Summary
In Yenush v. Pioneer Group, Inc., 2004 WL 187385 at *2 (D. Mass. 2004), the employee received a written warning from Pioneer, the employer.
Summary of this case from Colón v. Medtronic, Inc.Opinion
CIVIL ACTION NO. 02-11379-DPW
January 22, 2004
MEMORANDUM AND ORDER
Plaintiff Leanne Yenush brings this action against defendant Pioneer Investment ("Pioneer") alleging (i) unlawful discrimination on the basis of sex and/or race in violation of 42 U.S.C. § 2000e-2 ("Title VII") and Mass. Gen. Laws. ch. 151B ("Chapter 151B") and (ii) libel. The claims arise out of Yenush's allegation that defendant issued an unwarranted written performance warning to her as a result of her open, long-term interracial relationship. Defendant has moved for summary judgment on both counts. Because, as set forth more fully below, plaintiff has failed to adduce any evidence of a trialworthy issue, I will grant defendant's motion.
Yenush filed her complaint against "Pioneer Group, Inc. d.b.a. Pioneer Investments," but defendant notes the correct name of the company is Pioneer Investment Management Shareholder Services, Inc.
I. BACKGROUND
A. Facts
Unless otherwise indicated, the following facts are undisputed. Yenush began working for Pioneer in March 1987. She initially started in a clerical position but was promoted up through the ranks, eventually becoming a Division Manager of Operations. For a period of over seven years during her employment with Pioneer, Yenush, a White woman, was very open about her romantic relationship with Arlen Brooks, a Black man. Yenush kept a picture of herself and Brooks on her desk for several years prior to and including 2001.
On three separate occasions during her employment with Pioneer, coworkers of Yenush made internal company complaints that Yenush had engaged in discriminatory conduct. The first complaint was made in 1992 by Nordia Craig, a Black woman, who worked in the same department as Yenush. After an investigation, Yenush received a written warning, dated September 2, which stated:
The date on the warning is "September 2, 192," which I assume is a typographical error and should have been 1992.
[I]t was brought to my attention that on two occasions, most recently 9/1/92, you made remarks about Nordia which were threatening and discriminatory. This type of behavior is defined as harassment. Pioneer has a legal responsibility to protect all employees from jeopardy and expressly prohibits any type of harassment, whether it is direct or indirect.
The second complaint against Yenush was made in April 2001 by one of the employees Yenush supervised, Maureen Kelly. In response to Kelly's concerns that she would be fired, Yenush stated that she could not be fired because Kelly was a lesbian, over 40, and a woman and therefore Pioneer would need quite a bit of paperwork to fire her. After an investigation, a second written warning was issued to Yenush, on April 19, 2001, which stated:
In a discussion with an employee you manage, Maureen Kelly, you made an inappropriate comment relating to gender, age, and sexual orientation in response to her query to you about her job performance.
Not only did your response seriously detract from the positive, non-discriminatory environment we are committed to, but is a violation of company policy and will not be tolerated. Furthermore, this damages your credibility as a senior manager in that you are expected to set and adhere to a high standard of professionalism.
Please be clear that you will be subject to further disciplinary action, up to and including termination, should you not behave in accordance with Pioneer's anti-harassment and sexual harassment policies.
The third complaint against Yenush, which forms the basis for her complaint, was made by Robin Lewis, a Black woman, who reported directly to Yenush. Lewis accused Yenush of favoring Black male employees. After an internal investigation, Pioneer issued a third written warning, dated May 31, 2001 that stated:
At this time, you are being placed on a written warning. As a result of a recent investigation of an employee complaint, several issues about your conduct as a manager were brought to my attention.
The behaviors, decisions, and actions that are specifically at issue are:
— Using inconsistent criteria when coaching and directing your managers on employee performance issues.
— Potentially creating a climate of favoritism by loaning an employee money as a personal favor.
— Creating an uncomfortable environment by using unprofessional language/expressions in meetings with your direct reports.
Your behavior, actions, and decisions as a PIMSS senior manager have far-reaching consequences and ramifications with the potential to create significant risk and liability for our organization. . . .
Any further incidents of this nature, or incidents that are indicative of poor judgment, will result in additional disciplinary action up to and including termination of your employment.
In June 2001, Yenush took leave pursuant to Pioneer's Family and Medical Leave Act("FMLA") policy, which provided twelve weeks of protected leave. In a letter to Yenush dated August 23, 2001, Lisa Lamere, the Benefits Manager in Pioneer's Human Resources department, stated that Yenush's 12-week protected leave was set to end on August 31, 2001 and asked Yenush to call Lamere to discuss her anticipated return to work. The letter further stated: "In the event that you are unable to return to work after the conclusion of your FMLA leave, the Company will no longer be obligated by that statute to restore you to the same or an equivalent position to that which you held prior to your leave." Lamere also requested further information about Yenush's medical condition from her doctor so that Pioneer could assess its obligations under the Americans with Disabilities Act and provided Yenush some information about the company's long-term disabilities plan. On August 30, 2001, Yenush's doctor faxed a letter to Pioneer stating that Yenush was in "active treatment" and was unable to return to work at that time. As a result, Pioneer extended Yenush's medical leave beyond the 12-week period, and Yenush continued to receive short-term disability pay.
Yenush alleges that the May 31 warning caused her to become so "emotionally ill" that she had to take a leave of absence (see infra § I.B).
Lamere sent Yenush a second letter, dated October 19, 2001, which stated:
At this time we are in need of additional information in order to verify that you continue to be eligible for the 60% salary benefit under Pioneer's Short-Term Disability Plan. Please direct your doctor to provide the Company with documentation describing for us your medical condition, including its nature, severity, and expected duration, as well as information regarding if and when you will be able to return to work.
The letter asked Yenush to provide the requested information no later than October 31, 2001.
Yenush's doctor cleared her to return to work on November 2, 2001, but Yenush did not seek to return to Pioneer and never inquired of anyone at Pioneer whether her position had been filled. She brought this case in July 2002.
In her complaint, Yenush alleged that Pioneer "indicated to Yenush that she ought not bother reapplying to her former position." In her deposition, however, Yenush testified that she did not contact anyone at Pioneer because after checking Pioneer's internal website for positions to which she could "post" she concluded that there were no open positions for her.
B. Allegations
In her complaint, Yenush alleges that Pioneer discriminated against her "because of Yenush's sex/gender, and/or because of Yenush's race." Moreover, she contends that the warning "had the purpose or effect of unreasonably interfering with Yenush's work performance and/or they created an intimidating, hostile, and/or offensive working environment because of Yenush's sex and race." Yenush contends that although the May 31 warning does not mention race or sex, it was understood that the actual basis for the warning was the conclusion that Yenush was favoring her black male subordinates. Thus, in issuing the warning, Yenush alleges that Pioneer substantially adopted and ratified Lewis's claim of discrimination and also that Pioneer " directly stereotyped Yenush on account of her known relationship with a black man" (emphasis in original). In other words, Yenush alleges that "Pioneer illegally concluded and/or perceived, directly and/or through adoption/ratification, that any white woman who lives with a black man must necessarily have a bias towards black men, and the same constitutes illegal stereotyping of Yenush because of her race and her sex" (emphasis in original).
In her complaint, Yenush refers to the "acts" of Pioneer as the relevant discriminatory and libelous conduct. She made clear in her deposition testimony that the May 31 warning was the underlying conduct at issue in this case.
Yenush further alleges that the "illegal stereotyping and libeling" in the May 31 warning, "when combined with Yenush's superb record of achievement with Pioneer, directly and proximately caused Yenush shortly thereafter to become so emotionally ill that she had to take a leave of absence from her employment with Pioneer, then seeking medical help." Thus, she concludes that Pioneer's conduct was the direct and proximate cause of Yenush's termination.
Finally, Yenush alleges in her libel claim that the May 31 warning was defamatory in that it "tended to hold Yenush up to contempt, hatred, scorn, and/or ridicule, and further tended to impair her standing in the Pioneer community, and elsewhere."
II. DISCUSSION
A. Standard of Review
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A party seeking summary judgment must make a preliminary showing that no genuine issue of material fact exists. Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995), cert. denied, 515 U.S. 1103 (1995). Once the movant has made such a showing, the nonmovant must point to specific facts demonstrating that there is, indeed, a trialworthy issue. Id.
A fact is "material" if it has the "potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000), and a "genuine" issue is one supported by such evidence that "'a reasonable jury, drawing favorable inferences,' could resolve it in favor of the nonmoving party."Triangle Trading Co., Inc. v. Robroy Indus., Inc., 200 F.3d 1, 2 (1st Cir. 1999) (quoting Smith v. F.W. Morse Co., Inc., 76 F.3d 413, 427 (1st Cir. 1996)). "[C]onclusory allegations, improbable inferences, and unsupported speculation," are insufficient to establish a genuine dispute of fact.Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990).
B. Discrimination Claims (Counts I and II)
The analytical framework of the Title VII "pretext" model set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and inTexas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) entails a three-step analysis consisting of a shifting allocation of evidentiary burdens. In the first step, the plaintiff has the initial burden of establishing a prima facie case by showing: (1) she is a member of a protected class protected; (2) she performed her job satisfactorily; (3) her employer took an adverse employment decision against her; and (4) her employer continued to have her duties performed by a comparably qualified person. Santiago-Ramos, 217 F.3d at 54. Once the employee has established a prima facie case, a burden of production shifts to the employer to articulate a valid nondiscriminatory reason for the adverse employment action. Thomas v. Eastman Kodak Co., 183 F.3d 38, 56 (1st Cir. 1999), cert. denied, 528 U.S. 1161 (2000). If the employer offers such a reason, the inference of discrimination created by the prima facie case fades away. Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 39 (1st Cir. 2003). The burden thus shifts back to the plaintiff who bears the ultimate burden of proof of showing that the employer's proffered reason is mere "pretext" for unlawful discrimination, Thomas, 183 F.3d at 56, and a showing of pretext can be sufficient for a jury to infer discriminatory animus. Che, 342 F.3d at 39.
The parties agree that the applicable standards under Title VII and Chapter 151B are, for present purposes, identical. Thus, my analysis is framed in terms of the federal statute and case law, but it is equally applicable to both Counts I and II.
I am not altogether convinced that the May 31 warning constitutes an actionable adverse action under Title VII. See Blackie v. State of Me., 75 F.3d 716, 725 (1st Cir. 1996) (for adverse employment decision "employer must either (1) take something of consequence from the employee, say, by discharging or demoting her, reducing her salary, or divesting her of significant responsibilities or (2) withhold from the employee an accouterment of the employment relationship, say, by failing to follow a customary practice of considering her for promotion after a particular period of service" (internal citations omitted)); see also Estades Negroni v. Assocs. Corp of N. Am., 208 F. Supp.2d 144, 148 (D.P.R. 2002) (upholding trial court determination that plaintiff did not establish prima facie case for ADEA claim where she went on paid disability leave and subsequently voluntarily cancelled her long-term disability benefits, which ended her employment). However, because making out a prima facie case is "not onerous," Simas v. First Citizens' Federal Credit Union, 170 F.3d 37, 44 (1st Cir. 1999), and because this issue was not briefed by either party, I will assume for the purposes of this motion that the warning properly constituted an adverse action.
Also, insofar as Yenush's complaint contains allegations of hostile work environment, I find that she has not demonstrated a viable hostile work environment claim. An employer can be liable for a hostile work environment if, among other things, the alleged harassment was severe or pervasive. See Che v. Mass. Bay Transp. Auth., 342 F.3d 31, 40 (1st Cir. 2003); Marrero v. Goya of P.R., Inc., 304 F.3d 7, 26 (1st Cir. 2002). I find that no reasonable juror could conclude the May 31 warning constituted such harassment.
Here, Yenush has not adduced sufficient evidence to survive summary judgment that Pioneer's proffered reason for the May 31 warning was pretextual. Pioneer has offered legitimate, nondiscriminatory reasons for the warning. In fact, the reasons for the warning are set forth in the warning itself: (1) using inconsistent criteria in her supervising role, (2) potentially creating a climate of favoritism by loaning an employee money, and (3) using unprofessional language and expressions. Yenush has not offered any evidence that these reasons were pretextual.
One way of demonstrating pretext is "by showing that the employer's proffered explanation is unworthy of credence." Che, 342 F.3d at 39 (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)). Here, however, while Yenush alleges in conclusory fashion that Pioneer's proffered reasons for the May 31 warning were false and pretextual, she offers no factual support for such a contention. In fact, Yenush admitted in her deposition testimony that the conduct underlying the warning did in fact occur — namely, she conceded that she had terminated Sandy Preval for holding onto checks but did not terminate Anthony Durrell for similar conduct, that she had loaned one of the employees she supervised $50, and that she on occasion swore at meetings.
To be sure, Yenush contests whether this conduct was proper grounds for the warning. For example, she states that treating Preval and Durrell differently was not inconsistent because in Preval's case, unlike in Durrell's, she was following direct orders to terminate Preval and did not know the specific circumstances of the situation. But this simply recasts the issue as acting inconsistently with the manner in which her supervisors believed misfeasance should be handled. Yenush also states that she thought lending her supervisor money was appropriate because it was for eyeglasses that would improve his work performance. But it is for the company not an employee to establish standards for financial benefits delivered by supervisors. In short, Yenush's disagreement with Pioneer's decision to issue the warning, however well-founded, does not cast sufficient doubt on Pioneer's contention that the conduct in fact formed the basis for the warning.
Additionally, Yenush provides three possible alternative explanations for the warning that she contends create a triable jury issue as to pretext. First, she alleges that Pioneer's issuance of the warning was based directly on the fact that she was involved in an interracial relationship. Second, she contends that Pioneer issued the warning to placate Lewis, out of fear that Lewis would sue Pioneer for discrimination. Third, Yenush alleges that Pioneer issued the warning because of her relationship with Brooks.
I find, however, that Yenush has not adduced any evidence to support these explanations — much less to show that they are more plausible as explanations for the warning than the one Pioneer has offered. She bases the explanations solely on conclusory allegations, speculation, and inferences. For instance, she contends that a jury could find that Pioneer's reason for the warning was not the one Pioneer offers but rather was Pioneer's stereotyped belief that because she had a Black boyfriend she favored Black male employees. Setting aside the underlying question of whether such a contention if true would be the basis for a valid Title VII claim, a question about which I have serious doubts but one I need not reach here, Yenush provides no factual basis for the inference that Pioneer acted on such a basis. In short, Yenush argues that because there are possible alternative explanations, a jury should decide whether Pioneer's proffered reasons were pretextual. Given Yenush's testimony conceding that she engaged in the conduct mentioned in the warning and given the utter lack of evidence to support her alternative hypotheses, I disagree. Thus, I find that Yenush has not demonstrated a genuine issue of material fact as to the pretext issue, and accordingly, I will grant Pioneer's motion for summary judgment as to the discrimination claims.
I note that even had she provided factual support for the second explanation, it would not form the basis of a valid discrimination claim because the basis for the warning would be Pioneer's attempt to avoid litigation, not anyone's race or sex.
I also note that the fact that the May 31 warning does not explicitly mention discrimination at all — indeed, Pioneer concluded, after the investigation, that Yenush had not violated the company's anti-discrimination policy — and the fact that Yenush had been twice warned previously about discriminatory conduct weighs against the inferences Yenush now presses.
C. Libel (Count III)
To prevail on a libel claim under Massachusetts law, a plaintiff must show that the defendant made a "false and defamatory written communication of and concerning the plaintiff." McAvoy v. Shufrin, 401 Mass. 593, 597 (1988). Here, whether the May 31 performance warning contained false defamatory information is properly in dispute and would be a trialworthy issue. Pioneer contends, however, that because Pioneer gave Yenush the performance warning in the context of their employment relationship, its issuance of the warning is protected by a conditional privilege. As a result, Pioneer argues, the warning cannot not constitute a viable basis for a libel claim — and summary judgment is warranted — unless Yenush can offer sufficient evidence that Pioneer abused that privilege. I find that Yenush has not adduced any such evidence.
1. Conditional Privilege
One possesses a conditional privilege to publish defamatory material if "the publication is reasonably necessary to the protection or furtherance of a legitimate business interest." Bratt v. Int'l Bus. Machs., Corp., 392 Mass. 508, 512-13. Such a conditional privilege applies to situations in which the communication at issue was made by an employer and concerned the performance of an employee. See id. at 509 ("An employer has a conditional privilege to disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job."); Anderson v. Boston Sch. Comm., 105 F.3d 762, 766 (1st Cir. 1997) (principal's performance evaluations of teacher were protected by conditional privilege). Such cases control here, and accordingly, I conclude that Pioneer was conditionally privileged in issuing Yenush the performance warning.
Where a conditional privilege applies to an allegedly libelous communication, the truth or falsity of the communication is immaterial.Sheenan v. Tobin, 326 Mass. 185, 190 (1950). Rather, the only question is whether the conditional privilege was forfeited because it was abused,Bratt, 392 Mass, at 514, and the plaintiff bears the burden of demonstrating such abuse. Id. at 192.
2. Abuse of the Privilege
A holder of a conditional privilege abuses it by acting with actual malice or through "unnecessary, unreasonable or excessive publication of the defamatory matter." Catrone v. Thoroughbred Racing Assocs. Of N. Am., 929 F.2d 881, 891 (1st Cir. 1991) (quoting Galvin v. New York, N.H. H.R. Co., 341 Mass. 293 (1960)). Yenush has not adduced any evidence that Pioneer harbored any actual malice in issuing the performance warning or that the warning was published unnecessarily, unreasonably or excessively. The warning was only seen by Pioneer management, Yenush, and the human resources department. Moreover, while Yenush's has alleged that "Pioneer knowingly acted with malice and/or in bad faith in publishing [the warning] and/or they acted with reckless disregard as to the truth or falsity of [the warning]," such conclusory assertions, unsupported by any factual evidence, are not sufficient to defeat summary judgment. And even assuming her allegation that "at least one of the reasons given for Pioneer's discipline as against Yenush was false," is true, it is not enough to demonstrate that Pioneer issued the warning without a reasonable basis for forming a belief in the truth of the reasons. See Catrone, 929 F.2d at 891. Accordingly, I find that Yenush has not sufficiently shown that Pioneer abused its conditional privilege to publish the warning, and I dismiss the libel claim.
III. CONCLUSION
For the reasons set forth more fully above, Pioneer's motion for summary judgment is GRANTED.