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Tian v. Aspen Tech., Inc.

United States District Court, D. Massachusetts

September 30, 2014


Order Filed: August 18, 2014

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Jennifer Tian, Plaintiff, Pro se, Winchester, MA.

For Aspen Technology, Inc., Defendant: Allan N. MacLean, Andrew C. Pickett, LEAD ATTORNEYS, Jackson Lewis LLP, Boston, MA.

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George A. O'Toole Jr., United States District Judge.

The magistrate judge to whom this matter was referred has filed a Report and Recommendation recommending that the plaintiff's motion for summary judgment be denied and that the defendant's cross-motion for summary judgment be granted. The plaintiff filed an objection to which the defendant replied. After review of the relevant pleadings and submissions, I concur with the magistrate judge's analysis and proposed ruling, and therefore ADOPT the Report and Recommendation.[1]

The plaintiff's motion for summary judgment (dkt. no. 47) is DENIED. The defendant's cross-motion for summary judgment (dkt. no. 48) is GRANTED. Judgment shall enter for the defendant.

Following the Report and Recommendation, the plaintiff moved for leave to file an amended complaint (dkt. no. 74). After review of the proposed amended complaint in light of the Report's extended discussion and evaluation of the record evidence, the motion for leave to amend is DENIED as futile.



Judith Gail Dein, United States Magistrate Judge.


Plaintiff Jennifer Tian (" Tian" ) was formerly employed as a Senior Tax Analyst for the defendant, Aspen Technology, Inc. (" Aspen" ). On October 1, 2012, Tian filed this action pro se, alleging that Aspen discriminated against her and terminated her employment on the basis of her race, age and gender, and that it retaliated against her for complaining about the alleged discriminatory treatment. By her complaint, Tian has asserted claims against Aspen for Racial, Gender and Age Discrimination (Count I), Intentional Tort (Count II), Unlawful Retaliation (Count III), and Intentional Infliction of Emotional Distress (Count IV). The defendant denies that it discriminated against Tian or otherwise acted improperly, and it contends that she was terminated due to her poor work performance and failure to meet the requirements of a formal performance improvement plan. Tian takes strong exception to the criticism of her work.

The matter is before the court on the " Plaintiff's Motion For Summary Judgment" (Docket No. 47), as well as on the " Defendant's Motion for Summary Judgment" (Docket No. 48). By their motions, each of the parties contends that there are no disputed issues of fact, and that it is

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entitled to judgment as a matter of law with respect to all counts of the complaint.[1] For all the reasons detailed below, this court finds that Tian has failed to present sufficient facts to warrant summary judgment in her favor or to create a trial-worthy issue with respect to any of her claims. Accordingly, this court recommends to the District Judge to whom this case is assigned that the plaintiff's motion for summary judgment be DENIED, and that the defendant's motion for summary judgment be ALLOWED.


Scope of the Record

In connection with its opposition to Tian's motion for summary judgment, Aspen argues that the court should disregard the plaintiff's evidentiary submissions, and deny her motion on procedural grounds, because she has failed to comply with the requirements of Fed.R.Civ.P. 56(c)(1) and Local Rule 56.1. Rule 56(c)(1) provides in relevant part as follows:

A party asserting that a fact cannot be ... disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials ....

Pursuant to Local Rule 56.1, motions for summary judgment must

include a concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried, with page references to affidavits, depositions and other documentation. Failure to include such a statement constitutes grounds for denial of the motions.

Although Tian submitted a Statement of Undisputed Facts (" Statement" ) containing citations to various exhibits, Aspen contends that the Statement was untimely because it was not filed until after the defendant had opposed Tian's motion for summary judgment and objected to the absence of a statement pursuant to Local Rule 56.1. (Def. Resp. to Pl. Statement of Undisputed Facts (Docket No. 65) at 1). It further argues that the plaintiff's Statement remains inadequate because it " still fails to properly direct the Court to 'particular parts of materials' in the summary judgment record supporting Plaintiff's Motion for Summary Judgment, as required by Fed.R.Civ.P. 56(c)(1)." (Id.). This court finds that it is appropriate to consider Tian's Statement to the extent the factual assertions contained therein are undisputed or are supported by citations to evidence that can be identified in the record.

There is no dispute that Aspen has had an adequate opportunity to review and respond to the substance of Tian's Statement notwithstanding the plaintiff's failure to submit it at the time she filed her motion for summary judgment. Moreover, while the citations set forth in Tian's Statement are difficult to follow due to the volume of documents included in each of the plaintiff's exhibits, and the lack of an organized numbering system, Tian's effort to highlight critical portions of the exhibits makes

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it possible to identify most of the relevant documents. Given these circumstances, this court finds that it is preferable to evaluate Tian's motion for summary judgment on the merits, and to consider any facts contained in her Statement that are undisputed or are accompanied by citations that are sufficient to identify the supporting evidence. To the extent the plaintiff's Statement contains disputed allegations that are not supported by adequate citations to the record or merely reflect the plaintiff's legal arguments, this court has not credited them as undisputed facts.

Aspen also objects to the admissibility of Tian's exhibits on the grounds that they have not been properly authenticated. (Def. Opp. Mem. (Docket No. 55) at 4). This court declines to disregard those exhibits or to recommend that the plaintiff's motion be denied on this basis. As an initial matter, the plaintiff has shown that many of the relevant documents included within her exhibits were produced by Aspen during the course of the litigation. (See Affidavit of Plaintiff (" Pl. Aff." ) (Docket No. 62) ¶ 7). Those documents appear to have been generated or kept by the defendant in the ordinary course of its business, and the defendant does not purport to argue that its own documents are not authentic. (See, e.g., Pl. Exs. B-C (Docket No. 47)). Furthermore, Tian has submitted an Affidavit in which she avers that the materials cited in her pleadings, including her exhibits, " are true and accurate copies." (Pl. Aff. ¶ 7). This court's review of the relevant documents reveals nothing to suggest otherwise. Therefore, this court will consider the exhibits that have been submitted by the plaintiff. The Statement of Facts set forth herein represents this court's careful scrutiny of the parties' factual statements, as well as the underlying evidence submitted in support of their motions for summary judgment, and this court's effort to provide a fair description of the relevant material facts that are, and are not, genuinely in dispute.[2]

The Parties

Defendant Aspen is a publicly-traded company that is currently headquartered in Burlington, Massachusetts. (PF ¶ 3; DF ¶ 1). It is engaged in the business of software development and sales, and is the leading provider of software and support services for process engineering, primarily in the chemical industry. (Id.). Aspen's products are sold worldwide, and the company generates gross revenues of approximately $400 million per year. (PF ¶ 3).

The plaintiff, Tian, is an Asian female who was 50 years old at the time of her termination from Aspen. (Id. ¶ 1). She holds two masters degrees from Suffolk University, and has had over 18 years of experience working in the financial sector in the United States. (Id. ¶ 5). Tian initially

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began working for Aspen as a Senior Tax Analyst in July 2006, but she resigned in November 2008 due to difficulties with her commute. (Id. ¶ 4). In about August 2010, Aspen rehired Tian as a Senior Tax Analyst after the company where she had been working in Boston relocated its tax function to Chicago. (Id.). She continued to work for the defendant in that capacity until she was discharged on January 5, 2012. (Id.; DF ¶ 2). Tian's claims in this action arise out of her employment with Aspen during the time period from August 2010 to January 5, 2012.

Tian's Initial Employment with Aspen

During her initial period of employment at Aspen beginning in 2006, Don Walker served as the company's Vice President of Tax. (PF ¶ 11; DR ¶ 11). However, Tian's immediate supervisor was Darren Zysk, who was then Aspen's Director of Tax Compliance. (DF ¶ 4). In February 2008, Aspen's stock was delisted from NASDAQ as a result of the company's failure to meet certain financial transparency guidelines. (DF ¶ 5; PR ¶ 5). This led to a period of corporate restructuring and changes in leadership. (DF ¶ 5). It also required Aspen to restate certain of its prior financial statements, and to amend its earlier tax filings. (DF ¶ 5; PR ¶ 5; Pickett Aff., Ex. A at 64). Due to the discovery of various financial irregularities and issues with tax returns that had been approved by Darren Zysk, Aspen terminated Mr. Zysk from employment. (Radzim Aff. ¶ 4). However, both Mr. Walker and the plaintiff were able to retain their positions, and Tian assisted the company in amending its prior tax returns. (See PF ¶ 11; DR ¶ 11; Pickett Aff., Ex. A at 64).

Tian voluntarily resigned from her position at Aspen on or about November 22, 2008. (DF ¶ 6). According to the plaintiff, her resignation was prompted by the fact that she had been in two car accidents driving to work, and felt she could no longer tolerate the commute. (Pickett Aff., Ex. A at 72-73). She does not claim that she was pressured to resign or that she experienced any discrimination or unfair treatment during her initial period of employment at Aspen.

After Tian left the company, the Finance Department adopted new accounting and tax policies. (PF ¶ 9). It also underwent significant changes in its management structure. (Id.). Thus, although Mr. Walker remained the Vice President of Tax at Aspen, by 2010 Michael Fitzula, a white male, had become the company's Director of Tax. (See id. ¶ ¶ 11, 13; DR ¶ ¶ 11, 13; Fitzula Aff. ¶ 1). Additionally, Chris Fingliss, another white male, became Aspen's Manager of International Tax, and Colleen Cody, a white female, was employed as a Senior Manager of Tax until she was laid off in January 2011. (See PF ¶ ¶ 14-15; DR ¶ ¶ 14-15; Pl. Ex. A at 85).

Aspen's Decision to Rehire Tian as a Senior Tax Analyst

In August 2010, the company at which Tian was working centralized its tax function in Chicago, and the plaintiff applied for the position of Senior Tax Analyst at Aspen. (PF ¶ 4; DF ¶ 9). Mr. Fitzula, Aspen's Director of Tax, selected Tian as one of twenty individuals who were interviewed for that position. (DF ¶ ¶ 10, 12; PR ¶ 10, 12). The other applicants who were selected to interview included white and other non-Asian individuals. (DF ¶ 12). They also included males and various individuals who appeared to be under 40 years of age. (Id.).

During the hiring process, Tian was interviewed by five different Aspen employees. (PF ¶ 19). They included Mr. Fitzula, Mr. Fingliss and Mr. Walker, as well as Aspen's Chief Financial Officer, Mark Sullivan, and a representative from Human

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Resources, Sylvia Masci. (DF ¶ 10; PR ¶ 10). In addition, Aspen requested that Tian provide it with additional references, even though she had already submitted more than nine references to the defendant. (Pl. Ex. A at 4). The plaintiff notes that Aspen's Hiring Guide called for only three interviews of applicants applying for senior positions, and she suggests that she was subjected to greater scrutiny during the hiring process than three younger males who were rehired into the defendant's Financial Department during the time period from 2008 to 2010. (See PR ¶ 10; Pl. Ex. A at 1, 7). However, she has not cited to any specific evidence showing that any of the male applicants experienced a less rigorous process or were otherwise treated more favorably than the plaintiff. (See id.; DR ¶ 20).

According to Mr. Fitzula, it was apparent during the interview process that Tian was a woman of Asian descent. (Fitzula Aff. ¶ 3). He also believed, based upon Tian's appearance and information from her previous period of employment at Aspen, that Tian was over the age of 40.[3] (Id.). The plaintiff disputes that Mr. Fitzula could have known her age, which was 49 at the time of the interview. (PR ¶ 11; see also Pl. Mem. (Docket No. 47) at 24). Instead, she argues that her age was unknown at the time of her hiring, and that it was not until the company learned that she was over 40 that it took adverse employment actions against her. (See id., Pl. Ex. A at 20). This distinction is not material, however, since it is undisputed that Aspen knew she was over 40 at the time her employment was terminated.

There is no dispute that following the interview process, Tian was offered the position of Senior Tax Analyst. (DF ¶ ¶ 13, 17; PR ¶ 17). She also was offered a salary in the top range for someone in her position at Aspen. (See DF ¶ 17; PR ¶ 17; Radzim Aff. ¶ 7). While Tian complains that the salary was over $3,000 less than the amount she had been making in her prior job at Veolia Energy, Inc., she does not dispute that the amount was consistent with the pay of a Senior Tax Analyst at Aspen or that she accepted the offer without limitation. (See PR ¶ 17). The decision to rehire the plaintiff was made by Mr. Fitzula and supported by Mr. Walker and members of the Human Resources Department. (DF ¶ 18; see also PR ¶ 18; Pl. Ex. C at 76). According to Mr. Fitzula, he based his decision on Tian's experience, as indicated on her resume, and on his expectation that Tian would require little supervision and be able to " hit the ground running." (Fitzula Aff. ¶ 5). Of particular significance was the plaintiff's experience " [p]reparing annual and quarterly tax provisions for [Aspen's] U.S. headquarter and ...

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