Banuskevich v . City of Nashua, et a l . CV-00-079-M 05/25/01 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Jennifer Banuskevich, Plaintiff

v. Civil N o . 00-79-M Opinion N o . 2001 DNH City of Nashua, NH and ua Police Commission, Nashua Defendants

O R D E R

While working as a communications technician with the Nashua

Police Department (“NPD”), plaintiff applied for, but was denied,

a job as a Parking Enforcement Specialist (“PES”). In this suit

she alleges that her prior use of sick leave played a role in the

adverse decision, in violation of the Family Medical Leave Act,

et seq. (“FMLA”). She further contends that she

was constructively discharged, in that her working conditions

were rendered intolerable by her employer’s reaction to her use

of authorized medical leave. Defendants move for summary

judgment.

As always, to prevail on their motion for summary judgment,

defendants must show there is “no genuine issue as to any

material fact . . . and [that they are] entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). When considering the

facts, all reasonable inferences are drawn in a light favorable

to the non-moving party. See Griggs-Ryan v . Smith,

(1st Cir. 1990).

In analogous cases of alleged employment discrimination, two

analytical methods are generally relevant - mixed-motive analysis

and the now familiar McDonnell Douglas burden-shifting framework.

See Fernandes v . Costa Brothers Masonry, Inc.,

, 579-

80 (1st Cir. 1999); see also generally Price Waterhouse v .

Hopkins,

(1989); McDonnell Douglas, Corp. v . Green,

(1973). Under the McDonnell Douglas approach, the

plaintiff retains the burden of persuasion at all times. Febres

v . Challenger Caribbean Corp.,

7 , 60 (1st Cir. 2000).

The mixed-motive approach is taken, however, when direct evidence

of discrimination exists. If the plaintiff presents “direct

evidence that a proscribed factor . . . played a motivating part

in the disputed employment decision,” and the evidence is

accepted by the fact finder, the burden of persuasion shifts to

the defendant.

The First Circuit has adopted the McDonnell Douglas

framework for FMLA cases, like this one, and would probably

2 follow a mixed-motive approach in appropriate “direct evidence”

FMLA cases as well. See Hodgens v . General Dynamic Corp.,

(1st Cir. 1998) (applying McDonnell Douglas

framework “when there is no direct evidence of discrimination”);

see also, e.g., Fernandes,

(adopting mixed-motive

analysis in age discrimination case).

In this case, plaintiff claims defendants violated the

FMLA’s prohibition against considering the “use of FMLA leave as

a negative factor in employment actions such as hiring,

promotions or disciplinary actions.”

(c); see

also Hodgens,

. Defendants counter that plaintiff

has not actually suffered any “adverse employment action,” and,

given the undisputed facts, the city is not liable under the

FMLA.

A. Adverse Employment Action

In other, but comparable, employment discrimination contexts

an “adverse employment action” has been found to consist of an

unfavorable tangible action “ . . . such as hiring, firing,

failing to promote, reassignment with significantly different

responsibilities, or a decision causing a significant change in

3 benefits.” See Burlington Indus., Inc. v . Ellerth,

(1998) (Title V I I ) . Defendants say that neither their

refusal to offer plaintiff the PES position she sought, nor her

alleged “constructive discharge,” qualifies as a “tangible

employment action.”

Defendants are correct that plaintiff cannot rely on her

alleged constructive discharge to supply the adverse employment

element of her discrimination claim, because it is clear that she

was not constructively discharged. It is well settled that in

order to establish a constructive discharge claim, plaintiff must

demonstrate that she experienced “harassment so severe and

oppressive that staying on the job while seeking redress [was]

intolerable.” See Keeler v . Putnam Fiduciary Trust Co.,

, 10 (1st Cir. 2001). It is an objective test. See Suarez v .

Pueblo Intern, Inc.,

9 , 54 (1st Cir. 2000). “The

workplace is not a cocoon, and those who labor in it are expected

to have reasonably thick skins - thick enough, at least, to

survive the ordinary slings and arrows that workers routinely

encounter in a hard cold world.”

Plaintiff’s only evidence of harassment is a single

telephone call from then-Chief of Police Clifton Largy, during

4 which he told her she was not being offered the PES position.

Chief Largy was allegedly “very nasty, very demeaning, [and]

insulting.” But plaintiff concedes that this one call was the

sole reason for her decision to resign. That one unpleasant

interaction even as described by plaintiff, does not qualify as

“severe and oppressive” harassment justifying resignation rather

than staying on the job to seek redress.

Furthermore, there is no dispute that plaintiff called her

supervisor to resign immediately after the conversation with

Largy - thus, the incident was not itself severe or oppressive,

and she did not subsequently experience an intolerable work

environment because of the incident. It is also not disputed

that plaintiff’s supervisor asked her not to resign, and to

contact him if she changed her mind about quitting (suggesting

she would be reinstated). A reasonable person would not

overreact to the single incident plaintiff describes and would

not have concluded that such an incident rendered the work

environment so intolerable that resignation was the only

realistic option. See Taylor v . Virginia Union Univ.,

(4th Cir. 1999) (“[D]issatisfaction with work

assignments, a feeling of being unfairly criticized, or difficult

5 or unpleasant working conditions are not so intolerable as to

compel a reasonable person to resign. Moreover, the denial of a

single promotional opportunity is insufficient to create an

intolerable environment.” (internal citations and quotation marks

omitted)); see also Keeler,

0 ; Peters v . Community

Action Committee, Inc.,

(M.D. Ala. 1997).

However, while the asserted “constructive discharge” cannot

satisfy the “adverse employment action” element of plaintiff’s

discrimination claim, defendant’s failure to promote (or refusal

to hire) plaintiff for the PES position does satisfy that

requirement. Plaintiff has submitted evidence tending to show

that at the time she was rejected for the PES position, she was

earning $21,000 as a communication technician, while the woman

later hired for the PES position started at a salary of $25,000.

Accordingly, on this record, it appears that plaintiff would have

earned a higher salary had she been offered the PES position.

Plaintiff’s rejection for a position with a higher salary is an

adverse employment action sufficient to trigger potential

liability.

The next step, then, is determining which analytical

approach to follow.

6 B. McDonnell Douglas Framework

Defendants claim they are entitled to summary judgment under

the McDonnell Douglas framework. To meet her initial burden

under this test, plaintiff must establish a prima facie case of

discrimination based on her use of FMLA leave. She must show:

(1) that she availed herself of FMLA leave; (2) that she was

adversely affected by an employment action; and (3) a causal

connection between (1) and ( 2 ) . Hodgens,

. This

is not an onerous task, see

, and plaintiff easily

meets her burden in that regard.

For purposes of this motion, defendants concede that at

least some of plaintiff’s sick leave was protected under the

FMLA. As discussed above, on this record, plaintiff suffered an

adverse employment action because the PES position‘s salary was

higher. And finally, plaintiff stated in her deposition and

affidavit (appended to her opposition to summary judgment) that

Chief Largy, the person responsible for deciding who would be

offered the PES position, told her directly she was not being

offered the job because of her past use of sick leave.

Additionally, the memorandum on which Largy claims he based his

decision is largely devoted to plaintiff’s history of sick leave

7 use. Defendants concede that they did not distinguish between

plaintiff’s protected and unprotected leave when considering

whether to offer her the PES job. 1

Having established a prima facie case, the burden of

production shifts to defendants to articulate legitimate, non-

discriminatory reasons for not offering plaintiff the PES

position. Defendants have met that burden by stating that they

considered other factors as well, including two disciplinary

reports unrelated to sick leave use, plaintiff’s performance on a

1998 driving test (the first time she applied for a PES

1 Defendants’ attempt to defeat the causation prong, on grounds that they did not distinguish between protected and unprotected leave, is unpersuasive. It is clear from the record that plaintiff followed the NPD’s sick leave procedures by either calling in with a reason for her absence or filling out a “statement of absence” card. Some of these cards indicate she was taking sick leave because of a migraine headache, or to care for her son following one of his asthma attacks. For the purposes of this motion, defendants concede that asthma and migraine headaches are “serious medical conditions” and leave related to those conditions is protected under the FMLA. Accordingly, the cards placed defendants on notice of the possibility that plaintiff was using FMLA protected leave. See

(discussing notice requirements for unforseeable leave). Defendants were, therefore, obligated to act appropriately. See

If liability could be avoided by failing to distinguish between protected and unprotected leave, the protective intent of the FMLA would be undermined. Cf.

(c) (“nor can FMLA leave be counted under ‘no fault’ attendance policies”).

8 position), and plaintiff’s 1990 driver’s license suspension for

excessive speeding tickets. These are all neutral and

nondiscriminatory reasons for not offering plaintiff the PES

position.

Since defendants have met their burden of production,

plaintiff must show that there is a genuine dispute about whether

defendants’ proffered reasons are actually a pretext for

discrimination. See Hodgens,

. At this stage,

“courts must be ‘particularly cautious’ about granting the

employer’s motion for summary judgment.

“Where . . . the

nonmoving party has produced more than [conclusory allegations,

improbable inferences, and unsupported speculation,] trial courts

should use restraint in granting summary judgment where

discriminatory animus is in issue.”

(internal citations and

quotation marks omitted). Obviously, each case is sui generis,

but where discriminatory animus might fairly be inferred, summary

judgment is not available. See

.

Plaintiff has presented deposition testimony and affidavits

supporting and recounting statements allegedly made to her by

Largy (the decision-maker) suggesting that the proffered

legitimate reasons for rejecting her application would not, on

9 their own, have kept her from securing the PES position, and,

that the primary reason she was not offered the position was her

use of sick leave (which included use of protected leave). Thus,

a genuine dispute arises concerning Largy’s actual reason for

rejecting plaintiff’s application for the PES position. Although

many of plaintiff’s sick leave absences were not FMLA protected,

if her use of sick leave was the reason for her rejection, and

defendants did not distinguish between protected and unprotected

leave, plaintiff’s use of FMLA leave may have led to her

rejection, which of course would be unlawful. See Monica v .

Nelco Chemical Corp.,

, N o . Civ. A . 96-1286 (E.D.

L a . Dec. 2 6 , 1996), at *2 (denying summary judgment in case where

only one of six allegedly considered absences was FMLA protected)

cited in Hodgens,

. Accordingly, the court

cannot, at this stage, find as a matter of law that defendants’

articulated reasons are not pretextual.

C. Mixed-Motive Approach

Plaintiff says she has actually presented direct evidence of

discrimination, and urges the court to employ the mixed-motive

analytical approach instead. Assessing whether proffered

10 evidence adequately triggers a mixed-motive analysis is usually a

complicated task, and one that need not be tackled in this case

(at least not at this point). See Febres, 214 F.3d at 60 (noting

that there is not yet a clear understanding of what constitutes

“direct evidence” to trigger mixed-motive approach). Because

defendants have failed to demonstrate the absence of a genuine

issue of material fact as to the non-pretextual nature of their

proffered reasons for rejecting plaintiff for the PES position,

see supra, they have failed to demonstrate that they are entitled

to summary judgment under the analytical approach more burdensome

to plaintiff. Accordingly, even if the mixed-motive approach was

employed, plaintiff would similarly prevail on this motion for

summary judgment. See Febres, 214 F.3d at 60 (explaining that

although initial burden under mixed-motive is heavier on

plaintiff, greater burden shifted to defendant is “pronounced

advantage”).

Conclusion

For the foregoing reasons, there exists a genuine dispute as

to whether plaintiff’s use of FMLA protected leave led to

defendants’ rejection of her application for the PES position.

11 However, as a matter of law, Chief Largy’s alleged unpleasantness

toward plaintiff did not constitute a constructive discharge.

Accordingly, defendants’ motion for summary judgment (document

no. 8 ) is granted with respect to plaintiff’s constructive

discharge allegation, but denied in all other respects.

SO ORDERED.

Steven J. McAuliffe

United States District Judge

May 2 5 , 2001

cc: James W . Donchess, Esq. James M. McNamee, Jr., Esq.

12