United States District Court, D. Massachusetts
MEMORANDUM AND ORDER REGARDING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S MOTION TO STRIKE SUR-REPLY (DKT. NOS. 27, 49)
MARK G. MASTROIANNI, UNITED STATES DISTRICT JUDGE.
Maureen Weeks (“Plaintiff”) brings this action for age discrimination against Lower Pioneer Valley Educational Collaborative (“Defendant”), a provider of special education programs to students from various school districts. Plaintiff was hired by Defendant as a Special Education Nurse on August 20, 2013 and was terminated on November 5, 2013. At the time of both her hiring and her dismissal, Plaintiff was 61 years old. Plaintiff’s specific claims are for age discrimination in violation of the Age Discrimination in Employment Act (“ADEA”) and Chapter 151B of the Massachusetts General Laws (“Chapter 151B”) (Counts I and IV), age harassment in violation of the ADEA and Chapter 151B (Counts II and V), and retaliation in violation of the ADEA and Chapter 151B (Counts III and VI). Following discovery, Defendant filed the instant motion for summary judgment. Prior to the hearing on summary judgment, Plaintiff filed a sur-reply memorandum that Defendant sought to strike. For the following reasons, the court denies Defendant’s motion to strike, denies Defendant’s motion for summary judgment on Plaintiff’s discrimination claims in Counts I and IV, and allows Defendant’s motion for summary judgment with respect to Plaintiff’s harassment and retaliation claims in Counts II, III, V, and VI.
Plaintiff interviewed for a position as a Special Education Nurse with Anne McKenzie, Defendant’s former Executive Director, on August 20, 2013. (Dkt. No. 29, Def.’s Statement of Facts (“Def. SOF”) ¶¶ 18-19.) Plaintiff was one of two finalists recommended by a committee comprised of Defendant’s Special Education Supervisors Marisa Ross, Judith Kelliher, and Yvette Stoddard (f/k/a Yvette Dunn). (Id. ¶¶ 11-17.) Plaintiff asserts that, during the interview, Ms. McKenzie asked, in reference to Plaintiff’s age, why she wanted to work for the Defendant. (Dkt. No. 37, Pl.’s Statement of Facts (“Pl. SOF”) ¶ 88.) Ms. McKenzie denies having done so. (Dkt. No. 40, Def.’s Reply Statement of Facts (“Def. Reply SOF”) ¶ 88.) Plaintiff also claims that Ms. McKenzie made a comment that, given her age, this would probably be Plaintiff’s last job. (Pl. SOF ¶ 89.) Ms. McKenzie also denies this. (Def. Reply SOF ¶ 89.) Ms. McKenzie offered Plaintiff the position during their interview, and Plaintiff accepted on the spot. (Def. SOF ¶¶ 18-19.) Plaintiff was 61 years old when she was hired on August 20, 2013. (Id. ¶ 20.)
Defendant provides special education programs to students with behavioral problems and learning disabilities. (Id. ¶¶ 1-2.) Plaintiff was assigned to work at Defendant’s Twain building. (Pl. SOF ¶ 94.) Plaintiff’s duties included maintaining health records, attending field trips, dispensing medications to students, and otherwise providing health care to students. (Def. SOF ¶¶ 10, 22; Pl. SOF ¶ 22.)
Plaintiff was also responsible for managing and supervising Melanie Beck (f/k/a Melanie Feinberg), Defendant’s Certified Nursing Assistant, with whom she shared an office. (Def. SOF ¶ 23.) Plaintiff asserts that Ms. Beck began making age-related comments within the first week of her employment, such as stating that Plaintiff was too old for the position, that Plaintiff was as old as Ms. Beck’s mother, and that Plaintiff should not be working and should be retired. (Pl. SOF ¶¶ 103-05.) Ms. Beck denies having made these or other age-related comments. (Def. Reply SOF ¶¶ 103-05.) During the first few weeks of her employment, Plaintiff attempted to contact Ms. McKenzie to complain about Ms. Beck’s age-related comments, but was unable to speak with Ms. McKenzie because she was not in her office. (Pl. SOF ¶¶ 119-22.) Plaintiff did not leave a message with Ms. McKenzie’s secretary, nor did she leave Ms. McKenzie a voicemail, “because she considered the matter private.” (Id. ¶¶ 123-24.) Plaintiff would occasionally encounter Ms. McKenzie and say hello, but did not bring up her complaints during these encounters. (Def. Reply SOF ¶ 122.)
Plaintiff was supervised more or less equally by Ms. Ross, Ms. Kelliher, and Ms. Stoddard. (Def. SOF ¶ 24.) Ms. Kelliher began documenting concerns with Plaintiff’s performance at least as early as September 9, 2013, when she noted that Plaintiff’s computer skills were “not great, ” that Plaintiff “seems easily distracted by anything, ” and that setting priorities was a “big issue” for her. (Id. ¶ 25.) Ms. Kelliher later noted on September 19, 2013, that there were concerns regarding Plaintiff’s interactions with parents and teachers, her failure to familiarize herself with students before a field trip, and “very obvious errors” in the preparation of Individualized Health Care Plans (“IHCPs”). (Id. ¶ 26.) Plaintiff disputes the factual accuracy of these notes, stating that she was performing her responsibilities well, but does not dispute the notes’ existence. (Pl. SOF ¶¶ 25-26.) Ms. Kelliher and Ms. Stoddard addressed their concerns in a meeting with Plaintiff (and her subordinate, Ms. Beck) on September 19, 2013. Cheryl Wiblyi (f/k/a Cheryl Decoteau), Defendant’s Director of Human Resources, was also present. (Def. SOF ¶ 27.) Plaintiff disputes this account insofar as she claims she was preparing the IHCPs “as expeditiously as possible” given that they were in “absolute disarray” upon her hire. (Pl. SOF ¶ 27.)
Plaintiff states that, in “probably the second week or third week of September, ” Ms. Kelliher made comments expressing surprise that Plaintiff still had her nursing license at her age and suggesting that Plaintiff was too old to do that type of work. (Pl. SOF ¶¶ 112-13.) Ms. Kelliher denies having made such comments. (Def. Reply SOF ¶¶ 112-13.) Ms. Kelliher was in the process of retiring at this time and claims that she did respond to general questions from Plaintiff about the retirement process. (Def. SOF ¶ 73.) Plaintiff disputes this characterization of the events. (Pl. SOF ¶ 73.) Plaintiff also claims that, “around the first week of October, ” Ms. Ross made a comment that Plaintiff would “probably be retiring soon anyways.” (Id. ¶ 118.) Ms. Ross denies having done so. (Def. Reply SOF ¶ 118.)
Plaintiff states that, also in the first week of October, she spoke to Ms. Wiblyi about the age-related comments and her desire to make a complaint. Plaintiff alleges that, during this conversation, Ms. Wiblyi made age-related comments along the lines that Plaintiff was “probably too old to be working [for Defendant] anyway” and that Ms. Wiblyi was “surprised” Plaintiff was still working at her age. (Pl. SOF ¶¶ 107-10.) Ms. Wiblyi denies having made any of these comments. (Def. Reply SOF ¶¶ 107-10.) Plaintiff claims that she followed up with Ms. Wiblyi to see if Ms. Wiblyi would file a complaint on her behalf. Plaintiff alleges that Ms. Wiblyi said that they were “not going to do anything about this right now” and that Plaintiff was “old and stuck in her ways.” (Pl. SOF ¶ 129.) Ms. Wiblyi denies making these statements and further denies that Plaintiff ever complained to her about age-related comments. (Def. Reply SOF ¶ 129.) Also in the first week of October, Plaintiff claims she spoke with Anna Bishop, Defendant’s CFO, to complain about the alleged age-related comments. Plaintiff asserts that Ms. Bishop told her, “that’s the way it is here.” (Pl. SOF ¶¶ 125-26.) Ms. Bishop denies ever having discussed age-related comments with Plaintiff. (Def. Reply SOF ¶¶ 125-26.)
Ms. Kelliher and Ms. Wiblyi met with Plaintiff and Ms. Beck on October 3, 2013. The subjects of the meeting were the need for Plaintiff to be more careful in preparing IHCPs and Plaintiff’s ability to supervise Ms. Beck. Plaintiff and Ms. Beck had had numerous disagreements and difficulties working together. (Def. SOF ¶¶ 28-29.) Plaintiff disputes that the failure to complete IHCPs accurately and on time was due to any fault of her own. She contends that Ms. Beck’s shortcomings made her own job more difficult. (Pl. SOF ¶¶ 28-29.) On October 8, 2013, at Plaintiff’s request, Ms. Beck was issued a documented verbal warning by Ms. Kelliher for failure to follow directions. Ms. Beck did not accept the contents of the warning, and issued a written rebuttal (as was her right) on October 25, 2013. (Def. SOF ¶ 31.) Also on October 8, 2013, Plaintiff was issued a documented verbal warning by Ms. Kelliher for failure to complete IHCPs accurately and on time. Plaintiff disputed that this failure was due to any fault of her own, and commented that Ms. Beck’s lack of cooperation had affected her ability to do her job. (Id. ¶ 32; Pl. SOF ¶¶ 32, 131-33.) Plaintiff asserts that this warning was not issued until October 17, 2013, which is the date she wrote when signing the acknowledgment of the warning. (Pl. SOF ¶ 130.) Defendant disputes this and points to documentary evidence from the warning notice indicating that the warning was given on October 8, 2013. (Def. Reply SOF ¶ 130; Def. SOF, Ex. 36.) Plaintiff contends that Ms. Wiblyi approved the warning, but Defendant asserts that Ms. Wiblyi did so after it was issued. (Pl. SOF ¶ 134; Def. Reply ¶ SOF 134.)
By October 11, 2013, Ms. Kelliher, Ms. Wiblyi, and Ms. McKenzie had decided Plaintiff would benefit from a more structured method of managing her time. They developed a form for Plaintiff to fill out each week identifying short- and long-term deadlines, daily priorities, and completed tasks. (Def. SOF ¶ 33.) Plaintiff submitted the form as requested, but Defendant identifies a number of instances in which Plaintiff continued to have difficulty prioritizing critical tasks over less urgent ones. For example, Plaintiff spent time preparing and circulating unnecessary drafts of notes from a conference and spent time pursuing a project to develop a dental program for students despite Ms. Kelliher and Ms. Ross indicating that such a project was not a priority. (Id. ¶ 34.) Plaintiff disputes this account insofar as she claims she was performing her job responsibilities well. (Pl. SOF ¶ 34.) According to Defendant, Plaintiff also displayed considerable confusion regarding how to prepare for student field trips, including confusion over what documentation and medication to bring. This gave Ms. Kelliher, Ms. Ross, and Ms. Stoddard concern over her nursing skills. (Def. SOF ¶ 35.) Plaintiff continued to have issues working with her subordinate, Ms. Beck, although the parties disagree as to how helpful Defendant’s management was in attempting to resolve these issues. (Id. ¶¶ 36-37; Pl. SOF ¶¶ 36-37.) Defendant states that Plaintiff was not “well received by students.” Ms. Ross noted that students found Plaintiff to be disruptive in class and uncomfortable to be around. (Def. SOF ¶ 38.) Plaintiff disputes this, claiming she was neither disruptive nor difficult to be around. (Pl. SOF ¶ 38.)
On October 16, 2013, Ms. Kelliher, Ms. Ross, and Ms. Wiblyi met with Plaintiff at her request. They discussed Plaintiff’s continuing concerns with Ms. Beck and issues related to the distribution of medication. (Def. SOF ¶ 39.) Also on October 16, 2013, at the end of this meeting, Ms. Ross decided to place Plaintiff on a formal Performance Improvement Plan (“PIP”) requiring her to improve her attention to detail, focus, accuracy in documentation, organization, knowledge of nursing laws, professional conduct, and etiquette. Ms. Ross made this decision with input from Ms. Kelliher and Ms. Stoddard, and in consultation with Ms. Wiblyi. (Id. ¶¶ 40-41.) Ms. Ross then drafted the PIP in consultation with Ms. Wiblyi, who provided comments to the draft. (Id. ¶ 42; Pl. SOF ¶ 42.) In the meantime, Ms. Kelliher continued to note issues with Plaintiff’s performance. (Def. SOF ¶ 42 n.19.)
Ms. Ross issued the PIP to Plaintiff on October 24, 2013, in the presence of Ms. Wiblyi. The PIP called for Plaintiff’s improvement in the areas of concern mentioned above, put Ms. Ross in charge of monitoring Plaintiff’s weekly performance, and required Plaintiff to meet with Ms. Ross and Ms. Wiblyi on a weekly basis. Plaintiff, Ms. Ross, and Ms. Wiblyi all signed the PIP, which contained an acknowledgment by Plaintiff that a formal evaluation would take place in 30 days and that any problems occurring in the meantime could result in additional action, including termination. (Id. ¶¶ 43-45.) Plaintiff contends that the issues raised in the PIP were untrue, but she decided it was best to just accept the PIP and “move on.” (Pl. SOF ¶ 46.) Plaintiff testified that she believed the PIP was an attempt to harass her into quitting, but Defendant disputes the veracity and the accuracy of this claimed belief. (Id. ¶ 136; Def. Reply SOF ¶ 136.) Plaintiff asserts that certain age-related comments made by Ms. Kelliher (e.g., that she did not know why Plaintiff was still working and that Plaintiff would be retired soon) were made at this meeting; Ms. Kelliher denies having made these comments, and Defendant has pointed to evidence that Ms. Kelliher was not present at this meeting. (Pl. SOF ¶¶ 114-16; Def. Reply SOF ¶¶ 114-16.)
Around 2 p.m. on Friday, October 25, 2013, Ms. Beck left the office she shared with Plaintiff to speak to faculty in the common area. A few minutes later, Plaintiff walked out of the office and left the building for the day. (Def. SOF ¶ 47.) Students were still in the building at this time. (Pl. SOF ¶ 151.) Defendant contends that, upon returning to the office, Ms. Beck noticed that the door to the office’s medicine cabinet was unlocked and sitting wide open. (Def. SOF ¶ 48.) Ms. Beck called over Cheryl Tulloch, one of the faculty members she had just been talking to. Ms. Tulloch also observed the medicine cabinet standing open and unattended. (Id. ¶ 49.) Ms. Beck then contacted the administration to report the incident, eventually speaking with a Special Education secretary. (Id. ¶ 50.) Plaintiff asserts that she did not leave the medicine cabinet open. (Pl. SOF ¶¶ 48-49.) Plaintiff asserts that the medicine cabinet only contained acetaminophen (i.e., Tylenol) and epinephrine (i.e., EpiPens), and did not contain psychotropic medications. (Id. ¶¶ 140, 142.) Defendant disputes this and claims, based on the testimony of Ms. Beck, that all medications were kept in the medicine cabinet. (Def. Reply SOF ¶¶ 140, 142.) Later that afternoon, Ms. Wiblyi wrote an email to Defendant’s outside counsel, copying Ms. McKenzie. (Def. SOF, Ex. 59.) The following day, October 26, 2013, Ms. McKenzie replied to the email, and outside counsel followed up with a reply the day after that, October 27, 2013. (Id.)
On Monday, October 28, 2013, at 7:13 a.m., Ms. McKenzie emailed Ms. Wiblyi to give her “thoughts to address nursing coverage short term, ” one of which was to “[p]ost for an anticipated opening immediately.” (Id.) That same day, at 9:51 a.m., Ms. Beck wrote an email to Ms. Ross and Ms. Wiblyi describing the incident. (Id. ¶ 51.) Ms. Ross and Ms. Wiblyi immediately traveled to the school to investigate the incident. They first met with Plaintiff and established that Plaintiff had dispensed medication prior to 2 p.m. on the previous Friday. At the conclusion of this meeting, Ms. Ross and Ms. Wiblyi informed Plaintiff that she was being placed on paid administrative leave. (Id. ¶¶ 52-54.) This decision was apparently made in consultation with Ms. McKenzie after she heard of the incident but prior to the beginning of the investigation, as suggested by the email Ms. McKenzie sent about how to “address nursing coverage” before the investigation began. (Id. ¶ 54 n.26; id., Ex. 59.) Ms. Ross and Ms. Wiblyi then met with Ms. Beck, whose account was consistent with her prior email. (Id. ¶ 55.) Ms. Ross and Ms. Wiblyi then met with Ms. Tulloch. She stated that, after Ms. Beck left their conversation the previous Friday, Ms. Beck immediately called her over and she witnessed the medicine cabinet sitting open with its medications visible. (Id. ¶ 56.)
Following the investigation, Ms. Wiblyi presented the information collected and her own notes to Ms. McKenzie. (Id. ¶ 58.) Ms. McKenzie was not involved in the investigation itself. (Pl. SOF ¶ 160.1.) During the investigation, Ms. Wiblyi found and printed applicable regulations requiring that prescription medications be kept in securely locked cabinets used exclusively for medication. (Def. SOF ¶¶ 59-61 & n.28.) Ms. Wiblyi asserts that it would have been her normal practice to give a copy of such regulations to Ms. McKenzie and believes she did so in this case. (Id. ¶ 59.) Defendant asserts Ms. Wiblyi did not express a recommendation or opinion as to whether Plaintiff should be disciplined or terminated. (Id. ¶ 58.) In response, Plaintiff contends that Ms. Wiblyi “was also involved in the decision to terminate the Plaintiff’s employment.” (Pl. SOF ¶ 58.)
Ms. McKenzie stated that, in reviewing the results of the investigation, she did not credit Plaintiff’s denial of leaving the medicine cabinet open because Ms. Beck’s account was corroborated by Ms. Tulloch. Ms. McKenzie referred to Ms. Tulloch as a “trusted” employee who “had consistently demonstrated a logical temperament in . . . responding to problems.” (Def. SOF ¶ 63.) Plaintiff concedes that Ms. Tulloch was “very pleasant” towards her and that she had no reason to believe Ms. Tulloch harbored any age bias or desire to undermine her. (Id. ¶ 63 n.30.) Plaintiff ...