Eason v. Town of Salem CV-00-525-M 02/12/02 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Rhonda Eason, Plaintiff

v. Civil No. 00-525-M Opinion No.

Town of Salem, Defendant

O R D E R

Rhonda Eason brings this action against her former employer,

the Town of Salem, seeking damages under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e, et seq. She claims that

the Town wrongfully discharged her from her position as a Special

Police Officer based on her gender. The Town denies any

wrongdoing and moves for summary judgment. Eason objects.

Standard of Review

When ruling on 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." Griggs-Ryan v. Smith.

(1st Cir. 1990). 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 this context, "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." Intern'1 Ass'n of

Machinists and Aerospace Workers v. Winship Green Nursing Center,

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

Background

In October of 1997, the Salem Police Department hired Eason

as a "Clerk II," an administrative position that involved the

processing and maintenance of pawn slips and police department

records. Eason's immediate supervisor with regard to police

records was Sharon Savage. Her supervisor with regard to pawn

slips was Captain Alan Gould, who, in turn, reported to Police

Chief Stephen MacKinnon. A little less than one year later, in

August of 1998, the Town hired Eason as a Special Police Officer.

She worked as both a Clerk II and Special Police Officer for the

Town until August 29, 1999, when she resigned from her position

as a Clerk II. She remained on the Town's roster of Special

2 Police Officers until February 18, 2000, when her employment was

terminated.

Although Eason acknowledges that her Title VII claim relates

exclusively to her discharge as a Special Police Officer, her

memorandum in opposition to summary judgment chronicles several

events that transpired during the course of her work as a Clerk

II. She recounts those events "for evidentiary purposes,"

because she "believes that the discriminatory treatment she

experienced as a Clerk II is relevant to her present claims."

Plaintiff's objection (document no. 10) at 2 n.l. Reduced to

their essence, those claims suggest that Eason felt that her co­

workers (mostly women) treated her unfairly (e.g., stopped

speaking to her, accused her of drug use and promiscuity) and her

male supervisors either did nothing to stop that behavior or, in

some cases, actively encouraged it.

From the Town's perspective, Eason appears to have been

something less than the model employee. See, e.g.. Exhibit 8 to

plaintiff's memorandum (document no. 10), memorandum from Captain

Gould to Chief MacKinnon ("Since Ms. Eason was hired [as a Clerk

3 II] in October of 1997, I have spent more time trying to resolve

issues for her than any other employee I can remember. Most of

these issues were personality conflicts that occurred between Ms.

Eason and other members of the clerical staff. . . . Although I

helped Ms. Eason with these conflicts for more than a year, I

realized several months ago that Ms. Eason needs to accept

responsibility for most of the issues which have been created.").

The first incident that gave rise to disciplinary action

against Eason arose in July of 1999, in the context of her job as

a Clerk II, when she confronted and allegedly used profanity

toward her supervisor, Sharon Savage. Ms. Savage filed a written

complaint with Captain Gould, who then referred the matter to the

Chief. An administrative hearing was held, at which Eason

appeared along with a union representative. Eason acknowledged

that her behavior was inappropriate and she was issued a written

warning. See Exhibit C-5 to defendant's memorandum (document no.

6) .

The day after Eason received notice of the written warning,

she filed a written complaint of harassment, in which she set

4 forth five instances of alleged harassment to which she was

subjected (again, all of those instances related to Eason's

employment as a Clerk II). See Exhibit 5 to plaintiff's

memorandum; Exhibit C-7 to defendant's memorandum. Chief

MacKinnon conducted an investigation into Eason's allegations,

which included taking statements from all pertinent parties and

soliciting additional information from Eason (some of which she

declined to provide). See generally Exhibit B to defendant's

memorandum. Affidavit of Stephen B. MacKinnon at para. 11. See

also Exhibit C-7 to defendant's memorandum (documents relating to

Chief MacKinnon's investigation). In the end, the Chief issued a

written report, discussing each of Eason's complaints, the

results of his investigation into each alleged incident of

workplace harassment, and his conclusion that each claim raised

by Eason was unfounded or that Eason had refused to provide

sufficient information to permit a meaningful investigation. See

Exhibit C-8 to defendant's memorandum.

On July 25, 1999 (i.e., approximately a year after she was

hired as a Special Police Officer), Eason was assigned to traffic

detail and instructed to direct traffic near the grand opening of

5 a Target store. During the course of that detail, a driver

apparently misunderstood Eason's hand signal and incorrectly

proceeded through the intersection. Eason allegedly screamed at

the driver and ordered him to pull over. He complied. Eason

then radioed for backup and two Salem police officers responded

to the scene (a third officer arrived subsequently, but it

appears that she never exited her cruiser). The situation was

soon resolved and the driver was permitted to leave the scene

with an oral warning to more carefully heed the hand signals

given by police officers.

The following day. Chief MacKinnon received an anonymous

phone call from a person he assumed to be the driver involved in

the previous day's incident (the "Target incident"). That person

complained to the Chief about the treatment he had received at

the hands of Eason. The Chief conducted an informal

investigation that included, among other things, speaking with

the police officers who responded to Eason's call for backup.

Their recollection of the events in question supported the claims

made by the anonymous caller. The Chief then advised Eason's

immediate supervisor of the incident and recommended that Eason

6 be counseled on various issues relating to professionalism and

proper treatment of members of the public. See Exhibit 9 to

plaintiff's memorandum. As a result of that incident and the

prior incident that resulted in the written reprimand, the Chief

concluded that Eason would benefit from stress and/or anger

management training.

On August 12, 1999, Chief MacKinnon met with Eason to

discuss the Target incident. During the course of that meeting,

the Chief decided that Eason was giving evasive, if not

inaccurate, responses to his questions. In particular, the Chief

appeared concerned that Eason was claiming that she had been

struck by the vehicle, notwithstanding the fact that police logs

and Eason's own communications with other police officers that

day showed that she said she was "almost hit" by the vehicle.

See, e.g.. Exhibit 9 to plaintiff's memorandum (revealing, among

other things, that one of the officers who responded to Eason's

request for backup reported that Eason told him that the driver

almost struck her with his automobile). The Chief was also

troubled by Eason's failure to follow various police protocols,

as well as other conduct on her part that he viewed as

7 unprofessional. See generally Exhibit B to defendant's

memorandum. Affidavit of Stephen B. MacKinnon.

Following that meeting. Chief MacKinnon decided to

temporarily remove Eason from the roster of Special Police

Officers. He drafted a memorandum outlining the basis for his

decision, concluding that:

Based on these observations, I am not confident in your abilities to carry out the duties of a Special Police Officer. Therefore, I will be removing you from the work schedule with the exception of attending Special Officer Training sessions and general meetings of the entire roster. During this time you are not to identify yourself as a Special Police Officer or take any other actions as a police officer.

During this time I will attempt to locate appropriate training for you to address these performance concerns. Once that is achieved I will consider allowing you to return to the work schedule.

Exhibit 10 to plaintiff's memorandum.

Chief MacKinnon says that notwithstanding his reasonable

efforts, he was unable to locate appropriate training sessions

for Eason through either the New Hampshire Police Standards and

Training Council or private organizations. See MacKinnon Affidavit at para. 15. During the same time frame, the Salem

Police Department began a review of the hours and tasks performed

by its Special Police Officers, with an eye toward reducing the

department's staffing. See MacKinnon Affidavit at para. 16.

See also Memorandum of Chief MacKinnon to Mary Donovan, dated

February 9, 2000, attached to plaintiff's affidavit (document no.

12). In that memorandum, the Chief solicited Ms. Donovan's

thoughts with regard to the following observations and proposals:

I have made a review of all the Special Officer's activity in 1999. We have a number of Special Officers who have worked little or no hours and have not been available to work when called. There are seven employees that fit this definition. Since we still maintain liability insurance on them and have to keep them trained to maintain their certifications (i.e., firearms qualifications) it would be my intent to advise the Police Academy that they are no longer Specials within Salem and tell Payroll to take them off the computer. It is not cost effective to keep them on the roster.

In addition, there are an additional 7 Special Officers that have questionable commitment. I plan to send a letter to each of them asking [them] to respond in writing within a certain time frame if they are still interested in working with us. No answer, no job. The letter would also include an expectation of more activity seen by them within the next 6 months or they will be taken off the roster as well.

9

It is unclear from the record whether Chief MacKinnon ever

sent the letters he referenced in that memorandum. Eason denies

ever receiving such a letter.

Shortly thereafter, Eason and ten other Special Police

Officers (all men) were removed from the department's roster, as

part of a reduction in force. Eason was notified of her

permanent removal from the Special Officer roster by letter dated

February 18, 2000. Exhibit B-16 to defendant's memorandum.

Chief MacKinnon says Eason was terminated "due to the force

reduction, her past poor performance and anger/stress-management

issues, and her dishonesty in the course of the inquiry into the

Target incident." MacKinnon Affidavit at para. 17. He denies

that Eason's gender played any role in that decision.

Eason, on the other hand, says her termination was wrongfully

motivated by a gender-based animus and, therefore, violated Title

VII.

10 Discussion

I. Title VII and Gender-Based Discrimination.

A. The Analytical Framework.

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). In cases such as this, where there is little overt

evidence of gender-based discrimination, courts typically employ

the burden-shifting framework articulated by the Supreme Court in

McDonnell Douglas Corp. v. Green,

(1973). See also

Carev v. M t . Desert Island Hosp.,

(1st Cir.

1998).

The Court of Appeals for the First Circuit has summarized

the McDonnell Douglas burden-shifting paradigm as follows:

Under this formulation, a plaintiff opens with a prima facie showing of certain standardized elements suggestive of possible discrimination. -k

11 Establishment of the prescribed prima facie case creates a presumption that the employer engaged in impermissible [gender] discrimination. However, to rebut this presumption, the employer need only articulate a legitimate nondiscriminatory reason for the employee's termination. The employer's obligation is simply one of production. The burden of persuasion remains the employee's at all times.

LeBlanc v. Great American Ins. Co.,

(1st Cir.

1993) (citations and internal quotation marks omitted). More

recently, the court described the elements of a prima facie case

of gender-based discrimination - the first step in the burden

shifting paradigm - as follows:

[The plaintiff] must show that (1) she is a member of a protected class; (2) she was performing her job at a level that rules out the possibility that she was fired for inadequate job performance; (3) she suffered an adverse job action by her employer; and (4) her employer sought a replacement for her with roughly equivalent qualifications.

Smith v. Stratus Computer, Inc..

(1st Cir. 1994).

If the plaintiff establishes a prima facie case of

discrimination, the burden shifts to the employer to articulate a

legitimate, non-discriminatory justification for the adverse

employment action taken against the plaintiff. If the defendant

succeeds in carrying that burden of production, the burden

12 reverts to the employee, who must then demonstrate that the

reason articulated by the employer was a mere pretext for

unlawful gender discrimination. See St. Mary's Honor Center v.

Hicks,

(1993) . See also LeBlanc,

. To carry that burden, the employee must produce "not only

minimally sufficient evidence of pretext, but evidence that

overall reasonably supports a finding of discriminatory animus."

(citation and internal quotations omitted) . He or

she "may not simply refute or question the employer's reasons.

To defeat summary judgment at this stage, a plaintiff must

produce evidence that the real reason for the employer's actions

was discrimination." Gadson v. Concord Hosp.,

(1st Cir. 1992).

B. Eason's Claims and Evidence.

Assuming that Eason has established a prima facie case of

unlawful gender-based discrimination,1 the burden falls upon the

1 It is doubtful that Eason has established that she was performing her job "at a level that rules out the possibility that she was fired for inadequate job performance" or that she has shown that "her employer sought a replacement for her with roughly equivalent qualifications." Stratus Computer,

. Nevertheless, the court has assumed the minimal evidence proffered by Eason is sufficient to meet her initial burden.

13 Town to articulate a legitimate, non-discriminatory justification

for the adverse employment action it took against her. As noted

above, "[a]t this second stage, the framework imposes on the

defendant only a burden of production. The burden of persuasion

remains at all times with the plaintiff." Thomas v. Eastman

Kodak C o .,

(1st Cir. 1999), cert. denied,

(2000). The Town has met that burden by credibly

asserting that Eason was terminated as part of a reduction in

force, and because of her history of unprofessional conduct, her

stress and/or anger-management issues, and her dishonesty when

questioned about the so-called Target incident. If taken as

true, such evidence supports the Town's assertion "there was a

nondiscriminatory reason for the adverse action" taken against

her. St. Mary's Honor Center v. Hicks,

.

So, the burden of persuasion reverts to Eason, who must

introduce sufficient evidence to permit a reasonable trier of

fact to conclude that the Town's stated motivations are simply a

pretext for unlawful gender-based discrimination. At this stage,

Eason must:

14 demonstrate that the proffered reason was not the true reason for the employment decision. This burden now merges with the ultimate burden of persuading the court that she has been the victim of intentional discrimination. She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.

Texas Dept, of Community Affairs v. Burdine,

(1981) (citing McDonnell Douglas,

)). See also

Reeves v. Sanderson Plumbing Prods., Inc.,

(2000) ("Proof that the defendant's explanation is unworthy of

credence is . . . one form of circumstantial evidence that is

probative of intentional discrimination."). Importantly,

however, Eason may not simply deny or question the Town's reason

for terminating her. "To defeat summary judgment at this stage,

a plaintiff must produce evidence that the real reason for the

employer's actions was discrimination." Gadson.

.

See also Stratus Computer.

. She has failed to

carry that burden.

In an effort to demonstrate that the Town's proffered

justification for her termination is merely a pretext for

unlawful gender-based discrimination, Eason points to the events

15 that gave rise to the general animosity she felt from her co­

workers as a Clerk II, as well as the following "incidents" that

occurred in the context of her work as a Special Police Officer:

1. The plaintiff was treated with "kid gloves" by her male Field Training Officer and was kept "out of harm's way" during an incident in which they had to draw their weapons.

2. During the "Target Incident," referred to by the defendant, the plaintiff's version of the event was not believed by other male officers who responded to the scene and her suggestions about how to handle the situation were not followed.

3. After the "Target Incident" the plaintiff's version of the event (which included her statement that the motorist's vehicle made contact with her person during the incident) were not believed by Chief of Police Stephen MacKinnon and she was removed from the Special Police Roster and required to undergo stress and anger-management training.

4. Chief MacKinnon never located stress and anger-management training for the plaintiff to attend.

5. Although the plaintiff was authorized to attend Special Police Officer training sessions as well as general meetings of the Special Police Officers, she never received notice of sessions and meetings as was the customary practice.

Plaintiff's memorandum at 3-4 (citations omitted).

16 Even crediting those allegations as true and giving Eason

the benefit of all reasonable inferences that might be drawn from

them, they are insufficient to permit a reasonable fact-finder to

conclude that the Town's proffered justification for terminating

Eason's employment is merely a pretext for unlawful gender-based

discrimination.

With regard to her complaint that her Field Training Officer

treated her with "kid gloves" and tried to keep her "out of

harm's way," Eason testified that she had never observed that

officer interact with a male partner. Consequently, she could

not say whether his conduct was gender based or merely his

customary behavior toward a fellow officer, designed to protect

his partner from harm and offer appropriate support (particularly

when that fellow officer is still undergoing training). See

Eason deposition at 150-51. As to Eason's complaints concerning

the investigation in the wake of the Target incident. Chief

MacKinnon spoke to the responding officers (one of whom flatly

contradicted Eason's claim that she was struck by the vehicle),

reviewed all of the incident reports generated after that

incident, reviewed Eason's own taped transmissions with the

17 dispatch officer, and examined Eason's conduct immediately

following the incident (including, for example, the fact that,

contrary to established protocols governing officers injured on

the job, Eason never submitted any written report concerning a

work-related injury stemming from her claim to have been struck

by the vehicle). See Exhibits 8 and 9 to plaintiff's memorandum.

After conducting that investigation, he concluded that, contrary

to Eason's subsequent representations, she had not been struck by

the vehicle. Based upon the evidence before him, one cannot say

that Chief MacKinnon's conclusion was unreasonable. Even more

importantly, however, there is nothing in the record to suggest

that his conclusion (even if wrong) was the product of any

gender-based discriminatory animus toward Eason.

As to Eason's claims concerning Chief MacKinnon's failure to

locate an anger and/or stress-management course for her, nothing

in the record even remotely suggests that the Chief's proffered

explanation is either false or that he purposefully avoided

finding such programs due to some unlawful bias against Eason.

With regard to Eason's claim that she never received the

"customary" notice of meetings of Special Police Officers, she

18 has failed to provide any evidence that such meetings were ever

conducted during the relevant time frame. Consequently, it is

entirely possible that she received no notice of such meetings

because none ever occurred.

Finally, while the incidents suggestive of an allegedly

hostile work environment relating to Eason's tenure as a Clerk II

might be relevant to her wrongful discharge claim, see, e.g.,

Cummings v. Standard Register Co.,

(1st Cir.

2001), they are insufficient, even when viewed in light of all

other evidence produced by Eason, to permit a rational trier of

fact to conclude that Eason was discharged from her position as a

Special Police Officer on account of her gender. That evidence

suggests, at most, that there were some personality conflicts

among the women with whom Eason worked (at least some of which

might have been caused by Eason herself); it does not support the

inference that Eason was subjected to any sort of gender-based

bias in the workplace.

In sum, Eason's evidence of unlawful gender-based

discrimination within the Salem Police Department is, at best.

19 sparse and of minimal persuasive value. It is certainly

insufficient to rebut the Town's proffered, non-discriminatory

basis for terminating her employment. Nor does it provide any

basis from which to conclude that the Town's true (undisclosed)

motivation was unlawful, gender-based discrimination.

Conclusion

Even making the doubtful assumption that Eason has met the

minimal requirements necessary to make out a prima facie claim of

unlawful gender-based discrimination, the Town has responded with

a credible, non-discriminatory justification for her termination

that is well supported in the record. In response, Eason has

failed to point to evidence sufficient to demonstrate that the

Town's proffered explanation for her termination is pretextual

and, in fact, designed to disguise its true, unlawful,

discriminatory conduct. Consequently, the Town is entitled to

judgment as a matter of law. Its motion for summary judgment

(document no. 6) is, therefore, granted. The Clerk of the Court

shall enter judgment in accordance with this order and close the

case.

20 SO ORDERED.

Steven J. McAuliffe United States District Judge

February 12 ,2002 cc: Thomas J. Gleason, Esq. Diane M . Quinlan, Esq.

21