estopped from asserting the
limitations period.
a. Continuing serial violation. “A serial violation ‘is composed of a number of discriminatory acts emanating from the same discriminatory animus, each act constituting a separate wrong actionable under Title VII.’” DeNovellis v . Shalala, 124 F.3d 2 9 8 , 307 (1 st Cir. 1997) (quoting Jensen v . Frank, 912 F.2d 5 1 7 , 522 (1 st Cir. 1990)). A plaintiff may “reach back” to recover for actions before the limitations period if she is able to show that at least one of a related series of discriminatory acts occurred within the limitations period and that a reasonable plaintiff in her position would not have understood that she was the victim of
6 discrimination until acts within the limitations period occurred.
See Smith v . Bath Iron Works, Corp., 943 F.2d 1 6 4 , 166 (1 st Cir.
1991); Sabree v . United Bhd. of Carpenters and Joiners, 921 F.2d
396, 400 (1 st Cir. 1990); see also Messer v . Meno, 130 F.3d 1 3 0 ,
134-35 (5 th Cir. 1997); Speer v . Rand McNally & Co., 123 F.3d
658, 663 (7 th Cir. 1997).
Each of the series of alleged discriminatory acts must be
separate and distinct violations of Title VII. DeNovellis, 124
F.3d at 308. Effects or consequences of discrimination that
continue into the limitations period are not separate actionable
events that would allow recovery for discriminatory conduct
occurring prior to the limitation period. Id. at 309; Muniz-
Cabrero v . Ruiz, 23 F.3d 6 0 7 , 610-11 (1 st Cir. 1994). Thus, a
plaintiff who alleges discriminatory termination of her
employment cannot show a continuing serial violation merely by
pointing to her employer’s continuing failure to reinstate her
employment. Morrison v . Carleton Woolen Mills, Inc., 108 F.3d
429, 443 (1 st Cir. 1997). Instead, plaintiff must be able to
demonstrate that her employer’s subsequent decision not to rehire
her was a new and discrete discriminatory action based on
different circumstances than existed when she was terminated.
See, e.g., Hargett v . Valley Fed. Savings, 60 F.3d 7 5 4 , 763 (11th
Cir. 1995); EEOC v . City of Norfolk Police Dept., 45 F.3d 8 0 , 84
(4 th Cir. 1995); Samuels v . Raytheon, 934 F.2d 3 8 8 , 391 (1 st Cir.
1991); Burnam v . Amoco Container Co., 755 F.2d 893, 894 (11th
Cir. 1985).
7 Sears’s advertising for automotive customer service
consultants (Boisvert’s comparable job after reorganization)
between March and August 1993 suggests changed circumstances from
the time Sears terminated Boisvert’s employment in February 1993
and told her no positions were available. Thus, evidence exists
in the record to create a trial worthy issue as to whether
Sears’s decision not to rehire Boisvert, following her
application in August, was a separate actionable discriminatory
event.
Boisvert must also be able to establish, however, that the
August hiring decision was “substantially related” to her
February termination to link those actions in a continuing serial
violation. Sabree, 921 F.2d at 401. To make the necessary
connection, the record must support the conclusion that Boisvert
did not know and should not have known that Sears was
discriminating against her before her August application and
Sears’s decision not to rehire her. See id. at 402. A plaintiff
cannot recover for discrimination that is continuing only because
plaintiff knowingly fails to seek appropriate relief. Forsythe
v . Microtouch Systems, Inc., 945 F. Supp. 3 5 0 , 358 (D. Mass.
1996) (quotation omitted).
In this case, the record demonstrates that Boisvert was well
aware of the possibility of discrimination by Sears before August
1993. She actually discussed gender discrimination and the
possibility of legal action with an attorney in February, the day
after Sears notified her that her position would be eliminated in
8 the reorganization. Indeed, Boisvert candidly acknowledges in
her objection to summary judgment that she suspected
discrimination when her job was eliminated: “Ms. Boisvert did not
file a claim of discrimination at the time of what she believed
may have been a discriminatory layoff at the time of that layoff
on February 3 , 1993.” Plaintiff’s Objection at 3 1 . Accordingly,
since plaintiff was aware of her injury (loss of employment) and
thought gender discrimination by Sears was the cause of that
injury, before the August events, she cannot show that her
termination and Sears’s failure to rehire her were related and
part of an actionable continuing serial violation.
b. Equitable estoppel.
Alternatively, Boisvert contends that the doctrine of
equitable estoppel allows her claim for discriminatory
termination to proceed. Equitable estoppel may modify a
limitations period if “an employee is aware of [her] . . . rights
but does not make a timely filing due to [her] reasonable
reliance on [her] employer’s misleading or confusing
representations or conduct.” Kale v . Combined Ins. C o . of America, 861 F.2d 746, 752 (1 st Cir. 1988); accord Ruffino v .
State Street Bank and Trust Co., 908 F. Supp. 1019, 1040-41 (D.
Mass. 1995). Thus, to obtain equitable estoppel relief, Boisvert
must be able to show that her filing with NHCHR was delayed
because of Sears’s deceptive conduct or because Sears lulled her
into believing that she did not need to file a complaint. See,
9 e.g., Benitez-Pons v . Commonwealth of Puerto Rico, 1998 WL 49092 at *8 (1 st Cir. Feb. 1 2 , 1998); American Airlines, Inc. v. Cardoza-Rodriguez, 133 F.3d 1 1 1 , 124 (1 st Cir. 1998). Boisvert contends that Sears misrepresented the fact that if jobs at Sears became available she would be considered for rehire based on her Associate Job Preference Interview Form, which she completed as part of the severance package. In particular, Boisvert points to the following language in the form as
misleading: “Important: Explain that the company will attempt to find jobs for associates. Because openings are somewhat scarce, it will not be possible to place everyone.” Even if that language could reasonably be construed to be misleading with respect to Sears’s employment actions, the facts Boisvert presents in support of equitable estoppel do not suggest that she reasonably relied on allegedly deceptive conduct by Sears, or that Sears’s representations lulled her into delaying her claim to the NHCHR.
Boisvert admits that she was aware that Sears was advertising to fill positions that replaced her job from March until August while, at the same time, no one from Sears contacted her regarding rehire. When she reapplied in August, M s . Frain told her no positions were then available, although Boisvert had just seen newspaper advertisements for open positions. And, M s . Frain told Boisvert that she would be considered later. Boisvert never heard from Sears again. In November, after she learned that Sears had had many openings in the automotive department,
10 Boisvert says she realized she would not be considered for a job while Emond remained as the manager. The 300-day limitations period, counting from February 3 , 1993, did not expire until the beginning of December. Before that time, Boisvert had experienced a continuing pattern — Sears made no effort to rehire her despite the apparent availability of suitable positions and her interest in being rehired. By November, Boisvert says she knew she would not be rehired. Nevertheless, Boisvert did not file an administrative complaint with the NHCHR until March 2 6 , 1994. Boisvert has shown no triable issue as to whether she was aware, at least by November, that she was not going to be rehired despite Sears’s prior representations.
Based on the factual record presented here, Boisvert did not file her claim for discriminatory termination with the NHCHR within the time allowed, and she has not shown that genuinely disputed material factual issues exist with respect to either a continuing serial violation or equitable estoppel theory. Accordingly, given the undisputed material facts Sears is entitled to summary judgment as a matter of law with respect to Boisvert’s termination claim (Count I ) in her complaint.
2. Failure to Rehire – Count II
Sears’s decision not to hire Boisvert following her
application in August 1993 was a separate and discrete act of
alleged discrimination that permits a separate claim. See
11 discussion in part A.1.a. above. The parties agree that Boisvert
filed her claim with the NHCHR within 300 days of Sears’s
decision not to rehire her in August 1993. Thus, Boisvert’s
claim of discrimination in hiring, Count II of her complaint, is
not barred by the administrative limitations period.
B. Discrimination
Under Title V I I , it is unlawful “for an employer to fail or
refuse to hire or to discharge any individual, or otherwise to
discriminate against any individual with respect to [her]
compensation, terms, conditions, or privileges of employment,
because of such individual’s race, color, religion, sex, or
national origin.” 42 U.S.C.A. § 2000e-2(a)(1). Sears contends
that Boisvert cannot prove that she was discriminated against on
the basis of sex when Sears did not rehire her in August 1993, as
she alleges. To survive summary judgment, Boisvert must be able
to show, based on sufficient probative evidence in the record,
that Sears’s decision not to rehire her was motivated by
discriminatory intent. See DeNovellis, 124 F.3d at 308.
When a plaintiff cannot present direct evidence of discriminatory animus in support of her Title VII claim, the
court employs the McDonell Douglas2 three-step framework to
analyze whether defendant intentionally discriminated against
her. Smith v . Stratus Computer, Inc., 40 F.3d 1 1 , 15 (1 st Cir.
1994). At the first step, plaintiff must establish a prima facie
2 McDonnell Douglas Corp. v . Green, 411 U.S. 792 (1973).
12 case of discrimination, which is not an especially burdensome
requirement, and, if successful, the court will presume that the
employer’s challenged action was intentionally discriminatory.
Woods v . Friction Materials, Inc., 30 F.3d 255, 260 (1 st Cir.
1994). The burden of production, although not the burden of
proof, then shifts to the employer to show a nondiscriminatory
reason for the challenged action. Id. If the employer is
successful, the presumption of discrimination vanishes
completely. Id. At the third stage, plaintiff must “introduce
sufficient evidence to support two additional findings: (1) that
the employer’s articulated reason for the job action is a
pretext, and (2) that the true reason is discriminatory.” Id.
A plaintiff’s prima facie case consists of four elements:
that “(1) s/he is a member of a protected class, (2) s/he applied
and was qualified for the position in question, (3) that despite
his/her qualifications, s/he was rejected, and (4) that, after
rejection, the position remained open and the employer continued
to seek applications from persons of the complainant’s
qualifications.” Woods, 30 F.3d at 259. Boisvert has presented
sufficient record support for each of the four elements, as Sears
assumed that she would, to establish a prima facie case. Thus,
Boisvert has met her initial burden, for purposes of the present
summary judgment motion, to create a presumption of
discriminatory intent.
Sears articulates two nondiscriminatory reasons for not
rehiring Boisvert, supported by an affidavit from the automotive
13 services manager, David Emond. Emond says he did not rehire Boisvert because he decided not to rehire any employee who was terminated during the reorganization of the department, and because he had not been “completely satisfied” with Boisvert’s work performance. As Sears has satisfactorily rebutted the presumption of discrimination by articulating non-discriminatory reasons for its employment decisions, Boisvert “must produce sufficient evidence, direct or indirect, to show that the reasons advanced by the employer constitute a mere pretext for unlawful discrimination.” Woods, 30 F.3d at 260.
Boisvert responds that both of Sears’s asserted reasons for not rehiring her are pretextual. She presents evidence
suggesting that a mechanic, Roger Bucker, was rehired after being terminated during the reorganization, and she references Emond’s deposition testimony, where he said that he was not aware of restrictions on rehiring employees who had been terminated under the severance program. In addition, the job preference form, which Boisvert completed, indicated that Sears’s stated policy was actually to rehire terminated employees. Based on the present record, Sears did not have a policy against rehiring terminated employees. To the contrary, Sears implied that those employees would be rehired if possible. Thus, Sears’s policy explanation, offered by Emond, is contradicted by the record and could be found to be pretextual.
With respect to her work at Sears, Boisvert submits record evidence of her good performance. Margaret Otis testified in her
14 deposition that she observed Boisvert in her interaction with
customers while working in the automotive department and found
Boisvert’s performance to be excellent. When Boisvert’s
supervisor, Jim Mihail, was asked during the termination process
to provide names of employees with performance problems, he named
three employees, but not Boisvert. He also said in his
deposition that he would have rehired her if her position still
existed in the department. The store manager, Richard Cunniff,
said in his deposition that as far as he knew, Boisvert met the
performance expectations of her job while she was at Sears.
Although Emond may well have had a different experience in his
supervision of Boisvert, the incidents he cites are insufficient
to counter the evidence in Boisvert’s favor. Boisvert has
sufficiently countered Emond’s other stated reason for not
rehiring, i.e. her poor work performance, to create a triable
issue of pretext.
Having raised a factual dispute as to Sears’s reasons for
not rehiring her, Boisvert must be able to show that the reasons
given were pretexts for discrimination. To prove discrimination
in a disparate treatment case, plaintiff must be able to show
that she was treated differently from others who were “situated
similarly in all relevant aspects.” Smith, 40 F.3d at 17
(internal quotation and emphasis omitted). Boisvert points to
the hiring record in the automotive department between February
1993 and March 1994, during which time Emond hired fifteen men
and no women to fill customer service consultant positions.
15 Since it is undisputed that Boisvert was qualified for the
position of customer service consultant, Boisvert plausibly
infers that she was not hired because of her sex. Boisvert also
contends that Emond’s misrepresentation, through Virginia Frain’s
message to Boisvert after her August application, to the effect
that she would be considered for positions in the “next go
around” is evidence of Emond’s effort to conceal his true
unlawful discriminatory motive, and supports an inference of
intentional gender discrimination.
An inference of intentional discrimination is permitted,
based on the circumstances of a plaintiff’s prima facie case
combined with a belief that the employer’s reasons are
pretextual, particularly if the evidence supports a suspicion
that the employer lied about the reasons for not hiring
plaintiff. S t . Mary’s Honor Society v . Hicks, 509 U.S. 5 0 2 , 511
(1993); accord Byrd, 61 F.3d at 1031. Emond’s articulated
reasons for not rehiring plaintiff could be found to be
pretextual and untrue (the supposed no rehire policy is directly
contradicted by Sears’s actions and representations to Boisvert).
In addition, the record evidence supports at least a suspicion
that Emond directed Frain to mislead Boisvert about her chances
of being rehired by Sears. Based on the record here, Boisvert
has presented a triable issue as to whether Sears, acting through
Emond, did not rehire her for unlawful discriminatory reasons.
16 Accordingly, Sears has not shown that the undisputed facts
support summary judgment in its favor with respect to Boisvert’s
claim of discriminatory refusal to rehire her.
C. Motion to Strike
Sears filed a motion to strike four affidavits and one exhibit submitted by Boisvert in support of her objection to its motion for summary judgment. None of the challenged materials was necessary to decide the present motion, and none of the challenged materials was considered. The motion to strike is therefore denied as moot. The court assumes that counsel will resolve any remaining discovery disputes in light of the obligations imposed by the Federal Rules of Civil Procedure, the local rules of this court, and the Litigation Guidelines promulgated by the New Hampshire Bar Association. To the extent counsel cannot amicably and responsibly resolve remaining discovery issues, those issues may be raised by appropriate motion, but the motions will be carefully scrutinized for compliance with the above cited standards.
Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment (document n o . 28) is granted with respect to Count I of
plaintiff’s complaint, and denied as to Count I I . Defendant’s
motion to strike (document n o . 33) is denied.
17 SO ORDERED.
Steven J. McAuliffe United States District Judge March 2 4 , 1998
cc: Heather M . Burns, Esq. Julie Ann Moore, Esq. Byry D. Kennedy, Esq.