United States District Court, D. Massachusetts
MEMORANDUM & ORDER REGARDING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. No. 31)
MICHAEL A. PONSOR, District Judge.
Plaintiff Lutvija Katica has brought suit in eight counts against her former employer, Defendant Webster Bank. She has asserted claims under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101, et seq., and Mass. Gen. Laws. ch. 151B, for disability discrimination, pregnancy discrimination, national origin discrimination, and retaliation. On April 11, 2014, Defendant filed the pending Motion for Summary Judgment. (Dkt. No. 31.) Because a genuine dispute of fact exists with respect to Plaintiff's claim that she was denied a promotion for improper reasons, the court will deny Defendant's motion as to counts IV and VI on that limited theory. However, since Plaintiff cannot succeed on any other claim, the court will allow the balance of Defendant's motion.
II. BACKGROUND FACTS
Plaintiff, Lutvija Katica (a/k/a "Seka"), was born in Bosnia and came to the United States in 2000. Defendant, Webster Bank, is a national bank with its main office in Waterbury, Connecticut. Plaintiff began working for Defendant on October 4, 2010, as a "floating" branch customer service representative at twelve banking centers in Springfield, Massachusetts. Angela Chirico, Defendant's Senior Vice President, oversaw the Springfield market, and Adam Cherry served as Plaintiff's human resources ("HR") contact.
In 2011, Plaintiff was pregnant with her second child. During her pregnancy, Plaintiff was occasionally denied the ability to use the restroom despite an increased need to do so. Her supervisors also required her to bend and lift heavy items in spite of the fact that her pregnancy made this difficult, and on one occasion her immediate supervisor, Ms. Debra Lizon, called her "huge." (Katica Dep. I 65:22-23, Dkt. No. 44, Ex. 4 at 18.) During this time, Plaintiff also attempted to wear certain maternity apparel, such as open-toe shoes, but her supervisors required her to change into less comfortable clothes that conformed to Defendant's requirements for attire.
Plaintiff gave birth on August 20, 2011. During her delivery, she experienced a back injury and, subsequently, suffered from postpartum depression. Consequently, she took a leave of absence that Defendant approved through October 3, 2011. Plaintiff sought an extension of her leave, which Defendant approved through November 1, 2011.
During this leave, Plaintiff applied for a vacant customer service representative position with Defendant. The position did not involve an increase in pay, and Plaintiff even would have lost money to cover her transportation expenses. Nonetheless, the new job would have allowed her to work at a single branch, and it could have opened up more opportunities to advance within the company.
Although Plaintiff was expected to return to work on November 1, 2011, she requested another extension of her leave at that time. In support of that request, Plaintiff's chiropractor provided a note stating, "The patient may return to work on November 8, 2011, without restrictions." (Dkt. No. 32, Ex. 5 at 20.) However, Defendant took the position that, due to understaffing, it needed to fill the "float" position. Mr. Cherry informed Plaintiff that Defendant would advertise the position, but she could return before it was filled. Plaintiff testified that Mr. Cherry, in threatening tones, urged her to return to work immediately. (Katica Dep. II 42:2-8, Dkt. No. 44, Ex. 5 at 13.)
Plaintiff did resume work on November 8, 2011. When she did, Defendant began accusing her of making errors. These included: cashing post-dated checks, cashing a check without a proper endorsement, and making "batching" mistakes. Plaintiff denied these accusations. In her view, her managers and co-workers were simply, and increasingly, rude to her, even expressing objections when she needed to go to the restroom to use a breast pump. They even, according to Plaintiff, flatly denied her the opportunity to use the restroom on several occasions.
On November 22, 2011, Ms. Chirico met with Plaintiff to talk about her mistakes. They also discussed the position Plaintiff applied for. According to Plaintiff's testimony, Ms. Chirico stated that Plaintiff would not get the customer service representative job because of her language skills, her accent, and her constant need to use the restroom. Defendant denies that Ms. Chirico made this statement.
Three days later, Plaintiff sent an e-mail to Mr. Cherry referring to the meeting with Ms. Chirico. Plaintiff complained about a general lack of opportunity to advance and stated that she felt people were treating her poorly because she was a breast-feeding mother. She did not, however, recount Ms. Chirico's alleged statements.
As a result of this meeting, Mr. Cherry investigated Plaintiff's complaints. Plaintiff, during the investigation, described co-workers' facial expressions and stated that she believed people constantly stared at her. She also repeated her charge that her access to the restroom was unduly limited. Mr. Cherry ultimately concluded that the Springfield staff was fine with Plaintiff using the restroom as often as she needed, but, like every other employee, Plaintiff needed to obtain coverage at the teller line before she stepped away. On December 16, 2011, Plaintiff and Mr. Cherry discussed the matter, and Plaintiff informed him that the situation had improved.
On December 28, 2011, a customer at the Vernon banking center spoke with Karen Green, an Assistant Manager, about an employee named "Seka." The customer stated that she went to the bank on November 30, 2011, to deposit a check and the teller asked her multiple times if she wanted to open a new credit card. Defendant had offered a number of incentive plans to its employees. One such offer awarded an employee ten dollars for every customer he or she signed up for a credit card. The customer reported that, although she indicated no interest in a new card, she still observed Plaintiff entering information into the computer. Feeling uncomfortable, the customer asked Plaintiff to print out what she was preparing. The customer kept the paper and wrote "told her did not want & did not sign"; "make sure not generated" and "hold until Feb 2012! Then shred." (Dkt. No. 32, Ex. 9 at 5.) Nonetheless, the credit card company later informed the customer that a credit card application had been submitted and was declined because her income was listed, incorrectly, at $10, 000.
On January 4, 2011, Ms. Chirico, who had been on vacation at the time of the customer's complaint, returned to work and learned of the matter. She spoke with the customer, asked Ms. Green for information about the transaction, obtained the screen-shot of the application (which showed Plaintiff's name), and reviewed the customer's deposit slip, which carried the number of the cash register assigned to Plaintiff that day. Based on that information, Ms. Chirico concluded that Plaintiff was, in fact, the responsible teller. At that point, she discussed the matter with Mr. Cherry, and they determined that Plaintiff's misconduct, if it had occurred, warranted termination. Nonetheless, they wanted to provide Plaintiff an opportunity to defend herself before they acted.
Plaintiff was on an unrelated medical leave from January 4, 2012, to February 20, 2012. When she returned to work, Ms. Chirico immediately approached Plaintiff about the credit card incident. Plaintiff denied the allegations, as she has continued to do during this litigation. It is undisputed that Ms. Chirico and Mr. Cherry made the final decision to terminate Plaintiff some time between roughly February 21 and February 29, 2012. (Dkt. No. 32, Ex. 5 at 52.) On February 29, 2012, Ms. Chirico and Mr. Cherry exchanged final drafts of the termination notice. (Id. at 54-56.) The only other person they consulted about the decision to terminate Plaintiff was Mr. Cherry's supervisor, Becky Lowry.
On February 28, 2012, Plaintiff arrived late to work. Her supervisor reprimanded her and asked her if she understood a recent change to her schedule. Plaintiff believed that she was asked this question solely because she was from another country. On March 1, 2012, around 11:30 a.m., Plaintiff sent Mr. Cherry an e-mail about that incident along with a general complaint about discrimination. (Supplemental Cherry Aff. ¶ 2, Dkt. No. 48, Ex. 1.)
On March 5, 2012, Ms. Chirico and Mr. Cherry terminated Plaintiff because of the credit card incident. Plaintiff asked if she could apply for a job in the future, and Mr. Cherry informed her that she was "free to apply for future employment." (Cherry Dep. 74:15-24 - 75:1, Dkt. No. 44, Ex. 2 at 21.)
In July 2012, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") and the Massachusetts Commission Against Discrimination ("MCAD") for sex (pregnancy) discrimination; national origin (ethnicity) discrimination; retaliation; and harassment (gender/ethnicity) under Title VII and Mass. Gen. Laws Ch. 151B. On September 9, 2012, the EEOC issued a dismissal and right to sue notice. MCAD, on October 2, 2012, did the same. On December 20, 2012, Plaintiff filed a second complaint with the EEOC requesting dual filing with MCAD. At this point, she alleged disability discrimination. The EEOC provided a second notice of a right to sue on January 15, 2012.
Plaintiff originally filed her complaint in state court, pursuant to chapter 151B, on February 19, 2013. On March 29, 2013, Defendant, invoking diversity jurisdiction, removed the case. (Dkt. No. 1.) Plaintiff, on April 2, 2013, filed an amended complaint asserting claims for: (I) discrimination under the ADA, 42 U.S.C. § 12101; (II) failure to provide a reasonable accommodation under the ADA; (III) retaliation under the ADA; (IV) gender, sex, and pregnancy discrimination in violation of chapter 151B; (V) disability discrimination in violation of chapter 151B; (VI) race, ethnicity, and national origin discrimination in violation of chapter 151B; (VII) retaliation-harassment in violation of chapter 151B; and (VIII) retaliation-termination in violation of chapter 151B. (Dkt. No. 3.)
On April 11, 2014, Defendant filed the pending Motion for Summary Judgment. (Dkt. No. 31.) Plaintiff, in her opposition, conceded that her disability-discrimination claims, Counts I-III and V were properly subject to dismissal. (Pl.'s Mem. Of Law in Opp'n 2, Dkt. No. 47.) Counsel appeared for argument on the remaining counts on May 14, 2014, and the court took the matter under advisement.
Summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). The court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences from those facts in that party's favor. Pac. Ins. Co., Ltd. v. Eaton Vance Mgmt. , 369 F.3d 584, 588 (1st Cir. 2004).
Though Plaintiff does not oppose dismissal of her disability discrimination claims, she vigorously opposes Defendant's motion with respect to the remaining four counts. Though the analysis will overlap at times, ...