UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Heather A. Taylor

v. Civil No. 12-cv-326-JL Opinion No.

eCoast Sales Solutions, Ltd.

MEMORANDUM ORDER

The central question in this case, like in many employment

cases, turns on why the defendant fired the plaintiff. Heather

A. Taylor has sued her former employer, eCoast Sales Solutions,

Ltd., alleging that she was fired for working from home, and then

taking a leave of absence, due to documented medical

complications from her pregnancy and childbirth. She claims

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

(a)(1), (B) the New Hampshire Law Against

Discrimination,

-A:7, VI(b), and (C)

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

e-2(a)(1). This court has jurisdiction under

(federal question) and 1367 (supplemental jurisdiction).

eCoast has moved for summary judgment, see Fed. R. Civ. P.

56, arguing that no rational jury could conclude that Taylor’s

working from home or taking leave during her pregnancy played a

prohibited role in her firing. Yet Taylor testified at her

deposition that, while she was working from home on the orders of her doctors, her immediate supervisor repeatedly told her that

“she needed to be back in the office and [she] shouldn’t be out

on leave and working from home due to [her] pregnancy.” Ten days

after Taylor returned from maternity leave, that same supervisor

fired her.

This evidence--which eCoast simply ignored in its opening

summary judgment memorandum, and incorrectly dismissed as

“unsupported allegations” in its reply--suffices to create a

genuine issue of material fact as to whether working from home

and taking leave due to her pregnancy played an impermissible

role in Taylor’s firing, notwithstanding the fact that her

supervisor decided to fire her after receiving information that

Taylor had engaged in misconduct after returning from leave. In

determining the existence of a triable issue as to the employer’s

intent, “the question is not whether a reasonable jury could find

that [the employer] would have fired [the plaintiff] even in the

absence of retaliatory intent. Rather, the question pertinent to

. . . summary judgment is whether no reasonable jury could find

otherwise.” Travers v. Flight Servs. & Sys., Inc.,

(1st Cir. 2013). That conclusion simply cannot follow from

the record here, which, though eCoast pretends otherwise,

includes Taylor’s testimony as to repeated comments by her

supervisor disapproving of her working from home and taking leave

2 due to her pregnancy. Based on that testimony, and other record

evidence, “it remains plausible that the pre-existing retaliatory

motive tipped the scales when the company decided whether

[Taylor] had violated company policy in a way that required [her]

termination.”

Following oral argument, then, the court

denies eCoast’s motion for summary judgment, for the reasons set

forth in detail below.

I. Applicable legal standard

Summary judgment is appropriate where “the movant shows that

there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A dispute is “genuine” if it could reasonably be

resolved in either party’s favor at trial by a rational

fact-finder, and “material” if it could sway the outcome under

applicable law. See Estrada v. Rhode Island,

(1st Cir. 2010). Importantly, in deciding summary judgment, the

court “views all facts and draws all reasonable inferences in the

light most favorable to the non-moving” party.

II. Background

As required on summary judgment, the following facts are set

forth in the light most favorable to Taylor. See

In October

2008, Taylor began working as a sales representative for eCoast,

3 a company that generates sales leads for technology vendors.

During a period of three-plus months in 2009, Taylor worked from

home following major foot surgery, and returned to the office to

find “everything where it was or should have been.” Taylor’s

immediate supervisor during that time called her “the highest

producer month over month [in] any business unit” and praised her

“unending drive for perfection and tremendous work ethic.”

In late April 2010, Taylor abruptly quit her job, but after

discovering that she was pregnant, reconsidered, realizing that

“[i]t was not a time to make major decisions.” In a subsequent

conversation with her then-immediate supervisor--as well as with

eCoast’s CEO, Allen Tait1--Taylor explained that she was

pregnant, and asked to be rehired. Tait agreed, and Taylor

resumed working at eCoast in early May 2010. She was assigned to

work for a different immediate supervisor, Jon Decolfmacker.

Within a month or so, in early June 2010, Taylor began

experiencing complications with her pregnancy, including

bleeding. Initially, her physician ordered Taylor to remain out

of work for a week, then cleared her to work from home, first for

just “a few hours a day if she is feeling well,” then for 30-35

hours a week. By mid-August 2010, Taylor’s doctor ordered that

1 The record is not entirely clear on when Tait became the CEO but, at oral argument, eCoast stated that he “always was,” at least at all times relevant to this lawsuit.

4 she “remain working at home until further notice . . . from 30-35

hours a week only.” Taylor provided documentation of these

orders to eCoast, which, as her doctors had directed, allowed her

to work from home beginning in early June 2010.

While Taylor was working from home, she communicated daily

with Decolfmacker, her supervisor. During this time,

Decolfmacker “made quite a few statements that [she] should be

back in that office instead of working from home.” Taylor

testified that Decolfmacker made these comments “on numerous

occasions,” including after he learned, in late July 2010, that

her doctor had just ordered Taylor to work from home through

mid-August 2010. At that point, Taylor recalled, Decolfmacker

“was telling [her] that [she] needed to get back in the office

and that he needed to get a time that [she] was going to be back

in the office.” Later, in mid-August 2010, when Taylor told

Decolfmacker of her doctor’s order “that [she] would be working

from home at that point until [she went] out on . . . leave for

the baby,” Decolfmacker said “he didn’t expect that [she] would

be out of the office [that] long with [her] pregnancy and that

[she] should be back in the office.” Taylor further testified

that, “[f]rom August on, [] Decolfmacker repeatedly kept telling

[her] that [she] needed to be back in the office and [she]

shouldn’t be out on leave and working from home due to [her]

5 pregnancy.” He was making these statements, Taylor recalled,

nearly “every time” she talked to him.

In early November 2010, Taylor was hospitalized due to

complications from her pregnancy, and was placed on FMLA leave.

Taylor gave birth to her baby, via an emergency caesarean

section, in late December 2010. After receiving clearance from

her doctor, Taylor notified eCoast that she would return to the

office on February 28, 2011. When she did, Taylor was assigned

to work at a desk that, in her description, “looked like a dump

. . . . It was layered with dirt. There was stuff everywhere.”

Her assigned computer “was huge. It didn’t even fit on the desk.

You had to angle it just to get the keyboard on it.”

Furthermore, in contrast to her prior experience at eCoast

(including the time she was working from home between June 2010

and February 2011), Taylor was not given any sales goals or

quotas and, when she asked Decolfmacker to assign them, he “told

[her] not to worry about it.”

On March 8, 2011, eight calendar days after Taylor’s return

from leave, Decolfmacker asked to meet with her. In the meeting,

he explained that, while eCoast had been monitoring one of

Taylor’s recent calls to a sales prospect, on March 4, 2011, she

6 used what he described as “inappropriate language.”2 (eCoast

routinely monitored its sales representatives’ calls to ensure

they were generating valid leads.) Decolfmacker also informed

Taylor that, in another call eCoast had monitored, on March 7,

2011, “there were a number of qualifying questions that she

failed to ask,” so that “the lead wasn’t going to count.”

Decolfmacker warned Taylor that “she would continue to be

monitored on a daily basis” and “to make sure she was working to

meet eCoast’s expectations based on professionalism and quality.”

Also on March 8, 2011, eCoast performed what is known as

“quality assurance closed loop monitoring” on two leads that

Taylor had submitted, including the lead that Decolfmacker

discussed with her at that day’s meeting. (In “closed loop”

monitoring, a different eCoast employee contacts the lead to

verify the information provided by the representative who

submitted it--though, as Decolfmacker acknowledged at his

deposition, it “could happen” that, during the looping process, a

“prospect could deny saying something that the prospect had said

in the original call with the sales rep”). On March 8, the

2 Decolfmacker told Taylor she had been overheard telling a prospect, “my husband and I were just talking about how tired we are of the damn dogs dropping bombs and pissing all over the snow banks.” While Taylor denied using “inappropriate language,” she admitted discussing this subject, explaining that she had “always used this sort of friendly conversation with prospects.”

7 contacts provided information as to their interest in upgrading

their technology that differed from what Taylor had reported,

causing eCoast to conclude that the two leads were invalid.3

On March 10, 2011, Decolfmacker met with eCoast’s vice

president of human resources, Kim Gibney, to discuss the results

of the closed loop monitoring. Decolfmacker testified that the

two “discussed that clearly this was a fabricated lead that was

made up and that’s a fireable offense and we [] decided to

terminate [] Taylor for the offense.” Gibney then summoned

Taylor and, when she arrived, Gibney and Decolfmacker “reviewed

3 These two leads were the Millbrae School District and T.W. Telecom, Inc. Taylor argues that “[a] key issue in the case involves the identity of the lead for which [] Decolfmacker counseled [] Taylor at the March 8 meeting.” She points to evidence that, in her view, shows that it was the Millbrae School District--which would contradict eCoast’s position, as set forth in its response to the charge that Taylor eventually filed with the New Hampshire Commission for Human Rights, that the lead discussed at the March 8 meeting was T.W. Telecom. Even if this is correct, however, it does nothing to change the fact (which Taylor has not pointed to any evidence to dispute) that eCoast concluded, based on the closed loop monitoring it conducted on March 8 (as distinguished from the remote monitoring it conducted on March 7), that Taylor had submitted false information on both the Millbrae School District and T.W. Telecom leads. As explained infra, however, a rational jury could nevertheless find that Taylor’s working from home, and then taking leave, due to her pregnancy played an impermissible role in her firing. In ruling on eCoast’s motion for summary judgment, then, the court has not placed any reliance on eCoast’s claimed misidentification of the subject of the March 8 meeting between Taylor and Decolfmacker in its response to the Human Rights Commission.

8 the results of the report with her and told her that this was a

fireable offense and we were letting her go for that.”

Taylor subsequently filed a charge of discrimination against

eCoast with the New Hampshire Human Rights Commission. In its

written response to the charge, eCoast asserted (among other

things) that Taylor’s pregnancy could not have played a role in

her firing since its CEO, Tait--who “was one of the three

individuals who made the decision to discharge [Taylor] on March

10, 2011 (with the decision ultimately being [his])”--was also

the same person “who made the ultimate decision to rehire [her]

in early May 2010,” knowing she was pregnant. eCoast’s human

resources manager, Sharon Robitaille, testified at her deposition

in this case that, in or around November 2010, Tait said that

“he had a big problem with people working from home,” and told

both Robitaille and Gibney that “he wanted it to stop.”

eCoast’s written response to Taylor’s charge also asserted

that, over the prior five years, the company had fired eleven

employees for providing false leads. At her deposition, however,

Robitaille--who had verified the assertions in the company’s

response by signing it--testified that the only employees whom

she knew “for sure” had been fired “because of false leads” were

Taylor and one other employee, a man (though she acknowledged

that she did not know much about that man’s firing because she

9 was not the director of human resources at that point, Robitaille

testified that she did not believe the man had been issued a

performance improvement notice prior to his termination).

Robitaille also testified about a different male employee

who was issued a performance improvement notice, rather than

being immediately fired, after a lead he had submitted “was

closed looped and found to contain false information”--though she

explained that, in the case of this male employee, “it wasn’t

that there was a false lead or false opportunity, but that there

was information that had been embellished.” Robitaille

maintained that this “embellished” lead was not a “false” lead

“according to eCoast’s standards,” but admitted that those

“standards” are not written down anywhere. Asked at her

deposition whether, at the time Taylor was fired, eCoast had “any

standards for determining the discipline that would be imposed if

the employee were found to have produced a false lead,”

Robitaille responded that the company “implement[s] a progressive

disciplinary action policy” (consisting of a verbal warning, then

a written warning, then the performance improvement notice, and,

ultimately, termination). Robitaille testified, however, that

she had approved the firing of employees without first issuing

them improvement notices on occasion--though, as just noted, she

10 could not positively recall having done so in the case of an

employee found to have submitted a false lead.

III. Analysis

The FMLA entitles eligible employees to “12 workweeks of

leave during any 12-month period” for, among other reasons, “a

serious health condition.”

(a)(1)(D). eCoast

does not dispute that the medical complications Taylor

experienced during her pregnancy amounted to a “serious health

condition” that entitled her, under the FMLA, to the leave she

took beginning in June 2010.4 eCoast likewise does not dispute

that Taylor was independently entitled to that leave under the

New Hampshire Law Against Discrimination, which provides, in

relevant part, that “[a]n employer shall permit a female employee

to take leave of absence for the period of temporary physical

disability resulting from pregnancy, childbirth, or related

medical conditions.”

-A:7, VI(b).

4 Nor does eCoast distinguish between what might be called the “part-time leave” Taylor took while working from home for less than 40 hours each week between June and November 2010 and the full-time leave Taylor took between November 2010 and February 2011, after her doctors prohibited her from working altogether. Following suit, the court has attributed no legal significance to this distinction either.

11 The FMLA expressly makes it “unlawful for any employer to

interfere with, restrain, or deny the exercise of or the attempt

to exercise, any right provided” by the Act.

(a). Thus, “the FMLA prohibits retaliation against

employees who take FMLA leave.” Pagan-Colon v. Walgreens of San

Patricio, Inc.,

(1st Cir. 2012). While the New

Hampshire Law Against Discrimination does not expressly prohibit

retaliation against employees for availing themselves of their

right to pregnancy-related disability leave,5 Taylor suggests

that such a prohibition is implicit in the statutory command that

an employer “shall permit a female employee to take” such leave,

and eCoast does not disagree.

Nor does eCoast disagree with Taylor’s suggestion that, if

eCoast in fact discharged her because her pregnancy-related

medical complications required her to work from home or to stop

working at all, that would violate Title VII, which, in relevant

part, makes it unlawful for an employer to “discharge any

individual . . . because of such individual’s . . . sex,” 42

U.S.C. § 2000e-2(a)(2), defining “because of sex” to include

“because of or on the basis of pregnancy, childbirth, or related

5 The law does, of course, prohibit retaliation against an employee “because he has opposed any practice forbidden under this chapter or because he has filed a complaint, testified or assisted in any proceeding under this chapter.”

-A:19.

12 medical conditions,”

§ 2000e(k). Instead, eCoast argues that

Taylor cannot prove that her pregnancy-related medical

conditions, or the accommodations they necessitated, played an

improper role in her termination.

Specifically, eCoast maintains that Taylor cannot make out a

prima facie case that she was fired because she worked from home,

or took leave, due to the medical complications from her

pregnancy. Even if she could, eCoast continues, Taylor cannot

show a trialworthy issue as to whether eCoast’s stated reason for

her discharge--her falsification of lead information--is simply a

pretext for the real reason she was fired, i.e., her working from

home and taking leave due to her pregnancy-related medical

conditions. The court disagrees on both counts.

“To make out a prima facie case of FMLA retaliation, an

employee must show: (1) she availed herself of a protected FMLA

right; (2) she was adversely affected by an employment decision;

and (3) there was causal connection between her protected conduct

and the adverse employment action.” Carrero-Ojeda v. Autoridad

de Energia Electrica, ___ F.3d ___,

(1st

Cir. June 20, 2014) (quotation marks and bracketing omitted).

The parties agree that the same elements comprise a prima facie

case of retaliation under

-A:7, VI(b)

(with the entitlement to leave under the New Hampshire statute

13 serving as the “right” of which the employee must have availed

herself). Although 42 U.S.C. § 2000e-2(a)(2) prohibits

discrimination, rather than retaliation, the parties, as just

discussed, have also conceptualized Taylor’s Title VII claim as a

retaliation theory, insofar as it alleges that she was fired not

just because she was pregnant, but because she worked from home

and took leave due to the medical complications from her

pregnancy. As a result, the parties agree that Taylor faces the

same requirements to establish a prima facie case on her Title

VII claim as she does on her claims under the FMLA and

-A:7, VI(b).

In moving for summary judgment, moreover, eCoast does not

contest that (1) in working from home, and taking leave, Taylor

was availing herself of her protected rights, and (2) she was

adversely affected by eCoast’s decision to terminate her.

eCoast’s argument that Taylor has failed to make out a prima

facie case on any of her claims, then, rests solely on the notion

that she lacks evidence of a causal connection between her

protected conduct and her termination.

As discussed in detail above, however, Taylor testified at

her deposition that, while she was working from home, her

immediate supervisor, Decolfmacker, “repeatedly kept telling

[her] that [she] needed to be back in the office and [she]

14 shouldn’t be out on leave and working from home due to [her]

pregnancy.” Ten days after Taylor returned to the office from

maternity leave, Decolfmacker fired her. This evidence readily

suffices to establish a prima facie case of a causal connection

between Taylor’s leave and her termination. See, e.g., Hodgens

v. Gen. Dynamics Corp.,

(1st Cir. 1998).

In arguing to the contrary in its opening memorandum for

summary judgment, eCoast simply chose to ignore Taylor’s

deposition testimony as to Decolfmacker’s comments, going so far

as to assert that Taylor “is not aware of any derogatory comments

regarding [her] pregnancy leave made by any eCoast employee” and

that she “cannot provide any witnesses that are aware of any

derogatory statements made by any eCoast employees regarding

[her] pregnancy leave or her pregnancy.” These assertions, of

course, overlook the plain fact that Taylor herself is a witness,

who testified at her deposition that Decolfmacker had made such

derogatory comments directly to her.6 Confronted with this

testimony in Taylor’s summary judgment objection, eCoast argues

6 It also overlooks the fact that another witness, Robitaille, testified that, in November 2010--right around the time that Taylor stopped working from home in favor of full-time leave--eCoast’s CEO, Tait, said that “he had a big problem with people working from home” and “he wanted it to stop.” It is a reasonable inference that Taylor was one of the “people working from home” whom Tait had in mind when he made these comments.

15 in its reply that it amounts to “unsupported allegations” of the

sort that cannot defeat summary judgment. That is incorrect.

That “unsupported allegations” and sworn testimony are not

the same thing ought to go without saying. The Court of Appeals,

nevertheless, has repeatedly said just that, including in cases

where a defendant seeking summary judgment in an employment

discrimination case sought, unsuccessfully, to disregard the

plaintiff’s own testimony as to derogatory remarks by her

supervisors. See Velazquez-Garcia v. Horizon Lines of P.R.,

Inc.,

(1st Cir. 2007) (“provided the nonmovant’s

deposition testimony sets forth specific facts, within his

personal knowledge, that, if proven, would affect the outcome of

the trial, the testimony must be accepted as true for purposes of

summary judgment”); Santiago-Ramos v. Centennial P.R. Wireless

Corp.,

(1st Cir. 2000) (“a party’s own affidavit,

containing relevant information of which he has personal

knowledge, may be self-serving, but it is nevertheless competent

to avoid summary judgment”) (citing Cadle Co. v. Hayes,

, 961 n.5 (1st Cir. 1997)).7 Despite this clear authority,

7 “To the extent that affidavits submitted in opposition to a summary judgment motion merely reiterate allegations made in the complaint, without providing specific factual information made [sic] on the basis of personal knowledge, they are insufficient.” Santiago-Ramos,

. But Taylor’s deposition testimony as to Decolfmacker’s remarks is not of that character, and eCoast does not--and could not--argue otherwise.

16 this is hardly the first case where this court has needed to

remind a movant of the basic principle that the other party’s

testimony counts when it comes to deciding summary judgment.

See, e.g., L’Etoile v. New Eng. Finish Sys., Inc.,

,

14 n.11 (“this court is unaware of any authority . . . requiring

a plaintiff to provide [more than] her own testimony to survive

summary judgment”).

It is hardly an esoteric or difficult concept that summary

judgment is appropriate only when the record--including the

plaintiff’s own competent testimony--fails to demonstrate a

genuine issue of material fact. This court is hopeful that,

someday, competent counsel’s undoubted awareness of this

principle will trump the insistence by certain segments of the

bar (undoubtedly driven to some degree by client expectations) on

moving for summary judgment in seemingly every case, regardless

of the state of the record. For now, however, all the court can

do is deny eCoast’s motion for summary judgment, insofar as it

argues a lack of causal connection between the plaintiff’s

protected conduct and her termination by ignoring her testimony

as to her supervisor’s repeated criticism of precisely that

protected conduct.

Based on that testimony, and other evidence of record,

Taylor has likewise demonstrated a triable issue as to whether

17 eCoast’s articulated reason for firing her was merely a pretext

for unlawful retaliation. The parties agree that, if Taylor can

make out a prima facie case of retaliation for working from home

or taking leave due to her pregnancy (which, as just discussed,

she can), that showing triggers the burden-shifting approach for

resolving employment discrimination claims laid out in McDonnell

Douglas Corp. v. Green,

(1973). Under this

approach, since Taylor has established a prima facie case, the

burden shifts to eCoast

to articulate some legitimate, nondiscriminatory reason for the employee’s termination, sufficient to raise a genuine issue of material fact as to whether it [retaliated] against the employee. The employer must clearly set forth, through the introduction of admissible evidence, the reason for the employee’s termination . . . . If the employer’s evidence creates a genuine issue of fact, the presumption of [retaliation] drops from the case, and the plaintiff retains the ultimate burden of showing that the employer’s stated reason for terminating [her] was in fact a pretext for retaliating against [her] for having taken protected FMLA leave.

Hodgens,

(quotation marks and bracketing by

the court omitted).

eCoast argues that it has articulated a legitimate reason

for firing Taylor, namely, that she falsified information in two

of the leads she submitted, but that she has failed to come

forward with evidence creating a genuine issue as to whether that

stated reason is a pretext for retaliating against her for

18 working from home or taking leave due to her pregnancy. Assuming

that eCoast has “clearly set forth, through admissible evidence,

the reason for [Taylor’s] termination,”8

she has

demonstrated a triable issue as to whether that reason was, in

fact, a pretext for unlawful retaliation.

Again, taken in the light most favorable to Taylor, the

record shows that Decolfmacker repeatedly criticized her for

working from home and taking leave due to her pregnancy. So

construed, the record also shows that, during that brief period

between Taylor’s return to the office and her termination, she

was assigned to work at a filthy desk and, for the first time in

her career at eCoast, not given any sales goals or quotas,

despite asking Decolfmacker for them. Furthermore, the record

contains evidence that eCoast’s CEO, Tait, told Gibney (the vice

president of human resources at the time) that he (Tait) did not

like people working from home. Again, eCoast identified Tait as

the one who ultimately decided to fire Taylor--who had spent

roughly the last five months working from home at the time Tait

8 Taylor argues that eCoast has failed to do so because it has “produc[ed] no sworn testimony” from Tait, whom, again, eCoast identified at one point as the ultimate decisionmaker on her termination. The court need not reach this argument in light of its ruling, explained infra, that, even if eCoast has properly met its burden to show that it fired Taylor for falsifying leads, she has demonstrated a triable issue that this reason was a pretext for retaliating against her.

19 expressed his disapproval of that practice--and has identified

Gibney as playing a part in that decision as well.

Presented with this direct and circumstantial evidence of

the decisionmakers’ animus toward Taylor because the medical

complications from her pregnancy required her to work from home

and, eventually, to go out on leave, a rational jury could find

that this animus, rather than information that she had fabricated

two leads, was the real motive for her termination. Indeed,

“[o]ne well-established method of demonstrating pretext is to

show that discriminatory comments were made by the key

decisionmaker or those in a position to influence the

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

(1st Cir. 2013) (overruling summary judgment for employer,

based on an asserted lack of evidence of pretext, where

plaintiff’s immediate supervisor repeatedly “exhibited her

resistance to accommodating [plaintiff’s medical condition]

through her words and conduct prior to” plaintiff’s termination).

There is also the undisputed fact, of course, that eCoast

fired Taylor just 10 days after she returned from leave. “While

temporal proximity on its own is insufficient to establish

pretext, it is relevant evidence that, combined with other facts,

may support such a finding.” Pagan-Colon,

. Here,

again, there are such “other facts,” in the form of expressions

20 of displeasure that Taylor had worked from home and taken leave

by some of the very same people who decided to fire her. On this

record, “a reasonable factfinder could find that [eCoast’s]

action against [Taylor] was a disingenuous overreaction to

justify dismissal of an annoying employee who asserted her rights

under the [FMLA and similar laws], rather than the firing of a

[dishonest] employee.” Kelley,

(quotation marks

and bracketing by the court omitted).

eCoast’s response to this evidence (aside from trying to

ignore it) is to emphasize that Taylor “falsified lead

information. This is contrary to longstanding policies and is a

terminable offense” (citation omitted). But Robitaille, eCoast’s

human resources manager, testified that the company’s standard

sanction for submitting a false lead was progressive discipline,

rather than immediate termination, and was unable to definitively

identify any employee besides Taylor who had been fired for such

an infraction without first being issued a performance

improvement notice. Nor did eCoast submit any other evidence,

such as another employee’s testimony, or personnel records,

showing that this had happened to anyone but Taylor.

eCoast argues that Robitaille’s testimony simply

demonstrates that whether “to terminate or put an employee on a

performance improvement plan is an individualized decision

21 depending on the circumstances.” But that is precisely the

point: eCoast had no policy or (so far as the summary judgment

record reveals) consistent practice that mandated an employee’s

immediate termination upon discovering that he or she submitted

falsified lead information. Instead, as eCoast states, the

company handled those situations as “individualized decision[s]

depending on the circumstances.” Given the evidence of

retaliatory animus on the part of those who made the decision to

fire Taylor--rather than imposing some lesser discipline--upon

receiving information that she had submitted falsified leads, a

rational jury could conclude that “the pre-existing retaliatory

motive tipped the scales when the company decided whether

[Taylor] had violated company policy in a way that required [her]

termination,” amounting to a violation of the FMLA and the other

statutes at issue here.9 Travers,

.

None of this is to deny that, of course, an employer is

entitled to fire an employee for dishonesty, see, e.g., Straughn

v. Delta Air Lines, Inc.,

(1st Cir. 2001), or

9 As Travers demonstrates, when retaliatory animus “tip[s] the scales” in an employer’s decision to take adverse action against an employee, that animus serves as the “but-for” cause of the adverse action.

(applying “but-for” causation standard for Title VII claims under Univ. of Tex. Sw. Med. Ctr. v. Nassar,

(2013)). Like the Court of Appeals in Travers, this court has assumed without deciding that this causation standard applies to Taylor’s non- Title VII claims.

22 that, after hearing the evidence in this case, a jury could

reasonably conclude that eCoast fired Taylor for just that

reason, rather than because of her pregnancy and the

accommodations it required. Again, though, the question here is

not whether a rational jury could find for eCoast, but whether a

rational jury could find for Taylor. See Travers,

.

Because a rational jury could do so, eCoast’s motion for summary

judgment must be denied.

IV. Conclusion

For the foregoing reasons, eCoast’s motion for summary

judgment13 is DENIED.

SO ORDERED.

____________________________ Joseph N. Laplante United States District Judge

Dated: August 5, 2014

cc: Benjamin T. King, Esq. Kerin Stackpole, Esq. Stephen J. Soule, Esq.

13 Document no. 17.

23