Hubbard v . Tyco Integrated Cable Sys. 10-CV-365-LM 12/3/13
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Greg Hubbard
v. Civil N o . 10-cv-365-LM
Opinion N o . 2013 DNH 165 P
Tyco Integrated Cable
Systems, Inc.
O R D E R
Greg Hubbard, a former employee of Tyco Integrated Cable
Systems, Inc. (âTycoâ) who was born and raised in England, is
suing Tyco in five counts. He asserts: (1) two claims under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et
seq.; and (2) three claims under New Hampshireâs Law Against
Discrimination, N.H. Rev. Stat. Ann. (âRSAâ) ch. 354-A.1 Hubbard
claims that he was subjected to a hostile work environment
because of his national origin, and that Tyco terminated his
employment because of his national origin and in retaliation for
his complaints about discrimination in the workplace. Before
the court are: (1) Tycoâs motion for summary judgment; (2)
Tycoâs motion to strike certain material from Hubbardâs
Supplemented Memorandum of Law in Support of Objection to
Defendantâs Motion for Summary Judgment; and (3) Hubbardâs
Motion to Correct the Record. Each motion is duly opposed. The
1
Hubbard initially asserted, but has since given u p , a
claim invoking 42 U.S.C. § 1981.
court heard oral argument on the motion for summary judgment on
November 1 , 2013. For the reasons that follow, Tycoâs motion
for summary judgment is granted in part and denied in part, its
motion to strike is denied as moot, and Hubbardâs motion to
correct the record is granted.
Motion to Strike
Tyco moves âthe Court [to] strike from the summary judgment
record all conclusory allegations and improbable inferences that
Plaintiff . . . has failed to substantiate with competent
evidence.â Def.âs Mot. to Strike (doc. n o . 51) 1 . In support
of that request, Tyco asserts that: (1) Hubbardâs Supplemented
Memorandum of Law in Support of Objection to Defendantâs Motion
for Summary Judgment, document n o . 5 6 , includes factual
references that lack any record citations; and (2) in various
places where the memorandum does include record citations, the
record does not support the proposition for which Hubbard has
cited i t . The court shares many of Tycoâs concerns. However,
because the background section in this order draws from
Hubbardâs memorandum only facts that are adequately supported by
the record, Tycoâs motion to strike is denied as moot.
2
Motion to Correct the Record
Hubbard also moves the court to take note o f : (1) several
corrections of erroneous citations to the record in his
supplemented memorandum of law; and (2) one correction to a
statement he made at oral argument. With respect to Hubbardâs
correction of citation errors, his motion is granted. In his
second request, Hubbard asks the court to allow him to replace
his representation, at oral argument, that he had not previously
challenged the authenticity of a statement purportedly written
by Christopher Long, and produced by Tyco in support of its
motion for summary judgment, with a representation that he had,
in fact, challenged the authenticity of that statement.
Hubbardâs second request is also granted, but in light of Tycoâs
submission of an affidavit from Long that authenticates his
written statement, see doc. n o . 6 8 , Hubbardâs authenticity
challenge i s , in the end, unavailing.
Motion for Summary Judgment
A . Summary Judgment Standard
âSummary judgment is warranted where âthere is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.ââ McGair v . Am. Bankers Ins. C o .
of Fla., 693 F.3d 9 4 , 99 (1st Cir. 2012) (quoting Fed. R. Civ.
P. 56(a); citing Rosciti v . Ins. C o . of Penn.,
659 F.3d 9 2 , 96
3
(1st Cir. 2011). âIn determining whether a genuine issue of
material fact exists, [the court] construe[s] the evidence in
the light most favorable to the non-moving party and make[s] all
reasonable inferences in that partyâs favor.â Markel Am. Ins.
C o . v . DĂaz-Santiago, 674 F.3d 2 1 , 30 (1st Cir. 2011) (citing
Flowers v . Fiore,
359 F.3d 2 4 , 29 (1st Cir. 2004)).
âThe object of summary judgment is to âpierce the
boilerplate of the pleadings and assay the partiesâ proof in
order to determine whether trial is actually required.ââ DĂĄvila
v . Corp. de P.R. para la DiffusiĂłn PĂșb., 498 F.3d 9, 12 (1st
Cir. 2007) (quoting Acosta v . Ames Depât Stores, Inc.,
386 F.3d
5 , 7 (1st Cir. 2004)). â[T]he courtâs task is not to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial.â Noonan v . Staples,
Inc.,
556 F.3d 2 0 , 25 (1st Cir. 2009) (citations and internal
quotation marks omitted).
âThe nonmovant may defeat a summary judgment motion by
demonstrating, through submissions of evidentiary quality, that
a trialworthy issue persists.â SĂĄnchez-RodrĂguez v . AT&T
Mobility P.R., Inc., 673 F.3d 1 , 9 (1st Cir. 2012) (quoting
Iverson v . City of Bos.,
452 F.3d 9 4 , 98 (1st Cir. 2006)).
âHowever, âa conglomeration of conclusory allegations,
improbable inferences, and unsupported speculation is
4
insufficient to discharge the nonmovantâs burden.ââ SĂĄnchez-
RodrĂguez, 673 F.3d at 9 (quoting DePoutot v . Raffaelly,
424
F.3d 1 1 2 , 117 (1st Cir. 2005)). âRather, the party seeking to
avoid summary judgment must be able to point to specific,
competent evidence to support his [or her] claim.â SĂĄnchez-
RodrĂguez,
673 F.3d at 9 (quoting Soto-Ocasio v . Fed. Ex. Corp.,
150 F.3d 1 4 , 18 (1st Cir. 1998)) (internal quotation marks
omitted).
B . Background
Unless otherwise indicated, the following facts are
undisputed.
Hubbard spent his childhood in England and speaks with a
British accent. In the fall of 2007, he began working for Tyco
as a T3 Operator, which was an entry-level position. While
working as a T3 Operator, Hubbard experienced no discrimination
based upon his national origin.
In November of 2007, Hubbard was promoted to the position
of T1 Inspector. In that position, he inspected the work of
operators in Tycoâs Repeater Assembly Building (âRABâ). Before
he accepted the promotion, some of his co-workers advised him
not to accept i t , and warned him that inspectors were generally
given a hard time by the operators whose work they inspected.
After Hubbard was promoted, he became the target of hostile
5
comments from several operators who referred to his national
origin in the following ways:
âą After Hubbard rejected a part made by Derek
Thompkins, Thompkins called him an âEnglish motherâ
and a âlimie fuck.â Def.âs Statement of Undisputed
Material Facts (hereinafter âDef.âs Factsâ), Ex. D,
Hubbard Dep. (doc. n o . 32-4) 122:4, 1 1 .
âą Linda Tarnawski told an employee Hubbard was
training: â[Y]ou donât want to learn anything from
him. Heâs an English fuck u p . He donât know what
heâs talking about. What would he know if heâs
English anyway.â Id. at 126:14-17.
âą Tarnawski left notes on parts saying âhave the
English guy not inspect this,â id. at 126:23, and
â[d]onât let the English guy touch it,â id. at 127:17-
18.
âą Katherine Merrill once told an employee Hubbard was
training: âyou donât want to listen to that English
faggot because he doesnât know what heâs talking
about.â Id. at 129:11-13.
âą After Hubbard called out Bill Rogers for his conduct
toward a co-worker of Asian descent, Rogers said:
âMind your fucking business . . . you English faggot.â
Id. at 135:1-10.
âą Rogers said things about Hubbardâs national origin
daily, see id. at 135:14-15, once wrote âEnglish
faggotâ in the condensation on a window in a door that
Hubbard frequently used, id. at 135:20, and once
referred to Hubbard as âthat English faggot right
there,â id. at 136:17.
Some Tyco employees resented Hubbard because he was new, had
been promoted quickly, held authority, was good at his job, was
a hard worker, and worked a large amount of overtime. Moreover,
the operators who made comments that included references to
6
Hubbardâs national origin often did so in the context of
challenges to his status and performance as an inspector.
In late December of 2008, Hubbard was involved in an
altercation with Bill Rogers, an operator. Both Hubbard and
Rogers were suspended, and Hubbard was issued an Employee
Warning Notice (âWarningâ) that provided, in pertinent part:
On Wednesday, 12/24/2008 you were suspended for one
(1) week after an altercation with Bill Rogers on
Tuesday, 12/23/2008 that resulted in you having
inappropriate conversations with fellow inspectors and
operators regarding the incident after you spoke with
your manager and HR. Whenever you are privy to
certain information, especially information regarding
an ongoing investigation, you need to keep those facts
to yourself and not spread that information to fellow
employees. This type of behavior creates animosity
with fellow employees.
Vanderzanden Aff., Ex. 7 (doc. n o . 3 4 - 7 ) , at 2 . The Warning was
signed by: (1) Hubbard; (2) his supervisor, Frank Faria; and (3)
two managers: Craig Murphy, who was Tycoâs director of quality
and testing, and Joe DeRoy, Tycoâs human resources manager. See
id. Finally, the Warning provided that it would remain in
effect until June 2 8 , 2009. See
id.
On January 1 1 , 2009, Hubbard sent Faria an e-mail in which
he withdrew a previous request for a transfer to a different
department. That e-mail stated, in pertinent part:
I love my job and always have, I would love to stay
here and continue my job, as long as if any situation
comes along and I continue to do the right thing and
tell the appropriate people it gets taken care o f . It
7
is not fair that I have to deal with some of these
situations due to being very open minded, and blunt
with people. . . . The only concern I have is others
trying to get me out of here and its going to be hard
to deal with that on a daily basis, but I can handle
it and always have been able too.
Pl.âs Mem. of Law, Ex. 6 (doc. n o . 3 9 - 7 ) , at 1 3 .
On February 4 , 2009, Hubbard met with DeRoy and Murphy.
While the purpose of that meeting is disputed, it is undisputed
that: (1) Murphy, DeRoy, and Hubbard discussed a variety of
workplace issues of concern to Hubbard; and (2) during the
meeting, DeRoy asked Hubbard to put his concerns in writing so
they could be investigated and dealt with. DeRoy prepared a
memorandum to the file to document the meeting. Most relevant
to the claims in this case, DeRoy noted that Hubbard mentioned
negative comments directed toward him, disrespectful behavior,
off-color jokes in the break area, and failures by management to
correct those problems. DeRoyâs notes do not indicate that
Hubbard complained about discrimination based upon his national
origin.
The day after DeRoy and Murphy met with Hubbard, Tyco
employee Christopher Long provided a statement, at the request
of Tyco management, concerning conversations he had had with
Hubbard. Among other things, Long reported:
Greg, has confide[d] in me multiple times associated
with work related issues where he seemed to be having
problems . . . . After his recent suspension over the
8
conflict with Bill Rogers, he approached me to give
his side of the story. . . . During that
conversation I told him that he is on everyoneâs radar
and that he needed to avoid further confrontations,
that heâs now the common denominator in multiple
issues that have taken place. After I gave him that
speech, he started talking about how he is being
discriminated against because heâs English, and if
this were any other company Bill would have been
fired. Again I suggested he stay on the straight and
narrow for a whole, avoid confrontation.
The last two weeks I have not been able to go into RAB
without being confronted by Greg with more gossip
associated with this type of perpetual conflict.
Most recently on the evening of 2/4/09, Greg, saw me
having a conversation with Kevin Coughlin . . . .
After Kevin walked away Greg asked me if we were
talking about him (he appeared paranoid), I replied
n o . He said that he had to talk to me about something
outside and portrayed it as very dramatic, which made
me nervous. Once we were outside Greg started talking
about Charles Pixley, Scott Williams and how he has
documented them keeping things behind closed doors; he
also suggested their jobs could be on the line and
that he didnât have a lawyer, but was thinking about
getting one (something to that effect). I didnât know
where the conversation was going or coming from, I was
uncomfortable, and I withdrew from the conversation.
Within five minutes I went to Kevin Coughlin to let
him know what Greg was saying.
Vanderzanden Aff., Ex. 10 (doc. n o . 34-10), at 2 .
After his February 4 meeting with DeRoy and Murphy, Hubbard
prepared an undated statement listing twelve incidents that
concerned him. Most relevant to the claims in this case,
Hubbardâs list included: (1) a January 2008 incident in which
Bill Rogers âattacked Putu Widiartha with verbal abuse,â
Vanderzanden Aff., Ex. 4 (doc. n o . 3 4 - 4 ) , at 2 ; (2) a March 2008
9
incident in which Derek Thompkins âattacked [him] with verbal
abuse after a part was rejected,â id.; (3) a July 2008 incident
in which Rogers told ethnic jokes that made an Indonesian woman
cry, see id.; (4) a July 2008 incident in which he overheard
Linda Tarnawski use profane language while talking about him to
another inspector, see id. at 4 ; (5) an August 2008 incident in
which he âwas verbally attacked by Derek Thompkins over a
rejected part again,â
id. at 3 ; (6) a second August 2008
incident in which Thompkins âattacked [him] with verbal abuse,â
id.; (7) a September 2008 incident in which he overheard a
conversation between Rogers and another employee in which Rogers
âmade a couple of (English) remarks as [he] walk[ed] byâ and
referred to him as âthat English faggot,â id.; and (8) the
altercation with Rogers that led to his suspension, during which
Rogers directed âprofane languageâ toward him,
id. at 4 .
Hubbard says that he used the generic term âverbal abuseâ
rather than specifically reporting comments referring to his
national origin because âDeRoy instructed [him] to leave out the
âname callingâ or anything about his heritage.â Pl.âs Supp.
Mem. of Law (doc. n o . 56) ¶ V ( p . 40) (citing Ex. 3 , Hubbard
Dep. (doc. n o . 39-4) 190:2-6). Hubbard gave his written
statement to DeRoy on either Friday, February 6, or Monday,
February 9; the deposition testimony offered by both Hubbard and
10
DeRoy is ambiguous on this point.2 The record includes an
undated document authored by DeRoy, titled âGreg Hubbardâs
charges â 2/09/2009â that addresses, point by point, the
incidents listed in Hubbardâs written statement. See
Vanderzanden Aff., Ex. 21 (doc. n o . 34-21).
According to the statement of facts in Hubbardâs
supplemented memorandum of law, he had another meeting with
DeRoy and Murphy. The statement of facts continues: âDeroy
alleges that he asked Hubbard to respond in writing to Longâs
allegations.â Pl.âs Supp. Mem. of Law (doc. n o . 56) ¶ 61
(citing Ex. 1 , DeRoy Dep. (doc. n o . 39-2) 98:19-22, 105:7-13).
On February 6, Hubbard met with DeRoy. DeRoy says that at
that meeting, he told Hubbard not to contact either Long or
Kevin Coughlin. Hubbard says that DeRoy told him no such thing.
Either way, it is undisputed by Hubbard that at the February 6
2
Compare Pl.âs Mem. of Law, Ex. 3 , Hubbard Dep. (doc. n o .
39-4) 79:22â80:4 (âWe met, I believe, one more time after the
text message [Hubbard sent Long on February 6 ] and that was the
very next day that I [came] in and he had asked me to write
everything down. I did, and then was told to hand in my badge
and Iâm suspended pending investigation.â) with id. at 183:2-5
(âI donât recall the day I gave it [his written statement] to
[DeRoy]. He asked me one time and I gave it to him, I believe,
the very next day [i.e., February 5 ] , but Iâm not sure of the
date.â). In his own deposition, DeRoy stated that Hubbard gave
him his written statement at their final face-to-face meeting on
February 6, see id., Ex. 1 , DeRoy Dep. (doc. n o . 39-2) 110:15-
111:4, 113:21-114:6, but also indicated that his last meeting
with Hubbard took place on February 9, see id. at 168:20-23.
11
meeting, DeRoy: (1) spoke with him about his relationship with
Long, see Pl.âs Supp. Mem. of Law (doc. n o . 56) ¶ 6 8 ; and (2)
immediately after speaking with Hubbard about Long, told Hubbard
that he didnât âwant . . . for any pot to be stirred,â Pl.âs
Mem. of Law, Ex. 3 , Hubbard Dep. (doc. n o . 39-4) 109:14.
After his meeting with DeRoy on February 6, Hubbard was
involved in a conversation with Long, conducted by telephone and
text message.3 Long described that conversation, in a letter to
whom it may concern, dated February 9, 2009, in the following
way:
I was at my desk at 6:20 pm last Friday night (2/6/09)
when Greg contacted me from an unknown number; he was
extremely upset shouting at me and telling me I have
âbig ballsâ in regards to my written statement to Joe
Deroy from the day prior. I was nervous and hung up
the phone. I immediately contacted my manager John
Towne at home. He suggested I call Joe Deroy, which I
did.
After I notified Joe and John I received a text
message from Greg that seemed aggressive and had a
threatening tone, the text messages are the following:
âd up not true story I cant believe it and u have the
nerve to fucking lie WOW u r a brave man u and the
other 1 to sit there and lie u sit there and tryâ Sent
2/6/09 at 6:37 pm
âto get urself to look good with some bulshit lies
against me and my family u have balls please show this
to them so we can talk about everything thatâ Sent
2/6/09 at 6:37 pm
3
Whether that communication was initiated by Hubbard or
Long is a matter of dispute but, in the end, is immaterial.
12
âgoes on monday: everythingâ Sent 2/6/09 at 6:38 pm.
After reading the text messages I called him right
back to ask if he was indeed threatening m e , he said
he wasnât, I hung up the phone.
Vanderzanden Aff., Ex. 9 (doc. n o . 3 4 - 9 ) , at 2 .
On February 1 2 , 2009, DeRoy spoke with Hubbard by telephone
and informed him that Tyco had decided to terminate his
employment. It is undisputed that DeRoy told Hubbard he was
being discharged for insubordination. The record includes
DeRoyâs notes on his telephone conversation with Hubbard. Those
notes include the following relevant comments:
I told Greg the decision was to terminate employment
based on insubordination by making contact with Chris
Long against direct instructions from me not to do so
and for inappropriate intimidating remarks to a member
of management.
Greg started to explain his side of the story with the
communication with Chris Long Friday evening 2/[6]/09.
I explained that I had a signed written statement from
Chris Long stating it was Greg who made first contact.
I went on to explain to Greg, this was the same reason
[he was] suspended on 12/24/2008 during the Bill
Rogers incident. I explained he was instructed by me
after our phone conversation on the 23rd of December
not to say anything to anyone as there was an
investigation ongoing and he went back to his area and
told individuals that Bill Rogers was going to be
suspended when he came in to work on the 24th and may
even lose his job. Greg replied back âthis is the
only thing I did wrong during the entire ordeal.â I
went on to say, you contacted Chris Long Friday night
2/[6]/2009 and gave him an ear full. . . . I
instructed you in my office Friday afternoon
specifically not to contact anyone.
Vanderzanden Aff., Ex. 8 (doc. n o . 3 4 - 8 ) , at 2 .
13
Based upon the foregoing, Hubbard claims that Tyco: (1)
discriminated against him based upon his national origin by
suspending him in December of 2008 and by discharging him, in
violation of RSA 354-A:7, I (Count I V ) ; (2) discriminated
against him based upon his national origin by tolerating the
existence a hostile work environment in violation of 42 U.S.C. §
2000e-2(a)(1) and RSA 354-A:7, I (Counts II and I I I ) ; and (3)
retaliated against him for opposing discrimination by
discharging him, in violation of RSA 354-A:19 and 42 U.S.C. §
2000e-3(a) (Counts V and V I ) .
C . Discussion
Tyco moves for summary judgment on all five remaining
counts of Hubbardâs complaint. The court begins with Hubbardâs
hostile-work-environment claims and then turns to his
discrimination and retaliation claims.
1 . Hostile Work Environment (Counts II and III)
Counts II and III both assert that Tyco subjected Hubbard
to a work environment permeated by hostility engendered by his
national origin. Neither count specifies the conduct on which
it is based but, rather, each incorporates, by reference, all
the paragraphs that precede i t . In the fact section of his
14
complaint, Hubbard identified the following acts of hostility at
Tyco that were based upon his national origin:
1 3 . At the end of July or in early August the
Plaintiff was training a new inspector named Brett
Turgeon. Linda Turnowski, a friend of M r . Rogers,
approached M r . Turgeon and told him âDonât listen to
that stupid f---. He is an English idiot. He doesnât
know what he is talking about.â
1 4 . Around the same time another of M r . Rogersâ
friends, Kathy Merrill, told M r . Turgeon âDonât listen
to the English guy, he is an idiot.â
1 6 . Following a rejection of one of M r .
Thompkinsâ parts, the Plaintiff overheard Bill Rogers
tell M r . Thompkins, âHeâs f---in English, what the f--
- does he know?â
1 7 . The harassment continued from the RAB
Department. Small comments in the break room, minor
annoyances with lunches etc. The comments were
derogatory, referred to my being British, and were
made loud enough so that I could hear them. The
comments created an extremely hostile work environment
for m e .
1 8 . In September 2008 the Plaintiff was in the
break room. M r . Rogers and his supervisor Charles
Pixley were in the break room as well. They began
talking about the Plaintiff in a derogatory manner.
The Plaintiff did nothing for a few moments until M r .
Rogers said âYou English Faggotâ. The Plaintiff
reacted and asked what the problem was, but both M r .
Rogers and M r . Pixley walked out of the break room.
2 2 . In December 2008, after reporting his
concerns to M r . Deroy, the Plaintiff passed M r . Rogers
in the RAB department. M r . Rogers said something to
the Plaintiff as he passed. He then turned and put
his hands on the Plaintiff in a very threatening
15
manner and said, âIâm not going to fight you because
you would beat m e , but I am going to give you all the
shit you deserve you English faggot.â
Compl. (doc. n o . 1 ) 3-4. In his supplemental memorandum of law,
Hubbard appears to elaborate on the allegations in paragraph 17
of his complaint by quoting the following testimony from his
deposition:
O h , every day, [Rogers] would say something every
single day about my nationality and origin, every day.
It would â he would even write notes and put them in
the lunch cooler. And he would write things when it
was cold outside in January, heat inside the building,
you got the steam on the window, he would write
English faggot on the door to go into RAB. Comments,
I mean, thereâs such a long list of what that guy
actually really said to m e . I mean, the pride of my
country, he would say things, you know, just about
British people, about m e , you know, about how he hated
all of u s . And if you werenât American you shouldnât
be at this company, you shouldnât be working in
America.
Pl.âs Supp. Mem. of Law (doc. n o . 56) ¶ 19 (quoting Pl.âs Mem.
of Law, Ex. 3 (doc. n o . 3 9 - 4 ) , at 135:14-136:4). It is
undisputed that Rogersâ comments did not begin until after
Hubbard became an inspector.
Tyco argues that it is entitled to judgment as a matter of
law on Hubbardâs hostile-work-environment claims because the
undisputed record demonstrates that Hubbard cannot establish two
elements of those claims: (1) harassment that was based upon his
national origin; and (2) harassment that was severe and
16
pervasive enough to alter the conditions of his employment. The
court does not agree.
Count II arises under Title V I I , while Count III arises
under RSA 354-A. âBecause the New Hampshire Supreme Court
relies on Title VII cases to analyze claims under RSA 354-A, the
court will address [Hubbardâs state and federal] claims together
using the Title VII standard.â Hudson v . D r . Michael J.
OâConnellâs Pain Care Ctr., Inc., 822 F. Supp. 2d 8 4 , 92 (D.N.H.
2011) (citing Madeja v . MPB Corp.,
149 N.H. 3 7 1 , 378 (2003);
Dennis v . Osram Sylvania, Inc.,
549 F.3d 8 5 1 , 856â57 (1st Cir.
2008); Slater v . Town of Exeter, N o . 07-cv-407-JL,
2009 WL
737112, at *4 n.5 (D.N.H. Mar. 2 0 , 2009)).
âTitle VII prohibits employers from discriminating against
individuals âbecause of [their] race, color, religion, sex, or
national origin . . . .ââ Ramos-EchevarrĂa v . Pichis, Inc., 659
F.3d 1 8 2 , 186 n.5 (1st Cir. 2011) (quoting 42 U.S.C. § 2000e-
2(a)(1)). âRequiring a person âto work in a discriminatorily
hostile or abusive environmentâ violates Title VII.â Gerald v .
Univ. of P.R.,
707 F.3d 7 , 17 (1st Cir. 2013) (quoting ValentĂnâ
Almeyda v . Munây of Aguadilla,
447 F.3d 8 5 , 94 (1st Cir. 2006);
citing Harris v . Forklift Sys.,
510 U.S. 1 7 , 21 (1993)). Title
VII is violated â[w]hen the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is
17
sufficiently severe or pervasive to alter the conditions of the
victimâs employment and create an abusive working environment.â
Torres-NegrĂłn v . Merck & Co., 488 F.3d 3 4 , 39 (1st Cir. 2007)
(quoting Harris,
510 U.S. at 2 1 ) .
Turning to the elements of his claim, for Hubbard to
prevail, he must show:
(1) that [he] is a member of a protected class; (2)
that [he] was subjected to unwelcome harassment; (3)
that the harassment was based on [his] membership [in]
the protected class; (4) that the harassment was so
severe or pervasive that it altered the conditions of
[his] employment and created an abusive work
environment; (5) that the objectionable conduct was
objectively and subjectively offensive, such that a
reasonable person would find it hostile or abusive and
the victim in fact did perceive it to be s o ; and (6)
that some basis for employer liability has been
established.
Torres-NegrĂłn, 488 F.3d at 39 (citing OâRourke v . City of
Providence, 235 F.3d 713, 728 (1st Cir. 2001); Faragher v . City
of Boca RatĂłn,
524 U.S. 775, 787â89 (1998)).
a. Harassment Based on National Origin
Tyco argues that the undisputed facts of this case
demonstrate that while Hubbard was subjected to verbal abuse by
several operators, that abuse was based on his being an
inspector, not his membership in a class protected by Title VII.
Tyco has, indeed, produced undisputed evidence that nobody at
Tyco called Hubbard names that referred to his national origin
18
before he was promoted. See Def.âs Facts (doc. n o . 32) ¶ 1 1 ;
Pl.âs Supp. Mem. of Law (doc. n o . 56) ¶¶ A & B ( p . 36)
(disputing paragraphs 8 and 11 of Tycoâs statement of facts, but
not disputing paragraph 1 1 ) . Moreover, not all harassment that
mentions a personâs membership in a protected class is
necessarily based upon that status. See, e.g., Rivera v . P.R.
Aqueduct & Sewers Auth., 331 F.3d 183, 191 (1st Cir. 2003).
Here, however, several factors counsel in favor of letting
a jury decide whether Hubbard was harassed because of his
national origin, or for some other reason. First, Hubbard has
produced evidence that references to his national origin were
far more frequent than references to the plaintiffâs religion in
Rivera, which supports an inference that anti-English animus was
much closer to the surface at Tyco than was the case for anti-
Catholic animus in the workplace in Rivera. Beyond that, a jury
could reasonably see anti-English animus in all the name-calling
that linked a reference to Hubbardâs national origin with a
derogatory reference to his intelligence or his sexuality. In
short, while a jury could conclude that Hubbard was harassed
because he was an inspector, and his national origin was simply
a tool his harassers could use to intensify their verbal attacks
against him, the court concludes that the question of whether
19
Hubbard was harassed because he is English is best left to a
jury.
b . Severe or Pervasive Harassment
Tyco next argues that the harassment Hubbard endured was
not âso severe or pervasive that it altered the conditions of
[his] employment and created an abusive work environment,â
Torres-NegrĂłn, 488 F.3d at 3 9 . Regarding that element of
Hubbardâs claim, the Supreme Court has explained that there is
no âmathematically precise test.â Harris, 510 U.S. at 2 2 .
Rather,
whether an environment is âhostileâ or âabusiveâ can
be determined only by looking at all the
circumstances. These may include the frequency of the
discriminatory conduct; its severity; whether it is
physically threatening or humiliating, or a mere
offensive utterance; and whether it unreasonably
interferes with an employeeâs work performance.
Harris, 510 U.S. at 2 3 . None of the foregoing âfactors is
individually determinative of the inquiry.â Ayala-SepĂșlveda v .
Munây of San GermĂĄn,
671 F.3d 2 4 , 31 (1st Cir. 2012) (citation
omitted); see also Gerald,
707 F.3d at 18 (citation omitted).
âTitle VII does not create a general civility code for the
workplace.â Ahern v . Shinseki, 629 F.3d 4 9 , 59 (1st Cir. 2010)
(citing Burlington N . & Santa Fe Ry. C o . v . White,
548 U.S. 5 3 ,
68 (2006); RĂos-JimĂ©nez v . Principi,
520 F.3d 3 1 , 44 (1st Cir.
2008)). âThe workplace is not a cocoon, and those who labor in
20
it are expected to have reasonably thick skins . . . to survive
the slings and arrows that workers routinely encounter in a
hard, cold world.â Alvarado v . Donahoe, 687 F.3d 453, 462 (1st
Cir. 2012) (quoting SuĂĄrez v . Pueblo Intâl, Inc.,
229 F.3d 4 9 ,
54 (1st Cir. 2000)). Accordingly, the basic âthrust of [the]
inquiry is to distinguish between the ordinary, if occasionally
unpleasant, vicissitudes of the workplace and actual
harassment.â Noviello v . City of Bos.,
398 F.3d 7 6 , 92 (1st
Cir. 2005) (citing Faragher,
524 U.S. at 7 8 8 ) .
Finally, âbecause the inquiry into the existence of a
hostile work environment is fact specific, âthe determination is
often reserved for a fact finder.ââ Vega-ColĂłn v . Wyeth Pharms.
Inc., 625 F.3d 2 2 , 32 (1st Cir. 2010) (quoting Pomales v .
Celulares TelefĂłnica, Inc.,
447 F.3d 7 9 , 83 (1st Cir. 2006)).
Such is the case here.
With regard to frequency, Hubbard has produced evidence
that, for some period of time â and the court may reasonably
infer that period to span several months â he was subjected to
daily verbal abuse from Rogers. While most of the alleged abuse
was verbal, Hubbard has also produced evidence that, on one
occasion, Rogers physically confronted him by bumping into him
in the break room and trying to get chest-to-chest with him.
See Pl.âs Mot. to Supplement, Ex. 1 , Hubbard Dep. (doc. n o . 48-
21
1 ) 330:17, 331:4. He has also produced evidence that, after his
confrontation with Rogers in the break room, he began taking
half days off from work, due to the stress engendered by the
harassment he was enduring. See id. at 298:3-300:22. While
Hubbardâs ability to demonstrate that he was subjected to severe
or pervasive harassment that altered the conditions of his
employment is a close call, his evidence is not so deficient
that the court may determine, as a matter of law, that his
harassment was not severe or pervasive, as those terms are used
in the context of Title VII.
c. Summary
Tyco has advanced two arguments in support of its motion
for summary judgment on the hostile-work-environment claims
stated in Counts II and III. Because Hubbard has produced
sufficient evidence to create trialworthy issues of fact
concerning the cause for his harassment and its severity or
pervasiveness, Tyco is not entitled to judgment as a matter of
law on Counts II and III.
2 . Discrimination (Count IV)
In his complaint, Hubbard frames his state-law
discrimination claim in the following way:
22
4 2 . The allegations set forth in paragraphs 1
through 42 [sic] above are reasserted in this count as
if set forth separately herein.
4 3 . The Defendant discriminated against the
Plaintiff because of his national origin and the above
conduct constitutes national origin discrimination in
violation of RSA 354-A:7, I .
Compl. (doc. n o . 1 ) 7 . Nowhere, however, does Count IV
specifically identify the conduct on which it based. In his
supplemented memorandum of law, the only prima facie case
Hubbard cites is the one for employment termination cases. See
Pl.âs Supp. Mem. of Law (doc. n o . 56) 1 9 . Likewise, even a
generous reading of Hubbardâs supplemented memorandum suggests
only a single discriminatory act, Hubbardâs discharge.
Yet, at oral argument, Hubbard identified a second
discriminatory act: Tycoâs decision to suspend him in late 2008,
for having inappropriate conversations with fellow inspectors
and operators in the aftermath of his altercation with Bill
Rogers. In the interest of giving Hubbard, the non-moving
party, every reasonable advantage, the court will consider
claims that Tyco violated Hubbardâs rights under RSA 354-A:7, I ,
by: (1) suspending him in December of 2008; and (2) discharging
him. Before turning to those two claims, however, I will
outline the relevant law.
As with Count I I I , the court will analyze the state-law
claims asserted in Count IV under the standard applicable to a
23
Title VII claim. See Hudson, 822 F. Supp. 2d at 9 2 . Because
Hubbard is âunable to offer direct proof of [Tycoâs]
discriminatory animus,â his claim is subject to âthe now-
familiar three-step framework set forth in McDonnell Douglas.â
Espinal v . Natâl Grid NE Holdings 2 , LLC, 693 F.3d 3 1 , 34-35
(1st Cir. 2012) (quoting Udo v . Tomes,
54 F.3d 9, 12 (1st Cir.
1995)).
Under the framework first outlined in McDonnell Douglas
Corp. v . Green, 411 U.S. 792 (1973), âthe plaintiff must [first]
establish a prima facie case of discrimination.â Cham v .
Station Operators, Inc.,
685 F.3d 8 7 , 93 (1st Cir. 2012)
(quoting Reeves v . Sanderson Plumbing Prods., Inc.,
530 U.S.
133, 142 (2000)). The prima facie case must be established âby
a preponderance of the evidence.â Aly v . Mohegan Council, Boy
Scouts of Am.,
711 F.3d 3 4 , 46 (1st Cir. 2013) (citing Goncalves
v . Plymouth Cnty. Sheriffâs Depât,
659 F.3d 1 0 1 , 105 (1st Cir.
2011)). âMeeting the initial prima facie requirement is ânot
especially burdensome.ââ Martinez-Burgos v . Guayama Corp.,
656
F.3d 7 , 12 (1st Cir. 2011) (quoting Greenberg v . Union Camp
Corp.,
48 F.3d 2 2 , 26 (1st Cir. 1995); Kosereis v . Rhode Island,
331 F.3d 2 0 7 , 213 (1st Cir. 2003) (describing burden of
establishing prima facie case as ânot onerous,â âeasily made,â
and a âsmall showingâ)). âOnce the plaintiff makes out a prima
24
facie case, the burden of production shifts to the defendant to
produce evidence that the adverse employment actions were taken
for a legitimate, nondiscriminatory reason.â Cham, 685 F.3d at
94 (quoting S t . Maryâs Honor Ctr. v . Hicks,
509 U.S. 5 0 2 , 507
(1993); citing Tex. Depât of Cmty. Affairs v . Burdine,
450 U.S.
248, 254 (1981)) (internal quotation marks omitted).
âIf the defendant produces such evidence [i.e., evidence of
a legitimate nondiscriminatory reason for its employment
action], the McDonnell Douglas framework âdisappear[s]â and the
sole remaining issue is âdiscrimination vel non,ââ leaving the
plaintiff âan opportunity to show that the reasons offered by
the defendant were a pretext for discrimination.â Pearson v .
Mass. Bay Transp. Auth., 723 F.3d 3 6 , 40 (1st Cir. 2013)
(quoting Cham,
685 F.3d at 9 4 ; citing Reeves,
530 U.S. at 1 4 3 ) ;
see also Lockridge v . Univ. of M e . Sys.,
597 F.3d 4 6 4 , 470 (1st
Cir. 2010) (âIf the employer [articulates a legitimate, non-
discriminatory for its adverse employment action], the focus
shifts back to the plaintiff, who must then show, by a
preponderance of the evidence, that the employerâs articulated
reason for the adverse employment action is pretextual and that
the true reason for the adverse action is discriminatory.â)
(citing Smith v . Stratus Computer,
40 F.3d 1 1 , 16 (1st Cir.
1994)). Finally, â[t]he ultimate burden of persuasion always
25
remains on the plaintiff . . . .â Cham, 685 F.3d at 94 (citing
Reeves,
530 U.S. at 143; VĂ©lez v . Thermo King de P.R., Inc.,
585
F.3d 4 4 1 , 447â48 (1st Cir. 2009)).
a. Hubbardâs Suspension
The problem with entertaining a claim that Hubbard was
suspended on account of his national origin is that there was
nothing in his complaint to alert Tyco that he was making such a
claim. Consequently, Tyco has framed no arguments to defeat
that claim, and the court has little guidance as to how to
analyze i t . The only real clues to this claim appear under the
heading âDisparate Treatmentâ in Hubbardâs supplemented
memorandum of law. In that section of his memorandum, in
support of an argument that evidence of disparate treatment may
prove that the explanation Tyco gave for discharging him was
pretextual, Hubbard asserts that he was suspended for doing
something that another Typo employee also did, without adverse
consequences. Accordingly, the court will focus on that
comparison as it applies the McDonnell Douglas framework to
Hubbardâs disparate-treatment claim arising from his suspension.
As noted, Hubbard has not identified the elements of a
prima facie case of discrimination based upon an adverse
employment action other than discharge. However, to establish a
26
prima facie case of discrimination based upon his suspension,
Hubbard must show that h e :
(1) was a member of a protected class, (2) met the
employerâs legitimate job-performance expectations,
(3) was [suspended], and (4) that [Tyco] . . . did not
treat members of the protected class neutrally [when
handing out suspensions].
Udo, 54 F.3d at 12 (citing LeBlanc v . Great Am. Ins. Co.,
6 F.3d
836, 842 (1st Cir. 1993)). Bearing in mind that ââ[t]he time to
consider comparative evidence in a disparate treatment case is
at the third step of the burden-shifting ritual, when the need
arises to test the pretextuality vel non of the employerâs
articulated reason for having acted adversely to the plaintiffâs
interests,â as opposed to as part of a plaintiffâs prima facie
case,â Cham,
685 F.3d at 94 n.4 (quoting Kosereis, 331 F.3d at
213; citing Conward v . Cambridge Sch. Comm.,
171 F.3d 1 2 , 19
(1st Cir. 1999)), the court presumes that Hubbard has
established his prima facie case. In turn, the Warning that
Tyco issued to Hubbard on December 2 9 , 2008, see Vanderzanden
Aff., Ex. 7 (doc. n o . 3 4 - 7 ) , contains sufficient evidence of a
legitimate nondiscriminatory reason for Hubbardâs suspension,
i.e., his conversations with fellow employees after talking with
management about his altercation with Rogers. Thus, it is
necessary to proceed to the third stage of the McDonnell Douglas
framework.
27
âTo avoid summary judgment at the third stage in the
McDonnell Douglas framework, â[Hubbard] must introduce
sufficient evidence to support two findings: (1) that [Tyco]âs
articulated reason [for suspending him] . . . is a pretext, and
(2) that the true reason is discriminatory.â Espinal, 693 F.3d
at 35 (quoting Udo,
54 F.3d at 1 3 ; citing Smith,
40 F.3d at 1 6 ;
Straughn v . Delta Air Lines, Inc.,
250 F.3d 2 3 , 34 (1st Cir.
2001)). While there are several ways in which a Title VII
plaintiff may establish pretext, Hubbard focusses on one, his
assertion that he was treated less favorably than Derek
Thompson, who also spoke with a fellow employee about a matter
under investigation, but was not suspended for doing s o . His
argument is not persuasive.
As a legal matter, â[d]isparate treatment may be âcompetent
proof that the explanation given for the challenged employment
action was pretextual, provided the plaintiff-employee can make
a preliminary showing that others similarly situated . . . in
all relevant respects were treated [more advantageously] by the
employer.ââ Aly, 711 F.3d at 46 (quoting Straughn, 250 F.3d at
43-44). Hubbard frames his disparate-treatment argument in the
following way:
Despite the Defendantâs denial, there is a
specific incident involving both Hubbard and another
employee that are identical yet Hubbard was
disciplined and the other employee was not. Hubbard
28
was suspended in December 2008 after he was assaulted
by Rogers. Hubbard was allegedly suspended because
after speaking with Deroy about the incident, Hubbard
allegedly told other employees Rogers might be
suspended or lose his job.
In June of 2008, Thompkins, an American, did the
exact same thing. Thompkins had spoken with a
manager, Matt Labounty, about an incident with another
employee named Jake Joslin. Thompkins admitted that
after speaking with Labounty, Thompkins told Joslin:
âhe might find himself looking for another job.â
There was no indication in the file that Thompkins was
ever disciplined in any way, much less being suspended
for five days without pay. This is a clear indication
that by December of 2008 the Defendant was not
interested in listening to Hubbardâs complaints about
discrimination any longer and instead started to
encourage him to leave.
Pl.âs Supp. Mem. of Law (doc. n o . 56) 28 (citations to the
record omitted). In support of his argument that he and
Thompkins were similarly situated, but were treated differently
after engaging in similar conduct, Hubbard produced and cites a
written statement Thompkins gave to Philip Williams. In i t ,
Thompkins described a conversation he had with another Tyco
employee, Jake Joslin. See Pl.âs Mem. of Law, Ex. 2 (doc. n o .
3 9 - 3 ) , at 4 9 .
Hubbardâs argument fails, however, because he and Thompkins
were not similarly situated. When basing a pretext argument on
disparate treatment, âthe plaintiffâs case and the comparison
cases that [he] advances need not be perfect replicas, they must
closely resemble one another in respect to relevant facts and
29
circumstances.â Straughn, 250 F.3d at 44 (quoting Perkins v .
Brigham & Womenâs Hosp., 78 F.3d 7 4 7 , 751 (1st Cir. 1996)).
According to the Warning he received, Hubbard was suspended for
âhaving inappropriate conversations with fellow inspectors and
operators regarding the incident [with Rogers] after [he,
Hubbard] spoke with [his] manager and HR.â Vanderzanden Aff.,
Ex. 7 (doc. n o . 3 4 - 7 ) , at 2 . The Warning went on to inform
Hubbard of his obligation to keep to himself information about
ongoing investigations, in the interest of avoiding animosity
with fellow employees. See
id.
What differentiates Thompkinsâ conversation with Joslin
from the conversation(s) for which Hubbard was suspended is the
fact that Thompkins spoke to Joslin at the request of Matt
Labounty, a day shift supervisor. See Pl.âs Mem. of Law, Ex. 2
(doc. n o . 3 9 - 3 ) , at 4 9 . Suffice it to say that an employee
spreading rumors about a fellow employee after talking with
management is not situated similarly to an employee providing
counseling to a fellow employee, at the behest of management.
In short, Hubbard has failed to produce evidence of disparate
treatment from which a reasonable jury could determine that the
reason Tyco gave for suspending him in 2008 was pretextual.
Accordingly, Tyco is entitled to judgment as a matter of law on
30
Hubbardâs claim that Tyco discriminated against him on account
of his national origin by suspending him.
b . Hubbardâs Discharge
To establish his prima facie case of discrimination based
upon his discharge, Hubbard must show that:
(1) he . . . is a member of a protected class; (2)
possessed the necessary qualifications and adequately
performed his . . . job; (3) was nevertheless
dismissed . . . ; and (4) [Tyco] sought someone of
roughly equivalent qualifications to perform
substantially the same work.
Aly, 711 F.3d at 46 (citing Rodriguez-Torres v . Carib. Forms
Mfr., Inc.,
399 F.3d 5 2 , 58 (1st Cir. 2005)).
Tyco argues that Hubbard has failed to establish a prima
facie case of discrimination because: (1) his contact with Long
on February 6 precludes him from establishing that he was
performing his job in a manner that met Tycoâs legitimate
expectations; and (2) he has not established that he was treated
differently than similarly situated employees. Tycoâs first
argument is directed to the second element of the prima facie
case and his second argument appears to be directed toward the
fourth element. All agree that Hubbard has established the
first and third elements of his prima facie case; his English
origin places him in a protected class, and Tyco discharged him.
31
With regard to the second element of the prima facie case,
a plaintiff must establish that âhe was performing his job at a
level that rules out the possibility that he was fired for job
performance.â Benoit v . Tech. Mfg. Corp., 331 F.3d 166, 173
(1st Cir. 2003). Tyco identifies Hubbardâs communication with
Long on February 6 as undisputed evidence that precludes Hubbard
from establishing that he was adequately performing his job at
the time of his discharge.
However, â[w]hen assessing whether a plaintiff has met
[his] employerâs legitimate expectations at the prima facie
stage of a termination case, âa court must examine plaintiffâs
evidence independent of the nondiscriminatory reason âproducedâ
by the defense as its reason for terminating plaintiff.ââ
Quinn-Hunt v . Bennett Enters., Inc., 211 F. Appâx 4 5 2 , 457 (6th
Cir. 2006) (quoting Cline v . Catholic Diocese of Toledo,
206
F.3d 6 5 1 , 660-61 (6th Cir. 1999); citing Tysinger v . Police
Depât,
463 F.3d 569, 571 (6th Cir. 2006) (âFor purposes of the
prima facie analysis, a plaintiffâs qualifications are to be
assessed in terms of whether he or she was meeting the
employerâs expectations prior to and independent of the events
that led to the adverse action.â); Cicero v . Borg-Warner Auto.,
Inc.,
280 F.3d 579, 585 (6th Cir. 2002)).
32
Because Tyco identifies nothing other than the February 6
incident to support its argument that Hubbard cannot establish
the second element of his prima facie case, the court assumes
that Hubbard has established that he was adequately performing
his job at the time of his discharge. C f . Timm v . Ill. Depât of
Corr., 335 F. Appâx 6 3 7 , 643 (7th Cir. 2009) (âwhere an employee
was fired for a sudden and egregious breach of policy, we assume
this prong [i.e., the second element of the prima facie case]
has been metâ) (citing Jones v . Union Pac. R.R. Co.,
302 F.3d
735, 742 (7th Cir. 2002); Curry v . Menard, Inc.,
270 F.3d 473,
477-78 (7th Cir. 2001)).
With regard to the fourth element of the prima facie case,
Hubbard must show that Tyco âsought someone of roughly
equivalent qualifications to perform substantially the same
work.â Aly, 711 F.3d at 4 6 . While there is significant leeway
allowed in terms of how a plaintiff may make the requisite
showing, see Rodriguez-Torres,
399 F.3d at 5 9 , it is nonetheless
essential to the prima facie case because only a discharge in
the face of the employerâs continuing need for the services
provided by the discharged employee can raise an inference that
the discharge was motivated by discriminatory animus, see Loeb
v . Textron, Inc.,
600 F.2d 1003, 1013 (1st Cir. 1979). In
response to Tycoâs argument that he has not established the
33
fourth element of his prima facie case, Hubbard contends that
âthe Defendant [does not] dispute that the inspections M r .
Hubbard was conducting continued to be performed by others,â
Pl.âs Supp. Mem. of Law (doc. n o . 56) 19-20, and he cites two
pages of Tycoâs memorandum of law as evidence of Tycoâs
concession on that point.
There are two problems with Hubbardâs position. First, it
is Hubbardâs burden to establish his prima facie case, and he
identifies no record support for his contention that his work
continued to be performed by others after his discharge.
Second, the two pages of Tycoâs memorandum that Hubbard cites
do not mention what happened to his duties after he was
discharged, and do not include a concession that Hubbard has
established the fourth element of his prima facie case.
S o , it is far from clear that Hubbard has shown that Tyco
âsought someone of roughly equivalent qualifications to perform
substantially the same work,â Aly, 711 F.3d at 4 6 , after it
terminated his employment. Because the burden of establishing
a prima facie case is light, see Martinez-Burgos,
656 F.3d at
1 2 , however, the court will presume that Hubbard has
established all four elements of his prima facie case.
Turning to the second step of the McDonnell Douglas
framework, Tyco contends that Hubbardâs communication with Long
34
on February 6, in violation of various directives not to talk
with other employees about matters under investigation, was a
legitimate nondiscriminatory reason for his discharge. Indeed,
the First Circuit has âoften found [that] insubordination is
obviously sufficient to support an adverse employment action.â
Pearson, 723 F.3d at 41 (citing Windross v . Barton Protective
Servs., Inc.,
586 F.3d 9 8 , 104 (1st Cir. 2009)).
Hubbard, however, contends that insubordination was not a
legitimate reason for his discharge. He begins by asserting
that the âgag orderâ on which Tyco based its charge of
insubordination violated the National Labor Relations Act
(âNLRAâ). He then argues that â[a]n unlawful reason for
terminating an employee is not âlegitimateâ and therefore does
not shift the burden of production back to the Plaintiff.â
Pl.âs Supp. Mem. of Law (doc. n o . 56) 2 5 .
Hubbard is mistaken in his expansive view illegitimacy. At
the second stage of the McDonnell Douglas framework, an
employerâs reason for discharging an employee âmust be
âlegitimateâ or ânondiscriminatory,â which means only that it is
not a motive that is illegal under Title VII.â 1 Rodney A .
Smolla, Federal Civil Rights Acts § 9:40, at 1260 (3d ed. 2013)
(emphasis added). That i s , â[c]ourts . . . limit their inquiry
regarding an employerâs proffered reason to whether that reason
35
is consistent with the statute at issue [and] do not
automatically determine that a decision based on a trait
protected by one statute is an illegitimate decision under a
statute that protects other traits.â 1 Barbara T . Lindemann &
Paul Grossman, Employment Discrimination Law 39 (4th ed. 2007)
(emphasis in the original). As the Supreme Court has explained:
Although some language in our prior decisions might be
read to mean that an employer violates the ADEA
whenever its reason for firing an employee is improper
in any respect, see McDonnell Douglas Corp. v . Green,
411 U.S. 7 9 2 , 802 (1973) (creating proof framework
applicable to ADEA) (employer must have âlegitimate,
nondiscriminatory reasonâ for action against
employee), this reading is obviously incorrect. For
example, it cannot be true that an employer who fires
an older black worker because the worker is black
thereby violates the ADEA. The employeeâs race is an
improper reason, but it is improper under Title V I I ,
not the ADEA.
Hazen Paper C o . v . Biggins, 507 U.S. 6 0 4 , 612-13 (1993)
(parallel citations omitted); see also 1 Lex K. Larson,
Employment Discrimination § 12.09[2], at 12-81 to 12-82 (2d ed.
2012) (â[a]lthough discharge of an employee due to medical
reasons may run afoul of other statutes, such employer action is
not a Title VII violation if done with an even handâ) (citing
Hervey v . City of Little Rock,
787 F.2d 1223 (8th Cir. 1986)).
Hazen is dispositive of Hubbardâs argument; even if Tycoâs âgag
orderâ violated the NLRA, that would not have made Tycoâs reason
36
for terminating Hubbardâs employment illegitimate in the context
of a claim under Title VII or RSA 354-A:7.
Having presumed that Hubbard has established his prima
facie case, and having determined that Tycoâs charge of
insubordination was a legitimate nondiscriminatory reason for
terminating Hubbardâs employment, the court turns to the third
step in the McDonnell Douglas framework. The court of appeals
for this circuit has recently outlined the principles that
govern pretext analysis under McDonnell Douglas:
If the defendant proffers legitimate reasons for the
adverse action, the plaintiff must then prove by a
preponderance that the proffered reasons by the
defendant are a pretext for unlawful discrimination.
[St. Maryâs Honor Ctr., 509 U.S.] at 507-08. To meet
his or her burden, a plaintiff must demonstrate either
that the adverse employment action was (1) âmore
likely motivatedâ by discrimination than by the
explanation proffered by the defendant; or (2) âthe
proffered explanation [was] unworthy of credenceâ
where the suspect action, coupled with evidence to the
contrary, suggests a discriminatory motivation.
Burdine, 450 U.S. at 256.
Aly,
711 F.3d at 46 (parallel citations omitted). Regarding the
way in which courts should approach the issue of pretext, the
court of appeals has explained:
â[T]here is no mechanical formula for finding
pretext.â Che v . Mass. Bay Transp. Auth., 342 F.3d
3 1 , 39 (1st Cir. 2003) (internal quotation marks
omitted). Instead, â[i]t is the type of inquiry where
âeverything depends on the individual facts.ââ Id. at
40 (quoting Thomas v . Eastman Kodak Co., 183 F.3d 3 8 ,
57 (1st Cir. 1999)). The inquiry focuses on whether
the employer truly believed its stated reason for
37
taking action adverse to the employee. See Feliciano
de la Cruz v . El Conquistador Resort & Country Club,
218 F.3d 1 , 7 (1st Cir. 2000). The plaintiff bears
â[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against
the plaintiff.â Reeves v . Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 143 (2000) (alteration in
original) (internal quotation mark omitted).
Kelley v . Corr. Med. Servs., Inc., 707 F.3d 1 0 8 , 116 (1st Cir.
2013) (parallel citations omitted). 4 In other words, when
âassessing whether an adverse employment decision is pretextual,
[a court] do[es] not sit as a super-personnel department that
reexamines an entityâs business decisions.â Espinal,
693 F.3d
at 35 (quoting Gonzalez v . El Dia, Inc.,
304 F.3d 6 3 , 69 (1st
Cir. 2002); citing Mechnig v . Sears, Roebuck & Co.,
864 F.2d
1359, 1365 (7th Cir. 1988)) (internal quotation marks omitted).
Rather, the courtâs task âis limited to determining whether the
employer âbelieve[d] in the accuracy of the reason given for the
adverse employment action.ââ Espinal,
693 F.3d at 35 (quoting
Kouvchinov v . Parametric Tech. Corp.,
537 F.3d 6 2 , 76 (1st Cir.
2008); citing Feliciano de la Cruz,
218 F.3d at 7 ) .
4
Kelley involved a retaliation claim brought under the
Americans With Disabilities Act, see 707 F.3d at 115, but given
that â[a] retaliation claim under the ADA is analyzed under the
familiar burden-shifting framework drawn from cases arising
under Title VII,â id. (citations omitted), and given the Kelley
courtâs citation of a discrimination case in its discussion of
pretext analysis, see id. at 116, the legal principles stated in
that discussion apply to this courtâs analysis of Hubbardâs
Title VII discrimination claim.
38
Hubbardâs discrimination claim fails because he has not
carried his burden with regard to either of the two inquiries
described in Aly. The court turns to each, in turn.
The first way for a plaintiff to establish pretext, under
Aly, is to âdemonstrate . . . that the adverse employment action
was . . . more likely motivated by discrimination than by the
explanation proffered by the defendant.â 711 F.3d at 46
(internal quotation marks omitted). The problem here is that
Hubbard has produced no evidence that the decision to discharge
him was motivated by discrimination. He has produced evidence
that the decision to discharge him was made by an executive
council composed of Jonathan Dufour, Wilford Roy, DeRoy, Murphy,
John Sewell, and an unnamed finance manager. At oral argument,
Hubbard conceded that none of those six decisionmakers ever said
anything that demonstrated animosity toward people of English
origin or toward non-Americans. His best shot at establishing
discriminatory animus is a theory he raised for the first time
at oral argument, without the benefit of any legal authority.
That theory is that the animus of the executive council is
established by proof that the council somehow âcondonedâ
national-origin discrimination directed against him by other
39
Tyco employees. Because that argument is both legally and
factually unsupported,5 it does not help Hubbard.
Hubbard correctly argues that he is entitled to support his
pretext argument with evidence he produced to establish his
prima facie case, see S t . Maryâs Honor Ctr., 509 U.S. at 511;
Espinal, 693 F.3d at 3 5 , but that rule does him no good, because
he supported his prima facie case with no evidence of
discriminatory animus on the part of those who made the decision
to terminate his employment.
In his supplemented memorandum of law, Hubbard makes the
following argument, presumably directed to the prima facie case
that the decision to discharge him was a product of national-
origin discrimination:
There is no dispute that discrimination was
rampant at Tyco. Once Deroy looked into the issues
raised by Hubbard, he discovered that the harassing
and discriminatory language and behavior were not
being reported by management to Human resources.
Specifically, the management team of Roy, Williams,
Pixley and Coughlin. There is also no dispute that
Hubbard was harassed at work and was consistently
asking for help. He even considered transferring to
get out of the situation. The Defendant argues that
the obvious and well documented animus was directed at
Hubbard because he was an inspector, not because of
his national origin. The Defendant asks the Court to
5
Moreover, it is difficult to square Hubbardâs argument
that Tyco managers condoned discrimination against him with his
own statement of material facts, in which he describes
punishments meted out to both Derek Thompkins and Bill Rogers as
a result of their abusive behavior toward him, see Pl.âs Supp.
Mem. of Law (doc. n o . 56) ¶¶ 10-14 (Thompkins), 27-29 (Rogers).
40
make this factual finding despite the Defendantâs
admission that many others were discriminated against
because of their race or national origin. The
motivation of the individuals harassing Hubbard is a
classic instance [of a ] genuine issue of material fact
and defeats summary judgment.
Pl.âs Supp. Mem. of Law (doc. n o . 56) 20 (citations to the
record omitted). It i s , indeed, well established that âcourts
should exercise particular caution before granting summary
judgment for employers on such issues as pretext, motive, and
intent.â Acevedo-Parrilla v . Novartis Ex-Lax, Inc., 696 F.3d
128, 140 (1st Cir. 2012)) (quoting Santiago-Ramos v . Centennial
P.R. Wireless Corp.,
217 F.3d 4 6 , 54 (1st Cir. 2000); citing
Hodgens v . Gen. Dynamics Corp.,
144 F.3d 1 5 1 , 167 (1st Cir.
1998)); see also Kelley, 707 F.3d at 115-16 (citations omitted).
Even s o , the evidence Hubbard has produced goes to the animus of
his co-workers and subordinates, not to the animus of those on
the executive council who were responsible for making the
decision to discharge him. In sum, because Hubbard has produced
no evidence of anti-English animus on the part of those who made
the decision to discharge him, he has not demonstrated that his
discharge was motivated by discrimination at all, much less that
it was âmore likely motivated by discrimination,â Aly,
711 F.3d
at 4 6 , than by the decisionmakersâ belief that he had violated
one or more direct instructions from management in his
communications with Long on February 6.
41
Hubbard is equally unable to establish pretext under the
alternative path described in Aly, that i s , by âdemonstrate[ing]
. . . that the . . . proffered explanation [was] unworthy of
credence where the suspect action, coupled with evidence to the
contrary, suggests a discriminatory motivation,â 711 F.3d at 46
(internal quotation marks omitted). âProof that the defendantâs
explanation is unworthy of credence is . . . one form of
circumstantial evidence that is probative of intentional
discrimination.â Acevedo-Parrilla,
696 F.3d at 141 (quoting
Williams v . Raytheon Co.,
220 F.3d 1 6 , 19 (1st Cir. 2000);
citing Reeves,
530 U.S. at 1 4 7 ) . That is so because
demonstrating that an employerâs explanation is unworthy
credence goes directly to the central focus of the pretext
analysis, i.e., âwhether the employer believed its stated reason
to be credible,â Acevedo-Parrilla,
696 F.3d at 142 (quoting
Mesnick v . Gen. Elec. Co.,
950 F.2d 816, 824 (1st Cir. 1991);
citing Gray v . N.E. Tel. & Tel. Co.,
792 F.2d 2 5 1 , 256 (1st Cir.
1986); Feliciano de la Cruz,
218 F.3d at 7 ) ; see also Kelley,
707 F.3d at 116.
An explanation is unworthy of credence when is suffers from
ââweaknesses, implausibilities, inconsistencies, incoherencies,
or contradictions . . . â such that a factfinder could âinfer
that the employer did not act for the asserted non-
42
discriminatory reasons.ââ Santiago-Ramos, 217 F.3d at 56
(quoting Hodgens,
144 F.3d at 1 6 8 ) . While recognizing that
âcourts should exercise particular caution before granting
summary judgment for employers on such issues as pretext,
motive, and intent,â Acevedo-Parrilla,
696 F.3d at 140
(citations omitted), the court nevertheless concludes that
Hubbard has not produced evidence on the believability of Tycoâs
reason for discharging him from which a reasonable jury could
determine that that reason was a pretext.
All agree that Tycoâs proffered reason for discharging
Hubbard was insubordination, based upon his February 6
communications with Long. That reason is not unworthy of
credence. It is undisputed that: (1) in December of 2008,
Hubbard was issued a Warning prohibiting him from spreading
information concerning ongoing investigation with fellow
employees because such âbehavior creates animosity with fellow
employees,â Vanderzanden Aff., Ex. 7 (doc. n o . 3 4 - 7 ) , at 2 ; (2)
that Warning was in force until June of 2009; (3) on February 5 ,
DeRoy and Murphy told Hubbard about Longâs February 5 statement
complaining about Hubbardâs approaching him to talk about work-
related issues, and asked Hubbard to respond to the issues
raised in that statement; (4) on February 6, DeRoy spoke with
Hubbard about his relationship with Long, and told him he didnât
43
âwant . . . for any pot to be stirred,â Pl.âs Mem. of Law, Ex.
3 , Hubbard Dep. (doc. n o . 39-4) 109:14; (5) later that day, and
after his meeting with DeRoy, Hubbard engaged in a conversation
with Long in which he complained about Long having âthe nerve to
fucking lieâ about him in statements to Tyco officials, id., Ex.
9 (doc. n o . 3 4 - 9 ) , at 2 ; and (6) Long was so upset by his
conversation with Hubbard that he immediately contacted his
supervisor to report i t .
Given those undisputed facts, the court concludes, as a
matter of law, that Tycoâs explanation for terminating Hubbard,
insubordination, is not unworthy of credence. That i s , Hubbard
has produced no evidence that would allow a reasonable
factfinder to âinfer that [Tyco] did not act for the asserted
non-discriminatory reasons.â Santiago-Ramos, 217 F.3d at 56
(citation omitted).
Even if Hubbard could demonstrate that insubordination is
not a credible explanation for Tycoâs decision to discharge him,
the record is completely devoid of any evidence that suggests a
discriminatory motivation on the part of the executive council,
for the reasons stated above.
As with the discrimination claim based upon his
suspension, Hubbard appears to argue that the pretextual nature
of Tycoâs explanation for his discharge is demonstrated by the
44
disparate treatment he received. Specifically, he argues that
Tycoâs explanation is a pretext for national-origin
discrimination because he was discharged for violating
instructions not to communicate with Long while Bill Rogers, an
American, violated Tycoâs Guide to Ethical Conduct (âGECâ)
and/or its Harassment Free Workplace Policy (âHFW Policyâ) five
times without being discharged, notwithstanding Tycoâs policy of
discharging an employee upon his or her second violation of the
HFW Policy. By Hubbardâs own admission, this example of
purported disparate treatment is ânot as identical as the
[Thompkins/Joslin] example.â Pl.âs Supp. Mem. of Law (doc. n o .
56) 2 8 . The court agrees.
Hubbard was discharged for talking with Long about matters
h e , Hubbard, had been discussing with management. That conduct
took place in early February. Less than two months before that,
in late December, Hubbard had been suspended for engaging in
identical conduct, and was under a formal Warning not to do so
again. That Warning was reiterated hours before Hubbard
communicated with Long, when DeRoy told Hubbard that he did not
want the pot to be stirred. According to Hubbard, Rogers
violated Tycoâs GEC and/or its HFW Policy five times between
January of 2008 and April of 2009, but was not discharged for
45
any of those violations, notwithstanding Tycoâs policy of
discharging an employee after a second violation.
While the court understands Hubbardâs unhappiness with
Tycoâs apparent leniency toward Rogersâ violations of the GEC
and/or the HFW Policy, Rogers is not a valid comparator.
Hubbard was discharged for insubordination, but he does not
claim that Rogers was ever insubordinate. If some other
employee had been allowed to keep his or her job after engaging
in hostile communications with another employee, hours after
being directed not to stir the pot, and had done so while under
a Warning not to discuss ongoing company investigations with
other employees, then Hubbard might have a good argument. But
here, even if Hubbard is able to prove that Tyco did not follow
its own internal guidelines with respect to disciplining Rogers,
Hubbardâs conduct and Rogersâ conduct are so different that
Rogers is not a valid comparator for purposes of establishing
pretext based upon disparate treatment.
Hubbard also argues that pretext is shown by the fact that
he was suspended pending Tycoâs investigation of his
communications with Long, while Long was not, and the fact that
he was discharged as a result of those communications, and Long
was not. In Hubbardâs view, he and Long engaged in exactly the
same conduct, but Tyco treated them differently. Long, however,
46
is not a valid comparator for at least three reasons. First, on
February 6, Long was not operating under a Warning for having
inappropriate communications with coworkers. Second, at the
time of the communications between Hubbard and Long, Long had
not been warned against stirring the pot, and Hubbard has
identified no reason why he should have been. And third, in the
communications at issue, Hubbard was aggressive and abusive,
while Long was not. S o , like Rogers, Long is not a valid
comparator. Because neither Rogers nor Long is a valid
comparator, Hubbard has failed to produce evidence on disparate
treatment from which a reasonable jury could determine that the
reason Tyco gave for discharging him was pretextual.
Finally, taking a step back from formal legal analysis,
Count IV also founders when viewed from the perspective of basic
common sense. Tyco hired Hubbard despite the fact that he is
English. Thereafter, according to Hubbard himself, he became
âthe fastest guy in the companyâs history ever to go in there
and became a T3 to T1,â Def.âs Facts (doc. n o . 32) ¶ 13 (quoting
Def.âs Mem. of Law, Ex. D, Hubbard Dep. (doc. n o . 32-4) 64:13-
14). It defies both logic and the undisputed facts of this case
to argue that the same company that hired Hubbard and rapidly
promoted him, while knowing him to be English, then discharged
him because of his national origin. See LeBlanc, 6 F.3d at 847
47
(âLeBlanc points to nothing in the record to suggest why Conte,
who, in January 1989, approved LeBlancâs transfer, at Great
Americanâs expense . . . and his corresponding sixteen percent
pay raise, would develop an aversion to older people less than
two years later . . . . â ) ; Proud v . Stone, 945 F.2d 796, 797
(4th Cir. 1991) (âFrom the standpoint of the putative
discriminator, â[i]t hardly makes sense to hire workers from a
group one dislikes (thereby incurring the psychological costs of
associating with them), only to fire them once they are on the
job.ââ (quoting Donohue & Siegelman, The Changing Nature of
Employment Discrimination Litigation, 43 Stan. L . Rev. 983, 1017
(1991)).
To conclude, Hubbard has established that he is English and
that Tyco discharged him, but he has come nowhere close to
producing evidence that would allow a reasonable jury to
conclude that the reason Tyco gave for discharging him was a
pretext for national-origin discrimination. As a result, his
discrimination claim fails at stage three of the McDonnell
Douglas framework. Accordingly, Tyco is entitled to judgment as
a matter of law on the discrimination claim stated in Count IV.
3 . Retaliation (Counts V and VI)
In the fact section of his complaint, Hubbard alleged that
he reported incidents of workplace discrimination to his
48
superiors on two occasions in September of 2008, see Compl.
(doc. no. 1) ¶¶ 19 & 20, and did so on three more occasions, in
November and December of 2008, see id. ¶¶ 21 & 22, and again at
some point after he returned from his late-December suspension,
see
id. ¶ 2 4 .
In his complaint, Hubbard asserted his state-law
retaliation claim in the following way:
As more particularly described above, immediately
upon the heels of the Plaintiff telling the Defendant
that he was being discriminated against based on his
national origin, the Defendant began a pattern of
retaliatory conduct toward the Plaintiff as described
herein.
The culmination of the retaliation was that the
Plaintiff was terminated.
The Defendantâs unlawful retaliation against the
Plaintiff for reporting discrimination based on
national origin violates N.H. RSA 354-A:7, I .
Compl. (doc. n o . 1 ) ¶¶ 48-50. He asserted his federal
retaliation claim in a similar fashion:
As more particularly described . . . above, the
defendant has likewise willfully violated Title V I I ,
42 U.S.C. Section 2000(e) et seq. by retaliating
against the Plaintiff for complaining about
discrimination based on his national origin and then
engaging in a pattern of retaliatory conduct toward
him, culminating in termination.
Id. ¶ 5 3 . While both of Hubbardâs claims refer to âa pattern of
retaliatory conduct,â the fact section of his complaint
identifies no potentially retaliatory adverse employment action
49
other than his discharge, and it does not indicate what other
actions by Tyco contributed to the pattern of conduct to which
he refers.
In his supplemented memorandum of law, Hubbard appears to
assert, seemingly in passing, two additional theories of
retaliation. First, in his argument that Tycoâs reason for
discharging him was not legitimate, Hubbard appears to suggest
that if he was discharged for his February 6 communications with
Long, that would have been an act of retaliation in violation of
Title VII. See doc. n o . 5 6 , at 2 5 . I f , indeed, Hubbard is
making such a claim, the court is quite confident that Hubbardâs
communications with Long do not qualify as protected conduct for
the purpose of a Title VII retaliation claim. In addition, in
the section of his supplemented memorandum actually devoted to
retaliation, Hubbard concludes this way:
In this case, Plaintiff complained repeatedly to
his supervisors and directors. No action was taken
until Coughlin claimed that Hubbard was seeking legal
assistance. Within seven days of that report by
Coughlin, Hubbard was terminated.
Pl.âs Supp. Mem. of Law (doc. n o . 56) 3 6 . Based upon the
foregoing, the court assumes that: (1) Hubbard is now claiming
that he was discharged because relevant Tyco decisonmakers
believed that he had either considered retaining counsel or had
actually done s o , despite the lack of any support for such a
50
claim in the factual allegations he made in his complaint; and
(2) such an action by Tyco would violate Title V I I , despite the
lack of any legal authority for that proposition in Hubbardâs
supplemented memorandum of law. However, adding Hubbardâs new
claim to the one actually stated in his complaint does him no
good because that claim fails just as his original claim fails,
due to his failure to establish that his discharge was causally
related to his purported protected conduct.
Count V arises under RSA 354-A, while Count VI arises under
Title VII. As with Counts III and IV, the court will conduct a
single analysis under the standard applicable to Title VII. See
Hudson, 822 F. Supp. 2d at 9 2 . âTitle VII makes it unlawful for
an employer to discriminate against an employee who has opposed
an unlawful employment practice.â Gerald, 707 F.3d at 24
(citing 42 U.S.C. § 2000eâ3(a)).
In a recent Title VII retaliation case, the court of
appeals for this circuit outlined the applicable analytical
approach:
Under the McDonnell Douglas framework, a
plaintiff must first establish a prima facie case of
retaliation by showing that (1) she engaged in
protected conduct, (2) she was subject to an adverse
employment action, and (3) a causal connection existed
between the first and second elements. Noviello v .
City of Boston, 398 F.3d 7 6 , 88 (1st Cir. 2005). The
burden then shifts to the defendant to âarticulate a
legitimate, non-discriminatory reason for its
challenged actions.â Provencher v . CVS Pharmacy, Div.
51
of Melville Corp., 145 F.3d 5 , 10 (1st Cir. 1998)
(citing Texas Depât of Cmty. Affairs v . Burdine, 450
U.S. 2 4 8 , 254â55 (1981)). Finally, â[i]f the
defendant does s o , the ultimate burden falls on the
plaintiff to show that the proffered legitimate reason
is in fact a pretext and that the job action was the
result of the defendantâs retaliatory animus.â
Fennell v . First Step Designs, Ltd., 83 F.3d 526, 535
(1st Cir. 1996).
ColĂłn v . Tracey, 717 F.3d 4 3 , 49 (1st Cir. 2013) (parallel
citations omitted). The court then went on to note that â[a]s
the appropriate standard for causation in a Title VII employment
retaliation claim is not at issue here, we acknowledge but need
not address the Supreme Courtâs recent grant of certiorari in
University of Texas Southwestern Medical Center v . Nassar,â
ColĂłn, 717 F.3d at 49 n.14.
Shortly after the First Circuit decided ColĂłn, the Supreme
Court decided Nassar. In its decision, the Court ruled:
Title VII retaliation claims must be proved according
to traditional principles of but-for causation, not
the lessened causation test stated in § 2000eâ2(m).
This requires proof that the unlawful retaliation
would not have occurred in the absence of the alleged
wrongful action or actions of the employer.
133 S . C t . 2517, 2533 (2013); see also Torrech-HernĂĄndez v . Gen.
Elec. Co., 519 F.3d 4 1 , 48 (1st Cir. 2008) (explaining, in ADEA
discrimination claim, that for factor to be âbut forâ cause of
employeeâs discharge, it must have been âthe determinative
factor in his dischargeâ) (quoting DĂĄvila,
498 F.3d at 1 5 ;
citing Mesnick,
950 F.2d at 823) (emphasis added). That is a
52
more demanding causation standard than the one that applies to
Title VII discrimination claims, under which a plaintiff need
only establish that discriminatory animus was a motivating
factor for an adverse employment action. See Nassar, 133 S . C t .
at 2526, 2534. Given the substantial difference between
motivating-factor causation and but-for causation, the court
cannot agree with Hubbard that the Nassar decision has little or
no effect on the analysis of his retaliation claims.
However, it is not entirely clear where the analysis of
causation fits into the McDonnell Douglas framework as applied
to Title VII retaliation claims. As ColĂłn describes that
framework, it appears that causation must be considered: (1) at
stage one of the McDonnell Douglas framework, as the third
element of the prima facie case; and (2) at stage three, as a
part of the plaintiffâs ultimate burden. The court will assume
without deciding that Hubbard has produced adequate evidence to
establish his prima facie case, and move to the second and third
stages of the McDonnell Douglas framework. For the reasons
given in the previous section, Tyco has met its burden of
producing evidence of a legitimate nondiscriminatory reason for
its decision to discharge Hubbard. That leaves the third stage
of the framework.
53
While the court of appeals for this circuit has yet to
decide a Title VII case that involves an application of Nassar,
useful guidance on how Nassar might be applied to the third
stage of a McDonnell Douglas analysis may be derived from the
First Circuitâs opinion in McArdle v . Town of Dracut/Dracut
Public Schools, 732 F.3d 29 (1st Cir. 2013). In that case, the
plaintiff asserted a retaliation claim under section 105(a)(1)
of the Family and Medical Leave Act of 1993 (âFMLAâ),
29 U.S.C.
§ 2615(a)(1). The court described the elements of McArdleâs
claim:
âTo make out a prima facie case of retaliation
[McArdle] must show (1) he availed himself of a
protected right under the FMLA; (2) he was adversely
affected by an employment decision; (3) there is a
causal connection between the employeeâs protected
activity and the employerâs adverse employment
action.â [Hodgens v . Gen. Dynamics Corp., 144 F.3d
151,] 161 [1st Cir. 1998)] (applying the standard from
McDonnell Douglas Corp. v . Green, 411 U.S. 792 (1973),
to FMLA cases).
732 F.3d at 35 (parallel citations omitted). In McArdle, the
employee claimed that he was discharged âbecause he asked for
FMLA leave.â
Id. The court of appeals, however, determined
that âhe was fired because the town concluded that his renewed
and indefinite absence [from work], without advance notice,
allowed it to fire him.â
Id. The court continued:
The correctness of this conclusion is underscored
by imagining that McArdle had made no request at all
for FMLA leave. In such a scenario, the townâs claim
54
that he was abandoning his job without effectively
establishing a right to do so would have been
indisputably correct. He would have been terminated,
perhaps sooner. Alternatively, imagine that McArdle
had asked for FMLA leave while still showing up for
work. There is no evidence to which he points that
would support any inference that the town would have
still fired him, or even thought that it could fire
him under the terms of the collective bargaining
agreement. In short, even assuming that he properly
requested FMLA leave that request could not have
caused his termination. His absence from work, on the
other hand, was fully sufficient to cause his
termination. C f . SotoâPadro v . Pub. Bldgs. Auth., 675
F.3d 1 , 6 (1st Cir. 2012) (ââif the lawful reason
alone would have sufficed to justify the [action],â
â[t]hen the employee cannot prevail.[â]â) (quoting
McKennon v . Nashville Banner Pub. Co., 513 U.S. 3 5 2 ,
359 (1995)). This conclusion âcomports with the
traditional tort-law principle that if the wrongful
act did not cause the injury, the wrongdoer is not
liable.â TejadaâBatista v . Morales, 424 F.3d 9 7 , 101
(1st Cir. 2005).
McArdle, 732 F.3d at 36 (parallel citations omitted).
The application of McArdle to the facts of this case is
straightforward. If Hubbard had not reported discrimination to
Tyco, Tycoâs claim that Hubbard had acted insubordinately by
contacting Long would have been indisputably correct, for
reasons developed in the previous section. On the other hand,
if Hubbard had complained about discrimination but not contacted
Long on February 6, â[t]here is no evidence . . . that would
support any inference that [Tyco] would have still fired him,â
732 F.3d at 3 6 . To the contrary, Hubbard himself asserts that
he had complained about discrimination at Tyco for months prior
55
to the February 6 incident, without suffering any adverse
employment action or being given any reason to believe that such
adverse actions might result from such conduct on his part.
Rather, it is undisputed that Tycoâs response to Hubbardâs
protected conduct was to begin an investigation, albeit not as
quickly as Hubbard might have liked. In short, because
Hubbardâs contact with Long, alone, gave Tyco a credible reason
for discharging him, Hubbard cannot establish that but for his
protected conduct he would not have been discharged.
Hubbardâs only argument on causation is that the requisite
causal link between his protected conduct and his discharge is
the short span of time between his meeting with DeRoy and Murphy
on February 4 and his discharge on February 1 2 . It is well
established that â[t]emporal proximity alone can suffice to meet
the relatively light burden of establishing a prima facie case
of retaliation.â PĂ©rez-Cordero v . Wal-Mart P.R., Inc., 656 F.3d
1 9 , 32 (1st Cir. 2011) (quoting DeCaire v . Mukasey,
530 F.3d 1 ,
19 (1st Cir. 2008); citing Collazo v . Bristol-Myers Squibb Mfg.,
Inc.,
671 F.3d 3 9 , 49-50 (1st Cir. 2010); Mariani-ColĂłn v . Depât
of Homeland Sec.,
511 F.3d 216, 224 (1st Cir. 2007)); see also
Gerald,
707 F.3d at 25 (citing Harrington v . Agg. Indus. N e .
Region, Inc.,
668 F.3d 1 5 , 32 (1st Cir. 2012)). Temporal
proximity, alone, however, is insufficient to establish
56
causation at the third stage of the McDonnell Douglas framework.
See Alvarado, 687 F.3d at 464 (accepting one-week interval
between protected conduct as sufficient to establish third
element of prima facie case, but insufficient to establish
causation at stage three of McDonnell Douglas framework) (citing
Wright v . CompUSA, Inc.,
352 F.3d 4 7 2 , 478 (1st Cir. 2003);
Soileau v . Guilford of M e . , Inc.,
105 F.3d 1 2 , 16 (1st Cir.
1997)).
Absent any evidence of causation other than temporal
proximity, Hubbard has failed to produce evidence sufficient to
send his retaliation claim to a jury. Accordingly, Tyco is
entitled to judgment as a matter of law on the claims stated in
Counts V and V I .
Conclusion
As the court explained at the outset of this order, Tycoâs
motion to strike, document n o . 5 7 , is denied as moot, and
Hubbardâs motion to correct the record, document n o . 6 5 , is
granted. For the reasons detailed above, Tyco is entitled to
judgment as a matter of law on Hubbardâs discrimination and
retaliation claims, but not the hostile-work-environment claims
stated in Counts II and III. Thus, Tycoâs motion for summary
judgment, document n o . 3 0 , is granted in part and denied in
part; the case remains on track for a trial on Counts II and
57
III. The court concludes by noting that the elimination of
Counts IV, V , and VI from this case may provide a good
opportunity for mediation of the two claims that remain.
SO ORDERED.
LandyaMc^afferty
United St^fes Magistrate Judge
December 3 , 2013
cc: Nicole S . Corvini, Esq.
Lisa Hall, esq.
Michael S . McGrath, Esq.
Danielle Y . Vanderzanden, Esq.
58
