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September 30, 2005.


The opinion of the court was delivered by: NATHANIEL GORTON, District Judge


The present case arises from an allegation of sexual harassment by plaintiff, Judy (Kinny) Martin ("Martin"), against Stericycle, Inc. ("Stericycle") and Scherer Healthcare, Inc., d/b/a Biosystems ("BioSystems"). Defendants now move for summary judgment with respect to plaintiff's claims of retaliation (Counts III and IV of the complaint).

  I. Background

  On November 27, 2002, Kinney began working as a route driver at the Haverhill, MA facility of BioSystems. In January, 2003, Stericycle acquired BioSystems. At all times during Kinney's employment, Teamsters Local 170 represented Kinney and the Local's collective bargaining agreement with BioSystems ("the CBA") governed Kinney's employment.

  From February, 2003 until April 30, 2003, Kinney was allegedly subjected to continual acts of sexual harassment from her co-worker, Billy Martin ("Martin"). Kinney reported the harassment to her supervisor and defendants responded by ordering Martin to arrive at work one half hour ahead of Kinney to avoid her at the workplace. Kinney claims that the harassment continued even after defendants altered Martin's starting time. Eventually Kinney determined that she could no longer work with Martin and confronted Marlynn Cohen ("Cohen"), the Human Resources employee assigned to the case, about discharging Martin. Defendants declined to discharge him.

  On June 2, 2003, Kinney filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD"). Shortly thereafter, she sought to take vacation time for medical purposes. Kinney's immediate supervisor, Joe D'Agata ("D'Agata"), told Kinney that she had not accrued any vacation time but suggested that she could borrow against the following year's vacation. Kinney claims that she expected defendants would grant her leave because Kinney claims that other employees, including Martin, had been granted leave during their first year. Apparently, D'Agata's suggestion was based upon the Stericycle Employee Handbook which states "[y]ou can take up to one week's vacation after six (6) months but you will be borrowing from next year's vacation time to be used".

  Because Kinney was a union employee, however, the Handbook was inapplicable to her insofar as it conflicted with the CBA, ยง 6 which provides that employees are ineligible for paid vacation until they have been employed for one year. On June 12, 2003, Phil Davis ("Davis"), D'Agata's superior, denied Kinney's request for vacation, allegedly pursuant to the CBA. Kinney resigned shortly thereafter.

  On September 20, 2004, Kinney filed the instant law suit alleging claims for gender discrimination (Counts I and II) and retaliation based upon the denial of her request for vacation time (Counts III and IV). Other claims were alleged but have since been voluntarily dismissed. On December 7, 2004, defendants moved for summary judgment with respect to counts III and IV. They argue that Kinney cannot establish that 1) she was subjected to an adverse employment action or 2) defendants' reason for denying her request for vacation was a pretext for retaliation.

  II. Legal Analysis

  A. Standard of Review

  The role of summary judgment is "to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The burden is upon the moving party to show, based upon the pleadings, discovery and affidavits, "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c).

  A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Factual disputes that are irrelevant or unnecessary will not be counted." Id. A genuine issue of material fact exists where the evidence with respect to the material fact in dispute "is such that a reasonable jury could return a verdict for the nonmoving party." Id.

  Once the moving party has satisfied its burden, the burden shifts to the non-moving party to set forth specific facts showing that there is a genuine, triable issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The Court must view the entire record in the light most hospitable to the non-moving party and indulge all reasonable inferences in that party's favor. O'Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). If, after viewing the record in the non-moving party's favor, the Court determines that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law, summary judgment is appropriate. B. Analysis

  To prove a claim of retaliation, a plaintiff must satisfy the elements of the McDonnell Douglas burden shifting test. Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 64 (1st Cir. 2002). The initial burden is on the plaintiff to establish a prima facie presumption of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). To do so, a plaintiff must establish that: 1) she engaged in protected conduct, 2) she experienced adverse employment action and 3) there was a causal connection ...

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