Cook v . PC Connection 08-CV-496-SM 01/13/10 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Brianne Cook, Plaintiff

v. Civil N o . 08-cv-496-SM Opinion N o .

PC Connection, Inc., Defendant

O R D E R

Brianne Cook brings this action seeking compensatory and

punitive damages for defendant’s alleged acts of gender-based

discrimination. Specifically, she says that although she was

qualified for a vacant sales position at PC Connection, defendant

refused to hire her when it discovered that she is a transsexual

post-operative woman. She claims she was the victim of disparate

and discriminatory treatment as a result of both her gender and

her status as a transsexual, in violation of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (count o n e ) .

She also brings a supplemental state law claim under New

Hampshire’s Law Against Discrimination, N.H. Rev. Stat. Ann.

(“RSA”) ch. 354-A (count t w o ) .

PC Connection denies that its decision not to hire Cook was

in any way related to her gender or her transsexual status and

moves for summary judgment. Although Cook twice sought (and was granted) additional time within which to file an objection to PC

Connection’s motion, she failed to do so in a timely fashion.

Recently, however, she filed an untimely objection.

Despite the objection’s untimeliness, the court has

considered i t . Nevertheless, that objection fails to identify

any genuinely disputed material facts that would warrant a trial.

PC Connection has demonstrated that, given the undisputed

material facts, it is entitled to judgment as a matter of law.

Accordingly, for the reasons discussed below, defendant’s motion

for summary judgment is granted.

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.” Int’l Ass’n of

2 Machinists & Aerospace Workers v . Winship Green Nursing Ctr.,

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

I f , however, the non-moving party’s “evidence is merely

colorable, or is not significantly probative,” no genuine dispute

as to a material fact has been proved, and “summary judgment may

be granted.” Anderson v . Liberty Lobby, Inc.,

, 249-

50 (1986) (citations omitted). The key, then, to defeating a

properly supported motion for summary judgment is the non-

movant’s ability to support his or her claims concerning disputed

material facts with evidence that conflicts with that proffered

by the moving party. See generally Fed. R. Civ. P. 56(e). It

naturally follows that while a reviewing court must take into

account all properly documented facts, it may ignore a party’s

bald assertions, unsupported conclusions, and mere speculation.

See Serapion v . Martinez,

(1st Cir. 1997).

Background

Well before her gender reassignment surgery, Cook applied to

work for PC Connection as a sales account manager, under her

former name, Brian Cook. That application was rejected for two

reasons. First, although she claimed that she had been employed

by PC Connection previously, and that PC Connection’s marketing

department was actively recruiting her, neither statement was

3 true. Second, Cook conceded that she was actually interested in

working in marketing, and was seeking the vacant sales position

as a means to get her “foot in the door.” PC Connection says its

experience has shown that employees who are not genuinely

interested in sales quickly become dissatisfied with those

positions. Accordingly, given Cook’s expressed desire to

transition from sales to the marketing department, it says it was

not interested in spending the time and money necessary to train

Cook for a sales account manager position. In short, PC

Connection says Cook’s 2000 application for employment as a sales

account manager was rejected because she was not candid during

the application process and because she lacked a genuine interest

in the sales position. Cook does not challenge that decision (or

the reasons for it) in this litigation.

Subsequently, Cook completed her gender reassignment surgery

and, in 2003, changed her name to Brianne. Then, in May of 2006,

Cook attended a job fair at PC Connection’s Merrimack, New

Hampshire, facility and again applied for a position in the sales

department. According to Cook, PC Connection’s representatives

with whom she spoke were impressed with her credentials,

personality, and knowledge of the field. But, in an apparent

effort to conceal the fact that she had undergone gender

reassignment surgery, when she completed the written job

4 application Cook represented that she had never used another name

in her work and/or education records, and that she had not

previously filed an application for employment with PC Connection

or any of its subsidiaries. Defendant’s Exhibit A (document n o .

12-8) at 161. Neither representation was true. When she

completed the application, Cook acknowledged that “[f]alse or

misleading information in [her] application or interview(s) may

result in rejection of [her] application o r , in the event of

employment, discharge.” Id. at 163. Finally, she incorrectly

represented to PC Connection that the “answers given [in her

application were] true and complete to the best of [her]

knowledge.” Id.

Later, during a routine post-interview background check, PC

Connection discovered that, contrary to her representations, Cook

had previously applied (and been rejected) for employment under

the name Brian Cook. It says it then rejected her pending

application for the same reasons it rejected her earlier

application: lack of candor and lack of genuine interest in a

sales position.

Cook, on the other hand, says PC Connection’s decision not

to hire her was based upon unlawful gender-based discrimination.

In support of that position she says:

5 I asked Kate Murphy [the now-former employee of defendant who processed Cook’s 2006 application] why PCC was no longer interested in me after some stellar interviews on site, at the conclusion of which she stated to m e , “Brianne, you just blew everyone away today,” and after PCC conducted a background check on m e , and after I successfully completed a pre-employment on-line questionnaire, and after PCC asked if they could contact my references.

Her initial reply was that they found more qualified candidates, but I pushed back on her for the real reason, as I know that I totally impressed them during my interviews on-site. She did not answer me at first, but after a very long pause, she finally said that she had discovered that I had applied to the company before as a man in 2000.

Plaintiff’s Answers to Interrogatories, Exhibit E to plaintiff’s

memorandum (document n o . 15-7) at 1 (emphasis supplied).

For its part, PC Connection denies that Cook’s gender or her

surgery played any role in its decision not to hire her. Roger

Brock, defendant’s Vice President for Employee Relations and

Staffing, testified that:

In my review of the files from the original application by Brian Cook in 2000, I read notes entered by Anne Velardi, the recruiter who first had contact with Cook. These notes reflect her concerns about his suitability for the sales position, especially his motivation, and reflect PC Connection’s longstanding reluctance to hire someone interested in another position for a sales position. I also observed that Cook was not hired in 2000 because he misrepresented himself to M s . Velardi, asserting falsely that PC Connection’s Marketing Department was actively pursuing him, and that he had previously been an employee of PC Connection.

6 I observed that on her 2006 application, Brianne Cook affirmed that she had never applied to PC Connection or any of its subsidiaries in the past. Given her prior application in 2000, this was demonstrably false.

I observed that on her 2006 application, Brianne Cook affirmed that she had never applied to PC Connection or any of its subsidiaries under a different name. Given her prior application as “Brian Cook,” this was demonstrably false.

Based upon these two false affirmations, I discerned a pattern of conduct in M s . Cook’s applications, consistent with her prior application, that demonstrated a lack of candor. This is unacceptable in a PC Connection employee. . . . .

Furthermore, it was clear from her 2006 application that M s . Cook had unrealistic salary expectations — she was seeking more than $50,000 — for a sales position as an account manager, the base salary for which was $25,000 and first year total compensation averages less than $30,000.

For these reasons, I instructed Kate Murphy to terminate the hiring process for Brianne Cook and deny her application.

Affidavit of Roger Block (document n o . 12-3) at paras. 10-15.

In October of 2006, Cook filed a charge of sexual

discrimination with the New Hampshire Commission on Human Rights,

alleging, as she does in this case, that PC Connection refused to

hire her because she is a transsexual post-operative woman.

After investigating Cook’s claim, the Commission found no

probable cause to believe that she was the victim of unlawful

sexual discrimination.

7 The Commission has found in the course of its investigative process that the Complainant did provide false and misleading statements in her application for employment with the Respondent. The Commission evaluated both parties’ evidence while providing the Complainant with the most generous of inferences and interpretations. However, the Respondent’s position is consistent in that [it] treated Brian a male in 1999 and Brianne a female in 2006 the same. The Complainant has not met her burden of proof of sex discrimination per [the governing state regulation]. Therefore, there is no probable cause of discrimination. . . . For the reasons discussed above, the Motion to Dismiss is GRANTED based on No Probable Cause.

New Hampshire Commission for Human Rights, Order on Respondent’s

Motion to Dismiss (document n o . 12-8) at 3 6 . This litigation

ensued.

Discussion

I. Title VII and the Parties’ Respective Burdens.

Title VII of the Civil Rights Act of 1964 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

8 Corp. v . Green,

(1973). See also Carey v . M t .

Desert Island Hosp.,

1 , 34 (1st Cir. 1998).

Initially, a plaintiff claiming sex discrimination must

establish the elements of a prima facie claim. The court of

appeals has described those elements as follows:

A plaintiff makes out a claim of disparate treatment by showing that: (1) [she] is a member of a protected class; (2) [she] was qualified for the position [she] sought; (3) [she] was subjected to adverse employment action; and (4) the position remained open or was filled by someone else with similar qualifications.

Prescott v . Higgins,

2 , 40 (1st Cir. 2008) (citation

omitted). If she succeeds in doing s o , a presumption of

discrimination arises and the burden shifts to the employer,

which must “state a legitimate, nondiscriminatory reason for the

adverse employment action.” Santiago-Ramos v . Centennial P.R.

Wireless Corp.,

6 , 54 (1st Cir. 2000) (citation

omitted). Importantly, however, “[t]he employer’s burden is

merely a burden of production; the employee maintains the burden

of proof throughout. If the employer meets its burden, the

presumption of discrimination evaporates.”

See also Enica

v . Principi,

(1st Cir. 2008).

In short, then, if the plaintiff establishes a prima facie

case of discrimination, the burden shifts to the employer to

9 articulate a legitimate, non-discriminatory explanation for the

adverse employment action taken against the plaintiff. If the

defendant succeeds in carrying that modest burden of production,

the burden reverts to the employee, who must then demonstrate

that the reason articulated by the employer was a mere pretext

for unlawful gender discrimination. See S t . Mary’s Honor Ctr. v .

Hicks,

(1993). See also LeBlanc v . Great

American Ins. Co.,

(1st Cir. 1993). 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). In other words,

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.,

2 , 34 (1st Cir. 1992).

The same burden-shifting framework applies to Cook’s state

law claim under RSA ch. 354-A. See, e.g., E.D. Swett, Inc. v .

N.H. Comm’n for Human Rights,

(1983);

Scarborough v . Arnold,

(1977); Parker v . MVM,

Inc.,

(D.N.H. May 2 2 , 2007); Bresett v . City of

Claremont,

(D.N.H. August 2 8 , 2002).

10 II. Plaintiff’s Evidence.

Assuming there is sufficient evidence to conclude that Cook

has made out a prima facie claim of gender-based discrimination

(a point defendant disputes), PC Connection has articulated

plausible, rational, and lawful reasons for its decision not to

hire her. That imposes on Cook the obligation to point to some

evidence from which a trier of fact could reasonably conclude

that PC Connection’s proffered nondiscriminatory justifications

are merely a pretext for unlawful gender-based discrimination.

She has failed to carry that burden.

The sole piece of evidence supportive of her discrimination

claim is the statement Kate Murphy is alleged to have made,

explaining that PC Connection decided not to hire Cook when it

discovered that she had “applied to the company before as a man

in 2000.” That statement (assuming, for purposes of resolving PC

Connection’s motion, that it was actually made), is plainly

ambiguous. It could mean that, independent of the false

statements in Cook’s job application, PC Connection decided not

to hire her when it discovered that she had undergone gender

reassignment surgery and was formerly a man. Alternatively, it

could mean, as PC Connection claims, it decided not to hire Cook

after it discovered that, contrary to the representations in her

11 job application, she had previously applied for, but been denied,

employment at PC Connection.

Given the ambiguous nature of the statement, it is not,

standing alone, sufficient to permit a rational trier of fact to

conclude, by a preponderance, that PC Connection’s proffered

explanation for its decision is merely a pretext for unlawful

gender-based discrimination. Cook has not, for example, produced

any evidence suggesting that PC Connection hired some applicants

who had made similar or analagous false statements on their

applications, while it refused to hire her. Nor has she pointed

to any other evidence which, even when viewed in the light most

favorable to her claims, would support the inference that her

gender (or her status as a transsexual post-operative woman)

played a role in PC Connection’s decision not to hire her.

Conclusion

As she had in her prior application for employment at PC

Connection, Cook made several false statements in her 2006 job

application. And, as it did earlier, PC Connection says it

rejected her application when it discovered those false

statements. Thus, it would certainly appear that PC Connection

treated Cook in exactly the same manner when she applied for

employment as a man and when she later applied as a woman.

12 Because Cook has failed to point to sufficient evidence to permit

a properly instructed, rational jury to conclude otherwise, and

because PC Connection has articulated (and properly supported)

rational, plausible, and lawful reasons for its decision not to

hire Cook, it is entitled to judgment as a matter of law as to

Cook’s state and federal discrimination claims.

For the foregoing reasons, as well as those set forth in

defendant’s memorandum of law (document n o . 1 2 - 2 ) , defendant’s

motion for summary judgment (document n o . 12) is granted.

Defendant’s motion to strike (document n o . 17) is denied. The

Clerk of Court shall enter judgment in accordance with this order

and close the case.

SO ORDERED.

January 1 3 , 2010

cc: Mary Notaris, Esq. Martha Van Oot, Esq. Jeremy D. Eggleton, Esq.

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