United States District Court, D. Massachusetts
September 30, 2005.
JUDY (KINNY) MARTIN, Plaintiff,
STERICYCLE, INC. and SCHERER HEALTHCARE, INC. d/b/a BIOSYSTEMS, Defendants.
The opinion of the court was delivered by: NATHANIEL GORTON, District Judge
MEMORANDUM & ORDER
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).
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, § 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
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."
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 between the protected
conduct and the adverse employment action. Benoit v. Technical
Mfg. Corp., 331 F.3d 166, 175 (1st Cir. 2003).
The parties agree that Kinney's report to MCAD constitutes the
engagement in protected conduct satisfying the first element of
her prima facie case. It is also undisputed that, given the
short time between Kinney's complaint and the denial of vacation
time, the third element is satisfied. The only question is
whether the denial of vacation time constituted an adverse
employment action. For that element to be present:
[t]ypically, the employer must either (1) take
something of consequence from the employee, say, by
discharging or demoting her, reducing her salary, or
divesting her of significant responsibilities or (2)
withhold from the employee an accouterment of the
employment relationship. . . .
Blackie v. State of Me., 75 F.3d 716, 725 (1st Cir. 1996).
The First Circuit Court of Appeals has cautioned that:
[w]ork places are rarely idyllic retreats, and the
mere fact that an employee is displeased by an
employer's act or omission does not elevate that act
or omission to the level of a materially adverse
Defendants argue that nothing was "withheld" or "taken" from
Kinney when her request was denied because, under the CBA, she
was not yet entitled to take vacation time. Plaintiff responds
that the right to take vacation time "is . . . provided for in
the handbook, and one that was routinely granted to other
similarly situated union employees in their first year of
employment". She also criticizes the defendants for failing to
offer her unpaid leave when they denied her request for vacation.
Defendants' argument prevails. By the terms of the CBA, Kinney
was not entitled to take vacation time. The Employee Handbook,
which contains an inconsistent statement, was inapplicable to her
(insofar as it conflicted the CBA) because she was a union
employee. There should have been no confusion about the matter
because the cover of the Employee Handbook states in large print
that "[s]ome benefits may not apply to union employees and in
some cases these policies maybe [sic] impacted by collective
bargaining agreements". There is also no allegation that anyone
misled her with respect to which document would govern.
Therefore, Kinney was not entitled to take vacation time and
defendants' denial of her request did not deprive her of anything to which she was entitled.
Perhaps, in principle, Kinney could prove an adverse employment
action by demonstrating that, notwithstanding the CBA, there was
a "de facto" policy of allowing union employees to take vacation
during their first years. That contention would fail in this
case, however, because plaintiff has offered no evidence that any
union employee was ever allowed to take paid vacation time during
his/her first year. In arguing that other employees were
permitted to take unpaid time off, plaintiff mixes apples and
oranges. The relevant provision of the CBA does not preclude a
first-year employee from taking unpaid leave, only paid vacation.
There is no evidence that first-year union employees were ever
permitted paid vacation and there is, therefore, no evidence of a
"de facto" policy in contravention of the CBA.
Realizing her evidentiary shortcoming, in her opposition (filed
December 29, 2004), Kinney requests that the Court grant her
additional discovery under Fed.R.Civ.P. 56(f) before addressing
defendants' motion for summary judgment. In particular, she
states that the following interrogatory was outstanding:
[p]lease identify all union employees who have,
during the time period January 1, 1998 to date, been
allowed during their first year of employment to
borrow vacation time against the following year's
Additional discovery on that issue is, however, futile because the answer to that interrogatory is already clear.
In his Declaration, Phil Davis states that no union member has
ever been allowed to take vacation time during his/her first year
of employment. In their reply brief, defendants reaffirm that
such will be their response to plaintiff's
interrogatory.*fn1 There is no evidence to the contrary and
no suggestion that any could emerge. Accordingly, Kinney has
failed to marshal sufficient evidence to raise a genuine issue of
material fact with respect to whether she was entitled to take
paid vacation time. Because she has not, the denial of her
request was not an adverse employment action.
Kinney also asserts that she suffered an adverse employment
action because defendants denied her the opportunity to take
unpaid leave. That argument is unavailing because Kinney never
requested it. She requested a paid vacation. At the time of her
request, Kinney was undoubtedly aware that she could have
requested unpaid leave because she had previously done so and
been granted it on May 30, 2003. Kinney cannot now claim that the
defendants acted improperly by failing to grant a privilege that
was never sought.
Finally, it bears noting that the cases cited by plaintiff for
the proposition that "denial of the right to vacation time may constitute an adverse employment action" do not strengthen
her cause. In Coffman v. Tracker Marine, L.P., 141 F.3d 1241,
1245 (8th Cir. 1998), the plaintiff had explicitly bargained
for and received the right to take federal holidays off with pay.
Until shortly before resigning, she had, in fact, taken all such
days and, therefore, when the employer began to deprive her of
them, the terms of her employment had clearly changed. Id. In
the instant case, plaintiff had neither bargained for nor
previously taken paid vacation time.
In Richardson v. Metro Dist. Comm'n, 2003 U.S.Dist. Lexis
12757 (D.Conn. 2003), the Court found that an employee had
suffered an adverse employment action based upon "denial of step
increases [in salary] on two occasions, the reassignment of her
job responsibilities, and the denial of a vacation day to attend,
and suspension for attending, a religious convention". The court
did not hold that the denial of vacation time, without more,
constitutes an adverse employment action and the case contains no
suggestion that it could. See id. Moreover, the supervisor in
that case rescinded the vacation day after he had previously
approved it and, apparently, where company policy would have
permitted the vacation.
In Wu v. Southeast-Atlantic Bev. Corp., 2003 U.S.Dist.
Lexis 25828 (N.D.Ga. 2003), the Court did not address whether a
denial of vacation time could constitute an adverse employment
action because it held that plaintiff could not establish the pretext
prong of the McDonnell-Douglas test. Id. ("[b]ecause the
court finds that plaintiff has not demonstrated pretext, the
court will assume, for purposes of summary judgment, that
[defendant's] denial of [plaintiff's] request for vacation time
qualifies as an adverse employment action"). In any event, in
Wu the plaintiff had earned vacation time before his request
was denied. Precisely the opposite is true here.
Plaintiff cites no authority in which a court has held that an
employer's decision to deny vacation time to an employee who had
not yet earned any in accordance with a written policy could
constitute an adverse employment action. Because plaintiff cannot
prove that any privilege or right to which she was entitled was
"taken" or "withheld" from her, defendants' motion for summary
judgment will be allowed. Defendants motion for summary judgment
with respect to Count V will be denied as moot because that Count
has been voluntarily dismissed.
ORDER In accordance with the foregoing, defendants' motion for
partial summary judgment (Docket No. 14) is, with respect to
Counts III and IV, ALLOWED and, with respect to Count V,
DENIED as moot.
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