UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Rebecca Hopkins, Plaintiff
v. Case No. 12-cv-238-SM Opinion No. 2014 DNH 137 ADP, Inc., Defendant
O R D E R
Pro se plaintiff, Rebecca Hopkins, brings this action
against her former employer, ADP, Inc., alleging that she was the
victim of gender and disability-based discrimination, in
violation of federal law. She also claims ADP unlawfully
terminated her employment and wrongfully refused to pay both
wages and bonuses to which she was entitled, all in violation of
state law. ADP denies any wrongdoing and moves for summary
judgment on each of the four counts advanced in Hopkins’
complaint. Hopkins objects and also moves for summary judgment.
For the reasons discussed, Hopkins’ motion is denied and ADP’s
motion is granted.
Standard of Review
When ruling on a motion for summary judgment, the court must
“view the entire record in the light most hospitable to the party
opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith, 904 F.2d 112, 115
(1st Cir. 1990). Summary judgment is appropriate when the record
reveals “no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). In this context, “a fact is ‘material’ if it
potentially affects the outcome of the suit and a dispute over it
is ‘genuine’ if the parties’ positions on the issue are supported
by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace
Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st
Cir. 1996) (citations omitted). Nevertheless, if the non-moving
party’s “evidence is merely colorable, or is not significantly
probative,” no genuine dispute as to a material fact has been
proved, and “summary judgment may be granted.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations
omitted).
The key, then, to defeating a properly supported motion for
summary judgment is the non-movant’s ability to support his or
her claims concerning disputed material facts with evidence that
conflicts with that proffered by the moving party. See generally
Fed. R. Civ. P. 56(c). It naturally follows that while a
reviewing court must take into account all properly documented
facts, it may ignore a party’s bald assertions, speculation, and
unsupported conclusions. See Serapion v. Martinez, 119 F.3d 982,
987 (1st Cir. 1997). See also Scott v. Harris, 550 U.S. 372, 380
2 (2007) (“When opposing parties tell two different stories, one of
which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment.”).
This case is somewhat atypical in that, while Hopkins has
objected to ADP’s motion for summary judgment, she has not filed
an affidavit, deposition testimony, or other acceptable form of
documentary evidence or sworn testimony to support her version of
the facts. Although Hopkins is proceeding pro se (and has, for
that reason, been afforded a great deal of latitude in this
case), the court cannot consider statements or written materials
that have not been properly authenticated; when opposing a motion
for summary judgment, a party must rely upon material “that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).
Accordingly, the court must take as admitted the factual
statements recited in ADP’s motion, as supported by the attached
exhibits. See Local Rule 56.1(b) (“All properly supported
material facts set forth in the moving party’s factual statement
may be deemed admitted unless properly opposed by the adverse
party.”). See also Puerto Rico American Ins. Co. v. Rivera-
Vazquez, 603 F.3d 125, 131 (1st Cir. 2010) (discussing Puerto
Rico’s analog to Local Rule 56.1, also known as the “anti-ferret
rule,” and holding that, “This type of rule is aimed at enabling
3 a district court to adjudicate a summary judgment motion without
endless rummaging through a plethoric record. Given this root
purpose, we have held with a regularity bordering on the
monotonous that parties ignore the strictures of an ‘anti-ferret’
rule at their peril.”) (citations omitted).
Importantly, however, Hopkins’ failure to properly object
does not automatically entitle ADP to judgment as a matter of
law. The court must still determine whether the uncontested
facts presented by ADP, when viewed in the light most favorable
to Hopkins, entitle it to judgment as a matter of law. See,
e.g., Stonkus v. City of Brockton Sch. Dep’t, 322 F.3d 97, 102
(1st Cir. 2003).
Background1
Hopkins worked for ADP from 1985 to 1989, and again from
1993 until her employment was terminated in August of 2011.
After her return to ADP in 1993, she says she received the
“President’s Club” award in seven consecutive years for having
exceeded her assigned sales quota. In 2006, she claims to have
been awarded the “National Leadership Award.” Despite her
seemingly laudatory performance, Hopkins says she was the victim
1 Because Hopkins has not submitted an affidavit, the court has drawn some of the (largely non-material) background facts from her unverified complaint.
4 of gender-based discrimination, in that she was assigned
increasingly difficult and less desirable sales territories and
was “passed over” for promotion in favor of a less qualified male
employee.2 Hopkins also says that ADP miscalculated her sales,
causing her to miss quotas, fail to qualify for another
President’s Club award, and not receive year-end bonuses to which
she would have been entitled. Although she says she reported her
concerns through ADP’s “Ethics Hotline” in April of 2011, she
claims ADP did not follow up on her report.
Soon thereafter, in June of 2011, Hopkins says ADP offered
her a severance package. She responded to that offer in an e-
mail dated June 20, in which she again reported that she believed
she had been the victim of unlawful discrimination. It seems
that negotiations on Hopkins’ voluntary departure from the
company broke down and Hopkins then went out on medical leave.
Hopkins’ physician cleared her to return to work on July 28, but
she did not actually return to her job until approximately two
weeks later. In response, ADP invoked its corporate policy on
“Attendance and Punctuality” and fired Hopkins for “job
abandonment” - that is, for having failed “to call in or report
2 ADP points out that to say Hopkins was “passed over” for the promotion in favor of another employee is not entirely accurate. ADP posted notice of the vacant position on the company’s internal website (of which Hopkins was aware), yet Hopkins never applied for the position. See Hopkins Deposition at 157-58.
5 to work for two consecutive workdays.” Hopkins denies having
abandoned her job and says she kept her contact at the worker’s
compensation insurance carrier fully apprised of all information
provided by her physicians - including the fact that although she
had been orally released to return to work, that release was
subject to certain yet-to-be finalized conditions (which she says
she expected to receive in writing from her physician).
According to Hopkins, her discharge for “job abandonment” was
little more than a thinly veiled pretext for unlawful gender-
based discrimination and retaliation for her having taken time
off due to a work-related injury.3
Perhaps not surprisingly, ADP paints a completely different
picture - one of an employee who was an inconsistent performer
and the subject of several disciplinary reports for sub-standard
sales. Prior to her discharge, Hopkins’ performance had been
below her target quota for three consecutive years. See Verbal
Warning dated October 5, 2010 (document no. 16-4) (noting that
Hopkins’ year-to-date sales performance was at less than 70
percent of her target; she was averaging only 1.4 new sales
3 It bears repeating that Hopkins’ version of the relevant factual background leading up to her discharge is largely unsworn and speculative. The court discussed that fact with her (on the record, and at length) during the final pretrial conference on May 30, 2014. Yet, she has not supplemented her filings with an affidavit, nor has she drawn the court’s attention to specific portions of her deposition that support her version of the facts.
6 appointments per week against a goal of 5; and she had three
consecutive years with performance below her target quota).
And, says ADP, although Hopkins now points to instances
dating back 20 years during which she claims to have been the
victim of gender and/or age discrimination, she never reported
those alleged events in a timely manner. Instead, she raised
them only recently in her call to ADP’s “Ethics Hotline,” when
she realized she was under-performing, not meeting sales quotas,
and fearful that she might be fired. As to the allegations of
mistreatment and discrimination Hopkins made during her call to
the Ethics Hotline, ADP says each was thoroughly investigated and
none was found to have any merit. See Report of Mariza Hopkins
dated June 7, 2011 (document no. 16-6) (documenting the
investigation and factual findings that undermine each of
Hopkins’ allegations). And, finally, ADP says Hopkins failed to
keep it fully informed when she was cleared to return to work by
her physician yet remained out of work for approximately two
weeks longer than was medically necessary. From ADP’s
perspective that, apparently, was the last straw, and it invoked
Hopkins’ unexcused absence from work as grounds for her
dismissal.
7 Discussion
Hopkins advances four claims in her complaint: gender-based
discrimination (count one); disability-based discrimination
(count two); wrongful termination (count three); and a state
statutory wage claim (count four).
I. Wrongful Termination.
It is probably best to begin with a discussion of Hopkins’
weakest claim: the assertion that her employment was terminated
in violation of state law because she took “advantage of
something that public policy supports; that is, making
application for and receiving workers’ compensation when injured
on the job.” Complaint (document no. 1) at para. 68. The record
evidence does not support such a claim. In fact, at her
deposition, Hopkins testified that she did not believe she was
fired for having filed a workers’ compensation claim. See
Hopkins deposition (document no. 16-2) at 57 (deposition page
218). Consequently, as to count three of Hopkins’ complaint, ADP
is entitled to judgment as a matter of law.4
4 To be fair, it bears noting that, in advancing her wrongful termination claim, Hopkins stated that because she “has not received ADP’s internal communication or conducted discovery, she pleads this count in the alternative.”
8 II. Disability-Based Discrimination.
Similarly, there is simply insufficient evidence in the
record to support Hopkins’ claim that ADP regarded her as
disabled and discriminated against her on that basis. See
Plaintiff’s Answers to Interrogatories (document no. 16-13) at
11-17 (in a six-page discussion of the bases for her gender and
disability discrimination claims, Hopkins makes only a single
reference to her alleged (perceived) disability: “At the time I
was purportedly abandoning my job, I was out on workers’
compensation leave due to carpal tunnel syndrome and related
treatment. This gave the impression that I was disabled.”).
As a matter of law, that is insufficient to support her
claim of disability-based discrimination. See generally Roman-
Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 49 (1st
Cir. 2011) (discussing the essential elements of a “regarded as
disabled” claim under the ADA). See also Ruiz Rivera v. Pfizer
Pharms., LLC, 521 F.3d 76, 84-85 (1st Cir. 2008). ADP is,
therefore, entitled to judgment as a matter of law as to that
claim (count two) as well.
III. Gender-Based Discrimination.
Much of the conduct about which Hopkins complains consists
of isolated, discreet acts of alleged gender-based discrimination
that occurred over the span of more than 20 years and are plainly
9 time-barred. See generally National R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002) (“Discrete acts such as
termination, failure to promote, denial of transfer, or refusal
to hire are easy to identify. Each incident of discrimination
and each retaliatory adverse employment decision constitutes a
separate actionable unlawful employment practice. . . . only
those acts that occurred 300 days before [the date on which
plaintiff filed his charge of discrimination with the state
agency] are actionable.”). See also O’Rourke v. City of
Providence, 235 F.3d 713, 731 (1st Cir. 2001) (describing the
factors to consider when distinguishing between a continuing
violation of Title VII and discrete, unrelated acts of
discrimination). Here, Hopkins filed her charge of
discrimination on December 28, 2011. Consequently, only those
acts of discrimination occurring on or after March 3, 2011, are
actionable.
With regard to timely acts of alleged gender-based
discrimination, Hopkins points to a deal with N.H. Industries.
See Hopkins Answers to Interrogatories (document no. 16-13) at 15
(page 6 of 9). Although her account of the transaction is
somewhat confusing, she seems to allege that management
purposefully deprived her of credit for a sale to which she was
entitled, and instead credited that sale to a less experienced
male colleague. She says she was given three different
10 (conflicting) explanations for why the sale was credited as it
was - suggesting that ADP’s proffered explanations were
pretextual and the real reason was gender discrimination.
Hopkins also points to the fact that she was disciplined for
“inconsistent performance,” despite having very recently met 157
percent of her sales target.5 She also points to the temporal
proximity between her call to ADP’s “Ethics Hotline” (in which
she complained of discrimination) and the termination of her
employment for “job abandonment.”
Perhaps understandably (because Hopkins is proceeding pro
se), the record evidence in support of her discrimination claim
is thin and consists almost entirely of speculation. See, e.g.,
Hopkins’ Deposition at 132 (stating that gender-based
discrimination is “the only thing that makes sense” to explain
why she did not receive a particular bonus). See also Id. at 187
(stating again that gender-based discrimination is “the only
thing that makes sense” to explain her not having been offered a
job for which she had applied). Applying the McDonnell-Douglas
5 It appears that Hopkins is referring to the fact that in July of 2010, she recorded sales that were nearly 160 percent of her target for that month (and the fiscal year, which appears to begin in July). But, just three months later, in September of 2010, she had dropped to zero percent of her monthly target, and just 69 percent of her annual target. Presumably, that is why ADP labeled her performance as “inconsistent.”
11 burden-shifting analysis, Hopkins evidence is simply insufficient
to avoid summary judgment. See generally McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973).6
The court will assume that Hopkins has pointed to sufficient
admissible evidence to make out a prima facie claim of gender-
based discrimination. See Smith v. Stratus Computer, Inc., 40
F.3d 11, 15 (1st Cir. 1994). ADP has, in turn, proffered a
legitimate non-discriminatory reason for its decision to
terminate Hopkins’ employment: Her failure to call in or report
to work for approximately 2 weeks after she had been medically
cleared to return. See generally LeBlanc v. Great Am. Ins. Co.,
6 F.3d 836, 842 (1st Cir. 1993). Thus, the burden reverts to
Hopkins, who must demonstrate that the non-discriminatory reason
given by ADP was false and a mere pretext for unlawful gender-
based discrimination. See St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 510-11 (1993). See also LeBlanc, 6 F.3d at 842. To
carry that burden, Hopkins must produce “not only minimally
sufficient evidence of pretext, but evidence that overall
6 The Supreme Court’s decision in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003), has given rise to some uncertainty as to whether the McDonnell-Douglas analysis remains valid. See Gatsas v. Manchester School Dist., 2006 WL 340731 at *4 n. 3 (D.N.H. Nov. 7, 2006). But, as the court of appeals has noted, “in Raytheon Co. v. Hernandez, 540 U.S. 44 (2003), the Supreme Court used the McDonnell-Douglas framework without commentary in a post-Desert Palace case.” Hillstrom v. Best Western TLC Hotel, 354 F.3d 27, 31 (1st Cir. 2003).
12 reasonably supports a finding of discriminatory animus.” Id., at
843 (citation and internal quotations omitted). Importantly, she
“may not simply refute or question the employer’s reasons. To
defeat summary judgment at this stage, a plaintiff must produce
evidence that the real reason for the employer’s actions was
discrimination.” Gadson v. Concord Hosp., 966 F.2d 32, 34 (1st
Cir. 1992). See also Desert Palace, 539 U.S. at 101 (holding
that the plaintiff must “present sufficient evidence for a
reasonable jury to conclude, by a preponderance of the evidence,
that race, color, religion, sex, or national origin was a
motivating factor for any employment practice”) (internal
quotation marks omitted).
Aside from Hopkins’ speculation that gender-based
discrimination must have been a motivating factor behind her
dismissal because “it’s the only thing that makes sense,”
Hopkins’ deposition at 132 and 187, or because “it just seems
obvious,” id. at 142-43, she has pointed to insufficient evidence
to support such a claim. Instead, the undisputed evidence of
record shows that: Hopkins did not notify ADP when her physician
cleared her to return to work; she failed call in or report to
work within two days of having received medical clearance to do
so; ADP has a written policy that subjects employees to discharge
if they fail to call in or report to work for two consecutive
13 workdays; and ADP invoked that policy and applied it to Hopkins
in a non-discriminatory manner.
To be sure, ADP may have reacted in what, on this record,
appears to be an overly harsh manner that lacked empathy. ADP
may have even made what some might consider an incorrect business
decision in terminating Hopkins’ employment-at-will. But, as
Hopkins’ employer, it was entitled to do so - provided, of
course, that it acted without unlawful discriminatory bias. Even
if ADP mistakenly thought Hopkins had “abandoned” her job (as
Hopkins says), an employer is entitled to be wrong, provided it
“has an honest belief in its proffered non-discriminatory reason
for discharging an employee.” Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1117 (6th Cir. 2001). As the
Court of Appeals for the Tenth Circuit has observed:
Under McDonnell Douglas, our role isn’t to ask whether the employer’s decision was wise, fair or correct, but whether it honestly believed the legitimate, nondiscriminatory reasons it gave for its conduct and acted in good faith on those beliefs.
That individuals and companies sometimes make employment decisions that prove to be bad ones in hindsight usually suggests no more than that — that they got it wrong. To support an inference of pretext, to suggest that something more nefarious might be at play, a plaintiff must produce evidence that the employer did more than get it wrong. He or she must come forward with evidence that the employer didn’t really believe its proffered reasons for action and thus may have been pursuing a hidden discriminatory agenda. This is because Title VII licenses us not to act as a “super personnel department” to undo bad
14 employment decisions; instead, it charges us to serve as a vital means for redressing discriminatory ones.
Johnson v. Weld County, Colo., 594 F.3d 1202, 1211 (10th Cir.
2010) (citations and internal punctuation omitted).
Hopkins claim of gender-based discrimination (count one)
fails under McDonnell Douglas, and ADP’s motion for summary
judgment must, necessarily, be granted.
IV. State Law Wage Claim.
As with her gender-based discrimination claim, Hopkins’
claim that she was unlawfully denied wages to which she was
entitled is insufficiently supported by admissible evidence.
Although she testified at her deposition that she believes ADP
knowingly and purposefully miscalculated her commissions, or
credited her sales to other employees, or credited those sales to
her but in later quarters (to preclude her from making her sales
quota and receiving a performance bonus) she has not supported
those claims with sales reports, commission reports, or the like.
Without more, her claimed entitlement to unpaid wages is little
more than rank speculation.
On this record, there is simply insufficient evidence to
support a viable claim under New Hampshire’s wage law, N.H. Rev.
Stat. Ann. ch. 275. Consequently, ADP’s motion for summary
15 judgment as to Hopkins’ wage claim (count four) must,
necessarily, be granted.
Conclusion
For the foregoing reasons, defendant’s motion for summary
judgment (document no. 16) is granted, and plaintiff’s motion for
summary judgment (document no. 52) is denied. The Clerk of Court
shall enter judgment in accordance with this order and close the
case.
SO ORDERED.
____________________________ Steven J. McAuliffe United States District Judge
June 18, 2014
cc: Rebecca Hopkins, pro se Debra W. Ford, Esq. Martha Van Oot, Esq.