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Tsai v. McDonald

United States District Court, D. Massachusetts

August 16, 2017

MOLLY TSAI, Plaintiff,
v.
ROBERT A. MCDONALD, SECRETARY, DEPARTMENT OF VETERANS AFFAIRS, Defendant.

          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

         Pending 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 advisement.

         PROCEDURAL BACKGROUND

         The 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 # 31).

         In July 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).

         STANDARD OF REVIEW

         Summary 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.” Fed.R.Civ.P. 56(a).

         It is 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).

         “Genuine 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 favor'”).

         “Unsupported 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).

         Defendant 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 controvert).

         FACTUAL BACKGROUND

          I. Plaintiff's Employment History

         Plaintiff, a registered and licensed pharmacy technician, is an Asian female who immigrated to the United States from Taiwan. (Docket Entry # 36-11, p. 7)[1] (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 VA.[2] (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).

         Plaintiff 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.[3] (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.[4] (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.[5] (Docket Entry # 42, p. 6).

         Two of 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.”[6] (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).

         Trodella 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).

         Plaintiff 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.[7] (Docket Entry # 36-11, p. 8). The record does not indicate if either Trodella or Kane were licensed pharmacy technicians.

         Throughout plaintiff's employment, Saunders received various emailed complaints from coworkers about the poor quality of plaintiff's work.[8] (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”)[9] with a summary of various coworker's complaints and Saunders' actions in response to the complaints.[10] (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.[11] (Docket Entry # 36-9, pp. 8-14).

         On 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).

          II. Performance Appraisal

          Plaintiff states that at the November 2009 meeting, Saunders told her that her performance was “satisfactory” and did not indicate any need for improvement.[12] (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.[13] (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.[14] (Docket Entry # 42, p. 4).

         Defendant 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[15] on the sixth page appear to be November 12, 2009, November 6, 2009, and November 23, 2009, respectively. (Docket Entry # 36-8, p. 7).

         The fifth page lays out six different categories on which plaintiff was evaluated.[16] (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).

         The 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. 7).

         Additionally, page three of the performance appraisal is a different style from the other pages, [17] 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).

         III. Policy and Collective Bargaining Agreement

         While 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”).[18] (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).

         DISCUSSION

         I. Motion for Summary Judgment

         Plaintiff 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 ...


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