Hubbard v . Tyco Integrated Cable Sys. 10-CV-365-LM 12/3/13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Greg Hubbard

v. Civil N o . 10-cv-365-LM Opinion N o .

P Tyco Integrated Cable Systems, Inc.

O R D E R

Greg Hubbard, a former employee of Tyco Integrated Cable

Systems, Inc. (“Tyco”) who was born and raised in England, is

suing Tyco in five counts. He asserts: (1) two claims under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et

seq.; and (2) three claims under New Hampshire’s Law Against

Discrimination, N.H. Rev. Stat. Ann. (“RSA”) ch. 354-A.1 Hubbard

claims that he was subjected to a hostile work environment

because of his national origin, and that Tyco terminated his

employment because of his national origin and in retaliation for

his complaints about discrimination in the workplace. Before

the court are: (1) Tyco’s motion for summary judgment; (2)

Tyco’s motion to strike certain material from Hubbard’s

Supplemented Memorandum of Law in Support of Objection to

Defendant’s Motion for Summary Judgment; and (3) Hubbard’s

Motion to Correct the Record. Each motion is duly opposed. The 1 Hubbard initially asserted, but has since given u p , a claim invoking

. court heard oral argument on the motion for summary judgment on

November 1 , 2013. For the reasons that follow, Tyco’s motion

for summary judgment is granted in part and denied in part, its

motion to strike is denied as moot, and Hubbard’s motion to

correct the record is granted.

Motion to Strike

Tyco moves “the Court [to] strike from the summary judgment

record all conclusory allegations and improbable inferences that

Plaintiff . . . has failed to substantiate with competent

evidence.” Def.’s Mot. to Strike (doc. n o . 51) 1 . In support

of that request, Tyco asserts that: (1) Hubbard’s Supplemented

Memorandum of Law in Support of Objection to Defendant’s Motion

for Summary Judgment, document n o . 5 6 , includes factual

references that lack any record citations; and (2) in various

places where the memorandum does include record citations, the

record does not support the proposition for which Hubbard has

cited i t . The court shares many of Tyco’s concerns. However,

because the background section in this order draws from

Hubbard’s memorandum only facts that are adequately supported by

the record, Tyco’s motion to strike is denied as moot.

2 Motion to Correct the Record

Hubbard also moves the court to take note o f : (1) several

corrections of erroneous citations to the record in his

supplemented memorandum of law; and (2) one correction to a

statement he made at oral argument. With respect to Hubbard’s

correction of citation errors, his motion is granted. In his

second request, Hubbard asks the court to allow him to replace

his representation, at oral argument, that he had not previously

challenged the authenticity of a statement purportedly written

by Christopher Long, and produced by Tyco in support of its

motion for summary judgment, with a representation that he had,

in fact, challenged the authenticity of that statement.

Hubbard’s second request is also granted, but in light of Tyco’s

submission of an affidavit from Long that authenticates his

written statement, see doc. n o . 6 8 , Hubbard’s authenticity

challenge i s , in the end, unavailing.

Motion for Summary Judgment

A . Summary Judgment Standard

“Summary judgment is warranted where ‘there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.’” McGair v . Am. Bankers Ins. C o .

of Fla.,

4 , 99 (1st Cir. 2012) (quoting Fed. R. Civ.

P. 56(a); citing Rosciti v . Ins. C o . of Penn.,

2 , 96

3 (1st Cir. 2011). “In determining whether a genuine issue of

material fact exists, [the court] construe[s] the evidence in

the light most favorable to the non-moving party and make[s] all

reasonable inferences in that party’s favor.” Markel Am. Ins.

C o . v . Díaz-Santiago,

1 , 30 (1st Cir. 2011) (citing

Flowers v . Fiore,

4 , 29 (1st Cir. 2004)).

“The object of summary judgment is to ‘pierce the

boilerplate of the pleadings and assay the parties’ proof in

order to determine whether trial is actually required.’” Dávila

v . Corp. de P.R. para la Diffusión Púb.,

(1st

Cir. 2007) (quoting Acosta v . Ames Dep’t Stores, Inc.,

, 7 (1st Cir. 2004)). “[T]he court’s task is not to weigh the

evidence and determine the truth of the matter but to determine

whether there is a genuine issue for trial.” Noonan v . Staples,

Inc.,

0 , 25 (1st Cir. 2009) (citations and internal

quotation marks omitted).

“The nonmovant may defeat a summary judgment motion by

demonstrating, through submissions of evidentiary quality, that

a trialworthy issue persists.” Sánchez-Rodríguez v . AT&T

Mobility P.R., Inc.,

, 9 (1st Cir. 2012) (quoting

Iverson v . City of Bos.,

4 , 98 (1st Cir. 2006)).

“However, ‘a conglomeration of conclusory allegations,

improbable inferences, and unsupported speculation is

4 insufficient to discharge the nonmovant’s burden.’” Sánchez-

Rodríguez,

(quoting DePoutot v . Raffaelly,

1 2 , 117 (1st Cir. 2005)). “Rather, the party seeking to

avoid summary judgment must be able to point to specific,

competent evidence to support his [or her] claim.” Sánchez-

Rodríguez,

(quoting Soto-Ocasio v . Fed. Ex. Corp.,

4 , 18 (1st Cir. 1998)) (internal quotation marks

omitted).

B . Background

Unless otherwise indicated, the following facts are

undisputed.

Hubbard spent his childhood in England and speaks with a

British accent. In the fall of 2007, he began working for Tyco

as a T3 Operator, which was an entry-level position. While

working as a T3 Operator, Hubbard experienced no discrimination

based upon his national origin.

In November of 2007, Hubbard was promoted to the position

of T1 Inspector. In that position, he inspected the work of

operators in Tyco’s Repeater Assembly Building (“RAB”). Before

he accepted the promotion, some of his co-workers advised him

not to accept i t , and warned him that inspectors were generally

given a hard time by the operators whose work they inspected.

After Hubbard was promoted, he became the target of hostile

5 comments from several operators who referred to his national

origin in the following ways:

• After Hubbard rejected a part made by Derek Thompkins, Thompkins called him an “English mother” and a “limie fuck.” Def.’s Statement of Undisputed Material Facts (hereinafter “Def.’s Facts”), Ex. D, Hubbard Dep. (doc. n o . 32-4) 122:4, 1 1 .

• Linda Tarnawski told an employee Hubbard was training: “[Y]ou don’t want to learn anything from him. He’s an English fuck u p . He don’t know what he’s talking about. What would he know if he’s English anyway.”

.

• Tarnawski left notes on parts saying “have the English guy not inspect this,”

, and “[d]on’t let the English guy touch it,”

at 127:17- 18.

• Katherine Merrill once told an employee Hubbard was training: “you don’t want to listen to that English faggot because he doesn’t know what he’s talking about.”

.

• After Hubbard called out Bill Rogers for his conduct toward a co-worker of Asian descent, Rogers said: “Mind your fucking business . . . you English faggot.”

.

• Rogers said things about Hubbard’s national origin daily, see

, once wrote “English faggot” in the condensation on a window in a door that Hubbard frequently used,

, and once referred to Hubbard as “that English faggot right there,”

.

Some Tyco employees resented Hubbard because he was new, had

been promoted quickly, held authority, was good at his job, was

a hard worker, and worked a large amount of overtime. Moreover,

the operators who made comments that included references to

6 Hubbard’s national origin often did so in the context of

challenges to his status and performance as an inspector.

In late December of 2008, Hubbard was involved in an

altercation with Bill Rogers, an operator. Both Hubbard and

Rogers were suspended, and Hubbard was issued an Employee

Warning Notice (“Warning”) that provided, in pertinent part:

On Wednesday, 12/24/2008 you were suspended for one (1) week after an altercation with Bill Rogers on Tuesday, 12/23/2008 that resulted in you having inappropriate conversations with fellow inspectors and operators regarding the incident after you spoke with your manager and HR. Whenever you are privy to certain information, especially information regarding an ongoing investigation, you need to keep those facts to yourself and not spread that information to fellow employees. This type of behavior creates animosity with fellow employees.

Vanderzanden Aff., Ex. 7 (doc. n o . 3 4 - 7 ) , at 2 . The Warning was

signed by: (1) Hubbard; (2) his supervisor, Frank Faria; and (3)

two managers: Craig Murphy, who was Tyco’s director of quality

and testing, and Joe DeRoy, Tyco’s human resources manager. See

Finally, the Warning provided that it would remain in

effect until June 2 8 , 2009. See

On January 1 1 , 2009, Hubbard sent Faria an e-mail in which

he withdrew a previous request for a transfer to a different

department. That e-mail stated, in pertinent part:

I love my job and always have, I would love to stay here and continue my job, as long as if any situation comes along and I continue to do the right thing and tell the appropriate people it gets taken care o f . It

7 is not fair that I have to deal with some of these situations due to being very open minded, and blunt with people. . . . The only concern I have is others trying to get me out of here and its going to be hard to deal with that on a daily basis, but I can handle it and always have been able too.

Pl.’s Mem. of Law, Ex. 6 (doc. n o . 3 9 - 7 ) , at 1 3 .

On February 4 , 2009, Hubbard met with DeRoy and Murphy.

While the purpose of that meeting is disputed, it is undisputed

that: (1) Murphy, DeRoy, and Hubbard discussed a variety of

workplace issues of concern to Hubbard; and (2) during the

meeting, DeRoy asked Hubbard to put his concerns in writing so

they could be investigated and dealt with. DeRoy prepared a

memorandum to the file to document the meeting. Most relevant

to the claims in this case, DeRoy noted that Hubbard mentioned

negative comments directed toward him, disrespectful behavior,

off-color jokes in the break area, and failures by management to

correct those problems. DeRoy’s notes do not indicate that

Hubbard complained about discrimination based upon his national

origin.

The day after DeRoy and Murphy met with Hubbard, Tyco

employee Christopher Long provided a statement, at the request

of Tyco management, concerning conversations he had had with

Hubbard. Among other things, Long reported:

Greg, has confide[d] in me multiple times associated with work related issues where he seemed to be having problems . . . . After his recent suspension over the

8 conflict with Bill Rogers, he approached me to give his side of the story. . . . During that conversation I told him that he is on everyone’s radar and that he needed to avoid further confrontations, that he’s now the common denominator in multiple issues that have taken place. After I gave him that speech, he started talking about how he is being discriminated against because he’s English, and if this were any other company Bill would have been fired. Again I suggested he stay on the straight and narrow for a whole, avoid confrontation.

The last two weeks I have not been able to go into RAB without being confronted by Greg with more gossip associated with this type of perpetual conflict.

Most recently on the evening of 2/4/09, Greg, saw me having a conversation with Kevin Coughlin . . . . After Kevin walked away Greg asked me if we were talking about him (he appeared paranoid), I replied n o . He said that he had to talk to me about something outside and portrayed it as very dramatic, which made me nervous. Once we were outside Greg started talking about Charles Pixley, Scott Williams and how he has documented them keeping things behind closed doors; he also suggested their jobs could be on the line and that he didn’t have a lawyer, but was thinking about getting one (something to that effect). I didn’t know where the conversation was going or coming from, I was uncomfortable, and I withdrew from the conversation. Within five minutes I went to Kevin Coughlin to let him know what Greg was saying.

Vanderzanden Aff., Ex. 10 (doc. n o . 34-10), at 2 .

After his February 4 meeting with DeRoy and Murphy, Hubbard

prepared an undated statement listing twelve incidents that

concerned him. Most relevant to the claims in this case,

Hubbard’s list included: (1) a January 2008 incident in which

Bill Rogers “attacked Putu Widiartha with verbal abuse,”

Vanderzanden Aff., Ex. 4 (doc. n o . 3 4 - 4 ) , at 2 ; (2) a March 2008

9 incident in which Derek Thompkins “attacked [him] with verbal

abuse after a part was rejected,” id.; (3) a July 2008 incident

in which Rogers told ethnic jokes that made an Indonesian woman

cry, see id.; (4) a July 2008 incident in which he overheard

Linda Tarnawski use profane language while talking about him to

another inspector, see

at 4 ; (5) an August 2008 incident in

which he “was verbally attacked by Derek Thompkins over a

rejected part again,”

at 3 ; (6) a second August 2008

incident in which Thompkins “attacked [him] with verbal abuse,”

id.; (7) a September 2008 incident in which he overheard a

conversation between Rogers and another employee in which Rogers

“made a couple of (English) remarks as [he] walk[ed] by” and

referred to him as “that English faggot,” id.; and (8) the

altercation with Rogers that led to his suspension, during which

Rogers directed “profane language” toward him,

at 4 .

Hubbard says that he used the generic term “verbal abuse”

rather than specifically reporting comments referring to his

national origin because “DeRoy instructed [him] to leave out the

‘name calling’ or anything about his heritage.” Pl.’s Supp.

Mem. of Law (doc. n o . 56) ¶ V ( p . 40) (citing Ex. 3 , Hubbard

Dep. (doc. n o . 39-4) 190:2-6). Hubbard gave his written

statement to DeRoy on either Friday, February 6, or Monday,

February 9; the deposition testimony offered by both Hubbard and

10 DeRoy is ambiguous on this point.2 The record includes an

undated document authored by DeRoy, titled “Greg Hubbard’s

charges – 2/09/2009” that addresses, point by point, the

incidents listed in Hubbard’s written statement. See

Vanderzanden Aff., Ex. 21 (doc. n o . 34-21).

According to the statement of facts in Hubbard’s

supplemented memorandum of law, he had another meeting with

DeRoy and Murphy. The statement of facts continues: “Deroy

alleges that he asked Hubbard to respond in writing to Long’s

allegations.” Pl.’s Supp. Mem. of Law (doc. n o . 56) ¶ 61

(citing Ex. 1 , DeRoy Dep. (doc. n o . 39-2) 98:19-22, 105:7-13).

On February 6, Hubbard met with DeRoy. DeRoy says that at

that meeting, he told Hubbard not to contact either Long or

Kevin Coughlin. Hubbard says that DeRoy told him no such thing.

Either way, it is undisputed by Hubbard that at the February 6

2 Compare Pl.’s Mem. of Law, Ex. 3 , Hubbard Dep. (doc. n o . 39-4) 79:22–80:4 (“We met, I believe, one more time after the text message [Hubbard sent Long on February 6 ] and that was the very next day that I [came] in and he had asked me to write everything down. I did, and then was told to hand in my badge and I’m suspended pending investigation.”) with id. at 183:2-5 (“I don’t recall the day I gave it [his written statement] to [DeRoy]. He asked me one time and I gave it to him, I believe, the very next day [i.e., February 5 ] , but I’m not sure of the date.”). In his own deposition, DeRoy stated that Hubbard gave him his written statement at their final face-to-face meeting on February 6, see id., Ex. 1 , DeRoy Dep. (doc. n o . 39-2) 110:15- 111:4, 113:21-114:6, but also indicated that his last meeting with Hubbard took place on February 9, see id. at 168:20-23.

11 meeting, DeRoy: (1) spoke with him about his relationship with

Long, see Pl.’s Supp. Mem. of Law (doc. n o . 56) ¶ 6 8 ; and (2)

immediately after speaking with Hubbard about Long, told Hubbard

that he didn’t “want . . . for any pot to be stirred,” Pl.’s

Mem. of Law, Ex. 3 , Hubbard Dep. (doc. n o . 39-4) 109:14.

After his meeting with DeRoy on February 6, Hubbard was

involved in a conversation with Long, conducted by telephone and

text message.3 Long described that conversation, in a letter to

whom it may concern, dated February 9, 2009, in the following

way:

I was at my desk at 6:20 pm last Friday night (2/6/09) when Greg contacted me from an unknown number; he was extremely upset shouting at me and telling me I have “big balls” in regards to my written statement to Joe Deroy from the day prior. I was nervous and hung up the phone. I immediately contacted my manager John Towne at home. He suggested I call Joe Deroy, which I did.

After I notified Joe and John I received a text message from Greg that seemed aggressive and had a threatening tone, the text messages are the following:

“d up not true story I cant believe it and u have the nerve to fucking lie WOW u r a brave man u and the other 1 to sit there and lie u sit there and try” Sent 2/6/09 at 6:37 pm

“to get urself to look good with some bulshit lies against me and my family u have balls please show this to them so we can talk about everything that” Sent 2/6/09 at 6:37 pm

3 Whether that communication was initiated by Hubbard or Long is a matter of dispute but, in the end, is immaterial.

12 “goes on monday: everything” Sent 2/6/09 at 6:38 pm.

After reading the text messages I called him right back to ask if he was indeed threatening m e , he said he wasn’t, I hung up the phone.

Vanderzanden Aff., Ex. 9 (doc. n o . 3 4 - 9 ) , at 2 .

On February 1 2 , 2009, DeRoy spoke with Hubbard by telephone

and informed him that Tyco had decided to terminate his

employment. It is undisputed that DeRoy told Hubbard he was

being discharged for insubordination. The record includes

DeRoy’s notes on his telephone conversation with Hubbard. Those

notes include the following relevant comments:

I told Greg the decision was to terminate employment based on insubordination by making contact with Chris Long against direct instructions from me not to do so and for inappropriate intimidating remarks to a member of management.

Greg started to explain his side of the story with the communication with Chris Long Friday evening 2/[6]/09. I explained that I had a signed written statement from Chris Long stating it was Greg who made first contact. I went on to explain to Greg, this was the same reason [he was] suspended on 12/24/2008 during the Bill Rogers incident. I explained he was instructed by me after our phone conversation on the 23rd of December not to say anything to anyone as there was an investigation ongoing and he went back to his area and told individuals that Bill Rogers was going to be suspended when he came in to work on the 24th and may even lose his job. Greg replied back “this is the only thing I did wrong during the entire ordeal.” I went on to say, you contacted Chris Long Friday night 2/[6]/2009 and gave him an ear full. . . . I instructed you in my office Friday afternoon specifically not to contact anyone.

Vanderzanden Aff., Ex. 8 (doc. n o . 3 4 - 8 ) , at 2 .

13 Based upon the foregoing, Hubbard claims that Tyco: (1)

discriminated against him based upon his national origin by

suspending him in December of 2008 and by discharging him, in

violation of RSA 354-A:7, I (Count I V ) ; (2) discriminated

against him based upon his national origin by tolerating the

existence a hostile work environment in violation of 42 U.S.C. §

2000e-2(a)(1) and RSA 354-A:7, I (Counts II and I I I ) ; and (3)

retaliated against him for opposing discrimination by

discharging him, in violation of RSA 354-A:19 and 42 U.S.C. §

2000e-3(a) (Counts V and V I ) .

C . Discussion

Tyco moves for summary judgment on all five remaining

counts of Hubbard’s complaint. The court begins with Hubbard’s

hostile-work-environment claims and then turns to his

discrimination and retaliation claims.

1 . Hostile Work Environment (Counts II and III)

Counts II and III both assert that Tyco subjected Hubbard

to a work environment permeated by hostility engendered by his

national origin. Neither count specifies the conduct on which

it is based but, rather, each incorporates, by reference, all

the paragraphs that precede i t . In the fact section of his

14 complaint, Hubbard identified the following acts of hostility at

Tyco that were based upon his national origin:

1 3 . At the end of July or in early August the Plaintiff was training a new inspector named Brett Turgeon. Linda Turnowski, a friend of M r . Rogers, approached M r . Turgeon and told him “Don’t listen to that stupid f---. He is an English idiot. He doesn’t know what he is talking about.”

1 4 . Around the same time another of M r . Rogers’ friends, Kathy Merrill, told M r . Turgeon “Don’t listen to the English guy, he is an idiot.”

1 6 . Following a rejection of one of M r . Thompkins’ parts, the Plaintiff overheard Bill Rogers tell M r . Thompkins, “He’s f---in English, what the f-- - does he know?”

1 7 . The harassment continued from the RAB Department. Small comments in the break room, minor annoyances with lunches etc. The comments were derogatory, referred to my being British, and were made loud enough so that I could hear them. The comments created an extremely hostile work environment for m e .

1 8 . In September 2008 the Plaintiff was in the break room. M r . Rogers and his supervisor Charles Pixley were in the break room as well. They began talking about the Plaintiff in a derogatory manner. The Plaintiff did nothing for a few moments until M r . Rogers said “You English Faggot”. The Plaintiff reacted and asked what the problem was, but both M r . Rogers and M r . Pixley walked out of the break room.

2 2 . In December 2008, after reporting his concerns to M r . Deroy, the Plaintiff passed M r . Rogers in the RAB department. M r . Rogers said something to the Plaintiff as he passed. He then turned and put his hands on the Plaintiff in a very threatening

15 manner and said, “I’m not going to fight you because you would beat m e , but I am going to give you all the shit you deserve you English faggot.”

Compl. (doc. n o . 1 ) 3-4. In his supplemental memorandum of law,

Hubbard appears to elaborate on the allegations in paragraph 17

of his complaint by quoting the following testimony from his

deposition:

O h , every day, [Rogers] would say something every single day about my nationality and origin, every day. It would – he would even write notes and put them in the lunch cooler. And he would write things when it was cold outside in January, heat inside the building, you got the steam on the window, he would write English faggot on the door to go into RAB. Comments, I mean, there’s such a long list of what that guy actually really said to m e . I mean, the pride of my country, he would say things, you know, just about British people, about m e , you know, about how he hated all of u s . And if you weren’t American you shouldn’t be at this company, you shouldn’t be working in America.

Pl.’s Supp. Mem. of Law (doc. n o . 56) ¶ 19 (quoting Pl.’s Mem.

of Law, Ex. 3 (doc. n o . 3 9 - 4 ) , at 135:14-136:4). It is

undisputed that Rogers’ comments did not begin until after

Hubbard became an inspector.

Tyco argues that it is entitled to judgment as a matter of

law on Hubbard’s hostile-work-environment claims because the

undisputed record demonstrates that Hubbard cannot establish two

elements of those claims: (1) harassment that was based upon his

national origin; and (2) harassment that was severe and

16 pervasive enough to alter the conditions of his employment. The

court does not agree.

Count II arises under Title V I I , while Count III arises

under RSA 354-A. “Because the New Hampshire Supreme Court

relies on Title VII cases to analyze claims under RSA 354-A, the

court will address [Hubbard’s state and federal] claims together

using the Title VII standard.” Hudson v . D r . Michael J.

O’Connell’s Pain Care Ctr., Inc.,

4 , 92 (D.N.H.

2011) (citing Madeja v . MPB Corp.,

7 1 , 378 (2003);

Dennis v . Osram Sylvania, Inc.,

5 1 , 856–57 (1st Cir.

2008); Slater v . Town of Exeter, N o . 07-cv-407-JL,

, at *4 n.5 (D.N.H. Mar. 2 0 , 2009)).

“Title VII prohibits employers from discriminating against

individuals ‘because of [their] race, color, religion, sex, or

national origin . . . .’” Ramos-Echevarría v . Pichis, Inc.,

8 2 , 186 n.5 (1st Cir. 2011) (quoting 42 U.S.C. § 2000e-

2(a)(1)). “Requiring a person ‘to work in a discriminatorily

hostile or abusive environment’ violates Title VII.” Gerald v .

Univ. of P.R.,

, 17 (1st Cir. 2013) (quoting Valentín–

Almeyda v . Mun’y of Aguadilla,

5 , 94 (1st Cir. 2006);

citing Harris v . Forklift Sys.,

7 , 21 (1993)). Title

VII is violated “[w]hen the workplace is permeated with

discriminatory intimidation, ridicule, and insult that is

17 sufficiently severe or pervasive to alter the conditions of the

victim’s employment and create an abusive working environment.”

Torres-Negrón v . Merck & Co.,

4 , 39 (1st Cir. 2007)

(quoting Harris,

1 ) .

Turning to the elements of his claim, for Hubbard to

prevail, he must show:

(1) that [he] is a member of a protected class; (2) that [he] was subjected to unwelcome harassment; (3) that the harassment was based on [his] membership [in] the protected class; (4) that the harassment was so severe or pervasive that it altered the conditions of [his] employment and created an abusive work environment; (5) that the objectionable conduct was objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be s o ; and (6) that some basis for employer liability has been established.

Torres-Negrón, 488 F.3d at 39 (citing O’Rourke v . City of

Providence,

(1st Cir. 2001); Faragher v . City

of Boca Ratón,

, 787–89 (1998)).

a. Harassment Based on National Origin

Tyco argues that the undisputed facts of this case

demonstrate that while Hubbard was subjected to verbal abuse by

several operators, that abuse was based on his being an

inspector, not his membership in a class protected by Title VII.

Tyco has, indeed, produced undisputed evidence that nobody at

Tyco called Hubbard names that referred to his national origin

18 before he was promoted. See Def.’s Facts (doc. n o . 32) ¶ 1 1 ;

Pl.’s Supp. Mem. of Law (doc. n o . 56) ¶¶ A & B ( p . 36)

(disputing paragraphs 8 and 11 of Tyco’s statement of facts, but

not disputing paragraph 1 1 ) . Moreover, not all harassment that

mentions a person’s membership in a protected class is

necessarily based upon that status. See, e.g., Rivera v . P.R.

Aqueduct & Sewers Auth.,

, 191 (1st Cir. 2003).

Here, however, several factors counsel in favor of letting

a jury decide whether Hubbard was harassed because of his

national origin, or for some other reason. First, Hubbard has

produced evidence that references to his national origin were

far more frequent than references to the plaintiff’s religion in

Rivera, which supports an inference that anti-English animus was

much closer to the surface at Tyco than was the case for anti-

Catholic animus in the workplace in Rivera. Beyond that, a jury

could reasonably see anti-English animus in all the name-calling

that linked a reference to Hubbard’s national origin with a

derogatory reference to his intelligence or his sexuality. In

short, while a jury could conclude that Hubbard was harassed

because he was an inspector, and his national origin was simply

a tool his harassers could use to intensify their verbal attacks

against him, the court concludes that the question of whether

19 Hubbard was harassed because he is English is best left to a

jury.

b . Severe or Pervasive Harassment

Tyco next argues that the harassment Hubbard endured was

not “so severe or pervasive that it altered the conditions of

[his] employment and created an abusive work environment,”

Torres-Negrón, 488 F.3d at 3 9 . Regarding that element of

Hubbard’s claim, the Supreme Court has explained that there is

no “mathematically precise test.” Harris,

2 .

Rather,

whether an environment is “hostile” or “abusive” can be determined only by looking at all the circumstances. These may include the frequency 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.

Harris,

3 . None of the foregoing “factors is

individually determinative of the inquiry.” Ayala-Sepúlveda v .

Mun’y of San Germán,

4 , 31 (1st Cir. 2012) (citation

omitted); see also Gerald,

(citation omitted).

“Title VII does not create a general civility code for the

workplace.” Ahern v . Shinseki,

9 , 59 (1st Cir. 2010)

(citing Burlington N . & Santa Fe Ry. C o . v . White,

3 ,

68 (2006); Ríos-Jiménez v . Principi,

1 , 44 (1st Cir.

2008)). “The workplace is not a cocoon, and those who labor in

20 it are expected to have reasonably thick skins . . . to survive

the slings and arrows that workers routinely encounter in a

hard, cold world.” Alvarado v . Donahoe,

(1st

Cir. 2012) (quoting Suárez v . Pueblo Int’l, Inc.,

9 ,

54 (1st Cir. 2000)). Accordingly, the basic “thrust of [the]

inquiry is to distinguish between the ordinary, if occasionally

unpleasant, vicissitudes of the workplace and actual

harassment.” Noviello v . City of Bos.,

6 , 92 (1st

Cir. 2005) (citing Faragher,

8 8 ) .

Finally, “because the inquiry into the existence of a

hostile work environment is fact specific, ‘the determination is

often reserved for a fact finder.’” Vega-Colón v . Wyeth Pharms.

Inc.,

2 , 32 (1st Cir. 2010) (quoting Pomales v .

Celulares Telefónica, Inc.,

9 , 83 (1st Cir. 2006)).

Such is the case here.

With regard to frequency, Hubbard has produced evidence

that, for some period of time – and the court may reasonably

infer that period to span several months – he was subjected to

daily verbal abuse from Rogers. While most of the alleged abuse

was verbal, Hubbard has also produced evidence that, on one

occasion, Rogers physically confronted him by bumping into him

in the break room and trying to get chest-to-chest with him.

See Pl.’s Mot. to Supplement, Ex. 1 , Hubbard Dep. (doc. n o . 48-

21 1 ) 330:17, 331:4. He has also produced evidence that, after his

confrontation with Rogers in the break room, he began taking

half days off from work, due to the stress engendered by the

harassment he was enduring. See

. While

Hubbard’s ability to demonstrate that he was subjected to severe

or pervasive harassment that altered the conditions of his

employment is a close call, his evidence is not so deficient

that the court may determine, as a matter of law, that his

harassment was not severe or pervasive, as those terms are used

in the context of Title VII.

c. Summary

Tyco has advanced two arguments in support of its motion

for summary judgment on the hostile-work-environment claims

stated in Counts II and III. Because Hubbard has produced

sufficient evidence to create trialworthy issues of fact

concerning the cause for his harassment and its severity or

pervasiveness, Tyco is not entitled to judgment as a matter of

law on Counts II and III.

2 . Discrimination (Count IV)

In his complaint, Hubbard frames his state-law

discrimination claim in the following way:

22 4 2 . The allegations set forth in paragraphs 1 through 42 [sic] above are reasserted in this count as if set forth separately herein.

4 3 . The Defendant discriminated against the Plaintiff because of his national origin and the above conduct constitutes national origin discrimination in violation of RSA 354-A:7, I .

Compl. (doc. n o . 1 ) 7 . Nowhere, however, does Count IV

specifically identify the conduct on which it based. In his

supplemented memorandum of law, the only prima facie case

Hubbard cites is the one for employment termination cases. See

Pl.’s Supp. Mem. of Law (doc. n o . 56) 1 9 . Likewise, even a

generous reading of Hubbard’s supplemented memorandum suggests

only a single discriminatory act, Hubbard’s discharge.

Yet, at oral argument, Hubbard identified a second

discriminatory act: Tyco’s decision to suspend him in late 2008,

for having inappropriate conversations with fellow inspectors

and operators in the aftermath of his altercation with Bill

Rogers. In the interest of giving Hubbard, the non-moving

party, every reasonable advantage, the court will consider

claims that Tyco violated Hubbard’s rights under RSA 354-A:7, I ,

by: (1) suspending him in December of 2008; and (2) discharging

him. Before turning to those two claims, however, I will

outline the relevant law.

As with Count I I I , the court will analyze the state-law

claims asserted in Count IV under the standard applicable to a

23 Title VII claim. See Hudson, 822 F. Supp. 2d at 9 2 . Because

Hubbard is “unable to offer direct proof of [Tyco’s]

discriminatory animus,” his claim is subject to “the now-

familiar three-step framework set forth in McDonnell Douglas.”

Espinal v . Nat’l Grid NE Holdings 2 , LLC,

1 , 34-35

(1st Cir. 2012) (quoting Udo v . Tomes,

(1st Cir.

1995)).

Under the framework first outlined in McDonnell Douglas

Corp. v . Green,

(1973), “the plaintiff must [first]

establish a prima facie case of discrimination.” Cham v .

Station Operators, Inc.,

7 , 93 (1st Cir. 2012)

(quoting Reeves v . Sanderson Plumbing Prods., Inc.,

(2000)). The prima facie case must be established “by

a preponderance of the evidence.” Aly v . Mohegan Council, Boy

Scouts of Am.,

4 , 46 (1st Cir. 2013) (citing Goncalves

v . Plymouth Cnty. Sheriff’s Dep’t,

0 1 , 105 (1st Cir.

2011)). “Meeting the initial prima facie requirement is ‘not

especially burdensome.’” Martinez-Burgos v . Guayama Corp.,

, 12 (1st Cir. 2011) (quoting Greenberg v . Union Camp

Corp.,

2 , 26 (1st Cir. 1995); Kosereis v . Rhode Island,

0 7 , 213 (1st Cir. 2003) (describing burden of

establishing prima facie case as “not onerous,” “easily made,”

and a “small showing”)). “Once the plaintiff makes out a prima

24 facie case, the burden of production shifts to the defendant to

produce evidence that the adverse employment actions were taken

for a legitimate, nondiscriminatory reason.” Cham,

(quoting S t . Mary’s Honor Ctr. v . Hicks,

0 2 , 507

(1993); citing Tex. Dep’t of Cmty. Affairs v . Burdine,

(1981)) (internal quotation marks omitted).

“If the defendant produces such evidence [i.e., evidence of

a legitimate nondiscriminatory reason for its employment

action], the McDonnell Douglas framework ‘disappear[s]’ and the

sole remaining issue is ‘discrimination vel non,’” leaving the

plaintiff “an opportunity to show that the reasons offered by

the defendant were a pretext for discrimination.” Pearson v .

Mass. Bay Transp. Auth.,

6 , 40 (1st Cir. 2013)

(quoting Cham,

4 ; citing Reeves,

4 3 ) ;

see also Lockridge v . Univ. of M e . Sys.,

6 4 , 470 (1st

Cir. 2010) (“If the employer [articulates a legitimate, non-

discriminatory for its adverse employment action], the focus

shifts back to the plaintiff, who must then show, by a

preponderance of the evidence, that the employer’s articulated

reason for the adverse employment action is pretextual and that

the true reason for the adverse action is discriminatory.”)

(citing Smith v . Stratus Computer,

1 , 16 (1st Cir.

1994)). Finally, “[t]he ultimate burden of persuasion always

25 remains on the plaintiff . . . .” Cham,

(citing

Reeves,

; Vélez v . Thermo King de P.R., Inc.,

4 1 , 447–48 (1st Cir. 2009)).

a. Hubbard’s Suspension

The problem with entertaining a claim that Hubbard was

suspended on account of his national origin is that there was

nothing in his complaint to alert Tyco that he was making such a

claim. Consequently, Tyco has framed no arguments to defeat

that claim, and the court has little guidance as to how to

analyze i t . The only real clues to this claim appear under the

heading “Disparate Treatment” in Hubbard’s supplemented

memorandum of law. In that section of his memorandum, in

support of an argument that evidence of disparate treatment may

prove that the explanation Tyco gave for discharging him was

pretextual, Hubbard asserts that he was suspended for doing

something that another Typo employee also did, without adverse

consequences. Accordingly, the court will focus on that

comparison as it applies the McDonnell Douglas framework to

Hubbard’s disparate-treatment claim arising from his suspension.

As noted, Hubbard has not identified the elements of a

prima facie case of discrimination based upon an adverse

employment action other than discharge. However, to establish a

26 prima facie case of discrimination based upon his suspension,

Hubbard must show that h e :

(1) was a member of a protected class, (2) met the employer’s legitimate job-performance expectations, (3) was [suspended], and (4) that [Tyco] . . . did not treat members of the protected class neutrally [when handing out suspensions].

Udo,

(citing LeBlanc v . Great Am. Ins. Co.,

(1st Cir. 1993)). Bearing in mind that “‘[t]he time to

consider comparative evidence in a disparate treatment case is

at the third step of the burden-shifting ritual, when the need

arises to test the pretextuality vel non of the employer’s

articulated reason for having acted adversely to the plaintiff’s

interests,’ as opposed to as part of a plaintiff’s prima facie

case,” Cham,

n.4 (quoting Kosereis, 331 F.3d at

213; citing Conward v . Cambridge Sch. Comm.,

2 , 19

(1st Cir. 1999)), the court presumes that Hubbard has

established his prima facie case. In turn, the Warning that

Tyco issued to Hubbard on December 2 9 , 2008, see Vanderzanden

Aff., Ex. 7 (doc. n o . 3 4 - 7 ) , contains sufficient evidence of a

legitimate nondiscriminatory reason for Hubbard’s suspension,

i.e., his conversations with fellow employees after talking with

management about his altercation with Rogers. Thus, it is

necessary to proceed to the third stage of the McDonnell Douglas

framework.

27 “To avoid summary judgment at the third stage in the

McDonnell Douglas framework, ‘[Hubbard] must introduce

sufficient evidence to support two findings: (1) that [Tyco]’s

articulated reason [for suspending him] . . . is a pretext, and

(2) that the true reason is discriminatory.” Espinal,

(quoting Udo,

3 ; citing Smith,

6 ;

Straughn v . Delta Air Lines, Inc.,

3 , 34 (1st Cir.

2001)). While there are several ways in which a Title VII

plaintiff may establish pretext, Hubbard focusses on one, his

assertion that he was treated less favorably than Derek

Thompson, who also spoke with a fellow employee about a matter

under investigation, but was not suspended for doing s o . His

argument is not persuasive.

As a legal matter, “[d]isparate treatment may be ‘competent

proof that the explanation given for the challenged employment

action was pretextual, provided the plaintiff-employee can make

a preliminary showing that others similarly situated . . . in

all relevant respects were treated [more advantageously] by the

employer.’” Aly,

(quoting Straughn, 250 F.3d at

43-44). Hubbard frames his disparate-treatment argument in the

following way:

Despite the Defendant’s denial, there is a specific incident involving both Hubbard and another employee that are identical yet Hubbard was disciplined and the other employee was not. Hubbard

28 was suspended in December 2008 after he was assaulted by Rogers. Hubbard was allegedly suspended because after speaking with Deroy about the incident, Hubbard allegedly told other employees Rogers might be suspended or lose his job.

In June of 2008, Thompkins, an American, did the exact same thing. Thompkins had spoken with a manager, Matt Labounty, about an incident with another employee named Jake Joslin. Thompkins admitted that after speaking with Labounty, Thompkins told Joslin: “he might find himself looking for another job.” There was no indication in the file that Thompkins was ever disciplined in any way, much less being suspended for five days without pay. This is a clear indication that by December of 2008 the Defendant was not interested in listening to Hubbard’s complaints about discrimination any longer and instead started to encourage him to leave.

Pl.’s Supp. Mem. of Law (doc. n o . 56) 28 (citations to the

record omitted). In support of his argument that he and

Thompkins were similarly situated, but were treated differently

after engaging in similar conduct, Hubbard produced and cites a

written statement Thompkins gave to Philip Williams. In i t ,

Thompkins described a conversation he had with another Tyco

employee, Jake Joslin. See Pl.’s Mem. of Law, Ex. 2 (doc. n o .

3 9 - 3 ) , at 4 9 .

Hubbard’s argument fails, however, because he and Thompkins

were not similarly situated. When basing a pretext argument on

disparate treatment, “the plaintiff’s case and the comparison

cases that [he] advances need not be perfect replicas, they must

closely resemble one another in respect to relevant facts and

29 circumstances.” Straughn, 250 F.3d at 44 (quoting Perkins v .

Brigham & Women’s Hosp.,

4 7 , 751 (1st Cir. 1996)).

According to the Warning he received, Hubbard was suspended for

“having inappropriate conversations with fellow inspectors and

operators regarding the incident [with Rogers] after [he,

Hubbard] spoke with [his] manager and HR.” Vanderzanden Aff.,

Ex. 7 (doc. n o . 3 4 - 7 ) , at 2 . The Warning went on to inform

Hubbard of his obligation to keep to himself information about

ongoing investigations, in the interest of avoiding animosity

with fellow employees. See

What differentiates Thompkins’ conversation with Joslin

from the conversation(s) for which Hubbard was suspended is the

fact that Thompkins spoke to Joslin at the request of Matt

Labounty, a day shift supervisor. See Pl.’s Mem. of Law, Ex. 2

(doc. n o . 3 9 - 3 ) , at 4 9 . Suffice it to say that an employee

spreading rumors about a fellow employee after talking with

management is not situated similarly to an employee providing

counseling to a fellow employee, at the behest of management.

In short, Hubbard has failed to produce evidence of disparate

treatment from which a reasonable jury could determine that the

reason Tyco gave for suspending him in 2008 was pretextual.

Accordingly, Tyco is entitled to judgment as a matter of law on

30 Hubbard’s claim that Tyco discriminated against him on account

of his national origin by suspending him.

b . Hubbard’s Discharge

To establish his prima facie case of discrimination based

upon his discharge, Hubbard must show that:

(1) he . . . is a member of a protected class; (2) possessed the necessary qualifications and adequately performed his . . . job; (3) was nevertheless dismissed . . . ; and (4) [Tyco] sought someone of roughly equivalent qualifications to perform substantially the same work.

Aly,

(citing Rodriguez-Torres v . Carib. Forms

Mfr., Inc.,

2 , 58 (1st Cir. 2005)).

Tyco argues that Hubbard has failed to establish a prima

facie case of discrimination because: (1) his contact with Long

on February 6 precludes him from establishing that he was

performing his job in a manner that met Tyco’s legitimate

expectations; and (2) he has not established that he was treated

differently than similarly situated employees. Tyco’s first

argument is directed to the second element of the prima facie

case and his second argument appears to be directed toward the

fourth element. All agree that Hubbard has established the

first and third elements of his prima facie case; his English

origin places him in a protected class, and Tyco discharged him.

31 With regard to the second element of the prima facie case,

a plaintiff must establish that “he was performing his job at a

level that rules out the possibility that he was fired for job

performance.” Benoit v . Tech. Mfg. Corp.,

(1st Cir. 2003). Tyco identifies Hubbard’s communication with

Long on February 6 as undisputed evidence that precludes Hubbard

from establishing that he was adequately performing his job at

the time of his discharge.

However, “[w]hen assessing whether a plaintiff has met

[his] employer’s legitimate expectations at the prima facie

stage of a termination case, ‘a court must examine plaintiff’s

evidence independent of the nondiscriminatory reason “produced”

by the defense as its reason for terminating plaintiff.’”

Quinn-Hunt v . Bennett Enters., Inc.,

5 2 , 457 (6th

Cir. 2006) (quoting Cline v . Catholic Diocese of Toledo,

5 1 , 660-61 (6th Cir. 1999); citing Tysinger v . Police

Dep’t,

(6th Cir. 2006) (“For purposes of the

prima facie analysis, a plaintiff’s qualifications are to be

assessed in terms of whether he or she was meeting the

employer’s expectations prior to and independent of the events

that led to the adverse action.”); Cicero v . Borg-Warner Auto.,

Inc.,

, 585 (6th Cir. 2002)).

32 Because Tyco identifies nothing other than the February 6

incident to support its argument that Hubbard cannot establish

the second element of his prima facie case, the court assumes

that Hubbard has established that he was adequately performing

his job at the time of his discharge. C f . Timm v . Ill. Dep’t of

Corr.,

3 7 , 643 (7th Cir. 2009) (“where an employee

was fired for a sudden and egregious breach of policy, we assume

this prong [i.e., the second element of the prima facie case]

has been met”) (citing Jones v . Union Pac. R.R. Co.,

(7th Cir. 2002); Curry v . Menard, Inc.,

(7th Cir. 2001)).

With regard to the fourth element of the prima facie case,

Hubbard must show that Tyco “sought someone of roughly

equivalent qualifications to perform substantially the same

work.” Aly,

6 . While there is significant leeway

allowed in terms of how a plaintiff may make the requisite

showing, see Rodriguez-Torres,

9 , it is nonetheless

essential to the prima facie case because only a discharge in

the face of the employer’s continuing need for the services

provided by the discharged employee can raise an inference that

the discharge was motivated by discriminatory animus, see Loeb

v . Textron, Inc.,

(1st Cir. 1979). In

response to Tyco’s argument that he has not established the

33 fourth element of his prima facie case, Hubbard contends that

“the Defendant [does not] dispute that the inspections M r .

Hubbard was conducting continued to be performed by others,”

Pl.’s Supp. Mem. of Law (doc. n o . 56) 19-20, and he cites two

pages of Tyco’s memorandum of law as evidence of Tyco’s

concession on that point.

There are two problems with Hubbard’s position. First, it

is Hubbard’s burden to establish his prima facie case, and he

identifies no record support for his contention that his work

continued to be performed by others after his discharge.

Second, the two pages of Tyco’s memorandum that Hubbard cites

do not mention what happened to his duties after he was

discharged, and do not include a concession that Hubbard has

established the fourth element of his prima facie case.

S o , it is far from clear that Hubbard has shown that Tyco

“sought someone of roughly equivalent qualifications to perform

substantially the same work,” Aly,

6 , after it

terminated his employment. Because the burden of establishing

a prima facie case is light, see Martinez-Burgos,

2 , however, the court will presume that Hubbard has

established all four elements of his prima facie case.

Turning to the second step of the McDonnell Douglas

framework, Tyco contends that Hubbard’s communication with Long

34 on February 6, in violation of various directives not to talk

with other employees about matters under investigation, was a

legitimate nondiscriminatory reason for his discharge. Indeed,

the First Circuit has “often found [that] insubordination is

obviously sufficient to support an adverse employment action.”

Pearson,

(citing Windross v . Barton Protective

Servs., Inc.,

8 , 104 (1st Cir. 2009)).

Hubbard, however, contends that insubordination was not a

legitimate reason for his discharge. He begins by asserting

that the “gag order” on which Tyco based its charge of

insubordination violated the National Labor Relations Act

(“NLRA”). He then argues that “[a]n unlawful reason for

terminating an employee is not ‘legitimate’ and therefore does

not shift the burden of production back to the Plaintiff.”

Pl.’s Supp. Mem. of Law (doc. n o . 56) 2 5 .

Hubbard is mistaken in his expansive view illegitimacy. At

the second stage of the McDonnell Douglas framework, an

employer’s reason for discharging an employee “must be

‘legitimate’ or ‘nondiscriminatory,’ which means only that it is

not a motive that is illegal under Title VII.” 1 Rodney A .

Smolla, Federal Civil Rights Acts § 9:40, at 1260 (3d ed. 2013)

(emphasis added). That i s , “[c]ourts . . . limit their inquiry

regarding an employer’s proffered reason to whether that reason

35 is consistent with the statute at issue [and] do not

automatically determine that a decision based on a trait

protected by one statute is an illegitimate decision under a

statute that protects other traits.” 1 Barbara T . Lindemann &

Paul Grossman, Employment Discrimination Law 39 (4th ed. 2007)

(emphasis in the original). As the Supreme Court has explained:

Although some language in our prior decisions might be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect, see McDonnell Douglas Corp. v . Green,

9 2 , 802 (1973) (creating proof framework applicable to ADEA) (employer must have “legitimate, nondiscriminatory reason” for action against employee), this reading is obviously incorrect. For example, it cannot be true that an employer who fires an older black worker because the worker is black thereby violates the ADEA. The employee’s race is an improper reason, but it is improper under Title V I I , not the ADEA.

Hazen Paper C o . v . Biggins,

0 4 , 612-13 (1993)

(parallel citations omitted); see also 1 Lex K. Larson,

Employment Discrimination § 12.09[2], at 12-81 to 12-82 (2d ed.

2012) (“[a]lthough discharge of an employee due to medical

reasons may run afoul of other statutes, such employer action is

not a Title VII violation if done with an even hand”) (citing

Hervey v . City of Little Rock,

(8th Cir. 1986)).

Hazen is dispositive of Hubbard’s argument; even if Tyco’s “gag

order” violated the NLRA, that would not have made Tyco’s reason

36 for terminating Hubbard’s employment illegitimate in the context

of a claim under Title VII or RSA 354-A:7.

Having presumed that Hubbard has established his prima

facie case, and having determined that Tyco’s charge of

insubordination was a legitimate nondiscriminatory reason for

terminating Hubbard’s employment, the court turns to the third

step in the McDonnell Douglas framework. The court of appeals

for this circuit has recently outlined the principles that

govern pretext analysis under McDonnell Douglas:

If the defendant proffers legitimate reasons for the adverse action, the plaintiff must then prove by a preponderance that the proffered reasons by the defendant are a pretext for unlawful discrimination. [St. Mary’s Honor Ctr., 509 U.S.] at 507-08. To meet his or her burden, a plaintiff must demonstrate either that the adverse employment action was (1) “more likely motivated” by discrimination than by the explanation proffered by the defendant; or (2) “the proffered explanation [was] unworthy of credence” where the suspect action, coupled with evidence to the contrary, suggests a discriminatory motivation. Burdine,

.

Aly,

(parallel citations omitted). Regarding the

way in which courts should approach the issue of pretext, the

court of appeals has explained:

“[T]here is no mechanical formula for finding pretext.” Che v . Mass. Bay Transp. Auth.,

1 , 39 (1st Cir. 2003) (internal quotation marks omitted). Instead, “[i]t is the type of inquiry where ‘everything depends on the individual facts.’”

at 40 (quoting Thomas v . Eastman Kodak Co.,

8 , 57 (1st Cir. 1999)). The inquiry focuses on whether the employer truly believed its stated reason for

37 taking action adverse to the employee. See Feliciano de la Cruz v . El Conquistador Resort & Country Club,

, 7 (1st Cir. 2000). The plaintiff bears “[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.” Reeves v . Sanderson Plumbing Prods., Inc.,

(2000) (alteration in original) (internal quotation mark omitted).

Kelley v . Corr. Med. Servs., Inc.,

0 8 , 116 (1st Cir.

2013) (parallel citations omitted). 4 In other words, when

“assessing whether an adverse employment decision is pretextual,

[a court] do[es] not sit as a super-personnel department that

reexamines an entity’s business decisions.” Espinal,

(quoting Gonzalez v . El Dia, Inc.,

3 , 69 (1st

Cir. 2002); citing Mechnig v . Sears, Roebuck & Co.,

(7th Cir. 1988)) (internal quotation marks omitted).

Rather, the court’s task “is limited to determining whether the

employer ‘believe[d] in the accuracy of the reason given for the

adverse employment action.’” Espinal,

(quoting

Kouvchinov v . Parametric Tech. Corp.,

2 , 76 (1st Cir.

2008); citing Feliciano de la Cruz,

) .

4 Kelley involved a retaliation claim brought under the Americans With Disabilities Act, see 707 F.3d at 115, but given that “[a] retaliation claim under the ADA is analyzed under the familiar burden-shifting framework drawn from cases arising under Title VII,” id. (citations omitted), and given the Kelley court’s citation of a discrimination case in its discussion of pretext analysis, see id. at 116, the legal principles stated in that discussion apply to this court’s analysis of Hubbard’s Title VII discrimination claim.

38 Hubbard’s discrimination claim fails because he has not

carried his burden with regard to either of the two inquiries

described in Aly. The court turns to each, in turn.

The first way for a plaintiff to establish pretext, under

Aly, is to “demonstrate . . . that the adverse employment action

was . . . more likely motivated by discrimination than by the

explanation proffered by the defendant.”

(internal quotation marks omitted). The problem here is that

Hubbard has produced no evidence that the decision to discharge

him was motivated by discrimination. He has produced evidence

that the decision to discharge him was made by an executive

council composed of Jonathan Dufour, Wilford Roy, DeRoy, Murphy,

John Sewell, and an unnamed finance manager. At oral argument,

Hubbard conceded that none of those six decisionmakers ever said

anything that demonstrated animosity toward people of English

origin or toward non-Americans. His best shot at establishing

discriminatory animus is a theory he raised for the first time

at oral argument, without the benefit of any legal authority.

That theory is that the animus of the executive council is

established by proof that the council somehow “condoned”

national-origin discrimination directed against him by other

39 Tyco employees. Because that argument is both legally and

factually unsupported,5 it does not help Hubbard.

Hubbard correctly argues that he is entitled to support his

pretext argument with evidence he produced to establish his

prima facie case, see S t . Mary’s Honor Ctr., 509 U.S. at 511;

Espinal,

5 , but that rule does him no good, because

he supported his prima facie case with no evidence of

discriminatory animus on the part of those who made the decision

to terminate his employment.

In his supplemented memorandum of law, Hubbard makes the

following argument, presumably directed to the prima facie case

that the decision to discharge him was a product of national-

origin discrimination:

There is no dispute that discrimination was rampant at Tyco. Once Deroy looked into the issues raised by Hubbard, he discovered that the harassing and discriminatory language and behavior were not being reported by management to Human resources. Specifically, the management team of Roy, Williams, Pixley and Coughlin. There is also no dispute that Hubbard was harassed at work and was consistently asking for help. He even considered transferring to get out of the situation. The Defendant argues that the obvious and well documented animus was directed at Hubbard because he was an inspector, not because of his national origin. The Defendant asks the Court to

5 Moreover, it is difficult to square Hubbard’s argument that Tyco managers condoned discrimination against him with his own statement of material facts, in which he describes punishments meted out to both Derek Thompkins and Bill Rogers as a result of their abusive behavior toward him, see Pl.’s Supp. Mem. of Law (doc. n o . 56) ¶¶ 10-14 (Thompkins), 27-29 (Rogers).

40 make this factual finding despite the Defendant’s admission that many others were discriminated against because of their race or national origin. The motivation of the individuals harassing Hubbard is a classic instance [of a ] genuine issue of material fact and defeats summary judgment.

Pl.’s Supp. Mem. of Law (doc. n o . 56) 20 (citations to the

record omitted). It i s , indeed, well established that “courts

should exercise particular caution before granting summary

judgment for employers on such issues as pretext, motive, and

intent.” Acevedo-Parrilla v . Novartis Ex-Lax, Inc.,

(1st Cir. 2012)) (quoting Santiago-Ramos v . Centennial

P.R. Wireless Corp.,

6 , 54 (1st Cir. 2000); citing

Hodgens v . Gen. Dynamics Corp.,

5 1 , 167 (1st Cir.

1998)); see also Kelley, 707 F.3d at 115-16 (citations omitted).

Even s o , the evidence Hubbard has produced goes to the animus of

his co-workers and subordinates, not to the animus of those on

the executive council who were responsible for making the

decision to discharge him. In sum, because Hubbard has produced

no evidence of anti-English animus on the part of those who made

the decision to discharge him, he has not demonstrated that his

discharge was motivated by discrimination at all, much less that

it was “more likely motivated by discrimination,” Aly,

6 , than by the decisionmakers’ belief that he had violated

one or more direct instructions from management in his

communications with Long on February 6.

41 Hubbard is equally unable to establish pretext under the

alternative path described in Aly, that i s , by “demonstrate[ing]

. . . that the . . . proffered explanation [was] unworthy of

credence where the suspect action, coupled with evidence to the

contrary, suggests a discriminatory motivation,”

(internal quotation marks omitted). “Proof that the defendant’s

explanation is unworthy of credence is . . . one form of

circumstantial evidence that is probative of intentional

discrimination.” Acevedo-Parrilla,

(quoting

Williams v . Raytheon Co.,

6 , 19 (1st Cir. 2000);

citing Reeves,

4 7 ) . That is so because

demonstrating that an employer’s explanation is unworthy

credence goes directly to the central focus of the pretext

analysis, i.e., “whether the employer believed its stated reason

to be credible,” Acevedo-Parrilla,

(quoting

Mesnick v . Gen. Elec. Co.,

(1st Cir. 1991);

citing Gray v . N.E. Tel. & Tel. Co.,

5 1 , 256 (1st Cir.

1986); Feliciano de la Cruz,

) ; see also Kelley,

707 F.3d at 116.

An explanation is unworthy of credence when is suffers from

“‘weaknesses, implausibilities, inconsistencies, incoherencies,

or contradictions . . . ’ such that a factfinder could ‘infer

that the employer did not act for the asserted non-

42 discriminatory reasons.’” Santiago-Ramos,

(quoting Hodgens,

6 8 ) . While recognizing that

“courts should exercise particular caution before granting

summary judgment for employers on such issues as pretext,

motive, and intent,” Acevedo-Parrilla,

(citations omitted), the court nevertheless concludes that

Hubbard has not produced evidence on the believability of Tyco’s

reason for discharging him from which a reasonable jury could

determine that that reason was a pretext.

All agree that Tyco’s proffered reason for discharging

Hubbard was insubordination, based upon his February 6

communications with Long. That reason is not unworthy of

credence. It is undisputed that: (1) in December of 2008,

Hubbard was issued a Warning prohibiting him from spreading

information concerning ongoing investigation with fellow

employees because such “behavior creates animosity with fellow

employees,” Vanderzanden Aff., Ex. 7 (doc. n o . 3 4 - 7 ) , at 2 ; (2)

that Warning was in force until June of 2009; (3) on February 5 ,

DeRoy and Murphy told Hubbard about Long’s February 5 statement

complaining about Hubbard’s approaching him to talk about work-

related issues, and asked Hubbard to respond to the issues

raised in that statement; (4) on February 6, DeRoy spoke with

Hubbard about his relationship with Long, and told him he didn’t

43 “want . . . for any pot to be stirred,” Pl.’s Mem. of Law, Ex.

3 , Hubbard Dep. (doc. n o . 39-4) 109:14; (5) later that day, and

after his meeting with DeRoy, Hubbard engaged in a conversation

with Long in which he complained about Long having “the nerve to

fucking lie” about him in statements to Tyco officials,

Ex.

9 (doc. n o . 3 4 - 9 ) , at 2 ; and (6) Long was so upset by his

conversation with Hubbard that he immediately contacted his

supervisor to report i t .

Given those undisputed facts, the court concludes, as a

matter of law, that Tyco’s explanation for terminating Hubbard,

insubordination, is not unworthy of credence. That i s , Hubbard

has produced no evidence that would allow a reasonable

factfinder to “infer that [Tyco] did not act for the asserted

non-discriminatory reasons.” Santiago-Ramos,

(citation omitted).

Even if Hubbard could demonstrate that insubordination is

not a credible explanation for Tyco’s decision to discharge him,

the record is completely devoid of any evidence that suggests a

discriminatory motivation on the part of the executive council,

for the reasons stated above.

As with the discrimination claim based upon his

suspension, Hubbard appears to argue that the pretextual nature

of Tyco’s explanation for his discharge is demonstrated by the

44 disparate treatment he received. Specifically, he argues that

Tyco’s explanation is a pretext for national-origin

discrimination because he was discharged for violating

instructions not to communicate with Long while Bill Rogers, an

American, violated Tyco’s Guide to Ethical Conduct (“GEC”)

and/or its Harassment Free Workplace Policy (“HFW Policy”) five

times without being discharged, notwithstanding Tyco’s policy of

discharging an employee upon his or her second violation of the

HFW Policy. By Hubbard’s own admission, this example of

purported disparate treatment is “not as identical as the

[Thompkins/Joslin] example.” Pl.’s Supp. Mem. of Law (doc. n o .

56) 2 8 . The court agrees.

Hubbard was discharged for talking with Long about matters

h e , Hubbard, had been discussing with management. That conduct

took place in early February. Less than two months before that,

in late December, Hubbard had been suspended for engaging in

identical conduct, and was under a formal Warning not to do so

again. That Warning was reiterated hours before Hubbard

communicated with Long, when DeRoy told Hubbard that he did not

want the pot to be stirred. According to Hubbard, Rogers

violated Tyco’s GEC and/or its HFW Policy five times between

January of 2008 and April of 2009, but was not discharged for

45 any of those violations, notwithstanding Tyco’s policy of

discharging an employee after a second violation.

While the court understands Hubbard’s unhappiness with

Tyco’s apparent leniency toward Rogers’ violations of the GEC

and/or the HFW Policy, Rogers is not a valid comparator.

Hubbard was discharged for insubordination, but he does not

claim that Rogers was ever insubordinate. If some other

employee had been allowed to keep his or her job after engaging

in hostile communications with another employee, hours after

being directed not to stir the pot, and had done so while under

a Warning not to discuss ongoing company investigations with

other employees, then Hubbard might have a good argument. But

here, even if Hubbard is able to prove that Tyco did not follow

its own internal guidelines with respect to disciplining Rogers,

Hubbard’s conduct and Rogers’ conduct are so different that

Rogers is not a valid comparator for purposes of establishing

pretext based upon disparate treatment.

Hubbard also argues that pretext is shown by the fact that

he was suspended pending Tyco’s investigation of his

communications with Long, while Long was not, and the fact that

he was discharged as a result of those communications, and Long

was not. In Hubbard’s view, he and Long engaged in exactly the

same conduct, but Tyco treated them differently. Long, however,

46 is not a valid comparator for at least three reasons. First, on

February 6, Long was not operating under a Warning for having

inappropriate communications with coworkers. Second, at the

time of the communications between Hubbard and Long, Long had

not been warned against stirring the pot, and Hubbard has

identified no reason why he should have been. And third, in the

communications at issue, Hubbard was aggressive and abusive,

while Long was not. S o , like Rogers, Long is not a valid

comparator. Because neither Rogers nor Long is a valid

comparator, Hubbard has failed to produce evidence on disparate

treatment from which a reasonable jury could determine that the

reason Tyco gave for discharging him was pretextual.

Finally, taking a step back from formal legal analysis,

Count IV also founders when viewed from the perspective of basic

common sense. Tyco hired Hubbard despite the fact that he is

English. Thereafter, according to Hubbard himself, he became

“the fastest guy in the company’s history ever to go in there

and became a T3 to T1,” Def.’s Facts (doc. n o . 32) ¶ 13 (quoting

Def.’s Mem. of Law, Ex. D, Hubbard Dep. (doc. n o . 32-4) 64:13-

14). It defies both logic and the undisputed facts of this case

to argue that the same company that hired Hubbard and rapidly

promoted him, while knowing him to be English, then discharged

him because of his national origin. See LeBlanc,

47 (“LeBlanc points to nothing in the record to suggest why Conte,

who, in January 1989, approved LeBlanc’s transfer, at Great

American’s expense . . . and his corresponding sixteen percent

pay raise, would develop an aversion to older people less than

two years later . . . . ” ) ; Proud v . Stone,

(4th Cir. 1991) (“From the standpoint of the putative

discriminator, ‘[i]t hardly makes sense to hire workers from a

group one dislikes (thereby incurring the psychological costs of

associating with them), only to fire them once they are on the

job.’” (quoting Donohue & Siegelman, The Changing Nature of

Employment Discrimination Litigation, 43 Stan. L . Rev. 983, 1017

(1991)).

To conclude, Hubbard has established that he is English and

that Tyco discharged him, but he has come nowhere close to

producing evidence that would allow a reasonable jury to

conclude that the reason Tyco gave for discharging him was a

pretext for national-origin discrimination. As a result, his

discrimination claim fails at stage three of the McDonnell

Douglas framework. Accordingly, Tyco is entitled to judgment as

a matter of law on the discrimination claim stated in Count IV.

3 . Retaliation (Counts V and VI)

In the fact section of his complaint, Hubbard alleged that

he reported incidents of workplace discrimination to his

48 superiors on two occasions in September of 2008, see Compl.

(doc. no. 1) ¶¶ 19 & 20, and did so on three more occasions, in

November and December of 2008, see

¶¶ 21 & 22, and again at

some point after he returned from his late-December suspension,

see

¶ 2 4 .

In his complaint, Hubbard asserted his state-law

retaliation claim in the following way:

As more particularly described above, immediately upon the heels of the Plaintiff telling the Defendant that he was being discriminated against based on his national origin, the Defendant began a pattern of retaliatory conduct toward the Plaintiff as described herein.

The culmination of the retaliation was that the Plaintiff was terminated.

The Defendant’s unlawful retaliation against the Plaintiff for reporting discrimination based on national origin violates N.H. RSA 354-A:7, I .

Compl. (doc. n o . 1 ) ¶¶ 48-50. He asserted his federal

retaliation claim in a similar fashion:

As more particularly described . . . above, the defendant has likewise willfully violated Title V I I ,

(e) et seq. by retaliating against the Plaintiff for complaining about discrimination based on his national origin and then engaging in a pattern of retaliatory conduct toward him, culminating in termination.

¶ 5 3 . While both of Hubbard’s claims refer to “a pattern of

retaliatory conduct,” the fact section of his complaint

identifies no potentially retaliatory adverse employment action

49 other than his discharge, and it does not indicate what other

actions by Tyco contributed to the pattern of conduct to which

he refers.

In his supplemented memorandum of law, Hubbard appears to

assert, seemingly in passing, two additional theories of

retaliation. First, in his argument that Tyco’s reason for

discharging him was not legitimate, Hubbard appears to suggest

that if he was discharged for his February 6 communications with

Long, that would have been an act of retaliation in violation of

Title VII. See doc. n o . 5 6 , at 2 5 . I f , indeed, Hubbard is

making such a claim, the court is quite confident that Hubbard’s

communications with Long do not qualify as protected conduct for

the purpose of a Title VII retaliation claim. In addition, in

the section of his supplemented memorandum actually devoted to

retaliation, Hubbard concludes this way:

In this case, Plaintiff complained repeatedly to his supervisors and directors. No action was taken until Coughlin claimed that Hubbard was seeking legal assistance. Within seven days of that report by Coughlin, Hubbard was terminated.

Pl.’s Supp. Mem. of Law (doc. n o . 56) 3 6 . Based upon the

foregoing, the court assumes that: (1) Hubbard is now claiming

that he was discharged because relevant Tyco decisonmakers

believed that he had either considered retaining counsel or had

actually done s o , despite the lack of any support for such a

50 claim in the factual allegations he made in his complaint; and

(2) such an action by Tyco would violate Title V I I , despite the

lack of any legal authority for that proposition in Hubbard’s

supplemented memorandum of law. However, adding Hubbard’s new

claim to the one actually stated in his complaint does him no

good because that claim fails just as his original claim fails,

due to his failure to establish that his discharge was causally

related to his purported protected conduct.

Count V arises under RSA 354-A, while Count VI arises under

Title VII. As with Counts III and IV, the court will conduct a

single analysis under the standard applicable to Title VII. See

Hudson, 822 F. Supp. 2d at 9 2 . “Title VII makes it unlawful for

an employer to discriminate against an employee who has opposed

an unlawful employment practice.” Gerald,

(citing 42 U.S.C. § 2000e–3(a)).

In a recent Title VII retaliation case, the court of

appeals for this circuit outlined the applicable analytical

approach:

Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of retaliation by showing that (1) she engaged in protected conduct, (2) she was subject to an adverse employment action, and (3) a causal connection existed between the first and second elements. Noviello v . City of Boston,

6 , 88 (1st Cir. 2005). The burden then shifts to the defendant to “articulate a legitimate, non-discriminatory reason for its challenged actions.” Provencher v . CVS Pharmacy, Div.

51 of Melville Corp.,

, 10 (1st Cir. 1998) (citing Texas Dep’t of Cmty. Affairs v . Burdine,

4 8 , 254–55 (1981)). Finally, “[i]f the defendant does s o , the ultimate burden falls on the plaintiff to show that the proffered legitimate reason is in fact a pretext and that the job action was the result of the defendant’s retaliatory animus.” Fennell v . First Step Designs, Ltd.,

(1st Cir. 1996).

Colón v . Tracey,

3 , 49 (1st Cir. 2013) (parallel

citations omitted). The court then went on to note that “[a]s

the appropriate standard for causation in a Title VII employment

retaliation claim is not at issue here, we acknowledge but need

not address the Supreme Court’s recent grant of certiorari in

University of Texas Southwestern Medical Center v . Nassar,”

Colón, 717 F.3d at 49 n.14.

Shortly after the First Circuit decided Colón, the Supreme

Court decided Nassar. In its decision, the Court ruled:

Title VII retaliation claims must be proved according to traditional principles of but-for causation, not the lessened causation test stated in § 2000e–2(m). This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.

133 S . C t . 2517, 2533 (2013); see also Torrech-Hernández v . Gen.

Elec. Co.,

1 , 48 (1st Cir. 2008) (explaining, in ADEA

discrimination claim, that for factor to be “but for” cause of

employee’s discharge, it must have been “the determinative

factor in his discharge”) (quoting Dávila,

5 ;

citing Mesnick,

) (emphasis added). That is a

52 more demanding causation standard than the one that applies to

Title VII discrimination claims, under which a plaintiff need

only establish that discriminatory animus was a motivating

factor for an adverse employment action. See Nassar, 133 S . C t .

at 2526, 2534. Given the substantial difference between

motivating-factor causation and but-for causation, the court

cannot agree with Hubbard that the Nassar decision has little or

no effect on the analysis of his retaliation claims.

However, it is not entirely clear where the analysis of

causation fits into the McDonnell Douglas framework as applied

to Title VII retaliation claims. As Colón describes that

framework, it appears that causation must be considered: (1) at

stage one of the McDonnell Douglas framework, as the third

element of the prima facie case; and (2) at stage three, as a

part of the plaintiff’s ultimate burden. The court will assume

without deciding that Hubbard has produced adequate evidence to

establish his prima facie case, and move to the second and third

stages of the McDonnell Douglas framework. For the reasons

given in the previous section, Tyco has met its burden of

producing evidence of a legitimate nondiscriminatory reason for

its decision to discharge Hubbard. That leaves the third stage

of the framework.

53 While the court of appeals for this circuit has yet to

decide a Title VII case that involves an application of Nassar,

useful guidance on how Nassar might be applied to the third

stage of a McDonnell Douglas analysis may be derived from the

First Circuit’s opinion in McArdle v . Town of Dracut/Dracut

Public Schools,

(1st Cir. 2013). In that case, the

plaintiff asserted a retaliation claim under section 105(a)(1)

of the Family and Medical Leave Act of 1993 (“FMLA”),

(a)(1). The court described the elements of McArdle’s

claim:

“To make out a prima facie case of retaliation [McArdle] must show (1) he availed himself of a protected right under the FMLA; (2) he was adversely affected by an employment decision; (3) there is a causal connection between the employee’s protected activity and the employer’s adverse employment action.” [Hodgens v . Gen. Dynamics Corp.,

,] 161 [1st Cir. 1998)] (applying the standard from McDonnell Douglas Corp. v . Green,

(1973), to FMLA cases).

(parallel citations omitted). In McArdle, the

employee claimed that he was discharged “because he asked for

FMLA leave.”

The court of appeals, however, determined

that “he was fired because the town concluded that his renewed

and indefinite absence [from work], without advance notice,

allowed it to fire him.”

The court continued:

The correctness of this conclusion is underscored by imagining that McArdle had made no request at all for FMLA leave. In such a scenario, the town’s claim

54 that he was abandoning his job without effectively establishing a right to do so would have been indisputably correct. He would have been terminated, perhaps sooner. Alternatively, imagine that McArdle had asked for FMLA leave while still showing up for work. There is no evidence to which he points that would support any inference that the town would have still fired him, or even thought that it could fire him under the terms of the collective bargaining agreement. In short, even assuming that he properly requested FMLA leave that request could not have caused his termination. His absence from work, on the other hand, was fully sufficient to cause his termination. C f . Soto–Padro v . Pub. Bldgs. Auth.,

, 6 (1st Cir. 2012) (“‘if the lawful reason alone would have sufficed to justify the [action],’ ‘[t]hen the employee cannot prevail.[‘]”) (quoting McKennon v . Nashville Banner Pub. Co.,

5 2 , 359 (1995)). This conclusion “comports with the traditional tort-law principle that if the wrongful act did not cause the injury, the wrongdoer is not liable.” Tejada–Batista v . Morales,

7 , 101 (1st Cir. 2005).

McArdle,

(parallel citations omitted).

The application of McArdle to the facts of this case is

straightforward. If Hubbard had not reported discrimination to

Tyco, Tyco’s claim that Hubbard had acted insubordinately by

contacting Long would have been indisputably correct, for

reasons developed in the previous section. On the other hand,

if Hubbard had complained about discrimination but not contacted

Long on February 6, “[t]here is no evidence . . . that would

support any inference that [Tyco] would have still fired him,”

6 . To the contrary, Hubbard himself asserts that

he had complained about discrimination at Tyco for months prior

55 to the February 6 incident, without suffering any adverse

employment action or being given any reason to believe that such

adverse actions might result from such conduct on his part.

Rather, it is undisputed that Tyco’s response to Hubbard’s

protected conduct was to begin an investigation, albeit not as

quickly as Hubbard might have liked. In short, because

Hubbard’s contact with Long, alone, gave Tyco a credible reason

for discharging him, Hubbard cannot establish that but for his

protected conduct he would not have been discharged.

Hubbard’s only argument on causation is that the requisite

causal link between his protected conduct and his discharge is

the short span of time between his meeting with DeRoy and Murphy

on February 4 and his discharge on February 1 2 . It is well

established that “[t]emporal proximity alone can suffice to meet

the relatively light burden of establishing a prima facie case

of retaliation.” Pérez-Cordero v . Wal-Mart P.R., Inc.,

9 , 32 (1st Cir. 2011) (quoting DeCaire v . Mukasey,

,

19 (1st Cir. 2008); citing Collazo v . Bristol-Myers Squibb Mfg.,

Inc.,

9 , 49-50 (1st Cir. 2010); Mariani-Colón v . Dep’t

of Homeland Sec.,

(1st Cir. 2007)); see also

Gerald,

(citing Harrington v . Agg. Indus. N e .

Region, Inc.,

5 , 32 (1st Cir. 2012)). Temporal

proximity, alone, however, is insufficient to establish

56 causation at the third stage of the McDonnell Douglas framework.

See Alvarado,

(accepting one-week interval

between protected conduct as sufficient to establish third

element of prima facie case, but insufficient to establish

causation at stage three of McDonnell Douglas framework) (citing

Wright v . CompUSA, Inc.,

7 2 , 478 (1st Cir. 2003);

Soileau v . Guilford of M e . , Inc.,

2 , 16 (1st Cir.

1997)).

Absent any evidence of causation other than temporal

proximity, Hubbard has failed to produce evidence sufficient to

send his retaliation claim to a jury. Accordingly, Tyco is

entitled to judgment as a matter of law on the claims stated in

Counts V and V I .

Conclusion

As the court explained at the outset of this order, Tyco’s

motion to strike, document n o . 5 7 , is denied as moot, and

Hubbard’s motion to correct the record, document n o . 6 5 , is

granted. For the reasons detailed above, Tyco is entitled to

judgment as a matter of law on Hubbard’s discrimination and

retaliation claims, but not the hostile-work-environment claims

stated in Counts II and III. Thus, Tyco’s motion for summary

judgment, document n o . 3 0 , is granted in part and denied in

part; the case remains on track for a trial on Counts II and

57 III. The court concludes by noting that the elimination of

Counts IV, V , and VI from this case may provide a good

opportunity for mediation of the two claims that remain.

SO ORDERED.

LandyaMc^afferty United St^fes Magistrate Judge

December 3 , 2013

cc: Nicole S . Corvini, Esq. Lisa Hall, esq. Michael S . McGrath, Esq. Danielle Y . Vanderzanden, Esq.

58