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Brinig v. Illinois Central School Bus, LLC

United States District Court, D. Massachusetts

February 27, 2019




         This case began when, in a regrettable lapse of holiday judgment, plaintiff Theresha Brinig, a bus driver for the Waltham public schools, distributed the business card of a Rent-a-Santa to the pupils on her bus.

         Parents predictably complained to the School District, which in turn complained to Brinig's employer, defendant North American Central School Bus, LLC (NACSB), demanding that Brinig be banned from Waltham school busses. NACSB obliged. Claiming discrimination, Brinig brought this lawsuit against NACSB.


         NACSB's Transportation Service Agreement with the Waltham School District contained a provision directly relevant to Brinig's case. Under the terms of the Service Agreement, the District could “accept or reject any or all [NACSB] employees at any time within the contract period, if it is deemed by the City to be in the best interest of the City of Waltham to do so.” Dkt #38 - Def.'s Ex. C (Service Agreement) at Art. V § (C).

         NACSB hired Brinig as a part-time school bus driver in the fall of 2011. Brinig was a member of the Waltham Drivers' Association (Union) and her employment was subject to a Collective Bargaining Agreement (CBA). Def.'s Ex. J (CBA). Article XIV of the CBA, titled Termination of Operations, provides: “It is recognized and agreed by the parties that the Company is employing the employees covered by this agreement so as to fulfill its obligations under its contract with the School Committee of the City of Waltham. This Agreement is made subject to the terms and conditions of the City of Waltham contract.” Id. at 10. In August of 2012, Brinig was given a copy of NACSB's employee handbook which explained the company's strict non-solicitation policy: “An employee may not solicit for any cause or organization during his or her working time or the working time of the employee being solicited. Likewise, an employee may not distribute literature on Company property during working times or at any time in working areas.” Id. - Ex. E (NACSB Employee Handbook) at 11; Ex. D (Brinig Dep.) at 28.

         On November 14, 2014, without notice to her employer or the District, Brinig gave out photocopies of a business card with telephone numbers of a Santa Claus impersonator to elementary and high school students on her bus. Brinig testified that she had met the aspiring Santa “a couple times at Burger King in Waltham.”[1] Id. at 30-31, 40; see also Def.'s Ex. F (card). On November 15, 2014, Dr. Susan Nicholson, Superintendent of the Waltham Schools, notified Leanne Wilcinski, Waltham's School Business Administrator, that parents had complained about Brinig's solicitation of their children on the Santa's behalf. On November 17, 2014, Dr. Nicholson, Wilcinski, and Ann Frassica, the Waltham Public Schools Safety Officer, determined that Brinig ws unsuitable as a Waltham school bus driver “because she [had] demonstrated such poor judgment and potentially endangered the students.” Def.'s Ex. G (Wilcinski Aff.) ¶ 7. On November 17, 2014, Wilcinski wrote to Daniel Allder, the NACSB Contract Manager, and David Petersen, the NACSB Regional Operations Manager, describing the “incident” and requesting that Brinig “no longer be used as a bus driver for the City of Waltham.” Id. ¶ 8; Def.'s Ex. L (Nov. 17, 2014 Letter). NACSB immediately terminated Brinig stating that it had no other similar job for her “in or even near Massachusetts.”[2] Def.'s Ex. B (Petersen Dep.) at 34, 41-42. Brinig testified that she asked NACSB if she could work instead as a local dispatcher, but received no response.[3]

         Brinig contends that the Union mailed a grievance letter on November 21, 2014, to “the Belmont address where our buses are housed.” Pl.'s Ex. E; Brinig Dep. at 63. NACSB, however, contends that “[p]er the company's records, no grievance was filed and [Brinig] did not pursue the grievance procedure.” Pl.'s Ex. G (Letter to MCAD) at 2; see also Pl.'s Ex. C, Int. 11. Brinig maintains that when NACSB produced her personnel file it contained the grievance request, which NACSB “ignored . . ., even though other male employees were allowed to pursue grievances.” Second Am. Compl. ¶ 9.

         On November 7, 2017, Brinig filed a four-count Complaint against NACSB in the Middlesex Superior Court asserting Title VII and state antidiscrimination claims, as well as state common-law claims for retaliation and wrongful termination. In its essentials, the Complaint alleges that NACSB treated Brinig and other female employees differently than their male counterparts when dealing with fireable offenses. Brinig claims that male employees were consistently allowed to grieve terminations, which often led to their reinstatement, an opportunity denied to female employees.[4]

         NACSB timely removed the case to the federal district court. Prior to NACSB's filing of a responsive pleading, Brinig filed an Amended Complaint deleting the retaliation claim. NACSB answered both discrimination claims, but moved to dismiss Count III, the common-law wrongful termination claim. Brinig then filed a Second Amended Complaint revising Count III to assert a violation by NACSB of the covenant of good faith and fair dealing for its having terminated her “without affording her the procedural protections of the CBA because of her gender.” The court subsequently denied NACSB's motion to dismiss the original Count III as moot. Now before the court is NACSB's motion for summary judgment.


         Summary judgment is appropriate when “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). “[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248 (1986) (emphases in original). A material fact is one which has the “potential to affect the outcome of the suit under applicable law.” Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993). In assessing the genuineness of a material dispute, the facts are to be “viewed in the light most flattering to the party opposing the motion.” Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995).


         Title VII prohibits an employer from discriminating “against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Massachusetts similarly prohibits employers from engaging in discrimination based on gender. Mass. Gen. Laws ch. 151B, § 4(1). Sex discrimination, under both federal and state law, can be proven either by direct evidence or through the three-stage burden shifting paradigm set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Conward v. Cambridge Sch. Comm.,171 F.3d 12, 19 (1st Cir. 1999); Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 116 (2000). At the first stage, a plaintiff must establish a prima facie case of discrimination by showing that: (1) she is a member of a protected class; (2) she was performing at an adequate level; and (3) she suffered an adverse employment action.[5]If the plaintiff succeeds in establishing her prima facie case, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. The onus on the employer is not a heavy one. “The employer's reasons need not be wise, so long as they are not discriminatory and they are not pretext.” Tardanico v. Aetna Life & Cas. Co., 41 Mass.App.Ct. 443, 448 (1996). If the ...

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