L'Etoile v. New England Finish System CV-06-207-JL 08/29/08
UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Nicole L. L'Etoile
v. Civil No. 06-CV-00390- JL Opinion No. 2008 DNH 163 New England Finish Systems, Inc.
O R D E R
The defendant. New England Finish Systems, Inc. ("New
England Finish") moves for summary judgment on claims by its
former employee, Nicole L. L'Etoile, alleging sex discrimination,
including a hostile work environment, and retaliatory discharge
in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§2000e-2(a)(l), 2000-e-3(a).1 New England Finish has
also moved to strike a number of the statements relied on in
L'Etoile's objection to its summary judgment motion. This court
has jurisdiction under 28 U.S.C. § 1331 (federal question). For
the foregoing reasons. New England Finish's motion for summary
judgment is granted in part and denied in part, and its motion to
strike is denied as moot.
1 L'Etoile advised the court that she is voluntarily dismissing her claims under N.H. Rev. Stat. Ann. § 354-A:7, I, V. I. Applicable Legal Standard
Summary judgment is appropriate where the "pleadings, the
discovery and disclosure materials on file, and any affidavits
show that there is no genuine issue as to any material fact and
that the movant is entitled to a judgment as a matter of law."
Fed. R. Civ. P. 56(c). In making this determination, the "court
must scrutinize the record in the light most flattering to the
party opposing the motion, indulging all reasonable inferences in
that party's favor." Mulvihill v. Top-Flite Golf Co., 335 F.3d
15, 19 (1st Cir. 2003). The following background facts are set
forth in accordance with this standard. In determining those
facts, however, the court has not relied on any of the evidence
challenged by New England Finish's motion to strike, making that
motion moot.2 See Evans v. Taco Bell Corp., 2005 DNH 132, 10
(denying motion to strike as moot where challenged evidence was
treated as irrelevant to summary judgment motion).
2 The court notes that New England Finish has filed motions in limine seeking to exclude the same evidence at trial. Those motions will be ruled on in the ordinary course.
2 II. Background
L'Etoile, a member of the Painters and Allied Trades
District Council #35, was hired by New England Finish, a
construction company, in January 2002, through a telephone call
to one of its field supervisors, Raymond Houle. Houle told
L'Etoile, who had been working as a drywall finisher since 1984,
that he would call her whenever New England Finish had a job
where it needed a woman, such as its upcoming job installing
drywall in a luxury condominium project in Boston, The Belvedere.
Houle later testified that, on construction projects done as part
of the "Boston Plan," the city requested that a certain
percentage of workers be women. Houle also acknowledged that,
consistent with what he told L'Etoile when he hired her, this
requirement affected the majority of the jobs to which she was
assigned while working for New England Finish.
Starting with the Belvedere job, L'Etoile worked as a
drywall taper for New England Finish during six separate periods
between January 14, 2002 and April 14, 2004. At the end of each
of these periods--except for the last--the parties agree that
L'Etoile was laid off as a particular job wound down and the
company's need for tapers correspondingly decreased. L'Etoile
claims, however, that the company chose to lay her off, rather
3 than similarly skilled male workers, due to her gender.3 In
fact, L'Etoile testified, during her regular calls to Houle to
inquire about available work during her periods of layoff, Houle
said that he would re-hire her as soon as New England Finish got
a job that required a woman, like the Belvedere job had.
New England Finish, on the other hand, says that it laid off
L'Etoile instead of other tapers "because she was not as
productive as other workers, was not as flexible as to the work
she would do and was generally a more difficult employee to
manage." In particular. New England Finish claims that L'Etoile
worked more slowly than the other tapers, stopped working earlier
in the day than they did, smoked on job sites where it was
prohibited, and expressed reluctance to do sanding work,
especially on ceilings, as well as to work in high places or
carry her taping compound up flights of stairs. L'Etoile, in
turn, hotly disputes New England Finish's assertions, which are
based largely on the testimony of Andre Pomerleau, the foreman
who supervised L'Etoile on several of her jobs for the company.
3 L'Etoile bases this argument largely on Houle's testimony that, from April 5, 2002 to January 31, 2003, he considered her a "core worker," i.e., an employee to whom he had a responsibility to keep on the job; as a result, a core worker ended up working an average of forty-eight weeks each year. L'Etoile points out that, over the span of her employment with New England Finish, she worked much less frequently than that.
4 L'Etoile denies that her performance suffered from any of the
claimed deficiencies,4 and states that she was never criticized
for any of them by her supervisors--with the exception of a
complaint by Pomerleau, during her last job for New England
Finish, that she had packed up early on one occasion, which
L'Etoile disputes in any event.
L'Etoile also recounts a series of sexist comments by
Pomerleau and her other supervisors at New England Finish,
starting with statements since her hiring by Pomerleau and her
other foreman on jobs for the company, Roger Hallee, that they
did not want women there. Specifically, L'Etoile testified to
occasions when she overheard Hallee say, to other workers, "I
don't like women on my job," and--in reference to L'Etoile
herself--"See, fucking women on the job. They don't want to do
what we tell them to do." L'Etoile also testified to an incident
where she heard Hallee say, in response to seeing her talking
with a male co-worker, "Him and his fuckin' women's lib."
According to L'Etoile, her other foreman, Pomerleau, often
used a French-language expression which translates to "Les Christ
4 L'Etoile acknowledged that she did not want to work in high places, but only when she had to work there alone, which she considered a safety risk.
5 des femmes!"--French for "Goddamned women!"--in her presence,5
proceeding to list a number of tasks attendant to drywall
installation that women did not want to do. This happened as
recently as April 2004, while L'Etoile was working on what turned
out to be her last job for New England Finish. L'Etoile further
testified that Pomerleau said, while she was working on the
Belvedere job, that she would be "the first one out" when layoffs
began "because we only have to keep one woman here."6 L'Etoile
testified that hearing such comments--which Pomerleau has denied
making--caused her to feel "like a little piece of trash"
compared to her male co-workers.
In late March 2004, while working on a job with Pomerleau,
L'Etoile confronted him with a copy of the Technical Assistance
Guide for Federal Construction Contractors, a publication by the
Office of Federal Contract Compliance of the Department of Labor
to assist employers in following nondiscrimination and
affirmative action laws in their dealings with the federal
5 It appears to be undisputed that L'Etoile understands French, and that she understood what the phrase meant.
6 Pomerleau's wife, Cecile, also worked as a taper for New England Finish; she was the only other woman who ever worked with L'Etoile on any of the company's jobs.
6 government.7 In the days prior to the confrontation, L'Etoile
had argued with Pomerleau when he claimed New England Finish
needed to have women only on certain jobs; she used the Technical
Assistance Guide in an attempt to prove her point that the
company was required to hire women on all jobs. Though Pomerleau
did not read the guide at that point, his wife did, telling him,
"It's there in black and white . . . you have to have women on
all job[s] as an equal opportunity." Pomerleau considered the
guide "a joke," and did not read it himself.
This was the first time L'Etoile had complained about the
treatment of women at New England Finish. Soon after, Pomerleau
complained to Houle--also for the first time--about L'Etoile's
performance on the job, during a discussion of which tapers to
lay off as the work on the current project petered out. In fact,
until that point, Houle had never heard complaints about L'Etoile
from anyone, though he claims to have personally noticed her
smoking on the job once, and that she did not work as efficiently
as the other tapers. Houle testified that, based on these
observations and Pomerleau's complaint--which included the
charges that L'Etoile did not want to sand or carry her compound
7 During a visit to the agency's field office, L'Etoile had learned, among other things, that she was entitled to the same employment opportunities as men.
7 up stairs--the men agreed that she should be the next taper laid
off. There is no evidence, however, that Pomerleau told Houle
during this discussion about having been confronted with the
Technical Assistance Guide by L'Etoile.8
L'Etoile was indeed laid off, on April 14, 2006, in an
action that New England Finish has admitted was a "termination"
in its answer filed in this action. Houle testified that New
England Finish has not attempted to re-hire L'Etoile for
essentially the same reasons he gave for laying her off; he
further testified that the company's generalized slowdown in the
years since has also played a factor, but acknowledged that other
tapers have been hired during that time. New England Finish has
stated in its answer, however, that L'Etoile's union sent the
company a letter directing it to terminate her for failing to
attend mandatory safety training--a rationale that Pomerleau and
Houle have since explained had nothing to do with their actions,
since, among other reasons, they had already terminated L'Etoile
by the time the letter was received.
On July 16, 2004, L'Etoile filed a charge of discrimination
against New England Finish with the New Hampshire Human Rights
8 In support of her contrary position, L'Etoile points to pages from Houle's deposition transcript, but they do not support that view, even when read in the light most favorable to her. Commission, alleging, inter alia, the sex discrimination, hostile
environment, and retaliation claims alleged in this action.
After the Equal Employment Opportunity Commission, in reliance on
its state counterpart's finding of no probable cause for
L'Etoile's claims, issued her a notice of her right to sue, she
commenced this action.
Ill. Analysis
New England Finish moves for summary judgment on each of
L'Etoile's claims, arguing that (A) insofar as they rely on acts
that occurred more than 300 days prior to when L'Etoile filed her
charge of discrimination with the Human Rights Commission, they
are barred by the applicable statute of limitations, (B) L'Etoile
cannot show a hostile environment claim as a matter of law, and
(C)- (D) L'Etoile cannot make out a prima facie case of
discrimination in any of her layoffs, or retaliation in her
ultimate termination but, even if she can, she cannot rebut New
England Finish's legitimate, nondiscriminatory reasons for those
actions. The court will consider these arguments in turn.
A. Whether Certain of L'Etoile's Claims Are Time-Barred
An employee must file a charge of discrimination under Title
VII "within three hundred days after the alleged unlawful
9 practice occurred."9 42 U.S.C. 2000e-5(e)(1). For purposes of
this rule, "[e]ach discriminatory act starts a new clock for
filing charges alleging that act. The charge, therefore, must be
filed within the . . . 300-day period after the discrete
discriminatory act occurred." Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002). It is undisputed that a number
of the "discrete discriminatory acts" encompassed by L'Etoile's
discrimination claim, i.e., her layoffs on March 4, 2002, June
24, 2002, January 1, 2003, and August 15, 2003--occurred more
than 300 days before she filed her charge of discrimination on
July 16, 2004. L'Etoile's claim that each of those layoffs was
illegally motivated by her gender is time-barred. See Hargett v.
Valiev Fed. Savings Bank, 60 F.3d 754, 763-64 (11th Cir. 1995)
(ruling that lay-off started running of Title VII limitations
period, despite subsequent alleged discriminatory act); London v.
Coopers & Lvbrand, 644 F.2d 811, 816 (9th Cir. 1980) (describing
layoff as an example of a discrete act that starts the
limitations clock). L'Etoile offers no argument to the contrary.
What L'Etoile does argue is that her hostile environment
claim is not time-barred because, while it relies on acts by her
9 This is the limitations period for a plaintiff who, like L'Etoile, initially files the charge with a state or local agency empowered to grant relief from the alleged unlawful practice. See 42 U.S.C. § 2000e-5(l).
10 supervisors outside of the limitations period, it also relies on
acts within that period, viz., Pomerleau's cursing about women's
subpar abilities as drywall installers in April 2004. "Provided
that an act contributing to the [hostile environment] claim
occurs within the filing period, the entire time period of the
hostile environment may be considered by a court for purposes of
determining liability." Morgan, 536 U.S. at 117. L'Etoile is
therefore correct that New England Finish's statute of
limitations defense has no effect on her hostile environment
claim.10 New England Finish's motion for summary judgment on
limitations grounds is granted as to L'Etoile's claim of
discrimination in the layoffs that occurred on August 15, 2003,
and earlier, but is otherwise denied.
B. L'Etoile's Hostile Environment Claim
Title VII prohibits sex based-discrimination in the form of
workplace harassment "sufficiently severe or pervasive to alter
the terms and conditions of [the victim's] employment and create
10 L'Etoile also suggests that she may use evidence of her supervisors' sexist comments, even though they occurred outside the limitations period, in support of her retaliation claim. That is an evidentiary issue that is not properly before the court in the context of the summary judgment motion, so the court expresses no view on the admissibility of any of those statements at this point. See note 1, supra.
11 an abusive working environment." Meritor Sav. Bank v. Vinson,
All U.S. 57, 67 (1986) (internal quotation marks omitted). To
violate Title VII, such an "environment must be both objectively
and subjectively offensive, one that a reasonable person would
find hostile or abusive, and one that the victim did in fact
perceive to be so." Faraqher v. City of Boca Raton, 524 U.S.
775, 787 (1998). Here, the defendants do not dispute, for
purposes of their summary judgment motion, that L'Etoile
subjectively perceived the environment on the New England Finish
jobs as offensive, only that no reasonable person could
objectively see it that way because the complained-of behavior
was not "sufficiently severe or pervasive." The court disagrees.
"The objectivity severity of harassment should be judged
from the perspective of a reasonable person in the plaintiff's
position, considering all the circumstances." Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal
quotation marks omitted). These circumstances include, but are
not limited to (a) the frequency of the discriminatory conduct,
(b) whether it is physically threatening or humiliating, or a
mere offensive utterance, and (c) whether it unreasonably
interferes with an employee's work performance, but none of these
single factors is required. Harris v. Forklift Svs., Inc., 510
U.S. 17, 23 (1993). Given the fact-intensive nature of this
12 inquiry, whether a plaintiff's particular working conditions rose
to the level of a hostile environment can be resolved on summary
judgment in appropriate cases, but is an inquiry "often reserved
for a fact finder," Pomales v. Celulares Telefonica, Inc., 447
F.3d 79, 83 (1st Cir. 2006), as New England Finish acknowledges.
L'Etoile testified that, from the beginning of her tenure
with New England Finish, both of her foremen, Pomerleau and
Hallee, repeatedly indicated that they did not want women on the
job. Both men expressed this sentiment by cursing women in front
of L'Etoile and demeaning their abilities, comments that were
directed specifically at L'Etoile on more than one occasion.
There is no question that remarks of this nature can support a
hostile environment claim. See Lipsett v. Univ. of P.R., 864
F.2d 881, 905 (1st Cir. 1988) (ruling that female doctors'
suffering a "constant verbal attack, one which challenged their
capacity as women to be surgeons . . . could be found to have
contributed significantly to the hostile environment"); see also,
e.g., Boumehdi v. Plastaq Holdings, LLC, 489 F.3d 781, 788 (7th
Cir. 2007) (overturning summary judgment for employer on hostile
environment claim "[a]lthough most of [the] alleged comments were
sexist rather than sexual," including supervisor's remarks that
women did not belong on the job).
13 New England Finish attempts to minimize the significance of
these comments, arguing that L'Etoile has not identified enough
"specific statements" to survive summary judgment on her hostile
environment claim. To be sure, "conclusory allegations" do not
suffice to defeat summary judgment, Luian v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990), but L'Etoile came forward with a
good deal more than that in her deposition testimony.11 She
testified, for example, that Pomerleau made his French-language
"Goddamned women!" comments "often." Although she identified
only two specific instances, the court cannot, in deciding New
England Finish's motion for summary judgment, construe that
testimony to mean that those were the only two times Pomerleau
ever did that. See Billings v. Town of Grafton, 515 F.3d 39, 50
(1st Cir. 2008) (relying on plaintiff's testimony that harassing
conduct "happened a lot" in reversing summary judgment against
her on hostile environment claim).
Furthermore, L'Etoile also testified to a number of comments
from Hallee, and all of the complained-of remarks occurred in a
11 In a like vein. New England Finish suggests that L'Etoile's testimony alone is inadequate, arguing that she "has been unable to produce a single witness" to corroborate these allegations. But this court is not aware of any authority, either with regard to hostile environment claims specifically or in a broader context, requiring a plaintiff to provide her own testimony to survive summary judgment.
14 context where she was told, by both Houle and Pomerleau, that she
was there only because New England Finish was required to have a
woman working on certain jobs. In any event, "there is no magic
number of incidents required to establish a hostile environment
claim." Boumehdi, 489 F.3d at 789. When the evidence is
examined in the light most favorable to L'Etoile, the defendants
are not entitled to summary judgment on this claim.
C. L'Etoile's Discrimination Claim
New England Finish argues that L'Etoile cannot make out a
prima facie case of sex discrimination in any of her lay-offs,
and that, even if she can, she cannot rebut the company's
proffered legitimate, nondiscriminatory reasons for those
layoffs. Given the ruling that the statute of limitations bars
L'Etoile's claims arising out of her layoffs of August 15, 2003,
and earlier, the court will consider this argument only as to the
layoffs of December 8, 2003 and April 14, 2004--the latter of
which effectively served as a termination.12
12 The court acknowledges that New England Finish disputes this characterization, arguing that the decision to lay off L'Etoile on April 14, 2004, was just that; it was not until later that the company decided not to re-hire her again. But the evidence, when taken in the light most favorable to L'Etoile, suggests that she was effectively terminated on April 14, 2004, which, in any event. New England Finish has admitted in its answer. So the court will interchangeably refer to the April 14, 2004, action as a layoff or a termination.
15 To establish a prima facie case of a discriminatory layoff,
an employee must show "that he or she (1) was a member of a
protected class, (2) met the employer's legitimate job-
performance expectations, (3) was laid off, and (4) that the
employer either did not treat members of the protected class
neutrally or retained persons not within the protected class in
the same position." Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995);
see also, e.g., Currier v. United Techs. Corp., 393 F.3d 246, 254
(1st Cir. 2004). If the employee succeeds in making this
showing, which is "not onerous," the burden shifts to the
employer to articulate a legitimate, nondiscriminatory reason for
laying off the plaintiff. Cruz-Ramos v. P.R. Sun Oil Co., 202
F.3d 381, 384 (1st Cir. 2000) (citing St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 506-07 (1993)). If the employer succeeds in
making that showing, the burden shifts back to the employee to
show "(1) that the employer's articulated reason for laying off
the plaintiff is a pretext and (2) that the true reason is
discriminatory." Udo, 54 F.3d at 13.
New England Finish argues that L'Etoile cannot show a prima
facie case of discrimination because "the possibility . . .
exist[s] that she was laid off due to problems with her
performance." But the mere "possibility" that an employee did
not meet his or her employer's legitimate expectations does not
16 entitle the employer to summary judgment on a discrimination
claim, provided the employee adduces "minimally sufficient
evidence" to the contrary. Vega v. Kodak Caribbean, Ltd., 3 F.3d
476, 479 (1st Cir. 1993). Here, L'Etoile has shown that, despite
New England Finish's stated concerns about her performance, those
were (with one exception) never previously voiced to her and,
indeed, the company kept rehiring her after laying her off. This
evidence suffices to establish a prima facie case that she was
qualified to work as a taper. See Currier, 393 F.3d at 248-54
(ruling that employee with "record of proven success" made out
prima facie case of qualifications, despite negative reviews);
Brennan v. GTE Gov't Svs. Corp., 150 F.3d 21, 27 (1st Cir. 1998)
(ruling that employee had shown prima facie case of
qualifications where he "received acceptable rankings in
virtually every appraisal" in his previous reviews); Woodman v.
Haemonetics Corp., 51 F.3d 1087, 1092 (1st Cir. 1995) (similar).
L'Etoile concedes that New England Finish has met its burden
of articulating a legitimate, non-discriminatory reason for the
layoffs, i.e., that she was less valuable as an employee, in
terms of both her productivity and her flexibility, than her co
workers who remained. In attempting to expose this as pretext,
L'Etoile disputes each of the particular shortcomings proffered
by the company, emphasizing again that she had essentially never
17 been criticized for her work in the past. Evidence that an
employer has never previously voiced its stated concerns over an
employee's performance may suggest that those concerns are
pretextual. See Hidalgo v. Overseas Condado Ins. Agencies, Inc.,
120 F.3d 328, 336-37 (1st Cir. 1997); Mulero-Rodriguez v. Ponte,
Inc., 98 F.3d 670, 675 (1st Cir. 1996); Hebert v. Mohawk Rubber
Co., 872 F .2d 1104, 1115-16 (1st Cir. 1989) .
L'Etoile also relies on the sexist comments allegedly
uttered by her foremen, Hallee and Pomerleau; such "[s]tatements
by a supervisor carrying the inference that the supervisor
harbored animus against protected classes of people or conduct
are clearly probative of pretext." Hodgens v. Gen. Dynamics
Corp., 144 F.3d 151, 171 (1st Cir. 1998). Finally, L'Etoile
points to evidence that, on both December 8, 2003 and April 14,
2004, she was laid off as New England Finish completed work on a
job for which it was required to employ a woman, in keeping with
the remarks by both Pomerleau and Houle that she would be
assigned only to such jobs.13 These kinds of remarks can also
show discriminatory animus. See, e.g., Billings, 515 F.3d at SO
SO (relying on employer's comments linking its actions to
13 There is also the fact that, when New England Finish laid off L'Etoile in both December 2003 and April 2004, it was actually increasing the number of tapers in its employ on a company-wide basis.
18 employee's pending discrimination lawsuit in reversing summary
judgment for employer on retaliation claim).
L'Etoile's evidence, taken as a whole, suffices to create a
genuine issue as to whether New England Finish's justifications
for laying her off on the dates in question are pretextual and
whether, in fact, the true reason for those layoffs was
discriminatory animus. While this evidence is not overwhelming
by any means, "where a plaintiff in a discrimination case makes
out a prima facie case and the issue becomes whether the
employer's stated nondiscriminatory reason is a pretext for
discrimination, courts should be particularly cautious about
granting summary judgment." Hodgens, 144 F.3d at 167. In an
exercise of that caution, this court denies New England Finish's
motion for summary judgment on the discrimination claims.
D. L'Etoile's Retaliation Claim
The burden-shifting framework used to resolve employment
discrimination claims under Title VII is also used to resolve
retaliation claims. See Hodgens, 144 F.3d at 160. To make out a
prima facie case of retaliation, an employee must show (1) he or
she engaged in a protected activity, (2) he or she suffered a
materially adverse action, and (3) a causal connection between
the protected activity and the adverse action. See, e.g.,
19 Mariani-Colon v. Dep't of Homeland Sec, ex rel. Chertoff, 511
F.3d 216, 223 (1st Cir. 2007). If the employee carries this
"relatively light burden," id. at 224, the burden shifts to the
employer to articulate a legitimate, non-discriminatory reason
for the adverse action. See, e.g., Billings, 515 F.3d at 55.
"If the employer's evidence creates a genuine issue of fact, the
presumption of discrimination drops from the case, and the
plaintiff retains the ultimate burden of showing that the
employer's stated reason for terminating him was in fact a
pretext for retaliating against him." Hodgens, 144 F.3d at 161.
In moving for summary judgment on L'Etoile's retaliation
claim. New England Finish argues that she cannot show a causal
connection between her protected conduct--confrenting Pomerleau
with the Technical Assistance Guide in late March 2004--and her
subsequent termination, either for purposes of her prima facie
case or to rebut the company's proffered non-discriminatory
reasons for firing her. But, as L'Etoile notes, the "temporal
proximity" between when she confronted L'Etoile and when she was
laid off, which was less than three weeks, itself suffices to
demonstrate a prima facie case of retaliation. Mariani-Colon,
511 F .3d at 224.
20 New England Finish challenges this conclusion,14 pointing
out that "to draw such an inference, there must be proof that the
decisionmaker knew of the plaintiff's protected conduct when he
or she decided to take the adverse employment action." Pomales,
447 F.3d at 85. This argument is premised on the view that,
because Pomerleau did not tell Houle about the confrontation with
L'Etoile until long after the firing, that protected conduct
could not have figured into Houle's decision to terminate her.
But, while it is undisputed that Houle had the ultimate
authority to hire and fire employees, he gave testimony that,
when taken in the light most favorable to L'Etoile, suggests that
Pomerleau participated in the decision to lay her off on April
14, 2004.15 This evidence creates a genuine issue of fact as to
whether the "decisionmaker" on L'Etoile's final layoff was indeed
14 New England Finish also argues that "three weeks is an inordinately long time in an industry where people are laid off on a daily basis." While this argument may have some merit, it is undercut by the fact that the company was actually increasing its number of tapers at that point, see note 13, supra, as well as by the ambiguity in the record--which must be construed in L'Etoile's favor--as to how long passed between her confronting Pomerleau and his complaining to Houle, as opposed to when the layoff actually occurred. At this stage, it cannot negate L'Etoile's temporal proximity theory.
15 Specifically, Houle testified, in reference to this decision, that he and Pomerleau "both came to an agreement that work had slowed down and that she was the next one," in keeping with the company's practice of making layoff decisions in " [c]ombination" between the two men.
21 unaware of her protected conduct. See Pomales, 447 F.3d at 85
(ruling that employee could not establish retaliation where
decisionmaker lacked knowledge of protected conduct and there was
"no proof" that those at the company who did "participated [in]
or otherwise influenced" the decision); Santiaqo-Ramos v.
Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000)
(reversing summary judgment for employer on discrimination claim
based in part on sexist comments by subordinate who "was in a
position to influence . . . the key decisionmaker").
As just discussed in the analysis of L'Etoile's
discrimination claim, which also arises, in part, out of the
April 14, 2004, termination, she has come forward with sufficient
evidence to create a genuine issue as to whether the company's
stated reasons for firing her were pretexts for unlawful
retaliation. In the case of her retaliation claim, however,
there is also the fact that, in its answer to L'Etoile's amended
complaint. New England Finish gave an entirely different reason
for terminating her, i.e., that she had failed to complete
mandatory safety training. But Pomerleau and Houle attempted to
retreat from this rationale at their depositions, as discussed
supra. These kinds of shifting explanations for an employer's
challenged action can demonstrate pretext. See, e.g., Billings,
515 F.3d at 56. Based on this and the other evidence already
22 surveyed. New England Finish's motion for summary judgment on
L'Etoile's retaliation claim is denied.
IV. Conclusion
For the foregoing reasons. New England Finish's motion for
summary judgment (document no. 23) is granted as to L'Etoile's
discrimination claim, insofar as it arises out of the layoffs of
March 4, 2002, June 24, 2002, January 1, 2003, and August 15,
2003, but is otherwise denied. New England Finish's motion to
strike (document no. 28) is denied as moot.
SO ORDERED.
Dated: August 29, 2008
cc: Heather M. Burns, Esq. Charla B. Stevens, Esq.