United States District Court, D. Massachusetts
MEMORANDUM AND ORDER RE: DEFENDANT'S MOTION FOR
SUMMARY JUDGMENT (DOCKET ENTRY # 35); PLAINTIFF'S MOTION
TO STRIKE (DOCKET ENTRY # 45)
MARIANNE B. BOWLER, United States Magistrate Judge
before this court is a motion for summary judgment filed by
defendant Robert McDonald (“defendant”),
Secretary of the Department of Veteran Affairs. (Docket Entry
# 35). Plaintiff Molly Tsai (“plaintiff”) opposes
the motion (Docket Entry # 40) and also seeks to strike
selected exhibits from the summary judgment record. (Docket
Entry # 45). After conducting a hearing on May 16, 2017, this
court took the motions (Docket Entry ## 35, 45) under
parties' dispute arises out of plaintiff's employment
with the Department of Veteran Affairs (“VA”).
The three-count amended complaint sets out the following
causes of action: (1) racial discrimination in violation of
42 U.S.C. § 2000e-2(a)(1) (“Title VII”)
(Count One); (2) national origin discrimination in violation
of Title VII (Count Two); and (3) breach of contract (Count
Three). (Docket Entry # 13). Plaintiff stipulated to the
dismissal of Count Three without prejudice. (Docket Entry #
2010, plaintiff filed a formal complaint with the Equal
Employment Opportunity Commission (“EEOC”) that
her March 12, 2010 termination was due to her race and
national origin. (Docket Entry # 13, ¶ 8) (Docket Entry
# 20, ¶ 8). In November 2010, the Equal Employment
Opportunity investigator (“EEO investigator”)
concluded that plaintiff failed to show that the reasons for
the dismissal were a pretext for discrimination. (Docket
Entry # 13, p. 2). Thereafter, plaintiff brought this action.
(Docket Entry # 13, p. 3).
judgment is designed “‘to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually required.'”
Dàvila v. Corporaciòn De Puerto Rico Para
La Difusiòn Pùblica, 498 F.3d 9, 12 (1st
Cir. 2007). It is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
inappropriate “if the record is sufficiently open-ended
to permit a rational factfinder to resolve a material factual
dispute in favor of either side.” Pierce v. Cotuit
Fire Dist., 741 F.3d 295, 301 (1st Cir. 2014).
issues of fact are those that a factfinder could resolve in
favor of the nonmovant, while material facts are those whose
‘existence or nonexistence has the potential to change
the outcome of the suit.'” Green Mountain
Realty Corp. v. Leonard, 750 F.3d 30, 38 (1st Cir.
2014). The evidence is viewed “in the light most
favorable to the non-moving party” and “all
reasonable inferences” are drawn in her favor.
Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014).
Where, as here, the nonmovant bears the burden of proof at
trial, she “must point to facts memorialized by
materials of evidentiary quality and reasonable inferences
therefrom to forestall the entry of summary judgment.”
Geshke v. Crocs, Inc., 740 F.3d 74, 77 (1st Cir.
2014); see Woodward v. Emulex Corp., 714 F.3d 632,
637 (1st Cir. 2013) (as to issues on which nonmovant bears
burden of proof, he must “‘demonstrate that a
trier of fact reasonably could find in his
allegations and speculation do not demonstrate either
entitlement to summary judgment or the existence of a genuine
issue of material fact sufficient to defeat summary
judgment.” Rivera-Colon v. Mills, 635 F.3d 9,
12 (1st Cir. 2011); see Serra v. Quantum Servicing,
Corp., 747 F.3d 37, 39-40 (1st Cir. 2014)
(“allegations of a merely speculative or conclusory
nature are rightly disregarded”). That said, a court
“‘should exercise particular caution before
granting summary judgment for employers on such issues as
pretext, motive, and intent.'” Adamson v.
Walgreens Co., 750 F.3d 73, 83 (1st Cir. 2014).
submits an LR. 56.1 statement of undisputed facts.
Uncontroverted statements of fact in the LR. 56.1 statement
comprise part of the summary judgment record. See Cochran
v. Quest Software, Inc., 328 F.3d 1, 12 (1st Cir. 2003);
Stonkus v. City of Brockton Sch. Dep't, 322 F.3d
97, 102 (1st Cir. 2003) (citing LR. 56.1 and deeming admitted
undisputed material facts that the plaintiff failed to
Plaintiff's Employment History
a registered and licensed pharmacy technician, is an Asian
female who immigrated to the United States from Taiwan.
(Docket Entry # 36-11, p. 7) (Docket Entry # 42). On June 7,
2009, she was hired as a pharmacy technician for the West
Roxbury campus of the VA which is located in West Roxbury,
Massachusetts and is part of the VA Boston Healthcare Systems
(“West Roxbury VA”). (Docket Entry # 13,
¶¶ 25, 26) (Docket Entry # 20, ¶¶ 25,
26). Plaintiff was removed from this position, effective
March 12, 2010, which was still within her probationary
period. (Docket Entry # 36-1, p. 2). At the time of firing,
plaintiff was told she was being terminated for
“performance issues.” (Docket Entry # 36-1, p.
3). During plaintiff's time at the West Roxbury VA, her
direct supervisor was Shawn Saunders
(“Saunders”). (Docket Entry # 42, p. 2). Hilary
Dike (“Dike”), a pharmacy technician for the VA
since November 28, 2004, was a coworker of plaintiff. (Docket
Entry # 43). Dike was assigned to the out-patient pharmacy at
the West Roxbury VA during the period of time that plaintiff
worked at the in-patient pharmacy at the West Roxbury
(Docket Entry # 43). While Dike did not work side-by-side
with plaintiff, she “interact[ed] with her on a daily
basis and was able to observe how” plaintiff performed
her job. (Docket Entry # 43). Dike describes plaintiff as
“hard-working, efficient, and very competent . .
..” (Docket Entry # 43).
testified that Saunders counseled her in regard to her work
performance at meetings in August and November of 2009 and
that no other meetings took place regarding her
performance. (Docket Entry # 42, p. 4). At the August
2009 meeting, Saunders counseled plaintiff about the need to
improve her speed and efficiency. (Docket Entry # 36-9, p. 7)
(Docket Entry # 42, p. 4). According to plaintiff, Saunders
gave no indication to plaintiff that her job was in peril.
(Docket Entry # 42, p. 4). Saunders' supervisor, Martin
Abramson (“Abramson”), was not directly involved
or present at any of the meetings between plaintiff and
Saunders. (Docket Entry # 36-6, p. 5). At the
November 2009 meeting, only plaintiff and Saunders were in
attendance. (Docket Entry # 48-1, p. 8). During
plaintiff's employment, she was the only Asian employee
working the first shift at the in-patient pharmacy at the
West Roxbury VA. (Docket Entry # 42, p. 5). There were six
other full-time pharmacy technicians working the first shift
at the in-patient pharmacy at the West Roxbury VA. (Docket
Entry # 42, p. 5). Two were African American employees and
four were Caucasian employees. (Docket Entry # 42, pp. 5-6).
An African American woman was the only employee fired from
the in-patient pharmacy at the West Roxbury VA during
plaintiff's tenure. (Docket Entry # 42, p. 6).
the Caucasian employees who were working at the same time as
plaintiff, Anthony Trodella (“Trodella”) and
Marta Kane (“Kane”), were given increased
responsibility. (Docket Entry # 36-9, p. 16). Plaintiff
describes Trodella as “native-American” and Kane
as a “native-born American.” (Docket Entry #
42, p. 5). Kane was hired in September of 2009 and promoted
to inspectional safety officer after working as a pharmacy
technician for three months and still within her probationary
period. (Docket Entry # 42, p. 5). Plaintiff testified that
she trained Kane on certain aspects of her job. (Docket Entry
# 42, p. 5).
was hired several months before Tsai was hired. (Docket Entry
# 42, p. 5). Trodella was promoted to lead pharmacy
technician after working as a pharmacy technician for six
months and still within his probationary period. (Docket
Entry # 36-11, p. 2) (Docket Entry # 42, p. 5). Plaintiff
testified that she trained Trodella on some aspects of his
job, specifically with regards to the “Pyxis
system.” (Docket Entry # 36-11, p. 9) (Docket Entry #
42, p. 5). Trodella was unfamiliar with this system. (Docket
Entry # 36-11, p. 9).
stated that neither Trodella nor Kane applied for these
positions and were instead promoted to them. (Docket Entry #
36-11, p. 4). Plaintiff was unaware if either of these
promotions included a pay increase or merely an increase in
responsibility. (Docket Entry # 36-11, pp. 2, 4).
Additionally, plaintiff is a registered pharmacy technician
and has been licensed “for close to ten years.”
(Docket Entry # 36-11, pp. 7-8). Plaintiff testified that to
get licensed “[y]ou have to take the national license
exam, ” which Massachusetts does not require. (Docket
Entry # 36-11, p. 8). Rather Massachusetts just requires
pharmacy technicians “to be registered” in order
“to have a job as a pharmacy technician, ”
according to plaintiff. (Docket Entry # 36-11, p. 8). The
record does not indicate if either Trodella or Kane were
licensed pharmacy technicians.
plaintiff's employment, Saunders received various emailed
complaints from coworkers about the poor quality of
plaintiff's work. (Docket Entry # 36-9, pp. 3-4, 6-13). On
April 11, 2009, Saunders emailed Reis in order to discuss
plaintiff's termination. (Docket Entry # 36-9, p. 2).
Saunders followed up his email to Reis with two complaints
Saunders received via email from plaintiff's coworkers.
(Docket Entry # 36-9, pp. 3, 4). On September 30, 2009,
Saunders emailed Reis and carbon copied William Flanagan
(“Flanagan”) with a summary of various
coworker's complaints and Saunders' actions in
response to the complaints. (Docket Entry # 36-9, pp. 6,
7). Saunders suggested plaintiff's removal in the
September 30, 2009 email. (Docket Entry # 36-9, p. 7). On
February 12, 2010, Saunders provided Flanagan with an updated
summary of coworker's complaints about plaintiff and his
actions in response to the complaints, including a plan to
meet with plaintiff every other week. (Docket Entry
# 36-9, pp. 8-14).
February 12, 2010, Flanagan forwarded this email thread to
Abramson. (Docket Entry # 36-9, p. 8). On February 16, 2010,
Abramson replied asking when Flanagan wanted to remove
plaintiff. (Docket Entry # 36-9, p. 8). On February 17, 2010,
Saunders informed Abramson and Flanagan that he had a meeting
scheduled with plaintiff on February 18, 2010 and advised
them he “would like to remove” plaintiff as soon
as possible. (Docket Entry # 36-9, p. 15). After the meeting
on February 18, Saunders again updated Abramson and Flanagan
indicating that Saunders had concluded the meeting with
plaintiff by warning her that “her continued errors and
issues have prompted discussion within management of her
removal and we will need to make a decision soon.”
(Docket Entry # 36-9, p. 15). Finally, on March 9, 2010,
Abramson informed Reis by email copied to Saunders, Flanagan,
and others that, “We would like to release [plaintiff]
as soon as possible.” (Docket Entry # 36-9, p. 15).
During the termination process, Reis provided guidance to
Rhonda DeChambeau (“DeChambeau”), assistant chief
of the human resources management service
(“HRMS”), who decided for the chief of
HRMS to “proceed with termination.” (Docket Entry
# 36-3, pp. 4-5). Plaintiff was fired three days later, on
March 12, 2010. (Docket Entry # 36-1, p. 2).
Plaintiff states that at the November 2009 meeting, Saunders
told her that her performance was “satisfactory”
and did not indicate any need for improvement. (Docket Entry
# 42, p. 4). Plaintiff testified that Saunders gave her a
two-page appraisal document and that Saunders directed her to
sign the document without providing her an opportunity to
read the document. (Docket Entry # 42, pp. 4-5). Plaintiff
did not receive a copy of this document. (Docket Entry # 42,
p. 5). During the EEOC proceedings, the VA produced a
six-page document purporting to be the performance appraisal
document from the November 2009 meeting. (Docket Entry
# 42, p. 4).
filed this document as part of the summary judgment record.
(Docket Entry # 36-8). Plaintiff signed the document on the
first, fourth, and sixth pages. (Docket Entry # 36-8, pp. 2,
5, 7). The dates next to plaintiff's signature and
Saunders' signature on the first page are illegible.
(Docket Entry # 36-8, p. 2). The dates next to
plaintiff's signature and Saunders' signature on the
fourth page appear to be November, 9, 2009. (Docket Entry #
36-8, p. 5). The dates next to plaintiff's signature,
Saunders' signature, and the approval official's
signature on the sixth page appear to be November
12, 2009, November 6, 2009, and November 23, 2009,
respectively. (Docket Entry # 36-8, p. 7).
fifth page lays out six different categories on which
plaintiff was evaluated. (Docket Entry # 36-8, p. 6). Of the
six categories, “Prescription Processing” and
“Medication Processing” are considered critical
elements of the pharmacy technician's job. (Docket Entry
# 36-8, p. 6). The first and second pages define the six
categories and give examples of what constitutes “Fully
Successful” performance for each category. (Docket
Entry # 36-8, pp. 1-2).
third page, which is unsigned, provides feedback specific to
plaintiff for each of the six categories. (Docket Entry #
36-8, p. 4). The fifth page, which is also unsigned,
indicates that plaintiff was “Less than Fully
Successful” in categories one through three, which
includes both critical elements of plaintiff's job, and
“Fully Successful” in the remaining three
categories. (Docket Entry # 36-8, p. 6). The sixth page,
which is signed by plaintiff, Saunders, and the approval
official, indicates that plaintiff was “Fully
Successful” in the critical elements of her job and
“Less Than Fully Successful” in some of the
non-critical elements of her job. (Docket Entry # 36-8, p.
page three of the performance appraisal is a different style
from the other pages,  is not referenced in any of the
sections providing for additional comments, and does not have
a typed page number. (Docket Entry # 36-8, p. 4). In
particular, page three has no typeset page number while pages
two, four, five, and six have the numbers “2, ”
“3, ” “4, ” and “5, ”
respectively, typed at the bottom of each page. (Docket Entry
# 36-8, pp. 3, 5-7).
Policy and Collective Bargaining Agreement
employed as a probationary employee at the West Roxbury VA,
plaintiff was governed by the “VA Boston Healthcare
System Policy” (“the Policy”) and a party
to a collective bargaining agreement (“the
CBA”). (Docket Entry # 42, p. 2). The Policy
required observation, guidance, and assistance in the
completion of a probationary employee's job. (Docket
Entry # 42-1). As part of the CBA, the supervisor was
encouraged to communicate frequently with the probationary
employee. (Docket Entry # 42-2, p. 9). In the event of
deficiencies with the probationary employee's work, the
CBA states that, “supervisors will counsel employees in
a timely manner and document the meeting with a copy given to
the employee.” (Docket Entry # 42-2, p. 9). Plaintiff
did not receive copies of the documents that were part of her
appraisal. (Docket Entry # 42, p. 4).
Motion for Summary Judgment
submits that defendant discriminated against her on the basis
of her race (Count One) and her national origin (Count Two)
in violation of Title VII. (Docket Entry # 13). Defendant
seeks summary judgment because plaintiff failed to set out a
prima facie case. Even if plaintiff established a prima facie
case, defendant argues that he has shown a legitimate reason
for the termination and ...