Stewart v. Mary Hitchcock Memorial CV-95-597-M 07/01/97 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Betty S. Stewart, Plaintiff

v. Civil No. 95-597-M

Mary Hitchcock Memorial Hospital, Thomas Ozahowski, and Beth Wol f , Defendants

O R D E R

Betty Stewart brings this action seeking compensation for

alleged acts of sexual harassment and gender-based

discrimination. Counts 1 and 2 of the amended complaint set

forth claims under Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seg. Counts 3 through 5 allege various state

law claims, over which plaintiff asks the court to exercise

supplemental jurisdiction. Defendants, Mary Hitchcock Memorial

Hospital (the "Hospital"), Thomas Ozahowski, and Beth Wolf, deny

any actionable wrongdoing and move for summary judgment.

Standard of Review

Summary judgment is appropriate when the record reveals "no

genuine issue as to any material fact and . . . the moving party

is entitled to a judgment as a matter of law." Fed. R. Civ. P.

56(c). In ruling upon a party's motion for summary judgment, the

court must "view the entire record in the light most hospitable

to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griqqs-Rvan v. Smith, 904

F .2d 112, 115 (1st Cir. 1990).

The moving party has the burden of demonstrating the absence

of a genuine issue of material fact for trial. Anderson v.

Liberty Lobby, Inc.,

(1986). If the moving

party carries its burden, the party opposing the motion must set

forth specific facts showing that there remains a genuine issue

for trial, demonstrating "some factual disagreement sufficient to

deflect brevis disposition." Mesnick v. General Electric Co . ,

(1st Cir. 1991). See also Fed. R. Civ. P.

56(e). That burden is discharged only if the cited disagreement

relates to a genuine issue of material fact. Wynne v. Tufts

University School of Medicine,

(1st Cir. 1992) .

"Generally speaking, a fact is ''material' if it potentially

affects the outcome of the suit and a dispute over it is

'genuine' if the parties' positions on the issue are supported by

conflicting evidence." Int'l. Assoc'n of Machinists and

Aerospace Workers v. Winship Green Nursing Center

(1st Cir. 1996) (citations omitted).

Facts

Although the affidavit plaintiff has submitted in opposition

to defendants' motion for summary judgment contradicts (or, at a

minimum, differs from) her deposition testimony with regard to

several substantive issues, the undisputed material facts of

2 record are as follows.1 Where the facts are disputed (and the

parties' differing views of the facts are properly supported in

the record ) , the court will, for the purposes of this order,

construe them in the light most favorable to plaintiff.

I. Background.

Defendants Thomas Ozahowski and Beth Wolf are employees of

the Hospital. Ozahowski is a registered nurse who has been

employed in the Hospital's electrophysiology lab (the "EP lab")

since 1985. Wolf is the administrator of the Cardiology

Department and is responsible for the management of six

laboratories within that department, including the EP lab. Among

1 Where, as here, an affidavit submitted in opposition to a motion for summary judgment contradicts, without explanation, a party's earlier deposition testimony, the court will ignore the contradictory elements of the affidavit. See Colantuoni v. Alfred Calcagni & Sons, Inc.,

(1st Cir. 1994) ("When an interested witness has given clear answers to unambiguous guestions, he cannot create a conflict and resist summary judgment with an affidavit that is clearly contradictory, but does not give a satisfactory explanation of why the testimony is changed. . . . In these circumstances, we are persuaded that plaintiff's affidavit should be disregarded in considering the propriety of summary judgment."); see also Babrockv v. Jewel Food Co. & Retail Meatcutters,

(7th Cir. 1985); Foster v. Areata Associates, Inc.,

(9th Cir. 1985); Perma Research & Development Co. v. Singer Co . ,

(2d Cir. 1969) .

Perhaps egually disturbing is that plaintiff (through her counsel) freguently makes statements and arguments in her papers which are not supported by her references to the record. While a certain modicum of hyperbole may be expected when a party advances arguments, consistent misleading citations to the record regarding facts is particularly troubling. See, e.g., Stewart affidavit at para. 32 and compare with plaintiff's objection to motion to strike (document no. 25) at para. 11 and Stewart deposition at 417-18.

3 other things, she is responsible for personnel matters in the EP

lab.

In 1992, after working for the cardiology department as a

temporary scheduling secretary, plaintiff was hired as a full­

time laboratory technician in the EP lab. At the time, three

nurses, including Ozahowski, worked in the EP lab. Plaintiff

assisted those nurses by, among other things, cleaning rooms

between cases, ordering supplies, and running errands. Wolf

supervised plaintiff and the three nurses, conducting performance

evaluations and determining disciplinary actions and raises.

Ozahowski and the other two nurses did, however, direct some of

plaintiff's day-to-day activities.

Initially, plaintiff worked four 10 hour days each week in

the EP lab. Subseguently, however, she decided that she wished

to obtain a nursing degree. To accommodate her desire to pursue

additional education, the Hospital provided her with tuition

reimbursement and allowed her to change her schedule to three 12

hour days each week (plaintiff used vacation time to account for

the remaining unworked hours during each wee k ) . Shortly before

plaintiff left the Hospital, however, the Hospital returned her

to a 10 hour work day. It claims that it did so because it

perceived that plaintiff's three-day work week was not making

efficient use of her time and was contributing to friction in the

EP lab. Plaintiff claims that the change in her schedule was not

4 motivated by legitimate business concerns and, instead, was done

in retaliation for her having reported incidents of alleged

sexual harassment in the EP lab. Plaintiff worked in the EP lab

for approximately 2 years, until she reguested (and received)

educational leave in November of 1994.

II. The Hospital's Sexual Harassment Policy.

At all times relevant to this proceeding, the Hospital had a

policy against sexual harassment, which was detailed in a

personnel manual provided to all employees at their orientation.

The manual explained, among other things, the procedures by which

employees should report incidents of alleged sexual harassment.

Additionally, the Hospital had posters in various public

locations which explained the sexual harassment policy and listed

the individuals at the Hospital who should be contacted to report

any incidents of harassment or discrimination. Plaintiff admits

that she was generally aware of the Hospital's sexual harassment

policy.

Dr. Wayne Weiner is the Hospital's director of employee

relations and education. In that capacity, he is responsible for

egual employment opportunity issues at the Hospital and the

investigation of reports of sexual harassment. At his

deposition. Dr. Weiner testified that in addition to providing

employees with the various publications detailing the Hospital's

sexual harassment policy, the Hospital also conducted numerous

5 seminars or in-service training sessions on sexual harassment.

Those training sessions were open to all Hospital employees

(i.e., support staff, physicians, administrators, etc.) and were

well attended. He also noted that at orientation, in addition to

the personnel manual, each employee was provided with a tri-fold

pamphlet addressing the Hospital's sexual harassment policy.

Each employee was reguired to sign a form, indicating that he or

she had received a copy of those materials.

III. The Work Environment.

In support of her claim that she was subjected to a hostile

work environment during her two year tenure in the EP lab,

plaintiff chronicles several incidents during which she observed

Hospital employees using foul language, making demeaning sexually

related comments, or telling jokes laced with sexual innuendo.

She also identifies three specific instances during which she

claims to have been the victim of hostile or demeaning verbal

attacks and/or gender-based discrimination.

With regard to the former category of incidents, plaintiff

says that her co-employees freguently used foul language and

occasionally told off-color jokes, some of which were of a sexual

nature. She also claims that on one occasion Ozahowski commented

on the physical appearance of a sedated overweight female

patient, saying something about the size of her breasts and

expressing disgust that anyone could allow herself to become so

6 obese. On another occasion, plaintiff claims that Ozahowski made

a comment about a male patient's genitals. Neither comment was

directed to the patient; rather, plaintiff says that Ozahowski

made those comments to other members of the EP lab.

Additionally, plaintiff claims that Ozahowski spoke

negatively about another nurse's pregnancy, saying that her

condition was causing him to assume more duties at work. She

also says that Ozahowski made comments about the physical

appearance of female product vendors who appeared periodically in

the EP lab and claims that he would "stop what he was doing in

order to escort an attractive female sales representative around

the laboratories." Stewart affidavit at para. 9. Plaintiff was

also troubled by her perception that Ozahowski would purposefully

leave his wedding band in the laboratory when he attended

professional conferences.

Plaintiff also says that "pornographic pictures were common

place" in the EP lab. Plaintiff's memorandum in opposition to

summary judgment at 14. In support of that rather dramatic

claim, plaintiff notes that a Hospital employee once brought a

copy of Madonna's recent book to work, which apparently contains

some sexually suggestive photographs.2 Additionally, plaintiff

2 At her deposition, however, plaintiff admitted that she was not offended by the fact that someone brought the book to the Hospital or by the fact that one of the physicians reviewed the book and told some of the staff members that he was a Madonna

7 points out that on one occasion lab personnel displayed in a

public area a magazine advertisement for male underwear

(displaying a partially clothed male model) and on another

occasion someone displayed a postcard which depicted a man in a

bathing suit flexing his muscles.

Plaintiff also identifies three specific incidents in which

Ozahowski allegedly directed abusive and/or sexually demeaning

comments directly at her. The first occurred in 1993, shortly

after plaintiff began working as a technician in the EP lab. She

says that Ozahowski asked her to assist him and, when he learned

that she had already been asked by another nurse to retrieve a

table for a medical procedure, Ozahowski said that the other

nurse could "get her own fucking table." Stewart affidavit at

para. 4. Then, in June of 1993, when plaintiff asked if she

could be of any help, Ozahowski said, "You can go over and give

Mark a blow job because his wife is away and he's not getting

any." I d . at para. 20.

Although plaintiff told the other two nurses in the EP lab

about Ozahowski's 1993 comments, she did not report those

statements to Wolf (plaintiff's personnel supervisor) for

approximately nine months. It was not until March of 1994, a day

after Wolf informed plaintiff that she was concerned about

fan. Steward affidavit at 349. plaintiff's job performance and believed that there were

communication problems in the EP lab, that plaintiff notified

Wolf of the two 1993 incidents in which Ozahowski had directed

sexually demeaning and/or hostile comments to her.

Shortly thereafter, plaintiff told Ozahowski that she was

frustrated by his periodic absences from the lab, pointing out

that he had once caused a delay in a medical procedure.

Plaintiff says that Ozahowski lost his temper and explained that

his absences were occasioned by him being "off in the bathroom

masturbating," to which he added, "Want to come in and help?"

Ozahowski denies having made that comment. Approximately one

month later, plaintiff met with Wolf for a performance

evaluation. At that meeting, apparently after learning that Wolf

planned to issue her a written warning for failing to prioritize

her work, failing to follow orders, and failing to adhere to

scheduled hours, plaintiff told Wolf of Ozahowski's alleged

masturbation comment.3

3 Before meeting with plaintiff. Wolf prepared a written warning, which she planned to review with plaintiff and then place into plaintiff's personnel file. However, after discussing the situation with plaintiff. Wolf decided not to issue the written warning and destroyed it. IV. The Hospital's Response.

Either that day or the following day. Wolf met with

Ozahowski, told him of plaintiff's complaint, and issued him a

final written warning. Ozahowski acknowledged that he made the

"blow job" comment, but apparently denied making any other

inappropriate comments. Wolf explained to Ozahowski that if

another incident of that sort occurred, he would be fired. A

permanent statement regarding Ozahowski's conduct and the

discipline imposed was placed in his personnel file. Wolf then

notified Wayne Weiner, the Hospital's director of employee

relations and education, of plaintiff's allegations and the

remedial steps Wolf had taken in response. At her deposition.

Wolf explained that other than confronting Ozahowski, warning him

that similar conduct would result in his immediate termination,

making a record of the same in his personnel file, and referring

the matter to Dr. Weiner, she took no further disciplinary action

against Ozahowski because: (1) no one had ever reported any

similar conduct on the part of Ozahowski; (2) after disciplining

Ozahowski, she believed that he was "devastated" and she

understood that he subseguently apologized to plaintiff and Dr.

Greenberg (the individual referenced in his comment as "Mark");

and (3) based upon her working relationship with Ozahowski, she

believed that his vulgar and offensive behavior was an

"inappropriate offhanded error and he was appropriately

remorseful for it." Wolf deposition at 113.

10 After speaking with Wolf, Dr. Weiner contacted Ozahowski and

explained that his behavior was unacceptable and, like Wolf,

warned him that if he engaged in any similar conduct in the

future he would be fired. Weiner then met with plaintiff and

asked whether she felt that she was still being subjected to

harassing behavior. Plaintiff responded that she was not.

Weiner then investigated plaintiff's complaint and conducted a

"gender survey," aimed at determining whether employees in the EP

lab felt that there were any instances in which hospital staff or

employees had engaged in inappropriate, harassing, or demeaning

conduct. Based on his investigation. Dr. Weiner concluded that

there was not a problem in the cardiology department or, more

specifically, in the EP lab. Weiner deposition at 37. Finally,

after learning that Dr. Greenberg had spoken to plaintiff about

Ozahowski's comment to her. Dr. Weiner told Dr. Greenberg not to

involve himself in personnel matters and specifically instructed

him not to speak with plaintiff about the situation with

Ozahowski.4

4 After Wolf informed plaintiff that several of the doctors were unhappy with her work performance, plaintiff approached each of those doctors. She claims that when she asked Dr. Greenberg about her performance, he responded by saying, "We should get you for insubordination. Because of you Tom [Ozahowski] has a black mark on his record. When you get involved things get very confusing." Stewart affidavit at paras. 33-34. Dr. Greenberg acknowledges having met with plaintiff to discuss her performance in the EP lab, but denies having made any such comment. Greenberg deposition at 54-55.

11 Plaintiff claims that after she reported Ozahowski's

inappropriate conduct to Wolf and Weiner in April of 1994, she

did not receive a raise and/or promotion to which she believes

she was entitled. She also claims that the Hospital changed her

working hours and added a half-hour to her work day by reguiring

her to work through lunch (without a commensurate raise in pay) .

At her deposition, however, plaintiff admitted that she was

scheduled to work from 6:30 a.m. to 5:00 p.m. with a half-hour

unpaid lunch (i.e., 10 working hours) and that she was paid for

10 hours. She also acknowledged that, "[e]verybody is supposed

to take lunch, but if you couldn't take lunch you worked through

your lunch." Stewart deposition at 252. At a minimum,

plaintiff's deposition testimony undermines her claim that the

Hospital required her to work through an unpaid lunch break.

Essentially, plaintiff seems troubled by the fact that the

Hospital refused to treat her like a nurse (she was not a nurse)

at least with regard to her scheduled work hours. See Stewart

deposition at 253-54. Eventually, in November of 1994, plaintiff

decided that she could no longer perform her duties as an EP lab

technician, reportedly due to her inability to adeguately deal

with stress she was experiencing on the job. Accordingly, she

reguested and received permission to take educational leave.

12 Discussion

Title VII of the Civil Rights Act of 1964 (as amended) makes

it unlawful for employers "to fail or refuse to hire or to

discharge any individual, or otherwise discriminate against any

individual with respect to his compensation, terms, conditions,

or privileges of employment because of such individual's race,

color, religion, sex, or national origin." 42 U.S.C. § 2000e-

2(a). "Sexual harassment," which includes unwelcome sexual

advances, reguests for sexual favors, and other verbal or

physical conduct of a sexual nature, is prohibited under Title

VII and may appear in either of two variants. "It is now well

established that two forms of sexual harassment violate Title

VII's prohibitions against workplace ineguality: i) guid pro guo

and 11) hostile work environment harassment." Tomka v. Seiler

Corp.,

(2d Cir. 1995). Here, plaintiff's

claims are limited to the latter form of gender-based

discrimination.

The Supreme Court recently held that a hostile work

environment exists (and Title VII is violated) "[w]hen the

workplace is permeated with 'discriminatory intimidation,

ridicule, and insult,' that is 'sufficiently severe or pervasive

to alter the conditions of the victim's employment and create an

abusive working environment.'" Harris v. Forklift Systems, Inc.,

(1993) (guoting Meritor Savings Bank v. Vinson,

13

(1986)). With regard to hostile environment claims

under Title VII, the court observed that:

Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment -- an environment that a reasonable person would find hostile or abusive -- is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation. •k -k -k

[WJhether an environment is "hostile" or "abusive" can be determined only by looking at all the circumstances. These may include the freguency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.

I d . at 21-22, 23.

Writing in a similar vein for a unanimous panel of the Court

of Appeals for the Seventh Circuit, Chief Judge Posner recently

observed:

The concept of sexual harassment is designed to protect working women from the kind of male attentions that can make the workplace hellish for women. . . . It is not designed to purge the workplace of vulgarity. Drawing the line is not always easy. On one side lie sexual assaults; other physical contacts, whether amorous or hostile, for which there is no consent express or implied; uninvited sexual solicitations; intimidating words or acts; obscene language or gestures; pornographic pictures. On the other side lies the occasional vulgar banter, tinged with sexual innuendo, of coarse or boorish workers.

14 Baskerville v. Culligan Intern. Co . ,

(7th Cir.

1995) (citations omitted). Title VII provides a plaintiff with

an actionable claim when the workplace is permeated with

discriminatory intimidation, insult, and ridicule which is so

severe or pervasive that it alters the conditions of the

plaintiff's employment and creates an abusive working

environment. Forklift Systems,

; Meritor Savings

Bank,

. Title VII is not, however, designed to rid

the workplace of all offensive, rude, boorish, and discourteous

behavior; it does not promise a socially sterile or perfectly

civil work environment. So, for example, while occasional crass

language or off-color humor in the workplace may be both

unprofessional and socially inappropriate, it does not, without

more, provide a foundation upon which to build a Title VII claim.

The mere utterance of a statement which "engenders offensive

feelings in an employee would not affect the conditions of

employment to [a] sufficiently significant degree to violate

Title VII." Meritor,

(guoting Rogers v. EEOC,

(5th Cir. 1971)). See also Stahl v. Sun

Microsystems, Inc.,

(10th Cir. 1994) ("If the

nature of an employee's environment, however unpleasant, is not

due to her gender, she has not been the victim of sex

discrimination as a result of that environment."); Rabidue v.

Osceola Refining Co.,

(E.D. Mich. 1984)

("Indeed, it cannot seriously be disputed that in some work

environments, humor and language are rough hewn and vulgar. ..

15 It must never be forgotten that Title VII is the federal court

mainstay in the struggle for egual employment opportunity for the

female workers of America. But it is guite different to claim

that Title VII was designed to bring about a magical

transformation in the social mores of American workers.").

I. Count I - Hostile Work Environment.

Considering the totality of the circumstances surrounding

plaintiff's two-year employment in the EP lab as described by her

(including the statements which Ozahowski admits making as well

as those he denies ) , the court concludes that plaintiff was not

subjected to an environment that was sufficiently hostile or

permeated with discriminatory intimidation, insult, or ridicule

to be actionable under Title VII. To be sure, Ozahowski's

comments (both admitted and attributed) were rude, offensive, and

unprofessional. And, plaintiff may very well have been

personally offended by his alleged flirtatious behavior, or the

use of foul language or off-color humor by her co-workers.

However, neither Ozahowski's comments nor the other circumstances

chronicled by plaintiff were sufficiently severe or pervasive to

alter the conditions of plaintiff's employment by creating an

abusive working environment.

The line between vulgar, boorish behavior which is not

actionable under Title VII, and actionable gender-based

harassment may, in certain cases, be difficult to discern. Here,

16 however, one could not reasonably conclude that the conduct

described by plaintiff crosses that line. Plaintiff has not

alleged that she was subjected to any unwelcome physical

touching, uninvited sexual solicitations, or intimidating words

or acts. See Baskerville,

. Although she does

claim to have been routinely subjected to "pornographic"

pictures, viewing the totality of the circumstances alleged (and

properly supported) in the light most favorable to plaintiff, a

reasonable trier of fact could well conclude that she was

subjected to occasional vulgar banter, foul language, humor

tinged with sexual innuendo, and at least one (and possibly two)

sexually explicit and demeaning comments by Ozahowski. In the

overall context of her two years of employment in the EP lab,

however, the facts described are not, as a matter of law,

"sufficiently severe or pervasive to alter the conditions of the

[plaintiff's] employment and create an abusive working

environment.'" Harris v. Forklift Systems, Inc.,

.

Moreover, the Hospital's response to plaintiff's disclosure

regarding Ozahowski's comments was prompt and, given that

plaintiff admitted to Dr. Weiner that the harassment stopped, it

was appropriate and effective. Employers are not strictly liable

under Title VII for acts of sexual harassment perpetrated by

their employees. But, neither are they automatically shielded

from liability simply because they have a policy against

discrimination enforced by an established grievance procedure.

17 Meritor Savings Bank,

. Instead, employers are

liable if they knew, or should have known, of sexual harassment

and failed to take "'appropriate steps to halt it.'" Morrison v.

Carleton Woolen Mills, Inc.,

(1st Cir. 1997)

(quoting Lipsett v. University of Puerto Rico,

(1st C i r . 1988)).

An employer is obligated to take reasonable steps, under the

circumstances, to end harassment. DeGrace v. Rumsfeld,

(1st Cir. 1980). "What is appropriate remedial action

will necessarily depend on the particular facts of the case — the

severity and persistence of the harassment, and the effectiveness

of any initial remedial steps." Waltman v. International Paper

C o .,

(5th Cir. 1989). An employer is not

obligated to implement the most effective remedial measures as

long as it responds with reasonably adequate remedial efforts.

Spicer v. Commonwealth of Virginia, Dep't of Corrections,

(4th Cir. 1995) (en ban c ) . Accordingly, an employer

who has notice of allegations of sexual harassment will not be

liable under Title VII if "[i]t took the allegations seriously,

it conducted prompt and thorough investigations, and it

immediately implemented remedial and disciplinary measures based

on the results of such investigations." Carmon v. Lubrizol

Corp., 17 F .3d 791, 795 (5th Cir. 1994).

18 On the factual record presented for summary judgment, it is

undisputed that plaintiff did not notify the Hospital of

Ozahowski's sexually suggestive remarks before March of 1994,

when she told her supervisor, Beth Wolf, about those remarks in

the context of a discussion related to general workplace

hostility and friction. Wolf promptly confronted Ozahowski,

issued a written warning which was placed in his personnel file,

orally warned him that any similar conduct in the future would

result in immediate discharge, and also referred the matter to

Dr. Weiner, the Hospital's head of employee relations. Dr.

Weiner then personally spoke to Ozahowski, issued a similar

warning, investigated plaintiff's allegations of workplace

hostility, and met with plaintiff on several occasions to verify

that the situation had been remedied. Ozahowski apologized to

plaintiff and she acknowledged that she was no longer subjected

to sexually suggestive comments or demeaning statements.

In light of these uncontested facts, the court concludes

that the Hospital responded in both a timely and appropriate

manner. It took prompt action aimed at halting any possible

harassment of plaintiff. Moreover, the measures taken by the

Hospital were reasonable and effective — the inappropriate

behavior stopped.

19 II. Count 2 - Retaliation and/or Constructive Discharge.

In count 2 of the amended complaint, plaintiff claims that

after she reported the alleged instances of harassment and

discrimination, her working conditions worsened to the point that

a reasonable person would have resigned or guit. She attributes

the deterioration in her working environment to defendants'

efforts to retaliate against her. Specifically, she claims that

after she reported her concerns about the conditions in the EP

lab, she did not receive a raise and/or promotion that she

believes she was scheduled to receive. However, she has failed

to support her claim that she was entitled to a raise or

promotion with any admissible evidence. Instead, she relies only

upon inadmissible hearsay and unsupported conjecture, see, e.g.,

Stewart affidavit at para. 22, which the court may not consider

in addressing defendants' motion for summary judgment. See Fed.

R. Civ. P . 56(e).

With regard to plaintiff's claims concerning changes in her

work schedule, the facts of record simply fail to support the

legal conclusion that she was the target of any unlawful

discriminatory retaliation. At some point in 1994 (after she

reported Ozahowski's conduct to Wolf), the Hospital modified the

hours during which she was expected to work. However, neither

her benefits nor salary were adversely affected. See Serrano-

Cruz v. DEI Puerto Rico, Inc.,

(1st Cir. 1997)

("Salary considerations are important in determining whether a

20 job transfer can support a claim of constructive dismissal.").

In fact, she admitted that she did not object to the change in

her working hours, but rather objected to the fact that only her

schedule (and not the EP lab nurses' schedules) had been changed.

Stewart deposition at 253-56. Critically, the record is devoid

of any facts which might suggest that the Hospital changed

plaintiff's hours for discriminatory or retaliatory reasons,

rather than based upon its legitimate interest in the smooth

operation of the EP lab and effective patient care.

Likewise, plaintiff's claims that her job duties were

unlawfully changed also fail. First, based upon her deposition

testimony, it is unclear whether the Hospital changed her job

duties at all. See Stewart deposition at 256-61 (it appears that

the Hospital simply listed plaintiff's duties and prioritized the

order in which she was expected to perform them). Second, to the

extent that plaintiff's duties were actually altered, the

Hospital has demonstrated that its actions were based upon non-

discriminatory decisions aimed at improving communication in the

EP lab and improving plaintiff's ability to perform her job and

prioritize her work. In response, plaintiff has failed to

produce evidence sufficient to permit a reasonable trier of fact

to conclude that the Hospital's proffered justification for

21 "altering" her job duties was a pretext and that its conduct was

actually motivated by a desire to retaliate against her.5

Finally, to the extent that plaintiff claims to have stated

a viable cause of action for constructive discharge (as

distinguished from unlawful, gender-based retaliation), that

claim too fails. Constructive discharge occurs when an

employer's actions, measured under an objective standard, "have

forced an employee to resign." Serrano-Cruz,

. To

meet the objective standard, the evidence must support a finding

5 The Court of Appeals for the First Circuit has recognized that:

On summary judgment, the need to order the presentation of proof is largely obviated, and a court may often dispense with strict attention to the burden-shifting framework, focusing instead on whether the evidence as a whole is sufficient to make out a jury guestion as to pretext and discriminatory animus.

Fennell v. First Step Designs, Ltd.,

(1st Cir. 1996). Nevertheless, even applying the burden-shifting analysis and assuming that plaintiff has established a prima facie case of retaliation under the framework articulated in McDonnel Douglas Corp. v. Green,

(1973), the Hospital has responded with "sufficient competent evidence . . . to permit a rational factfinder to conclude that there was a 'nondiscriminatory reason' for the challenged employment action, thereby displacing the presumption of intentional discrimination generated by the prima facie case." Byrd v. Ronayne,

(1st Cir. 1995) (citation omitted). See also Texas Department of Community Affairs v. Burdine,

(1980). Accordingly, the dispositive guestion then becomes whether plaintiff has established genuine issues of fact with regard to her claim that: (1) the Hospital's stated reasons for "altering" her job duties were pretextual; and (2) her change in job duties was motivated by a desire to retaliate against her for having formally complained about her working conditions. See Fennell v. First Step Designs, Ltd.,

. For the reasons articulated above, she has failed to meet that burden.

22 that the working conditions were so "difficult or unpleasant that

a reasonable person in the employee's shoes would have felt

compelled to resign." Greenberg v. Union Camp Corp.,

(1st Cir. 1995) (internal guotations omitted). Under this

objective standard, "an employee may not . . . be unreasonably

sensitive to a change in job responsibilities." Serrano-Cruz,

. Here, plaintiff's claims fall short of the mark.

The record does not support even an inference that, in

retaliation for having reported incidents of alleged gender-based

discrimination, the Hospital created a work environment that was

so hostile or unpleasant that a reasonable person would have felt

compelled to leave.

Moreover, because the court has determined that defendants'

conduct was not discriminatory within the meaning of Title VII,

plaintiff cannot prevail with regard to her Title VII

constructive discharge claim. See Wavmire v. Harris Countv,

Texas,

(5th Cir. 1996) (because defendant not

liable under Title VII, court need not consider constructive

discharge claim); Winsor v. Hinckley Dodge, Inc.,

(10th Cir. 1996) (element of constructive discharge claim

based on sexual harassment under Title VII is gender-based

intolerable working conditions); Barrett v. Omaha Nat'l Bank,

(8th Cir. 1984) (constructive discharge claim must

fail where plaintiff fails to show sexual harassment under Title

VII) .

23 Conclusion

Defendants' motion for leave to file a reply memorandum

(document no. 22) is granted. Defendants' motion for summary

judgment (document no. 17) is granted in part and denied in part.

Defendants are granted summary judgment with regard to Counts 1

and 2 of plaintiff's amended complaint. Pursuant to

6 7 (c)(3), the court declines to exercise its supplemental

jurisdiction over the remaining claims set forth in plaintiff's

amended complaint (Counts 3 through 5 ), as they are based solely

upon state law. Accordingly, those counts are dismissed without

prejudice to refiling in state court. Defendants' motion to

strike portions of plaintiff's affidavit (document no. 23) is

granted to the extent that the court has disregarded those

portions of plaintiff's affidavit which are inadmissible under

Fed. R. Civ. P. 56(e). In all other respects, that motion is

denied as moot.

The clerk of the court is instructed to enter judgment in

favor of defendants in accordance with the terms of this order

and close the case.

SO ORDERED.

Steven J. McAuliffe United States District Judge

July 1, 1997

24 cc: Joni N. Esperian, Esq. Julie Ann Quigley, Esq.

25