S t . Hilaire v . Morgan Stanley Smith 10-CV-475-SM 5/11/12 UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Beth S t . Hilaire, Plaintiff
v. Case N o . 10-cv-475-SM Opinion N o . 2012 DNH 084 Morgan Stanley Smith Barney, LLC, Defendant
O R D E R
Beth S t . Hilaire brought suit against her former employer,
Morgan Stanley Smith Barney (“MSSB”), alleging that she was
subjected to unlawful discrimination and wrongful termination.
She says MSSB began discriminating against her after she missed
time from work to assist and care for her ailing husband. Those
absences, says plaintiff, prompted employees of MSSB to unjustly
criticize her work, refuse to provide her with adequate training
and support, and, eventually, terminate her employment - all in
violation of the Americans with Disabilities Act (“ADA”) and New
Hampshire’s Law Against Discrimination.
Additionally, plaintiff asserts that because MSSB feared she
would eventually invoke her right to take unpaid leave under the
Family Medical Leave Act (once that right vested, on the one year
anniversary of her hiring), it preemptively (and unlawfully)
terminated her employment. In other words, she says MSSB anticipatorily retaliated against her to prevent her from
acquiring, and then exercising, rights under the FMLA.
MSSB denies that it discriminated against plaintiff, or that
it subjected her to a hostile work environment, or that it
unlawfully terminated her employment at will. Instead, says
MSSB, it fired S t . Hilaire for one reason: her well-documented
history of carelessness, inattention to detail, and overall poor
job performance. It moves for summary judgment, asserting that
there are no genuinely disputed material facts and it is entitled
to judgment as a matter of law. For the reasons discussed, that
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 1 1 2 , 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
2 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. 2 4 2 , 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, unsupported conclusions, and mere speculation.
See Serapion v . Martinez, 119 F.3d 9 8 2 , 987 (1st Cir. 1997). See
also Scott v . Harris, 550 U.S. 3 7 2 , 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe i t , a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”).
3 Background
I. Plaintiff’s Job Performance.
MSSB hired S t . Hilaire as a Registered Client Service
Associate (“CSA”) in its Portsmouth, New Hampshire office. In
that capacity, she supported three MSSB Financial Advisors by
answering the phones, responding to inquiries from their clients,
processing paperwork, and updating client accounts. S t . Hilaire
was hired by MSSB as an employee at will. She began work on
August 1 , 2008. Her immediate supervisor was Valerie
Margaritopoulos, the Operations Manager for the Portsmouth
office. One of the Financial Advisors for whom S t . Hilaire
provided support - Richard Lyons - was the Branch Manager.
When plaintiff began working at MSSB, she received fairly
substantial training. But, she did not have the benefit of a
“desk buddy” (a nearby, more senior employee to provide on-the-
job assistance) and, almost immediately, she struggled with at
least some aspects of her job. M s . Margaritopoulos responded by
preparing an “SOS” manual for plaintiff, with specific
instructions relating to each of the computer screens she needed
to access within MSSB’s computer system. Plaintiff also took
online training courses offered by MSSB. Nevertheless, MSSB
financial advisors, as well as their clients, complained about
plaintiff’s poor performance. In particular, concerns were
4 voiced about her lack of professionalism when on the phone with
clients of the firm, her lack of attention to detail, and her
carelessness - performance problems that resulted in errors, like
plaintiff placing an improper “market” sell order on behalf of a
client, rather than a “limit” order, and incorrectly suggesting
to an elderly client that her nearly $2 million account had no
money in it (which, perhaps not surprisingly, prompted an anxious
and teary phone call from the client to one of the financial
advisors). M s . Margaritopoulos repeatedly discussed those
performance issues with plaintiff and explored ways plaintiff
could improve. Additionally, other administrators in the office
provided S t . Hilaire with assistance and further training.
MSSB has documented (with record citations) numerous
shortcomings in plaintiff’s performance, as well as MSSB’s
efforts to address them with her, and the court will not
chronicle them in detail. See generally Defendant’s memorandum
(document n o . 7 ) at 3-6. See also Exhibits E through U to S t .
Hilaire Deposition (document n o . 8 ) ; Affidavit of Maria Sampogna
(document n o . 10) (“I have worked for Smith Barney, now MSSB, for
more than ten (10) years. During that time, I am not aware of
any CSA who received more training and support than Plaintiff did
during her employment with MSSB. I am also not aware of any CSA
who had as much difficulty learning her duties as Plaintiff.”).
5 It is sufficient to note that the list of mistakes that
plaintiff made while employed at MSSB is substantial. Counsel
for MSSB addressed each of those incidents with plaintiff during
her deposition and, as to most of them, plaintiff does not deny
that they occurred. See S t . Hilaire Deposition at 30-125, and
Exhibits E through V . Plaintiff does, however, offer an
explanation or an excuse for nearly all of them, deflecting blame
to co-workers, back upon MSSB for having failed to fully and
properly train her, upon software shortcomings and computer
“glitches,” or upon the noisy work environment. See, e.g., Id.
at 6 3 , 71-72, 120-21, 158-59. See generally Exhibit GG to S t .
Hilaire deposition. Plaintiff’s mistakes and omissions lead to
at least one formal “verbal warning,” as well as a written
warning, specifically describing the types of errors that she was
making and her need to address each of them. S t . Hilaire’s
mistakes also lead to angry and/or distressed phone calls and e-
mails from several MSSB clients to their financial advisors.
See, e.g., Exhibits G, J, O , and R to S t . Hilaire Deposition.
By the spring of 2009, two of the financial advisors for
whom S t . Hilaire provided support were becoming increasingly
irritated and troubled by her repeated mistakes and her apparent
inability to grasp the essential requirements of her job. Their
6 frustration is well-illustrated in an e-mail from Richard Lyons
to M s . Margaritopoulos in May of 2009:
Val - For the second time in less than a month Beth has messed up addresses for one of my largest relationships and referral sources, the [ ] family. She changed the childrens’ addresses to their parents’ home. This repeated inaccuracy on the part of M s . Harrison1 has jeopardized a client relationship which I have had for over 20 years and represents approximately 7.5 million in household assets and countless more referrals over the years which total over 20 million in my current book of business. We need to address the carelessness on the part of Beth as soon as is possible. I am extremely upset and concerned that she has been on warning almost since she started working here and there has been little if any improvement in her accuracy skills.
Exhibit V to S t . Hilaire Deposition. See also Exhibit S
(Employee Appraisal completed by David Gerasin on March 2 7 , 2009)
(opining that plaintiff needed to make “significant improvement”
in several specified areas; stating that “I have been told by at
least three clients that they are concerned that the follow-
through from my assistant is not there . . . My own step-father,
James [ ] , has mentioned that he is concerned, not necessarily for
his accounts, but for my business;” noting that “Beth is not
result oriented and does not proactively find ways to obtain
results. She is very much reactive in nature, not a desirable
feature in her position;” and concluding that “Bottom line, I am
1 While working at MSSB, plaintiff used her maiden name, Harrison.
7 increasingly uncomfortable with the situation and have zero
confidence at this point.”); Exhibit T (Employee Appraisal
completed by Richard Lyons) (“I feel that I cannot give work to
Beth any longer and trust that it will be done correctly.”).2
Parenthetically, the court notes that, during her
deposition, S t . Hilaire admitted that she had no reason to
believe that any of the criticisms of her work made by the three
financial advisors she supported were related in any way to her
use of leave time or her husband’s illness. See S t . Hilaire
Deposition page 1 0 7 , lines 3-5; page 115, lines 14-17; page 119,
lines 22-23 through page 1 2 0 , lines 1-2; page 123, lines 22-23
through page 1 2 4 , line 1-2. The only employee of MSSB plaintiff
believes actually discriminated against her because of her
husband’s illness was M s . Margaritopoulos. See, e.g., Id. at
pages 90-91.
2 Plaintiff supported three financial advisors at MSSB: Richard Lyons, David Gerasin, and Andrea Landini. As plaintiff points out, M s . Landini’s comments about plaintiff’s job performance were not as critical as those made by Lyons and Gerasin. But, contrary to plaintiff’s suggestion, plaintiff’s memorandum at 1 4 , they were far from “almost glowing” endorsements of plaintiff’s abilities. See Exhibit U to S t . Hilaire Deposition (Ms. Landini’s formal assessment of plaintiff’s work). See also Exhibits F and J (e-mails from M s . Landini to M s . Margaritopoulos, critical of plaintiff’s job performance).
8 Although M s . Margaritopoulos was the operations manager of
the Portsmouth office, she lacked the authority to fire
plaintiff. See Margaritopoulos Affidavit (document n o . 9 ) at
para. 5 . But, as noted above, she and at least two of the three
financial advisors for whom plaintiff provided support were
concerned about plaintiff’s job performance. S o , shortly after
Mr. Lyons sent the e-mail complaining of plaintiff’s continued
poor performance and expressing his lack of confidence in her
abilities, M s . Margaritopoulos contacted MSSB’s human resources
department for guidance. She also spoke with her direct
supervisor (James Gold), the assistant to the branch manager at
another MSSB office (Maria Sampogna), and M r . Lyons (in his
capacity as Branch Manager of the Portsmouth office). According
to M s . Margaritopoulos, those discussions took about a month to
complete (in part because a new person joined the human resources
team). In the end, a unanimous decision to terminate plaintiff’s
employment emerged. See Margaritopoulos Affidavit at para. 3 2 .
See also Sampogna Affidavit at para. 2 6 . On June 2 3 , 2009,
approximately 10 months after she began working at MSSB, S t .
Hilaire was informed that the company had decided to terminate
her employment.
9 II. Plaintiff’s Absences to Assist her Ailing Husband.
At the end of October, 2008 (approximately three months into
plaintiff’s employment at MSSB), plaintiff’s husband was
scheduled for hernia surgery. Two weeks before that surgery,
plaintiff e-mailed M s . Margaritopoulos and asked that she be
permitted to take the day off from work. M s . Margaritopoulos
granted that request. On the day of the surgery, S t . Hilaire and
her husband learned that he had cancer. Plaintiff called M s .
Margaritopoulos to inform her of her husband’s diagnosis. M s .
Margaritopoulos responded by telling plaintiff to take whatever
time she needed to support her husband and family. S t . Hilaire
Deposition at 87-88, 151. Plaintiff took the next day off from
work and no one spoke to her about, or criticized her for, her
absences. Id. at 128-29. See also Exhibit X . Plaintiff also
requested leave time on November 4 and 5 , and December 2 and 3 ,
2008. Each of those requests was granted. See Exhibits AA, BB
to S t . Hilaire Deposition.
Additionally, plaintiff sought an exception to MSSB’s leave
policy and requested permission to carry-over 32 hours
(approximately four days) of vacation/leave time from 2008 to
2009, so she might accompany her husband to New York for
treatment. Exhibit DD to S t . Hilaire Deposition. Although MSSB
has a policy against permitting employees to carry-over unused
10 paid leave time from year to year (a so-called “use it or lose
it” policy), M s . Margaritopoulos secured authorization from M r .
Gold for plaintiff to do s o . Then, between January 28 and
February 6, 2009, plaintiff requested and was permitted to miss
work for eight days. It appears that she was paid for all eight
of those days, even though she had only carried-over four earned
days of vacation time from the prior year. S t . Hilaire
Deposition at 141. Plaintiff was not criticized or reprimanded
in any way for having taken that time off. Id. at 137. In fact,
plaintiff testified that she was never denied permission to take
off time so she might assist her husband; each such request was
granted, and no MSSB employee ever spoke to her or reprimanded
her in any way for having taken that time from work. S t . Hilaire
Deposition at 131-32, 1 3 7 , 145-46.
Because employees become entitled to FMLA leave only after
completing one year of work, plaintiff did not qualify for FMLA
leave during her tenure at MSSB. See 29 U.S.C. § 2611(2)(A).
Not surprisingly, then, plaintiff testified that she was never a
party t o , nor did she initiate, any discussions about FMLA leave;
she never asked MSSB about her FMLA rights; she never suggested
that she intended to invoke her FMLA rights once she qualified
for them; and she never specifically invoked her (inchoate)
rights under the FMLA. S t . Hilaire Deposition at 149-50.
11 Nevertheless, she claims MSSB discriminated against her (and
eventually terminated her employment) because it had reason to
believe she would avail herself of FMLA leave in the future.
III. Evidence of Discrimination.
On November 7 , 2008 (slightly more than three months after
she began working at MSSB, and about two weeks after plaintiff
learned of her husband’s cancer), plaintiff met with M s .
Margaritopoulos and a representative from MSSB’s human resources
department to discuss plaintiff’s poor job performance.
Plaintiff was given a formal verbal warning, and told that her
performance would be evaluated over the next 30 days, “with a
requirement of vast improvement.” Exhibit K to S t . Hilaire
Deposition. Plaintiff describes that meeting as follows:
VM [Ms. Margaritopoulos] informed plaintiff she did not believe plaintiff had what it took to do her job. This was the first time MSC [Ms. Sampogna] and plaintiff were in the office since 10/27/08, the date plaintiff notified VM of her husband’s cancer. VM informed plaintiff that regardless of what was going on in plaintiff’s personal life, she had to be depended upon and was expected to be at work. This was a complete turn around from what VM previously said to plaintiff, which was to take all of the time she needed.
Plaintiff’s memorandum (document n o . 17-1) at 5 . See also
Hilaire Deposition at 151-52 (“Well, at first when I told [Ms.
Margaritopoulos] about [my husband’s illness], she said to take
all the time off I needed. And then when we had the verbal
12 warning, she said that it must be difficult for me but that she
needed me at work, and she asked if I planned to take any time
off for it and said that if I did, she would find a
replacement.”).
M s . Margaritopoulos denies having made any such statement.
“At no time during this conversation, or at any other time, did I
use the word ‘replace’ or ‘replacement’ in terms of ensuring
coverage of Plaintiff’s duties. My only concern was to ensure
that the office had sufficient office coverage by arranging for
back up staffing during any period of time that Plaintiff would
need to take off from work.” Margaritopoulos Affidavit at para.
37. But, for purposes of ruling on MSSB’s motion for summary
judgment, the court will construe that genuinely disputed
material fact in favor of the plaintiff and assume that M s .
Margaritopoulos did, in fact, make the statement about finding a
replacement for plaintiff.
That alleged statement is the core of plaintiff’s
discrimination claims. It is the primary piece of evidence to
which she (repeatedly) points in support of her claim that she
was the victim of unlawful discrimination. According to
plaintiff, M s . Margaritopoulos’ statement about finding a
replacement reasonably implied that if plaintiff took any more
13 leave time to assist her husband, her employment would be
terminated. S t . Hilaire Deposition at 9 2 , 152.
But, as discussed above, plaintiff had a well-documented
history of poor job performance that pre-dated her disclosure to
MSSB of her husband’s illness. See Exhibits E , F, G, H , I , and J
to S t . Hilaire Deposition. Moreover, her employment was not
terminated for another seven months after the allegedly
discriminatory statement. And, during those subsequent seven
months two things happened. First, M s . Margaritopoulos received
numerous complaints about plaintiff’s poor job performance -
complaints plaintiff acknowledges were not related in any way to
either her husband’s illness or her having to take time off from
work to assist him. Second, plaintiff was repeatedly allowed to
take leave time to assist her ailing husband - not a single
request for leave time was denied. And, her request to carry
forward unused leave time from 2008 to 2009 was granted, despite
the fact that MSSB has a policy against allowing employees to
carry forward unused leave time.
Beyond the “replacement” statement allegedly made by M s .
Margaritopoulos on November 7 , 2008, plaintiff relies entirely
upon inference and supposition in support of her claims that she
14 was the victim of unlawful discrimination. For example, in her
deposition, plaintiff testified as follows:
Question: Prior to your termination, did you ever request or inquire as to FMLA benefits from Morgan Stanley Smith Barney?
Answer: No.
Question: Did you in any way ever suggest that you intended to take FMLA time when you were eligible?
Question: What makes you believe that Morgan Stanley Smith Barney terminated you then to keep you from using FMLA?
Answer: Because it was likely that I was going to be using i t .
Question: How did they know that?
Answer: Because they knew the condition of my husband and they knew about FMLA.
S t . Hilaire Deposition at 149-50. Plaintiff summarizes her
claims and the evidence supporting them as follows:
When Plaintiff gave notice of her husband’s 3rd surgery for July 2009, she did not specify the beginning or end of July because she did not know. The dates could have run into August [i.e., when she would be eligible for FMLA leave], as of the time the employer decided to terminate. This, together with Defendant’s admission that it knew Plaintiff would soon be qualified for FMLA leave (08/01/09), was the motivating factor for her termination. Given the seriousness of [her husband’s] illness (Mesothelioma) and the ongoing need for treatment, Defendant could well anticipate the need for future FMLA leave, up to 12 weeks per year. This together with the comment [by M s . Margaritopoulos] in
15 November 2008, and the discipline shortly after each surgery or notice thereof, should entitle Plaintiff to reach the jury for a determination on the disputed material facts and existence of pretext.
Plaintiff’s Sur-reply Memorandum (document n o . 27) at 5 (emphasis
supplied).
Discussion
I. Workplace Discrimination.
In counts one and two of her complaint, plaintiff asserts
that, in violation of the Americans with Disabilities Act (count
one) and New Hampshire’s Law Against Discrimination (count t w o ) ,
employees of MSSB unfairly criticized her work and, ultimately,
terminated her employment “on the basis of her association with a
person who was disabled or perceived to be disabled.” Complaint
(document n o . 3 ) at para. 3 4 . See also Id. at para. 2 8 . She
says such wrongful conduct caused her to suffer stress, anxiety,
and emotional distress. The parties agree that plaintiff’s ADA
claim and her state law discrimination claim are governed by
essentially the same standards.
The “association provision” of the Americans with
Disabilities Act protects “qualified individuals from employment
discrimination based on the ‘known disability of an individual
with whom the qualified individual is known to have a
16 relationship or association.’” Oliveras-Sifre v . Puerto Rico
Dep’t of Health, 214 F.3d 2 3 , 26 (1st Cir. 2000) (quoting 42
U.S.C. § 12112(b)(4)). See also 29 C.F.R. P t . 1630.8 (May 2 4 ,
2011) (giving three examples of prohibited discrimination based
upon association). She may prove her case by presenting direct
evidence of discrimination or she may prove it indirectly by
using the prima facie case and burden shifting methods
established in McDonnell Douglas Corp. v . Green, 411 U.S. 7 9 2 ,
(1973). See Barker v . Int’l Paper Co., 993 F. Supp. 1 0 , 15 (D.
M e . 1998) (citing Jacques v . Clean-Up Group, Inc., 96 F.3d 506,
511 (1st Cir. 1996)).
Because plaintiff has presented no direct evidence of
discrimination against her as a result of her husband’s illness
and her anticipated invocation of FMLA rights, the court applies
the burden-shifting analysis. To establish a prima facie case
under the ADA’s associational anti-discrimination provision,
plaintiff must prove by a preponderance of the evidence that: (1)
she was subjected to an adverse employment action; (2) she was
qualified for her job at the time of the adverse employment
action; (3) at the time of the adverse employment action, MSSB
knew she had a relative or associate with a disability; and (4)
the adverse employment action occurred under circumstances
raising a reasonable inference that the disability of the
17 relative or associate was a determining factor in MSSB’s
decision. See, e.g., Barker, 993 F. Supp. at 1 4 . See also Den
Hartog v . Wasatch Academy, 129 F.3d 1076, 1085 (10th Cir. 1997).
For purposes of summary judgment, MSSB does not dispute that
plaintiff can make out the essential elements of a prima facie
claim of associational discrimination. Accordingly, it bears the
burden “to articulate some legitimate, nondiscriminatory reason
for the employee’s [termination],” sufficient to raise a genuine
issue of fact as to whether it discriminated against her. If
MSSB offers such a reason for plaintiff’s termination, “the
burden shifts back to [plaintiff], and [she] must proffer
evidence to establish that [MSSB’s] non-discriminatory
justification is mere pretext, cloaking discriminatory animus.
The ultimate burden of proving unlawful discrimination rests at
all times with [plaintiff].” Tobin v . Liberty Mut. Ins. Co., 433
F.3d 1 0 0 , 105 (1st Cir. 2005) (citations and internal punctuation
omitted). See generally Reeves v . Sanderson Plumbing Prods.,
Inc., 530 U.S. 133 (2000).
MSSB has borne its burden of production. That is to say, it
has articulated a plausible, non-discriminatory reason for its
decision to terminate plaintiff’s employment: her ongoing
inability to perform her job to the satisfaction of at least two
18 of the three financial advisors she supported (as evidenced by
the performance evaluations submitted by M r . Gerasin and M r .
Lyons, followed soon thereafter by the e-mail from M r . Lyons).
The burden then, reverts to plaintiff, who must point to
sufficient evidence to warrant the conclusion that MSSB’s
proffered explanation is merely a pretext and that the real
reason her employment was terminated was her association with her
ailing husband. She has failed to carry that burden.
In support of her claims, plaintiff points to three things
she says demonstrate that there was a direct causal connection
between her discharge and her relationship with her ailing
husband: first, M s . Margaritopoulos’s alleged statement about
finding a “replacement” if plaintiff planned to take additional
time off to assist her husband; second, the temporal proximity
between various disciplinary events and days she missed work to
assist her husband; and, finally, that MSSB treated other
employees who were not engaged in protected activity more
leniently than it treated her. But, none of those three
contentions holds up to even modest scrutiny.
That plaintiff was never denied requested leave, was
afforded more leave than she had accrued in January of 2009
(specifically because she had to care for her ailing husband),
19 and was never admonished for any of her absences, substantially
undermines the persuasive value of M s . Margaritopoulos’s alleged
“replacement” statement. S o , too, does the fact that it occurred
more than seven months before plaintiff’s discharge. See, e.g.,
Clark County Sch. Dist. v . Breeden, 532 U.S. 2 6 8 , 273 (2001)
(“The cases that accept mere temporal proximity between an
employer’s knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal
proximity must be ‘very close.’”) (citations omitted). See also
Gonzalez-Droz v . Gonzalez-Colon, 660 F.3d 1 , 17 (1st Cir. 2011)
(one year between protected conduct and alleged retaliation
insufficiently close to raise an inference of discrimination);
Moron-Barradas v . Dep’t of Educ. of Com. of Puerto Rico, 488 F.3d
472, 481 (1st Cir. 2007) (holding that a lapse of eight months
between protected conduct and alleged discrimination is
“insufficient to establish temporal proximity”); Calero-Cerezo v .
U.S. Dep’t of Justice, 355 F.3d 6, 25 (1st Cir. 2004) (noting
that “three and four month periods have been held insufficient to
establish a causal connection based on temporal proximity”).
But, says plaintiff, there was temporal proximity between
various times she was disciplined (or admonished) and times she
took off from work to assist her husband. She does not, however,
20 specifically identify which instances of discipline she believes
were prompted by, and closely followed, her use of leave time.
Nevertheless, under the circumstances presented in this case,
even if she did receive some form of criticism or discipline
arising out of her job performance around the time she was absent
from work to assist her husband, such evidence is neither
terribly surprising nor helpful to her. Plaintiff only worked
for MSSB for ten months. During that time, she requested, and
was granted, leave time on October 27 and 2 8 , November 4 and 5 ,
and December 2 and 3 , 2008. And, between January 28 and February
6, 2009, plaintiff requested and was permitted to use an
additional eight days of accrued paid time off. Also during that
time, M s . Margaritopoulos spoke to plaintiff about her job
performance (and ways to improve it) or received input from other
MSSB employees critical of plaintiff’s performance at least a
dozen times. Consequently, that one or more of those events
occurred shortly before or shortly after plaintiff took time off
from work is not particularly compelling inferential evidence of
discrimination based on absence from work.
Finally, plaintiff asserts that she has pointed to evidence
demonstrating that MSSB treated other (less capable) employees
more favorably than it treated her, thus evidencing a
discriminatory animus on the part of MSSB.
21 Plaintiff may demonstrate pretext by showing the employer meted out more lenient treatment to similarly situated employees not engaged in protected activity. PM, p . 1 7 . At least one prior CSA may be compared. AL [Andrea Landini] discussed the other CSA’s performance as unsatisfactory, with attached feedback form, and she believes said employee was not discharged. Ex. 7 , par. 7 , Ex. B . See also, Ex. 8 , Aff. of counsel, which attached 8-A and 8-B, which are reviews of the same CSA, by M r . Jenks, and VM, which clearly indicate her performance was below par, and below Plaintiff’s.
Plaintiff’s Sur-reply (document n o . 27) at 2 . Importantly,
however, all that can be gleaned from the evidence submitted by
plaintiff is that the other Client Service Associate was employed
by MSSB before plaintiff began working for MSSB, she received
unsatisfactory performance reviews, and the financial advisor
referenced in plaintiff’s papers (Ms. Landini) believes, “to the
best of [her] knowledge” that the woman “eventually resigned.”
Affidavit of Andrea Landini (document n o . 27-1) at para. 7 . It
is entirely unclear how MSSB responded to that employee’s poor
job performance or the circumstances under which she left the
employ of MSSB (she may, for example, have been permitted to
resign, rather than be fired). It i s , however, plain that, based
upon this sparse record, a trier-of-fact could not reasonably
conclude that MSSB treated that other employee more favorably
than it treated plaintiff.
22 In short, even viewing the record in the light most
favorable to plaintiff, the evidence suggesting that she was the
victim of unlawful discrimination based upon her association with
her ailing husband is fatally weak. Evidence that MSSB
terminated her employment based upon her poor job performance,
however, is compelling. First, plaintiff cannot deny the highly
critical performance reviews submitted by two of the three
financial advisors she supported (the third review was, at best,
neutral). Nor can she deny that one of those financial advisors
- M r . Gerasin - wrote that he had “zero confidence [in plaintiff]
at this point,” Exhibit S to S t . Hilaire Deposition, or that the
other - M r . Lyons - wrote “I feel that I cannot give work to Beth
any longer and trust that it will be done correctly.” Exhibit T .
And, as plaintiff conceded at her deposition, those highly
negative comments and performance reviews were entirely unrelated
to her relationship to her husband. See S t . Hilaire Deposition
page 1 0 7 , lines 3-5; page 115, lines 14-17; page 119, lines 22-23
through page 1 2 0 , lines 1-2; page 123, lines 22-23 through page
124, line 1-2.
Moreover, the only person plaintiff says actually harbored
ill feelings toward her based upon her use of leave time - M s .
Margaritopoulos - lacked the authority to fire her. That
decision was made by a committee of MSSB employees, including one
23 of the financial advisors for whom plaintiff provided support.
And, as noted above, each time plaintiff asked for leave time,
M s . Margaritopoulos granted her request without question (and
even obtained permission to allow plaintiff to carry over unused
leave time from one year to the next) - hardly behavior
indicative of a discriminatory intent.
Construing all plausible inferences in favor of plaintiff,
the court cannot conclude that a rational, properly instructed
jury could plausibly find that MSSB discriminated against her
based upon her association with her ailing husband. MSSB i s ,
then, entitled to summary judgment as to counts one and two of
plaintiff’s complaint.
II. Preemptive Retaliation under the FMLA.
In count three of her complaint, S t . Hilaire asserts that
MSSB terminated her employment as a form of preemptive
“retaliation for Plaintiff’s husband’s illness and Plaintiff’s
impending qualification for FMLA leave, which the employer
anticipated she would use to help with her husband’s illness.”
Complaint at para. 3 8 . For purposes of addressing MSSB’s motion
for summary judgment, the court will assume, without deciding,
that such a claim is cognizable in this circuit.
24 “The FMLA contains two distinct types of provisions: those
establishing substantive rights and those providing protection
for the exercise of those rights.” Colburn v . Parker
Hannifin/Nichols Portland Div., 429 F.3d 325, 330 (1st Cir.
2005). Among the substantive rights established by the FMLA is
the right of an “eligible employee” to take up to twelve weeks of
unpaid leave each year in order to care for a spouse who suffers
from a serious health condition. 29 U.S.C. § 2612(a)(1)(C).
Subject to exceptions the parties agree do not apply in this
case, an “eligible employee” is one who has been employed for at
least 12 months, for at least 1250 hours of service during the
previous 12-month period. 29 U.S.C. § 2611(2).
It is beyond dispute that plaintiff was not an “eligible
employee” of MSSB when her employment was terminated after
approximately ten and one-half months. And, the FMLA permits
only “eligible employees” to bring civil actions against their
employers for violations of the FMLA. 29 U.S.C. § 2617(a)(1)
(“Any employer who violates section 2615 of this title shall be
liable to any eligible employee affected” for damages and/or
equitable relief) (emphasis supplied). Nevertheless, S t . Hilaire
asserts that she has a viable retaliation claim under the FMLA.
25 In support of her claim, plaintiff relies upon a series of
cases that, generally speaking, stands for the following
proposition: “an employee may bring a retaliation claim under
FMLA if the employee was terminated prior to becoming eligible
for FMLA leave, but the employee declared an intention to take
leave more than one year after employment commenced.” Gleaton v .
Monumental Life Ins. Co., 719 F. Supp. 2d 623, 629 (D.S.C. 2010)
(emphasis supplied). As the district court for the Northern
District of Illinois observed:
[T]he FMLA also clearly contemplates the scenario in which an employee requests leave beginning on a foreseeable future date:
In any case in which the necessity for leave under subparagraph (A) or (B) of subsection (a)(1) of this section is foreseeable based on an expected birth or placement, the employee shall provide the employer with not less than 30 days’ notice, before the date the leave is to begin, of the employee's intention to take leave.
29 U.S.C. § 2612(e)(1) (emphasis added). It is clear from the text and context of the notice clause, that Congress intended to help and protect employers by insuring adequate notice of extended absences by employees. It would be illogical to interpret the notice requirement in a way that requires employees to disclose requests for leave which would, in turn, expose them to retaliation, or interference, for which they have no remedy. If employers were not bound by the FMLA before the employee is eligible, then the employee should not be required to give the employer any notice. Logic requires that the FMLA be read to require that that employee be permitted to make a charge against the employer for an adverse employment action.
26 Reynolds v . Inter-Industry Conference on Auto Collision Repair,
594 F. Supp. 2d 925, 928-29 (N.D. Ill. 2009).
Even assuming that those decisions accurately interpret the
anti-discrimination provisions of the FMLA, they do not assist
plaintiff in this case. First, as she conceded in her
deposition, S t . Hilaire never requested FMLA leave time nor did
she ever inform MSSB that she intended to take FMLA leave time
once she became eligible for i t . S t . Hilaire Deposition, at 149-
50. See generally Gleaton, 719 F. Supp. 2d at 629 (providing, as
a pre-condition to suit, that the employee must have declared an
intention to use FMLA leave in the future). And, even if she had
expressed an intention to use FMLA leave and accompany her
husband to his second surgery, that surgery occurred in mid-July
of 2009 - weeks before S t . Hilaire would have even become
eligible for FMLA leave. Finally, and perhaps most
significantly, for the reasons discussed above, a properly
instructed jury could not, on this record, reasonably conclude
that MSSB terminated plaintiff for any reason other than her
documented poor job performance.
MSSB i s , then, entitled to summary judgment as to count
three of plaintiff’s complaint.
27 III. Wrongful Termination.
Finally, in count four of her complaint, plaintiff alleges
that she was the victim of wrongful discharge, in violation of
New Hampshire’s common law. To state a viable common law claim
for wrongful discharge, a plaintiff must allege two things:
one, that the employer terminated the employment out of bad faith, malice, or retaliation; and two, that the employer terminated the employment because the employee performed acts which public policy would encourage or because he refused to perform acts which public policy would condemn.
Short v . Sch. Admin. Unit N o . 1 6 , 136 N.H. 7 6 , 84 (1992) (citing
Cloutier v . Great Atl. & Pac. Tea Co., 121 N.H. 915, 921-22
(1981)) (emphasis supplied). See also Monge v . Beebe Rubber Co.,
114 N.H. 130 (1974).
With respect to the second essential element of S t .
Hilaire’s claim, plaintiff asserts that MSSB terminated her
employment because she was engaged in conduct which public policy
would encourage: using her accumulated leave time (and,
eventually, her FMLA leave time) to tend to her ailing husband.
Even if plaintiff has correctly characterized New Hampshire
public policy - an issue the court need not address - she cannot
avoid the fact that this record does not support the conclusion
that MSSB terminated her employment because she used leave time,
and would have used FMLA leave, to care for her ill husband, or
28 that MSSB acted “out of bad faith, malice, or retaliation.”
Short, 136 N.H. at 84.
Conclusion
For the foregoing reasons, as well as those set forth in
defendant’s memoranda (documents no. 7 and 21), the court
concludes that MSSB is entitled to judgment as a matter of law as
to each of the four counts set forth in plaintiff’s complaint.
According, its motion for summary judgment (document no. 7) is
granted. 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
May 11, 2012
cc: Leslie H. Johnson, Esq. A. Robert Ruesch, Esq. Richard G. Moon, Esq.