UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Rebecca Hopkins, Plaintiff

v. Case No. 12-cv-238-SM Opinion No.

ADP, Inc., Defendant

O R D E R

Pro se plaintiff, Rebecca Hopkins, brings this action

against her former employer, ADP, Inc., alleging that she was the

victim of gender and disability-based discrimination, in

violation of federal law. She also claims ADP unlawfully

terminated her employment and wrongfully refused to pay both

wages and bonuses to which she was entitled, all in violation of

state law. ADP denies any wrongdoing and moves for summary

judgment on each of the four counts advanced in Hopkins’

complaint. Hopkins objects and also moves for summary judgment.

For the reasons discussed, Hopkins’ motion is denied and ADP’s

motion is granted.

Standard of Review

When ruling on a motion for summary judgment, the court must

“view the entire record in the light most hospitable to the party

opposing summary judgment, indulging all reasonable inferences in that party’s favor.” Griggs-Ryan v. Smith,

(1st Cir. 1990). Summary judgment is appropriate when the record

reveals “no genuine dispute as to any material fact and the

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

P. 56(a). In this context, “a fact is ‘material’ if it

potentially affects the outcome of the suit and a dispute over it

is ‘genuine’ if the parties’ positions on the issue are supported

by conflicting evidence.” Int’l Ass’n of Machinists & Aerospace

Workers v. Winship Green Nursing Ctr.,

(1st

Cir. 1996) (citations omitted). Nevertheless, if the non-moving

party’s “evidence is merely colorable, or is not significantly

probative,” no genuine dispute as to a material fact has been

proved, and “summary judgment may be granted.” Anderson v.

Liberty Lobby, Inc.,

(1986) (citations

omitted).

The key, then, to defeating a properly supported motion for

summary judgment is the non-movant’s ability to support his or

her claims concerning disputed material facts with evidence that

conflicts with that proffered by the moving party. See generally

Fed. R. Civ. P. 56(c). It naturally follows that while a

reviewing court must take into account all properly documented

facts, it may ignore a party’s bald assertions, speculation, and

unsupported conclusions. See Serapion v. Martinez,

(1st Cir. 1997). See also Scott v. Harris,

, 380

2 (2007) (“When opposing parties tell two different stories, one of

which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that

version of the facts for purposes of ruling on a motion for

summary judgment.”).

This case is somewhat atypical in that, while Hopkins has

objected to ADP’s motion for summary judgment, she has not filed

an affidavit, deposition testimony, or other acceptable form of

documentary evidence or sworn testimony to support her version of

the facts. Although Hopkins is proceeding pro se (and has, for

that reason, been afforded a great deal of latitude in this

case), the court cannot consider statements or written materials

that have not been properly authenticated; when opposing a motion

for summary judgment, a party must rely upon material “that would

be admissible in evidence.” Fed. R. Civ. P. 56(c)(2).

Accordingly, the court must take as admitted the factual

statements recited in ADP’s motion, as supported by the attached

exhibits. See Local Rule 56.1(b) (“All properly supported

material facts set forth in the moving party’s factual statement

may be deemed admitted unless properly opposed by the adverse

party.”). See also Puerto Rico American Ins. Co. v. Rivera-

Vazquez,

(1st Cir. 2010) (discussing Puerto

Rico’s analog to Local Rule 56.1, also known as the “anti-ferret

rule,” and holding that, “This type of rule is aimed at enabling

3 a district court to adjudicate a summary judgment motion without

endless rummaging through a plethoric record. Given this root

purpose, we have held with a regularity bordering on the

monotonous that parties ignore the strictures of an ‘anti-ferret’

rule at their peril.”) (citations omitted).

Importantly, however, Hopkins’ failure to properly object

does not automatically entitle ADP to judgment as a matter of

law. The court must still determine whether the uncontested

facts presented by ADP, when viewed in the light most favorable

to Hopkins, entitle it to judgment as a matter of law. See,

e.g., Stonkus v. City of Brockton Sch. Dep’t,

(1st Cir. 2003).

Background1

Hopkins worked for ADP from 1985 to 1989, and again from

1993 until her employment was terminated in August of 2011.

After her return to ADP in 1993, she says she received the

“President’s Club” award in seven consecutive years for having

exceeded her assigned sales quota. In 2006, she claims to have

been awarded the “National Leadership Award.” Despite her

seemingly laudatory performance, Hopkins says she was the victim

1 Because Hopkins has not submitted an affidavit, the court has drawn some of the (largely non-material) background facts from her unverified complaint.

4 of gender-based discrimination, in that she was assigned

increasingly difficult and less desirable sales territories and

was “passed over” for promotion in favor of a less qualified male

employee.2 Hopkins also says that ADP miscalculated her sales,

causing her to miss quotas, fail to qualify for another

President’s Club award, and not receive year-end bonuses to which

she would have been entitled. Although she says she reported her

concerns through ADP’s “Ethics Hotline” in April of 2011, she

claims ADP did not follow up on her report.

Soon thereafter, in June of 2011, Hopkins says ADP offered

her a severance package. She responded to that offer in an e-

mail dated June 20, in which she again reported that she believed

she had been the victim of unlawful discrimination. It seems

that negotiations on Hopkins’ voluntary departure from the

company broke down and Hopkins then went out on medical leave.

Hopkins’ physician cleared her to return to work on July 28, but

she did not actually return to her job until approximately two

weeks later. In response, ADP invoked its corporate policy on

“Attendance and Punctuality” and fired Hopkins for “job

abandonment” - that is, for having failed “to call in or report

2 ADP points out that to say Hopkins was “passed over” for the promotion in favor of another employee is not entirely accurate. ADP posted notice of the vacant position on the company’s internal website (of which Hopkins was aware), yet Hopkins never applied for the position. See Hopkins Deposition at 157-58.

5 to work for two consecutive workdays.” Hopkins denies having

abandoned her job and says she kept her contact at the worker’s

compensation insurance carrier fully apprised of all information

provided by her physicians - including the fact that although she

had been orally released to return to work, that release was

subject to certain yet-to-be finalized conditions (which she says

she expected to receive in writing from her physician).

According to Hopkins, her discharge for “job abandonment” was

little more than a thinly veiled pretext for unlawful gender-

based discrimination and retaliation for her having taken time

off due to a work-related injury.3

Perhaps not surprisingly, ADP paints a completely different

picture - one of an employee who was an inconsistent performer

and the subject of several disciplinary reports for sub-standard

sales. Prior to her discharge, Hopkins’ performance had been

below her target quota for three consecutive years. See Verbal

Warning dated October 5, 2010 (document no. 16-4) (noting that

Hopkins’ year-to-date sales performance was at less than 70

percent of her target; she was averaging only 1.4 new sales

3 It bears repeating that Hopkins’ version of the relevant factual background leading up to her discharge is largely unsworn and speculative. The court discussed that fact with her (on the record, and at length) during the final pretrial conference on May 30, 2014. Yet, she has not supplemented her filings with an affidavit, nor has she drawn the court’s attention to specific portions of her deposition that support her version of the facts.

6 appointments per week against a goal of 5; and she had three

consecutive years with performance below her target quota).

And, says ADP, although Hopkins now points to instances

dating back 20 years during which she claims to have been the

victim of gender and/or age discrimination, she never reported

those alleged events in a timely manner. Instead, she raised

them only recently in her call to ADP’s “Ethics Hotline,” when

she realized she was under-performing, not meeting sales quotas,

and fearful that she might be fired. As to the allegations of

mistreatment and discrimination Hopkins made during her call to

the Ethics Hotline, ADP says each was thoroughly investigated and

none was found to have any merit. See Report of Mariza Hopkins

dated June 7, 2011 (document no. 16-6) (documenting the

investigation and factual findings that undermine each of

Hopkins’ allegations). And, finally, ADP says Hopkins failed to

keep it fully informed when she was cleared to return to work by

her physician yet remained out of work for approximately two

weeks longer than was medically necessary. From ADP’s

perspective that, apparently, was the last straw, and it invoked

Hopkins’ unexcused absence from work as grounds for her

dismissal.

7 Discussion

Hopkins advances four claims in her complaint: gender-based

discrimination (count one); disability-based discrimination

(count two); wrongful termination (count three); and a state

statutory wage claim (count four).

I. Wrongful Termination.

It is probably best to begin with a discussion of Hopkins’

weakest claim: the assertion that her employment was terminated

in violation of state law because she took “advantage of

something that public policy supports; that is, making

application for and receiving workers’ compensation when injured

on the job.” Complaint (document no. 1) at para. 68. The record

evidence does not support such a claim. In fact, at her

deposition, Hopkins testified that she did not believe she was

fired for having filed a workers’ compensation claim. See

Hopkins deposition (document no. 16-2) at 57 (deposition page

218). Consequently, as to count three of Hopkins’ complaint, ADP

is entitled to judgment as a matter of law.4

4 To be fair, it bears noting that, in advancing her wrongful termination claim, Hopkins stated that because she “has not received ADP’s internal communication or conducted discovery, she pleads this count in the alternative.”

8 II. Disability-Based Discrimination.

Similarly, there is simply insufficient evidence in the

record to support Hopkins’ claim that ADP regarded her as

disabled and discriminated against her on that basis. See

Plaintiff’s Answers to Interrogatories (document no. 16-13) at

11-17 (in a six-page discussion of the bases for her gender and

disability discrimination claims, Hopkins makes only a single

reference to her alleged (perceived) disability: “At the time I

was purportedly abandoning my job, I was out on workers’

compensation leave due to carpal tunnel syndrome and related

treatment. This gave the impression that I was disabled.”).

As a matter of law, that is insufficient to support her

claim of disability-based discrimination. See generally Roman-

Oliveras v. Puerto Rico Elec. Power Auth.,

(1st

Cir. 2011) (discussing the essential elements of a “regarded as

disabled” claim under the ADA). See also Ruiz Rivera v. Pfizer

Pharms., LLC,

(1st Cir. 2008). ADP is,

therefore, entitled to judgment as a matter of law as to that

claim (count two) as well.

III. Gender-Based Discrimination.

Much of the conduct about which Hopkins complains consists

of isolated, discreet acts of alleged gender-based discrimination

that occurred over the span of more than 20 years and are plainly

9 time-barred. See generally National R.R. Passenger Corp. v.

Morgan,

(2002) (“Discrete acts such as

termination, failure to promote, denial of transfer, or refusal

to hire are easy to identify. Each incident of discrimination

and each retaliatory adverse employment decision constitutes a

separate actionable unlawful employment practice. . . . only

those acts that occurred 300 days before [the date on which

plaintiff filed his charge of discrimination with the state

agency] are actionable.”). See also O’Rourke v. City of

Providence,

(1st Cir. 2001) (describing the

factors to consider when distinguishing between a continuing

violation of Title VII and discrete, unrelated acts of

discrimination). Here, Hopkins filed her charge of

discrimination on December 28, 2011. Consequently, only those

acts of discrimination occurring on or after March 3, 2011, are

actionable.

With regard to timely acts of alleged gender-based

discrimination, Hopkins points to a deal with N.H. Industries.

See Hopkins Answers to Interrogatories (document no. 16-13) at 15

(page 6 of 9). Although her account of the transaction is

somewhat confusing, she seems to allege that management

purposefully deprived her of credit for a sale to which she was

entitled, and instead credited that sale to a less experienced

male colleague. She says she was given three different

10 (conflicting) explanations for why the sale was credited as it

was - suggesting that ADP’s proffered explanations were

pretextual and the real reason was gender discrimination.

Hopkins also points to the fact that she was disciplined for

“inconsistent performance,” despite having very recently met 157

percent of her sales target.5 She also points to the temporal

proximity between her call to ADP’s “Ethics Hotline” (in which

she complained of discrimination) and the termination of her

employment for “job abandonment.”

Perhaps understandably (because Hopkins is proceeding pro

se), the record evidence in support of her discrimination claim

is thin and consists almost entirely of speculation. See, e.g.,

Hopkins’ Deposition at 132 (stating that gender-based

discrimination is “the only thing that makes sense” to explain

why she did not receive a particular bonus). See also Id. at 187

(stating again that gender-based discrimination is “the only

thing that makes sense” to explain her not having been offered a

job for which she had applied). Applying the McDonnell-Douglas

5 It appears that Hopkins is referring to the fact that in July of 2010, she recorded sales that were nearly 160 percent of her target for that month (and the fiscal year, which appears to begin in July). But, just three months later, in September of 2010, she had dropped to zero percent of her monthly target, and just 69 percent of her annual target. Presumably, that is why ADP labeled her performance as “inconsistent.”

11 burden-shifting analysis, Hopkins evidence is simply insufficient

to avoid summary judgment. See generally McDonnell Douglas Corp.

v. Green,

(1973).6

The court will assume that Hopkins has pointed to sufficient

admissible evidence to make out a prima facie claim of gender-

based discrimination. See Smith v. Stratus Computer, Inc.,

(1st Cir. 1994). ADP has, in turn, proffered a

legitimate non-discriminatory reason for its decision to

terminate Hopkins’ employment: Her failure to call in or report

to work for approximately 2 weeks after she had been medically

cleared to return. See generally LeBlanc v. Great Am. Ins. Co.,

(1st Cir. 1993). Thus, the burden reverts to

Hopkins, who must demonstrate that the non-discriminatory reason

given by ADP was false and a mere pretext for unlawful gender-

based discrimination. See St. Mary’s Honor Ctr. v. Hicks,

(1993). See also LeBlanc,

. To

carry that burden, Hopkins must produce “not only minimally

sufficient evidence of pretext, but evidence that overall

6 The Supreme Court’s decision in Desert Palace, Inc. v. Costa,

(2003), has given rise to some uncertainty as to whether the McDonnell-Douglas analysis remains valid. See Gatsas v. Manchester School Dist.,

at *4 n. 3 (D.N.H. Nov. 7, 2006). But, as the court of appeals has noted, “in Raytheon Co. v. Hernandez,

(2003), the Supreme Court used the McDonnell-Douglas framework without commentary in a post-Desert Palace case.” Hillstrom v. Best Western TLC Hotel,

(1st Cir. 2003).

12 reasonably supports a finding of discriminatory animus.” Id., at

843 (citation and internal quotations omitted). Importantly, she

“may not simply refute or question the employer’s reasons. To

defeat summary judgment at this stage, a plaintiff must produce

evidence that the real reason for the employer’s actions was

discrimination.” Gadson v. Concord Hosp.,

(1st

Cir. 1992). See also Desert Palace,

(holding

that the plaintiff must “present sufficient evidence for a

reasonable jury to conclude, by a preponderance of the evidence,

that race, color, religion, sex, or national origin was a

motivating factor for any employment practice”) (internal

quotation marks omitted).

Aside from Hopkins’ speculation that gender-based

discrimination must have been a motivating factor behind her

dismissal because “it’s the only thing that makes sense,”

Hopkins’ deposition at 132 and 187, or because “it just seems

obvious,”

, she has pointed to insufficient evidence

to support such a claim. Instead, the undisputed evidence of

record shows that: Hopkins did not notify ADP when her physician

cleared her to return to work; she failed call in or report to

work within two days of having received medical clearance to do

so; ADP has a written policy that subjects employees to discharge

if they fail to call in or report to work for two consecutive

13 workdays; and ADP invoked that policy and applied it to Hopkins

in a non-discriminatory manner.

To be sure, ADP may have reacted in what, on this record,

appears to be an overly harsh manner that lacked empathy. ADP

may have even made what some might consider an incorrect business

decision in terminating Hopkins’ employment-at-will. But, as

Hopkins’ employer, it was entitled to do so - provided, of

course, that it acted without unlawful discriminatory bias. Even

if ADP mistakenly thought Hopkins had “abandoned” her job (as

Hopkins says), an employer is entitled to be wrong, provided it

“has an honest belief in its proffered non-discriminatory reason

for discharging an employee.” Majewski v. Automatic Data

Processing, Inc.,

(6th Cir. 2001). As the

Court of Appeals for the Tenth Circuit has observed:

Under McDonnell Douglas, our role isn’t to ask whether the employer’s decision was wise, fair or correct, but whether it honestly believed the legitimate, nondiscriminatory reasons it gave for its conduct and acted in good faith on those beliefs.

That individuals and companies sometimes make employment decisions that prove to be bad ones in hindsight usually suggests no more than that — that they got it wrong. To support an inference of pretext, to suggest that something more nefarious might be at play, a plaintiff must produce evidence that the employer did more than get it wrong. He or she must come forward with evidence that the employer didn’t really believe its proffered reasons for action and thus may have been pursuing a hidden discriminatory agenda. This is because Title VII licenses us not to act as a “super personnel department” to undo bad

14 employment decisions; instead, it charges us to serve as a vital means for redressing discriminatory ones.

Johnson v. Weld County, Colo.,

(10th Cir.

2010) (citations and internal punctuation omitted).

Hopkins claim of gender-based discrimination (count one)

fails under McDonnell Douglas, and ADP’s motion for summary

judgment must, necessarily, be granted.

IV. State Law Wage Claim.

As with her gender-based discrimination claim, Hopkins’

claim that she was unlawfully denied wages to which she was

entitled is insufficiently supported by admissible evidence.

Although she testified at her deposition that she believes ADP

knowingly and purposefully miscalculated her commissions, or

credited her sales to other employees, or credited those sales to

her but in later quarters (to preclude her from making her sales

quota and receiving a performance bonus) she has not supported

those claims with sales reports, commission reports, or the like.

Without more, her claimed entitlement to unpaid wages is little

more than rank speculation.

On this record, there is simply insufficient evidence to

support a viable claim under New Hampshire’s wage law, N.H. Rev.

Stat. Ann. ch. 275. Consequently, ADP’s motion for summary

15 judgment as to Hopkins’ wage claim (count four) must,

necessarily, be granted.

Conclusion

For the foregoing reasons, defendant’s motion for summary

judgment (document no. 16) is granted, and plaintiff’s motion for

summary judgment (document no. 52) is denied. The Clerk of Court

shall enter judgment in accordance with this order and close the

case.

SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

June 18, 2014

cc: Rebecca Hopkins, pro se Debra W. Ford, Esq. Martha Van Oot, Esq.

16