United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DENISE J. CASPER, District Judge.
Plaintiff Christine Fiske ("Fiske") has filed this lawsuit against her former employer, MeYou Health, Inc., ("MYH"), its parent corporation, Healthways, Inc. ("Healthways"), Insperity PEO Services, L.P. ("Insperity") and Chris Cartter ("Cartter, ") (collectively "Defendants") alleging discrimination on the basis of pregnancy in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), the Pregnancy Discrimination Act ("PDA")'s amendment to Title VII and Mass. Gen. L. c. 151B; and a violation of her rights under the Family Medical Leave Act ("FMLA") and Massachusetts Medical Leave Act ("MMLA"). D. 16. Defendants have moved for summary judgment, D. 29, to strike an affidavit Fiske submitted in opposition to summary judgment, D. 38, and to quash two subpoenas, D. 40. Fiske has moved to increase the limit for depositions, D. 45, and to extend the deadline for fact discovery, D. 44. For the following reasons, the Court DENIES the motion for summary judgment, ALLOWS the motion to strike in part, ALLOWS the motion to extend the deadline for fact discovery, ALLOWS the motion to quash in part and ALLOWS the motion to increase the deposition limit in part.
II. Standard of Review
The Court grants a motion for summary judgment when there is no genuine dispute of material facts and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). "[A]t the summary judgment stage the judge's function is not... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249 (1986). In doing so, the Court "must scrutinize the record in the light most favorable to the summary judgment [opponent] and draw all reasonable inferences... to that party's behoof." Alliance of Auto. Mfrs. v. Gwadosky , 430 F.3d 30, 34 (1st Cir. 2005) (citation omitted).
The movant bears the burden of demonstrating the absence of a genuine issue of material fact. Carmona v. Toledo , 215 F.3d 124, 132 (1st Cir. 2000). If the movant meets its burden, the non-moving party may not rest on the allegations in her pleadings, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 256 (1986), but must come forward with specific admissible facts that demonstrate a triable issue. Borges ex rel. S.M.B.W. v. Serrano-Isern , 605 F.3d 1, 5 (1st Cir. 2010). Although the Court "view[s] the record in the light most favorable to the nonmovant, drawing reasonable inferences in his favor, " Noonan v. Staples, Inc. , 556 F.3d 20, 25 (1st Cir. 2009), "conclusory allegations, improbable inferences, and unsupported speculation" proffered by the non-movant are insufficient to create a genuine issue of material fact to survive summary judgment. Sullivan v. City of Springfield , 561 F.3d 7, 14 (1st Cir. 2009) (citation omitted).
III. Factual Background
The Court draws the facts of this case from the parties' statements of facts and their responses to same. D. 29-2, 33 (collectively "SOF"). MYH was founded in 2009 and is a wholly-owned subsidiary of Healthways. SOF ¶¶ 2-3. Cartter is MYH's General Manager. Id . ¶ 4. Defendants assert that Insperity is a "Professional Employer Organization that provides outsourced human resources services and other functions to MYH, " but Fiske argues that Insperity was Fiske's "co-employer." Id . ¶ 5. Fiske began working at MYH as its Online Marketing Director on October 19, 2010. Id . ¶ 6. Her salary was $130, 000. Id . ¶ 52. MYH has a flexible hours policy and characterizes itself as "family friendly." Id . ¶ 8. Indeed, prior to Fiske's termination, MYH never refused her requests to accommodate family issues and Fiske would leave MYH's office around 2:30 p.m. at least once per week to pick up her children from school. Id . ¶¶ 9-10.
In September 2011, Fiske informed Cartter that she was pregnant. Id . ¶ 11. Upon hearing the news, Cartter congratulated Fiske, but expressed concern that he would have to plan for different circumstances because Fiske's pregnancy may impact her decision to come back to work. Id . ¶ 15. Cartter explained that when his partner had their third child, she opted not to return to work. Id . Afterwards, Fiske's conditions of employed changed at least to the extent that Cartter became more "nitpicky" regarding Fiske's work product, but Fiske also asserts that her meetings became less frequent with Cartter. Id . ¶ 13. No other MYH employee has ever taken maternity leave. Id . ¶ 35.
As Online Director of Marketing, Fiske was part of MYH's leadership team and steering committee and took part in at least some regular meetings to discuss company issues. Id . ¶ 18. Toward the end of 2011, MYH was planning on conducting clinical trials of its "core product, " the Daily Challenge. Id . ¶ 19. The parties agree that at this time, the clinical trial budget was under-allocated. Id . ¶ 20. MYH contends that at least some of its marketing dollars for 2012 were repurposed to fund the clinical trial, though some of these resources were used for marketing the clinical trial itself. Id . ¶ 23. Defendants claim to have attempted to save MYH's marketing department and Fiske's job. Id . ¶¶ 24-25. As part of its cost-cutting efforts, MYH terminated its contract with its outside public relations firm at the end of 2011. Id . ¶ 26.
Against this backdrop, Fiske was terminated from her employment on January 27, 2012. Id . ¶ 7. The position of Online Marketing Director was eliminated. Id . ¶ 28. Fiske was told that budgetary constraints prompted the elimination of her position. Id . ¶ 29. Some of Fiske's job duties were shifted to other employees and to Healthways. Id . ¶¶ 64-69. Although Cartter asserted at his deposition that Fiske's salary was not the only reason she was terminated, MYH's Seth Lawton received a $10, 000 pay increase in 2012 after taking some of Fiske's other duties. Id . ¶¶ 49, 54. In their position statement before the Massachusetts Commission Against Discrimination ("MCAD"), Defendants asserted that Fiske was terminated due to cuts to the marketing budget rendering Fiske's services unnecessary. Id . ¶ 56.
During the relevant time, there was a three or four to one male to female ratio at MYH. Id . ¶ 36. Of the three employees terminated from MYH since 2010, two were female and neither was terminated for performance reasons. Id . ¶ 37.
IV. Procedural History
Fiske commenced this action in Suffolk Superior Court on December 31, 2013. D. 16 at 1. Defendants removed this action to this Court on March 4, 2013. D. 1. Defendants subsequently moved for summary judgment, D. 29, and to strike Fiske's affidavit filed in opposition to summary judgment on January 15, 2014. D. 38. Healthways moved to quash deposition subpoenas on January 16, 2014. D. 40. On January 24, 2014, Fiske moved to extend the discovery deadline and to increase the deposition limit from the presumptive limit of ten to fourteen. The Court heard oral argument on these matters on March 5, 2014, D. 52, taking them under advisement.
A. Defendants' Motion to Strike
To decide Defendants' motion for summary judgment, the Court must determine what evidence it can consider. See Fed.R.Civ.P. 56(c). Defendants have moved to strike Fiske's affidavit submitted in opposition to the motion for summary judgment, arguing that "[a] party opposing summary judgment may not manufacture a dispute of fact by contradicting earlier sworn deposition testimony. D. 38 at 1 (citing Torrech-Hernandez v. General Electric Co. , 519 F.3d 41, 47 (1st Cir. 2008)).
That is, under Torrech-Hernandez, a court, when considering the evidence in deciding summary judgment, may disregard the non-moving party's self-serving affidavit where it conflicts with its own sworn deposition testimony. Id . at 47. It is also true that "[h]earsay evidence, inadmissible at trial, cannot be considered on a motion for summary judgment." Garside v. Osco Drug, Inc. , 895 F.2d 46, 50 (1st Cir. 1990). Nor can the Court consider sworn allegations that are not based upon personal knowledge. Cadle Co. v. Hayes , 116 F.3d 957, 961 (1st Cir. 1997) (noting that "[s]tatements made upon information and belief, as opposed to personal knowledge, are not entitled to weight in the summary judgment balance"). Here, Fiske has made certain attestations that are based upon hearsay. Paragraph 26 states what a "female contractor to MYH" told Fiske. In addition, there are statements that the Court concludes are not based upon personal knowledge. For example, Fiske makes numerous attestations regarding the responsibilities and salary of her subordinates after MYH terminated her and she was no longer working there. D. 33-3 ¶¶ 16, 18, 20, 21, 28, 31. In addition, she made an attestation regarding MYH's denial of another employee's vacation pay. Id . ¶ ...