Dolan v. SunGard

2008 DNH 003

• Court: District Court, D. New Hampshire
• Decided: January 8, 2008
• Docket: 06-CV-43-JD
• Status: Published

Opinion

Dolan v . SunGard 06-CV-43-JD 01/08/08 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Gary Dolan v. Civil N o . 06-cv-43-JD Opinion N o . 2008 DNH 003 SunGard Securities Finance, LLC and Global Compliance Services, Inc.

O R D E R

Gary Dolan, proceeding pro s e , brought claims against his

former employer, SunGard Securities Finance, LLC, and Global

Compliance Services, Inc., which provided "Alertline" services

for SunGard. Dolan alleges claims against SunGard of unlawful

discrimination and retaliation under Title VII of the Civil

Rights Act of 1964 and New Hampshire Revised Statutes Annotated

("RSA") ch. 354-A. He also alleges wrongful discharge, breach of

the covenant of good faith and fair dealing, violation of RSA

275:56, negligent and intentional infliction of emotional

distress, negligent misrepresentation, promissory estoppel, fraud

and conspiracy to commit fraud, violation of the Equal Pay Act,

and breach of contract. SunGard moves for summary judgment and

also moves to strike portions of Dolan's affidavit. Dolan moves

to exclude certain evidence submitted by SunGard and objects to

the motion for summary judgment. I. Evidentiary Motions SunGard moves to strike parts of Dolan's affidavit on the

grounds that the statements are not based upon personal knowledge

and that he is incompetent to make certain statements. Dolan

moves to exclude evidence of emails that he sent while employed

at SunGard that were discovered after he was terminated.

A. SunGard's Motion to Strike Portions of Dolan's Affidavit

"Supporting and opposing affidavits shall be made on

personal knowledge. . . ." Fed. R. Civ. P. 56(e). "It is black

letter law that hearsay evidence cannot be considered on summary

judgment." Davila v . Corp. de P.R. Para La Difusion Publica, 498

F.3d 9, 17 (1st Cir. 2007). Therefore, an affiant must have

first-hand knowledge of the facts sworn to in an affidavit and

cannot testify to a belief. Quinones v . Houser Buick, 436 F.3d

284, 291 (1st Cir. 2006).

In response to SunGard's motion to strike parts of his affidavit, Dolan states that he has no objection to striking paragraphs 4 , 1 1 , 1 2 , 1 9 , 2 0 , 2 5 , 2 8 , 3 2 , 3 5 , 3 7 , 3 8 , 4 1 , 4 4 , 4 6 , 4 7 , 4 9 , 5 4 , and 57 in their entirety.1 In addition, he does not

1 Dolan appears to be somewhat confused about those statements he concedes and those he intends to defend. For

2 object to striking most of the parts of statements in his

affidavit that are the subject of SunGard's motion. Therefore,

those statements will not be considered in opposition to

SunGard's motion for summary judgment.

SunGard contends that parts of paragraphs 8 , 4 1 , 4 4 , 5 6 , 6 1 ,

and 62 are inadmissible hearsay. Dolan objects to striking contested statements in paragraphs 4 , 8 , 4 1 , 4 2 , 4 4 , 5 6 , 6 1 , and

62. 2 Although Dolan has arguably waived any contest to the

statements in the paragraphs he has agreed to strike, all of the

challenged statements are addressed as follows.

Statements that were made outside of court and that are

offered for their truth are inadmissible hearsay unless an

exception applies. United States v . Rivera-Hernandez, 497 F.3d

7 1 , 80 (1st Cir. 2007). An affidavit must be based on the

personal knowledge of the affiant, not on information provided by someone else, and must show the basis for the affiant's

example, although he included paragraphs 41 and 44 in the list of statements that were not material and could be stricken, he also argues that it would be unfair to strike those paragraphs. He misidentifies paragraph 8 as paragraph 3 . Although he did not agree to striking paragraph 3 6 , he did not address that paragraph in his objection, and therefore any objection is deemed waived. See United States v . Zannino, 895 F.2d 1 , 17 (1st Cir. 1990). 2 He states that he can testify that he was experiencing chest pains as stated in paragraph 4 but agrees to strike the remainder of that paragraph.

3 knowledge. Hoffman v . Applicators Sales & Serv., Inc., 439 F.3d

9, 16 (1st Cir. 2006).

In paragraph 8 , Dolan stated, in pertinent part: "Sometime

in 1999 a 2nd shift computer operator named Ed Gaffney told me he

had once been a 1st shift CSR like m e . He told me how he had a

disagreement with M s . Wendy S t . Louis (then an entry level C S R ) . he stated that while walking away from this confrontation she

said 'see if I help you again you little shit.'" In paragraph

6 1 , Dolan stated: "Sometime in the 1st half of 2006 I was told

by several former co-workers that a night shift supervisor named

Joe DeSousa was suspended because of an argument he had with M s .

S t . Louis." Dolan does not dispute that those statements are

hearsay. Instead, he represents that he could get an affidavit

or a deposition to support them. He also argues that it would be

unfair to strike that portion of his affidavit about the statement attributed to DeSousa because he has been denied access

to DeSousa's personnel file.

If a party is unable to present evidence in opposition to

summary judgment, relief is available under Federal Rule of Civil

Procedure 56(f) only if the party submits an affidavit showing

good cause for the lack of evidence, a plausible basis for his

belief that the needed evidence can be presented with more time,

and an explanation of why additional facts are material to his

4 opposition. Rivera-Torres v . Rey-Hernandez, 502 F.3d 7 , 10 (1st

Cir. 2007). “Summary judgment motions are decided on the record

as it stands, not on the pleadings or on the nonmovant’s vision

of what facts might some day be unearthed by the litigation

equivalent of an archeological dig.” Rogan v . City of Boston,

267 F.3d 2 4 , 27 (1st Cir. 2001). Because Dolan did not provide an affidavit as required under Rule 56(f), he is not entitled to

additional time to support the challenged statements in

paragraphs 8 and 6 1 , which are stricken as inadmissible hearsay.

SunGard objects to Dolan's statements in paragraphs 4 and 41

about medical issues he experienced on the ground that he is not

competent to give medical opinions. With respect to paragraph 4 ,

Dolan does not object to striking the part of his statement that

he believed he experienced chest pains because of his work. With

respect to the statement about the reason he was grinding his teeth in paragraph 4 1 , Dolan asks to provide a supplemental

affidavit from his dentist, but he did not satisfy the

requirements of Rule 56(f).

Dolan stated in paragraph 44 that a co-worker told him about

her employment reviews and her salary and provided details of

that conversation. He argues that because the employee told him

that information, he is providing it based on his personal

knowledge. That is not the case. Instead, Dolan offers the

5 employee's out of court statement for its truth, which is not

admissible. The objected-to phrase in paragraph 6 2 , that the

same employee asked Dolan for help, is also hearsay to the extent

the phrase would be used to establish the truth of that

statement.

In paragraph 5 6 , Dolan stated that "Mr. Hope had been told of this behavior in the past . . .," which refers to Dolan's

problems with a co-worker. Dolan clarifies this statement in his

objection by indicating that he told Hope about the past

problems. Therefore, the statement is deemed to read: "I told

Mr. Hope of this behavior in the past . . . ." As Dolan would

have personal knowledge of his own actions, he would be competent

to make that statement in his affidavit. To avoid the hearsay

bar, the statement cannot be used to show what Hope knew, only

what Dolan did. SunGard's motion to strike is granted except as to paragraph

56 which is amended as stated above.

B. Dolan's Motion to Exclude Evidence

Dolan moves to exclude several emails that he sent while

working at SunGard and appends redacted copies of six emails.

Dolan states that SunGard discovered the emails after his

employment was terminated. He argues that the emails are

6 inadmissible because they are offered as evidence of his

character, are not relevant, are more unfairly prejudicial than

probative, and were obtained in an abuse of the discovery

process. In response, SunGard mistakenly interprets the motion

as an effort to exclude the evidence at trial and argues that the

emails are admissible. The first disputed email sequence is Dolan's response on

July 2 , 2002, to an email sent to him by Geoffrey Fulgione, who

was not a SunGard employee. The email subject is "Re: Football

pool." Dolan and Fulgione appear to be discussing plans for the

weekend. In response to Dolan's message that he had not seen

Fulgione's message "until yesterday," Fulgione wrote: "You

drunk. I think Tim will be up at the cottage. I might head up

Friday night. Tripoli Friday?" Dolan replied that he did not

know what he was doing and asked for Tim's number. Fulgione then asked for Dolan's address. Dolan replied: "My address is 3

Wellesley Drive, Pelham 03076, I do own a gun."

SunGard cites the July 2 email in support of the decision to

terminate Dolan in April of 2005, contending it is proof that

Dolan owned a gun. The cited email appears to be banter between

Dolan and Fulgione, which is taken out of context, and does not

persuasively establish that Dolan owned a gun. Therefore, given

7 its limited probative value, that email appears to be more

unfairly prejudicial than probative. See Fed. R. Evid. 403.

The next email series begins on October 2 7 , 2004, and ends

with an email from Dolan on October 2 9 , 2004. The first email

exchange shows a subject of "RE: Account Loanet" and listed Jim

Hope, Cindy Zunke, Shawna Fortier, and Jessie Cannon as recipients, but not Dolan. The exchange appears to be a

discussion of whether SunGard should provide an additional

"label" to a customer. On October 2 9 , Dolan wrote to Cindy

Zunke: "I agree with you. This is a major decision to be made

which may cost millions of lives. I'll handle i t . Is our

management here pathetic or what?" Taken out of context, it is

impossible to understand the tone or meaning of Dolan's email.

On November 8 , 2004, Fulgione's email asked Dolan, "Are you

still alive? What's new?" and Dolan replied: "I'm in a major battle with my company to get more money, I'll probably get fired

or quit soon, just started a border war with my neighbor over

leave [sic] disposal, my daughter is married to a friggin loser,

and . . . . But you know m e , I can't complain." In January of

2005, Dolan responded to an email from a fellow employee, Deanna

Basnett, which has a subject line of "I'm in the 2% interesting .

. . " by saying "And you're an ugly bitch!" In March, he

complained to Susan Farrell that "they" were making up new

8 policy, that he thought he was about ready to snap, and described

punching Deanna Basnett. In March, he also responded to an email

forwarded to him by "Melissa" with a subject of "Prison v s .

Work," comparing, negatively, the attributes of work with prison,

by saying: "I've been thinking about killing a few people at

work, thanks for the many good reasons!" SunGard points to these emails as evidence of Dolan's

negative attitude and violent nature. Taken out of context, the

cited emails appear to provide little evidence of either issue.

Because these emails were not known to SunGard until after the

termination decision was made, they would be relevant, if at all,

only to SunGard's assertion that it would have terminated Dolan

because of the emails, if they had been discovered before he was

terminated for other reasons. Given their limited probative

value and the potential for unfair prejudice, they will not be considered for purposes of summary judgment.

II. Motion for Summary Judgment

SunGard moves for summary judgment on the ground that Dolan

cannot prove any of his claims against i t . Dolan opposes summary

judgment as to all claims except his claims of promissory

estoppel and breach of contract, which he omits from his

objection. In its reply, SunGard interpreted Dolan's omission to

9 mean that he concedes summary judgment on those claims. Because

Dolan did not dispute that inference in his surreply, those

claims are deemed waived.

Standard of Review

Summary judgment is appropriate when “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 a judgment as a matter of law.” Fed. R. Civ. P.

56(c). The party seeking summary judgment must first demonstrate

the absence of a genuine issue of material fact in the record.

See Celotex Corp. v . Catrett, 477 U.S. 3 1 7 , 323 (1986). A party

opposing a properly supported motion for summary judgment must

present competent evidence of record that shows a genuine issue

for trial. See Anderson v . Liberty Lobby, Inc., 477 U.S. 2 4 2 ,

256 (1986). All reasonable inferences and all credibility issues

are resolved in favor of the nonmoving party. See id. at 255.

The local rules of this district require a party who moves

for summary judgment to file a memorandum in support of the

motion that "incorporate[s] a short and concise statement of

material facts, supported by appropriate record citations, as to

which the moving party contends there is no genuine issue to be

10 tried." LR 7.2(b)(1). In response, the party opposing summary

judgment must also file a memorandum incorporating "a short and

concise statement of material facts, supported by appropriate

record citations, as to which the adverse party contends a

genuine dispute exists so as to require a trial." LR 7.2(b)(2).

"All properly supported material facts set forth in the moving party's factual statement shall be deemed admitted unless

properly opposed by the adverse party." Id.

SunGard provided a statement of material facts in its

memorandum in support of summary judgment with citations to the

record. Dolan did not include a statement of material facts in

his opposition to summary judgment. Dolan did submit his

affidavit, which is substantially limited by SunGard's motion to

strike, and exhibits in support of his opposition. Although

Dolan did not provide a factual statement, because of his pro se status, his properly supported facts will be considered in

opposition to SunGard's factual statement.

Background

Gary Dolan worked at SunGard Securities Finance, LLC, from

November 5 , 1998, until April of 2005. SunGard provides software

and processing solutions for the securities lending segment of

the financial services industry. Dolan was a Client Services

11 Representative ("CSR") who answered telephone calls from SunGard

clients needing information and assistance. Wendy S t . Louis,

Assistant Vice President of Client Services, supervised the CSRs

and reported to Richard Stinchfield, Vice-President of Client

Services.

In 1999, Dolan completed the probationary period and became a permanent employee. Although he tendered his resignation

during the spring of 1999, because of stress he believed was

associated with his work, Dolan was persuaded to stay in his job

at SunGard. In early 2001, three additional CSRs were hired, one

male and two females, and Dolan helped to train them. Dolan's

performance review for 2001 gave him an overall rating of 2.84 on

a scale of 1 to 5 , and noted his hard work but also that he

tended "to project a negative attitude towards customers/co-

workers. Needs to focus on a positive approach." Beginning in 2002, Dolan felt humiliated by remarks his

supervisor, Wendy S t . Louis, made to him in front of his co-

workers. The remarks that Dolan objected to were about taking

breaks during work. His performance review for 2002 lists an

overall score of 2.85. The 2002 review noted that "[t]eamwork,

planning, communication and flexibility are areas that continue

to need improvement. Gary needs to spend less time socializing

to ensure his assigned work is completed in a timely accurate

12 manner. He should concern himself less with what others are

doing or not doing and concentrate on his own responsibilities."

During 2002, one of the CSRs hired in 2001, Valarie

Thorgerson, was promoted within the Client Services Group, and

Dolan felt that he should have been promoted instead of

Thorgerson. In April of 2004, while S t . Louis was on vacation, Dolan and Thorgerson got into an argument about Thorgerson's

supervisory authority. During a departmental meeting on May 6,

S t . Louis appointed Thorgerson as the supervisor when S t . Louis

was absent, and Dolan objected. Dolan also told S t . Louis that

"the constant abuse I had been enduring from her was going to

stop and demanded to speak to M r . Grimaldi about it." Dolan Aff.

¶ 2 1 . The next day, Dolan met with John Grimaldi, Vice President

and General Manager of SunGard Securities Finance LLC, S t . Louis,

and Stinchfield. Grimaldi and Stinchfield affirmed S t . Louis's decision to give supervisory authority to Thorgerson. After that

meeting, Dolan asked to speak with Grimaldi alone and told him

about the abusive treatment he was receiving from S t . Louis. He

also expressed concern that S t . Louis would fire him for

complaining about her.

On August 2 , 2004, S t . Louis stopped Dolan as he was about

to leave for the day and asked if he had finished a particular

assignment. Dolan did not remember getting the assignment but

13 offered to finish i t . S t . Louis called him "useless" and told

him to go home.

On August 5 , Dolan brought his complaints about S t . Louis to

Dennis Molloy, a human resources liaison at SunGard. Dolan said

S t . Louis belittled him in front of his co-workers and that her

treatment of him made his co-workers uncomfortable. He said that when confronted by Dolan and the other CSRs about her remarks,

S t . Louis said she was only kidding. Dolan remembers telling

Molloy that he believed S t . Louis singled him out because he was

the only male in the group, but Molloy's notes from the meeting

do not include that complaint. The next day, Dolan met with

Molloy and Grimaldi to discuss his complaints about S t . Louis.

Molloy wrote in his notes that Dolan complained about the abusive

treatment he had received from S t . Louis, objected to her

management style, and said that his primary issue was the way S t . Louis treated and spoke to him and his co-workers. Dolan

remembers that Grimaldi told him S t . Louis's actions were against

company policy, although that is not included in Molloy's notes.

A meeting was called on August 16 with Dolan, S t . Louis,

Grimaldi, and Molloy to discuss Dolan's concerns. Dolan

describes the meeting as a disciplinary action, with Grimaldi and

Molloy "ganging up" against him and questioning him about his

actions without directing any questions to S t . Louis. He states

14 that S t . Louis said nothing except to give him a short sarcastic

apology. Dolan states that he asked to have his co-workers come

in to corroborate his perception of S t . Louis's remarks and, in

particular, that Thorgerson should be brought into the meeting.

Grimaldi told him that the meeting was about him, not his co-

workers. Dolan thought that Grimaldi was trying to goad him into an argument. Dolan remembers that Molloy left the meeting after

about ninety minutes and that he continued the discussion with

Grimaldi and S t . Louis. Dolan remembers they discussed his

concerns that he would be terminated in retaliation for his

complaint about S t . Louis.

Molloy took notes during the August 16 meeting that give a

somewhat different picture. In his notes, Molloy wrote that S t .

Louis explained her remarks as having been made in jest but that

Dolan did not perceive them in the way she intended. Molloy stated that both Dolan and S t . Louis were somewhat responsible

for inappropriate comments and that Grimaldi stressed using

discretion in workplace communications. Molloy found that S t .

Louis was more receptive to the suggestions given to her and that

Dolan was less receptive. He wrote that Dolan was defensive,

felt "ganged up on," and continued to bring up other issues and

subjects despite their efforts to redirect him to the concerns

being addressed at the meeting. He stated that Dolan asked why

15 his performance was being questioned and was told that the

meeting was not about his performance. Molloy wrote that Dolan

"left the meeting feeling frustrated" and called in sick for two

days after the meeting.

On August 2 0 , 2004, Dolan called SunGard's "Corporate

Compliance Alertline" to report his complaint about S t . Louis's actions. SunGard contracted with Global Compliance Services,

Inc. to receive telephone calls of complaints from SunGard

employees, through the Corporate Compliance Alertline. The

Alertline service provides a Communication Specialist at Global

who answers the calls, interviews the callers, and enters the

information provided in a report. Global's system generates an

automated notice that is sent by email to its client and also

provides for more immediate contact by telephone in case of

higher priority issues. Once Global's client is notified of the call, Global can no longer access the report.

The report generated by Global for Dolan's call shows that

he identified himself, named Molloy and Grimaldi as others

involved, stated that S t . Louis was the subject of his complaint,

and listed co-workers, including Thorgerson, as witnesses. In

summary, the report states that Dolan said S t . Louis had been

harassing him for the past three and a half years and that he had

been trying to bring his complaint to the attention of management

16 but had only faced reprisals as a result. Additional details

provided are that S t . Louis belittled Dolan in front of his co-

workers by calling him "useless," that during an hour-long

meeting about the problem Grimaldi took S t . Louis's side and did

nothing to correct the situation, and that S t . Louis once yelled

at him, "You won't get a break until you're at least 20 percent as productive as I am!"

A few days after Dolan's call, Paul Jeffers, SunGard's Vice

President of Human Resources, called Dolan at work and discussed

Dolan's complaint about S t . Louis.3 Dolan and Jeffers continued

to communicate by telephone and email over the next few months.

Jeffers's emails identified him as "Vice President, Human

Resources, SunGard." Jeffers concluded that no violation of

company policy had occurred but continued to communicate with

Dolan until a telephone conversation on December 2 8 , 2004, when Dolan reported that things were "going okay" with S t . Louis.

Dolan states that he complained to Jeffers during that call about

being overlooked for promotions and being turned down for other

3 Dolan states in his affidavit that Jeffers only identified himself in the first telephone call by giving his name, not his position at SunGard. SunGard represents, supported by Jeffers's affidavit, that Jeffers identified himself as the Vice President of Human Resources at SunGard. Dolan acknowledges that he knew Jeffers worked at SunGard by September or October of 2004.

17 positions and that Jeffers referred him to a human resources

manager in SunGard's Birmingham, Alabama, office.

Between August and November of 2004, Dolan applied for but

was denied three open positions at SunGard. In each case, Dolan

was told that he was not qualified for the position. He contends

that he was qualified and that Grimaldi told the managers who were hiring for the open positions not to hire him.4

On November 2 , 2004, Dolan met with S t . Louis, Molloy, and

Jim Hope, SunGard's Vice President of Operations. Molloy again

took notes during the meeting. Dolan asked that he be given a

good performance review and a raise of $5000. Hope told Dolan

that salaries were based on performance reviews, that the

evaluations were not yet complete, and that they could not

discuss other employees' salaries with Dolan. Dolan contends

that sometime later he met with Molloy, Grimaldi, and Julie Keefe, SunGard's Chief Financial Officer, to discuss his

requested promotion from a "1st line" to a "2d line" position and

that Grimaldi stated those job descriptions were outdated.

Dolan's performance review for 2004, which was completed

during January of 2005, shows an overall rating of 3.19 on a

scale of 1 to 5 . In the section of the review for employee

4 Dolan agreed to strike the paragraphs of his affidavit that pertain to his applications for these positions.

18 comments, Dolan responded to the criticisms of his performance,

arguing that the review undervalued his services and misstated

his performance. He argued that he should be promoted to a 2d

line employee status.

On February 4 , 2005, Dolan met with Stinchfield and S t .

Louis to discuss his performance review. Stinchfield wrote a

report of the meeting that he emailed to Dolan and S t . Louis.

The first issue discussed was the "pervading theme" that Dolan

was not happy working at SunGard, and in response, Dolan

indicated that he would try to have a positive attitude with his

co-workers and about his job. The second issue was Dolan's

belief that he was singled out for criticism by management.

Stinchfield wrote that SunGard encourages positive social

interaction but only to the extent it does not cause a

significant loss in productivity and that Dolan was not singled

out for criticism of his work habits. Dolan also complained about being turned down for three positions, and Stinchfield

states that Dolan was not qualified for those positions. Third,

Dolan was assured that his review was done by management

collectively, not just S t . Louis, and was also told that S t .

Louis advocated for him. Fourth, Dolan was told that management

appreciated his work, and Stinchfield wrote that he expected

"that the negativity has moved into the past, clearing the way

19 for you to move forward with us." Stinchfield stated that their

"fundamental agreement" from the meeting was that Dolan would

"attempt to take a more constructive and proactive approach to

raising [his] concerns."

At that time, there were four CSRs in Dolan's group, three

of whom were women. Dolan received the second highest salary.

Thorgerson received the highest salary. Dolan states that he

received the lowest pay increase in his group despite having a

better performance review score than Basnett, a female co-worker,

and similar comments to those received by Thorgerson.

Thorgerson remembered that Dolan often projected a negative

attitude at work and would yell at co-workers or speak abruptly.

After handling a challenging call, Dolan would often slam down

the receiver and scream an angry expletive. She thought that

Dolan became more angry during the spring of 2005.

After his performance review, S t . Louis noticed that Dolan would sometimes refuse to participate in group meetings. In

early March, S t . Louis told Dolan that his request for vacation

during the week of the Fourth of July had been denied in favor of

Thorgerson. During a group meeting on March 1 1 , Dolan raised the

vacation issue, yelling loudly at S t . Louis and Thorgerson, and

banging his hands on the table. Stinchfield was called to deal

with Dolan after the outburst. Thereafter, Thorgerson complained

20 to S t . Louis and Stinchfield that she was concerned that Dolan

might physically harm her or one of their co-workers. She said

she was particularly concerned because Dolan had acted in a

negative and hostile manner and had talked about owning a gun.

In April another incident occurred with a co-worker. Dolan

told S t . Louis that the co-worker had thrown one of his work

papers in the garbage. S t . Louis told him to get it out of the

garbage, which angered Dolan.

During the week of April 1 2 , SunGard's president, Brian

Traquair, Grimaldi, Stinchfield, Molloy, Hope, and Keefe met to

discuss Dolan's attitude and conduct, which they perceived to be

negative and hostile. They also discussed concerns for other

employees' safety. After their discussions, they decided to

terminate Dolan's employment.

Stinchfield and Molloy met with Dolan on April 15 to notify

him that he was terminated. Dolan remembers that he was told he was being terminated because he had not improved his negative

attitude after his 2004 performance review. Dolan told

Stinchfield and Molloy he thought he was being terminated in

retaliation for his complaints about S t . Louis, but they said

that it was not a disciplinary termination and that he would be

eligible for severance pay and unemployment benefits.

21 After his termination, Dolan called the Alertline and asked

to speak with Jeffers. He was told that he could not be given

the contact information. Dolan obtained Jeffers's telephone

number through SunGard's human resources department and left him

a message that he had been terminated in retaliation, as Dolan

had previously discussed with Jeffers. In August of 2005, Dolan

made a second complaint through the Alertline.

Dolan filed a complaint with the EEOC, alleging that SunGard

discriminated against him because of his gender and retaliated

against him for making complaints about discriminatory treatment.

The EEOC denied his complaint, finding that the evidence

supported SunGard's non-discriminatory reason for terminating

Dolan's employment because of his negative attitude and did not

show he was treated differently based on his gender.

Discussion Dolan contends that SunGard discriminated against him

because of his gender and retaliated against him because of his

complaints about S t . Louis's treatment of him, in violation of

Title VII and RSA 354-A. He also alleges wrongful discharge,

breach of the covenant of good faith and fair dealing, violation

of RSA 275:56, negligent and intentional infliction of emotional

distress, negligent and intentional misrepresentation, fraud,

22 conspiracy to commit fraud, and violation of the Equal Pay Act of

1963. SunGard seeks summary judgment on all claims.

A. Title VII and RSA 354-A

Both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e, and RSA chapter 354-A provide a cause of action for gender discrimination and discriminatory retaliation. The New Hampshire

Supreme Court relies on case law under Title VII in analyzing

claims under chapter 354-A. Madeja v . MPB Corp., 149 N.H. 3 7 1 ,

378 (2003); see also Dennis v . Osram Sylvania, Inc., 2007 WL

2783369 at *6 (D.N.H. Sept. 2 4 , 2007). Therefore, those claims

are considered together under the same standards.

1. Discrimination

Dolan alleges that SunGard discriminated against him based on his gender by treating him differently than his female co- worker, Valarie Thorgerson, and by subjecting him to a hostile work environment. SunGard moves for summary judgment on a claim that Dolan does not appear to assert, that he was terminated because of his gender.5 In his objection, Dolan continues to

5 SunGard raises an issue of the limitations period in a one- sentence footnote. Def. Mem. p . 1 3 , n.9. Because that issue is not sufficiently developed, the court will not consider i t . See Zannino, 895 F.2d at 1 7 ; Higgins v . New Balance Athletic Shoe,

23 assert that the discrimination he claims is based on disparate treatment and a hostile work environment. To the extent Dolan might have raised a discrimination claim based on his termination, that claim is deemed to be waived. Because SunGard failed to address the discrimination claim on the grounds that Dolan raised, disparate treatment and a hostile work environment, summary judgment is denied on counts one and two.6

2. Retaliation

Dolan alleges that SunGard retaliated against him, because

of his complaints about S t . Louis, by denying him opportunities

for financial gain, subjecting him to a higher level of scrutiny,

harassing him, and terminating his employment. More

specifically, Dolan asserts retaliation based on the denial of

his applications for three positions within SunGard, failing to

promote him to a 2d line CSR position, and terminating his employment based on a pretextual reason. SunGard asserts that

Inc., 194 F.3d 2 5 2 , 260 (1st Cir. 1999).

6 In a footnote, SunGard merely notes that Dolan alleged a discriminatory hostile environment, states that his allegations were insufficient, and asserts in a conclusory manner that Dolan cannot prove a hostile environment claim. In its reply, SunGard reprimands Dolan for failing to address in his objection the discrimination claim SunGard briefed, which is not the claim Dolan alleged in his complaint.

24 Dolan did not engage in protected activity, did not suffer an

adverse employment action prior to his termination, was not

qualified for the other jobs he sought within SunGard, and was

terminated because of his ongoing negative and hostile attitude.

To prove retaliation, Dolan must "provide evidence that (1)

[he] engaged in protected activity; (2) [he] suffered some

materially adverse action; and (3) the adverse action was

causally linked to [his] protected activity." Dixon v . Int'l

Bhd. of Police Officers, 504 F.3d 7 3 , 81 (1st Cir. 2007). Making

a complaint about discrimination is protected activity.7 See

Benoit v . Tech. Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003).

"[C]oncrete documentation [is] necessary to prove the causal link

between [a plaintiff's] protected activity and her retaliatory

treatment." Ramos v . Roche Prods., Inc., 936 F.2d 4 3 , 49 (1st

Cir. 1991).

a. Adverse Employment Actions

Assuming a disputed issue as to whether Dolan's complaints

were protected activity, SunGard asserts that Dolan cannot show

that heightened scrutiny or denial of his applications were

7 For a retaliation claim, complaints about discrimination are protected even if it is determined later that no discrimination actually occurred. See Feliciano-Hill v . Principi, 439 F.3d 1 8 , 26 (1st Cir. 2006).

25 adverse employment actions. "An employment action, to be adverse, must materially change the conditions of the plaintiff's employment . . . ." Valentin-Almeyda v . Municipality of Aguadilla, 447 F.3d 8 5 , 95 (1st Cir. 2006) (internal quotation marks omitted). The action must be sufficiently adverse to "dissuade a reasonable worker from making or supporting a charge of discrimination."8 Dixon, 504 F.3d at 8 1 .

When a plaintiff claims retaliation based on an employer's

decision to deny his application, "an 'adverse employment action'

requires a showing that (1) she applied for a particular position

(2) which was vacant and (3) for which she was qualified. In

addition, of course, she must show that she was not hired for

that position." Velez v . Janssen Ortho, LLC, 467 F.3d 8 0 2 , 803

(1st Cir. 2006). There is no dispute that Dolan applied for

three open positions at SunGard and his application was denied as

to all three. The hiring managers for the three positions state in their affidavits, however, that Dolan was not hired because he

was not qualified for the jobs. Although Dolan disputes the

hiring managers' assessments of the job requirements and his

qualifications, he agreed to strike the portions of his affidavit

that support his view. Even if the stricken parts of his

8 As noted above, New Hampshire follows federal case law in interpreting RSA chapter 354-A. Madeja, 149 N.H. at 379.

26 affidavit were considered, Dolan's differing views and

speculation about the reasons he was not hired for those

positions would not be sufficient to oppose summary judgment.

Therefore, Dolan has not shown a triable issue as to whether he

was improperly denied the three positions.

Dolan contends that he was subjected to heightened scrutiny

and that SunGard failed to investigate his complaints. His

evidence of heightened scrutiny is that Stinchfield testified in

his deposition that in response to S t . Louis's concerns about

Dolan's negative attitude, he told S t . Louis that they "would

have to keep an eye on him." P l . Ex. 2 5 , p . 6 7 . Even assuming

that Stinchfield and S t . Louis did "keep an eye on" Dolan, that

alone does not suggest an adverse employment action. In the

absence of evidence of how heightened scrutiny negatively

affected his work environment, Dolan has not provided competent

evidence to support that part of his claim. See Davis v . Emery Worldwide Corp., 267 F. Supp. 2d 109, 125 (D. M e . 2003).

Even assuming that failing to properly investigate workplace

complaints would be an adverse employment action in certain

circumstances, the record does not support Dolan's claim that

SunGard failed to investigate his complaints. Although Dolan

disagrees with the way his complaints were handled and the

outcome, he cannot dispute that SunGard addressed them.

27 Therefore, Dolan's dissatisfaction with the investigation is not

a basis for an adverse employment action in this case.

It is undisputed that his termination was an adverse

employment action. In addition, as noted above, Dolan contends

that he was denied promotion within the CSR group in retaliation

for his complaints against S t . Louis. SunGard failed to address

that part of Dolan's claim, and therefore, it is not considered

for purposes of summary judgment.

b. Causally Linked

Dolan must also show that the adverse actions he asserts

were causally linked to his complaints. Even if Dolan could show

that he was qualified for the three internal SunGard positions,

he has not shown that the managers' decisions to deny his

applications were causally linked to his complaints about S t .

Louis. Dolan lacks evidence that the hiring managers' decisions were related to his complaints about S t . Louis. Further, the

stricken parts of his affidavit provide only speculation, not

concrete documentation, about a possible link between his

complaints and the decisions not to hire him.

Dolan argues that he was terminated because of his

complaints of S t . Louis's discrimination against him. SunGard

asserts that Dolan was terminated because of his negative

28 attitude and hostile conduct. The record provides ample evidence

of Dolan's negativity and hostility in the workplace. The record

also supports SunGard's view that instead of improving, Dolan's

attitude was becoming more negative and hostile. S t . Louis and

Thorgerson were concerned that he might harm them or someone else

at work.

Dolan challenges the logic of SunGard's reasons for

terminating him and suggests other motives but offers no

evidentiary support for a causal link between his complaints and

the decision to terminate his employment.9 Dolan's attacks on

SunGard's reasons for firing him are not persuasive in light of

the record of his behavior. Standing alone, the more than seven

months between his complaints in August and the termination

decision in April is too long to support an inference of a

connection.10 See Colburn v . Parker Hannifin/Nichols Portland

Div., 429 F.3d 325, 337-38 (1st Cir. 2005) (interval of four months between protected activity and decision to terminate too

9 Dolan argues that SunGard began to advertise for his replacement in March before S t . Louis and Thorgerson complained about him. He acknowledges, however, that after he was terminated, several new CSRs were hired, not just a replacement for his position, suggesting that SunGard was advertising for new positions. 10 Dolan contends that he continued to complain about S t . Louis until shortly before he was fired.

29 long to support inference of retaliation). He offers no evidence

of a retaliatory motive or that others engaging in the same

conduct as he had done were not fired. Id. at 338. In addition,

Dolan received a raise along with a better-than-average

performance review for 2004, after he made his complaints, which

undermines an inference of retaliation. See Bennett v . Saint-

Gobain Corp., --- F.3d ---, 2007 WL 3227393, at *8 (1st Cir. Nov.

2 , 2007).

In the absence of evidence of a material factual dispute as

to whether the managers' decisions not to hire Dolan and

SunGard's termination decision were causally linked to Dolan's

complaints, SunGard is entitled to summary judgment on the

retaliation claim based on those grounds. Because SunGard did

not address the claim based on Dolan's lack of promotion within

the CSR group, that part of the claim is not resolved.

B. Wrongful Discharge

In his complaint, Dolan alleges that he was wrongfully

discharged because SunGard terminated his employment in

retaliation for his reports of workplace discrimination. For

purposes of opposing SunGard's motion for summary judgment, Dolan

adds that he was discharged because he refused to be pressured

30 into working more hours without pay and without positive

acknowledgment. SunGard opposes both grounds for Dolan's claim.

Under New Hampshire law, "[t]o succeed on [a wrongful

discharge claim], a plaintiff must prove: (1) [that] the

termination of employment was motivated by bad faith, retaliation

or malice; and (2) that she was terminated for performing an act

that public policy would encourage or for refusing to do

something that public policy would condemn." Lacasse v .

Spaulding Youth Ctr., 154 N.H. 246, 248 (2006) (internal

quotation marks omitted). The public policy element of a

wrongful discharge claim focuses on the plaintiff's actions in

relationship to public policy and is not satisfied by merely

stating a public policy. Howard v . Dorr Woolen Co., 120 N.H.

295, 297 (1980). Public policy may be statutory or non-

statutory. Karch v . BayBank FSB, 147 N.H. 525, 537 (2002). If

the asserted policy is statutory, a wrongful discharge claim is barred if the asserted statute preempts the common law claim.

Bliss v . Stow Mills, Inc., 146 N.H. 5 5 0 , 553-54 (2001).

1. Retaliation for Complaints about Discrimination

SunGard argues that Title VII preempts Dolan's wrongful

discharge claim based on a public policy against retaliation for

activity protected under Title VII. SunGard did not provide the

31 preemption analysis necessary to support that defense. See id.

Therefore it is denied.

Alternatively, SunGard contends that claim fails because

Dolan cannot provide factual support to oppose summary judgment.

As is discussed in the context of Dolan's Title VII and RSA

chapter 354-A, he has not shown that a material factual dispute

exists about the reason for his termination. Therefore, SunGard

is entitled to summary judgment on his wrongful discharge claim

based on his theory that he was discharged in retaliation for his

complaints about gender discrimination.

2. Complaints of Work without Pay

Dolan's new theory in support of his wrongful discharge

claim is that he was terminated because he refused to work harder

and longer hours than others without pay or any other positive

acknowledgment of his efforts. He relies on Scannell v . Sears Roebuck & Co., 2006 WL 2570601 (D.N.H. Sept. 6, 2006) to support

his claim. SunGard asserts that Dolan cannot prove that he was

wrongfully discharged because he refused to work without pay.

In Scannell, the plaintiff alleged that she was

constructively discharged from her job at Sears "when she refused

to continue to work longer and longer hours without compensation

or any other appreciation from her employer." Id. at * 3 . Dolan

32 lacks any evidence that he worked more hours than he was paid to

do. In addition, Dolan never refused to work because of long

hours or otherwise; instead, he was fired because of his negative

and hostile attitude. Therefore, Dolan has not shown that a

triable issue exists as to his new theory of wrongful discharge.

C. Breach of the Covenant of Good Faith and Fair Dealing

Dolan contends that SunGard terminated his at-will

employment in breach of the covenant of good faith and fair

dealing. In the context of at-will employment, an employer

breaches the covenant "by firing an employee out of malice or bad

faith in retaliation for action taken or refused by the employee

in consonance with public policy." Centronics Corp. v . Genicom

Corp., 132 N.H. 133, 140 (1989); accord Harper v . Healthsource

N.H., Inc., 140 N.H. 7 7 0 , 776 (1996). As such, breach of the

covenant of good faith and fair dealing in firing an at-will employee is the same as wrongful discharge. Therefore, SunGard

is entitled to summary judgment on this claim.

D. Violation of RSA 275:56

Dolan contends that SunGard violated RSA 275:56 by failing

to disclose Molloy's notes about the August meetings as part of

his personnel file in August of 2004. He contends that those

33 notes were then used against him in opposing his complaint to the

EEOC. He seeks an award of damages for the alleged violation.

RSA 275:56 requires employers to provide "a reasonable

opportunity for any employee who so requests to inspect such

employee's personnel file and further, upon request, provide such

employee with a copy of all or part of such file." The term

"personnel file" as used in the statute is defined in the

administrative code a s : any personnel records created and maintained by an employer and pertaining to an employee including and not limited to employment applications, internal evaluations, disciplinary documentation, payroll records, injury reports and performance assessments, whether maintained in one or more locations, unless such records are exempt from disclosure under RSA 275:56, III or are otherwise privileged or confidential by law. The term does not include recommendations, peer evaluations or notes not generated or created by the employer."

N.H. Admin. Lab. Code § 802.09.

SunGard contends that Molloy's notes were not part of Dolan's personnel file and, therefore, did not have to be

disclosed to him when he asked for his file in August of 2004.

Nevertheless, SunGard provided a copy of Dolan's personnel file,

along with copies of Molloy's notes, in response to Dolan's attorney's request for the file in May of 2005.11 SunGard also

11 Dolan filed suit in state court in December of 2005 pro s e , and SunGard removed the case to this court. Prior to that time, Dolan was represented by an attorney in his dealings with

34 faults Dolan for failing to provide a written statement of any

disagreement with information in the personnel file.

SunGard does not suggest that Molloy's notes were not

created by the employer. The notes pertain to an employee and

would fall into an area that is similar to the listed categories.

Given the breadth of the definition of personnel file, Molloy's

notes are covered by the definition. Therefore, if the notes

were available on August 1 9 , 2004, when Dolan asked to review his

personnel file, they should have been provided to him.

As a preliminary matter, however, neither party addresses

the basis for Dolan's claim for damages under RSA 275:56. The

statute does not explicitly provide for such a cause of action.

While current and former employees can enforce their right under

the statute to inspect and obtain a copy of their files, no

reported cases have interpreted the statute to provide a claim

for damages if an employer improperly withholds a file. See Pivero v . Largy, 143 N.H. 1 8 7 , 189-90 (1998); Rix v . Kinderworks

Corp., 136 N.H. 5 4 8 , 549 (1992). When a statute does not provide

an explicit cause of action, the court must determine whether an

implied right exists. Cross v . Brown, 148 N.H. 485, 487 (2002).

In the absence of either an explicit or implicit right of action

under the asserted statute, the claim does not exist. See

SunGard after his termination.

35 Blagbrough Family Realty T r . v . A & T Forest Prods., Inc., 155

N.H. 2 9 , 45 (2007).

Dolan has not shown that an implicit cause of action exists

under RSA 275:56. Because of his pro se status and SunGard's

failure to raise the issue, Dolan will be given an opportunity to

show the basis for his claim. As both the law and the pertinent

facts that govern Dolan's claim under RSA 275:56 are unsettled,

summary judgment is not appropriate.

E. Infliction of Emotional Distress

Dolan claims that SunGard intentionally and negligently

inflicted emotional distress by denying him opportunities for

advancement within SunGard, by terminating his employment, and by

failing to produce his gender discrimination complaint to the

EEOC. SunGard contends that Dolan cannot prove his claims.

1. Intentional Infliction of Emotional Distress

To support a claim of intentional infliction of emotional

distress, a plaintiff must submit evidence to show that the

defendant caused him severe emotional distress by "extreme and

outrageous conduct." Konefal v . Hollis/Brookline Coop. Sch.

Dist., 143 N.H. 256, 260 (1998). Extreme and outrageous conduct

is that which goes "beyond all possible bounds of decency, and

36 [is] to be regarded as atrocious, and utterly intolerable in a

civilized community." Moss v . Camp Pemigewassett, Inc., 312 F.3d

503, 511 (1st Cir. 2002) (construing New Hampshire l a w ) .

"[I]ndignities, annoyances, or petty oppressions that one may

expect to encounter in one's daily life" are not sufficient

grounds for a claim of intentional infliction of emotional

distress. Godfrey v . Perkin-Elmer Corp., 794 F. Supp. 1179, 1189

(D.N.H. 1992).

In response to SunGard's motion for summary judgment, Dolan

describes his working environment as being understaffed and

causing him stress.12 He contends that his superiors abused

their positions of authority by forcing him to work under

stressful conditions that were then ameliorated by hiring

additional CSRs after he was terminated.

Dolan's description of the circumstances that he says caused

him severe distress do not rise above the indignities, oppressions, and annoyances that commonly occur in the workplace.

As he has not shown a triable issue in regard to his claim of

12 In his objection, Dolan does not support that part of his claim, alleged in his complaint, that SunGard's failure to allow him opportunities for advancement and its decision to terminate him were the cause of his severe emotional distress. He also does not mention any issue pertaining to evidence presented to the EEOC.

37 intentional infliction of emotional distress, SunGard is entitled

to summary judgment on that claim.

2. Negligent Infliction of Emotional Distress

A claim of negligent infliction of emotional distress must

be based on sufficiently serious emotional distress. Thorpe v . State, 133 N.H. 299, 303 (1990). To prove the claim, therefore,

a plaintiff must establish "that physical injury resulted from

the emotional distress," and "expert testimony is required to

prove physical symptoms suffered from alleged negligent

infliction of emotional distress." In re Bayview Crematory, LLC,

930 A.2d 1190, 1195 (N.H. 2007).

SunGard contends that Dolan lacks evidence to show that he

suffered a physical injury caused by his distress and that he

lacks expert testimony to support any claimed injury. Dolan

responds that he ground his teeth at night while employed at SunGard, as a result of the stress he experienced at work, which

caused him to break a tooth in February of 2007, almost two years

after his employment at SunGard ended. He also asserts that he

spent a weekend in February of 2007 in the psychiatric ward of a

hospital.

Dolan offers no medical records or other competent evidence

to support his claims of physical injury and extreme emotional

38 distress or to link the cited issues to his work experiences.

Instead, he states that he believes he can prove his claim with

the help of expert testimony. Because he has not disclosed an

expert witness on that subject, however, and has not provided

expert testimony in support of his claim, he cannot avoid summary

judgment on the claim.

F. Misrepresentation and Fraud

Dolan alleges claims of negligent and intentional

misrepresentation based on his communications with Paul Jeffers

and claims of fraud and conspiracy to commit fraud based on

SunGard's handling of his complaints. SunGard moves for summary

judgment on these claims. Because intentional misrepresentation

and fraud are the same tort, those claims are addressed together.

1. Negligent Misrepresentation Negligent misrepresentation occurs when a defendant makes a

representation, which is material to the plaintiff's decision,

that the defendant should have known was false and the plaintiff

reasonably relies on the representation to his detriment.

Snierson v . Scruton, 145 N.H. 7 3 , 78 (2000). An omission of a

material fact is not a misrepresentation unless the defendant had

39 a duty to disclose. Ingaharro v . Blanchette, 122 N.H. 5 4 , 57

(1982).

Dolan alleges in his complaint that Jeffers negligently

misrepresented himself as an investigator working with Global

Compliance Services by not informing Dolan that he was SunGard's

"Vice President of Personnel." Am. Compl. ¶ 7 0 . In response to

SunGard's motion for summary judgment, Dolan restates his claim

as misrepresentation by Jeffers in failing to explain to Dolan

that Molloy was Jeffers subordinate at SunGard. Dolan asserts

that he would not have trusted Jeffers with his complaints about

S t . Louis, Molloy, and Grimaldi if he had known that Molloy

worked for Jeffers.

Neither Dolan's first negligent misrepresentation claim nor

his restated claim satisfy the elements of that cause of action.

The record provides no evidence that Jeffers had a duty to

explain his role at SunGard or his supervisory position. The record also does not suggest that Dolan reasonably relied on his

assumption that Jeffers worked for Global, rather than SunGard,

or reasonably failed to investigate Jeffers's position at

SunGard, if that were important to him. Therefore, SunGard is

entitled to summary judgment on Dolan's negligent

misrepresentation claim.

40 2. Fraud

"The tort of intentional misrepresentation, or fraud, must

be proved by showing that the representation was made with

knowledge of its falsity or with conscious indifference to its

truth and with the intention of causing another person to rely on

the representation." Patch v . Arsenault, 139 N.H. 313, 319

(1995). Intentional concealment of a material fact is also

fraud. Leavitt v . Stanley, 132 N.H. 7 2 7 , 729 (1990). To prove

fraud, a plaintiff also "must demonstrate justifiable reliance."

Van Der Stok v . Van Voorhees, 151 N.H. 679, 682 (2005) (quotation

marks omitted).

Dolan asserts that Jeffers intentionally misrepresented his

role at SunGard. The record shows, however, that Jeffers

identified himself as a vice president at SunGard. Dolan offers

no evidence that Jeffers made any intentionally false

representations about his position at SunGard or that he intentionally concealed that information. In addition, Dolan

cannot show that he justifiably relied on his mistaken assumption

based on a lack of information.

Dolan also asserts that SunGard's discrimination policy was

fraudulent because the policy provides a grievance procedure

through Global Compliance and represents that employee complaints

will be handled by "highly trained specialists." O b j . at 2 8 .

41 Dolan assumed that his complaint would be investigated by Global,

not by SunGard. He argues that the grievance procedure allowed

SunGard to intercept his complaint and kept him from filing a

complaint with the EEOC. He also argues that SunGard improperly

withheld the complaints he made about S t . Louis from him, which

interfered with ability to support his EEOC complaint.

Dolan's mistaken assumptions about SunGard's grievance

procedure are not a basis for a fraud claim. His dispute with

SunGard about his complaints against S t . Louis also does not

support a fraud claim. Therefore, SunGard is entitled to summary

judgment.

3. Conspiracy

"[U]nder New Hampshire law, the elements of a civil

conspiracy are: (1) two or more persons; (2) an object to be

accomplished (i.e., an unlawful object to be achieved by lawful or unlawful means or a lawful object to be achieved by unlawful

means); (3) an agreement on the object or course of action; (4)

one or more unlawful overt acts; (5) damages as the proximate

result thereof." In re Appeal of Armaganian, 147 N.H. 1 5 8 , 163

(2001) (internal quotation marks omitted). "There must be

something done pursuant to the conspiracy which harms the

plaintiff." Id.

42 Although in the complaint the claim is titled "Conspiracy to

Commit Fraud," Dolan asserts that Molloy, Grimaldi, Jeffers,

Stinchfield, Keefe, S t . Louis, Thorgerson, Hope, and Traquair

conspired to have him wrongfully discharged. He argues that they

tried to cause him sufficient distress to make him resign and,

when that did not work, they created a non-discriminatory reason

to terminate him. Because his claims of wrongful discharge and

intentional infliction of emotional distress have been resolved

against him, however, Dolan lacks an object of the conspiracy to

support his claim. Further, as SunGard points out, Dolan lacks

any evidence of a conspiracy. Summary judgment in SunGard's

favor is appropriate on the conspiracy claim.

G. Equal Pay Act

The Equal Pay Act ("EPA") prohibits an employer from paying

an employee less than employees of the opposite sex "for equal work on jobs . . . which are performed under similar working

conditions, except where such payment is made pursuant to (I) a

seniority system; (ii) a merit system; (iii) a system which

measures earnings by quantity or quality of production; or (iv) a

differential based on any other factor other than sex." 29

U.S.C. § 206(d)(1). A "plaintiff must first establish a prima

facie case by showing that the employer paid different wages to

43 specific employees of different sexes for jobs performed under

similar working conditions and requiring equal skill, effort and

responsibility." Ingram v . Brink's, Inc., 414 F.3d 2 2 2 , 232 (1st

Cir. 2005). "Once the plaintiff establishes a prima facie case

of an unlawful wage differential, the burden shifts to the

employer to show that the differential is justified under one of

the Act's four exceptions." Id.

Dolan contends that he was paid less than Thorgerson for

doing the same work. SunGard contends that Dolan cannot make a

prima facie case because he was paid more than two other female

co-workers and because he did not do the same work as Thorgerson

or perform at the same level as she did.13 Thorgerson handled

more difficult client calls, did more research, and spent more

time on quality assurance. She also was the designated

supervisor when S t . Louis was absent. SunGard asserts, based on

affidavits submitted by S t . Louis and Stinchfield, that the difference in pay also was justified because of Thorgerson's

superior performance.

Dolan argues that he did the same work as Thorgerson but

lacks evidence to prove that assertion. Although he claims to

have a quantity of evidence to show that he worked on quality

13 SunGard's defense based on the pay rate of the two female CSRs is inapposite. Dolan asserts that he performed the same job as Thorgerson and should have been paid the same amount.

44 assurance matters, the emails he cites do not show that was the

case o r , more importantly, that his work was the same as

Thorgerson's work.14 Dolan acknowledges that Thorgerson earned

higher review scores than he did but argues that S t . Louis

undervalued his performance.

As presented, Dolan cannot show that he performed the same

work as Thorgerson or refute SunGard's proof that Thorgerson's

performance was superior to his. Therefore, summary judgment is

appropriate in SunGard's favor on Dolan's EPA claim.

Conclusion

For the foregoing reasons, the defendant's motion to strike

(document n o . 58) is granted as to the following paragraphs in

the plaintiff's affidavit: 4 , 8 , 1 1 , 1 2 , 1 9 , 2 0 , 2 5 , 2 8 , 3 2 , 3 5 ,

3 6 , 3 7 , 3 8 , 4 1 , 4 4 , 4 6 , 4 7 , 4 9 , 5 4 , 5 7 , 6 1 , and 6 2 . The

plaintiff's motion to exclude (document n o . 62) is granted for purposes of summary judgment.

The defendant's motion for summary judgment (document n o .

49) is granted as to Counts 5 , 6, 8 , 9, 1 0 , 1 1 , 1 2 , 1 3 , 1 4 , 1 5 ,

and 1 6 , and on Counts 3 and 4 except the claim based on SunGard's

14 The cited emails mention "test results," "testing," "QA comments," and that Dolan was "listed for the QA resource." Without explanation, however, those comments do not show that Dolan was performing the same work as Thorgerson.

45 failure to promote Dolan within the CSR group. Summary judgment

is denied on Counts 1, 2, and 7.

The plaintiff shall file a supplemental brief addressing the

basis for his claim under RSA 275:56 in count 7, which shall be

filed on or before January 30, 2008.

If appropriate, the defendant shall file a supplemental

motion for summary judgment, addressing the claims in Counts 1,

2, 3, 4, and 7 that were not resolved by this order, on or before

February 11, 2008. The plaintiff will have thirty days to

respond.

SO ORDERED.

r _ _ osfeph A. DiClerico, Jr. United States District Judge

January 8, 2008

cc: Kenneth J. Barnes, Esquire Matthew A. Caffrey, Esquire William E. Hannum, III, Esquire Shannon M. Lynch, Esquire