New England Biz Law Update
The federal suit was brought by the plaintiff after her job at Tiffany and Co.’s manufacturing facility in Rhode Island was eliminated.
Weighing a plaintiff’s disability discrimination and FMLA retaliation claims under the McDonnell Douglas burden-shifting paradigm, a federal judge in Rhode Island has determined they cannot withstand the defendant employer’s motion for summary judgment.
The suit was brought by Lisa O’Rourke after her job at Tiffany and Co.’s manufacturing facility in Cumberland was eliminated. In bringing her federal claims, O’Rourke maintained that the personnel actions taken by the company’s vice president of manufacturing, Wayne Howard, were related to her FMLA-protected medical leave.
But U.S. District Court Judge William E. Smith agreed with Tiffany that there were weaknesses in the plaintiff’s case.
Regarding her claim for disability discrimination under the Americans with Disabilities Act, a critical factor was that Howard, the “ultimate decision maker” in the elimination of the plaintiff’s position, had no knowledge of her purported disability.
“More specifically, Howard testified that he knew plaintiff had exercised her FMLA rights for ‘a medical health issue’ but that he ‘didn’t know the specifics,’” Smith wrote.
Concerning the plaintiff’s FMLA retaliation count, Smith said he saw no evidence that the “legitimate, nondiscriminatory reason” given by the company for the elimination of O’Rourke’s position was pretextual, and that the plaintiff did not create a genuine issue of material fact as to whether she was discriminated against based on her exercise of FMLA rights.
The 29-page decision is O’Rourke v. Tiffany and Company.
Thomas M. Dickinson and Kathleen M. Hagerty are representing the plaintiff, and Stacie B. Collier is counsel for the defendant. In light of the plaintiff’s filed appeal, the Rhode Island lawyers declined to comment on Smith’s decision.
Leaves of absence
After working at Tiffany’s manufacturing facility for several years, O’Rourke by 2014 had been promoted to director of purchasing and planning, reporting to the group director, Mary Messier.
However, that year O’Rourke learned that she was a carrier of the BRCA2 gene mutation, which correlates with an increased risk of breast and ovarian cancer. To mitigate that risk, she had two surgeries, for which she took a 17-week FMLA leave of absence from her job in 2014.
During that time, Tiffany hired Wayne Howard to serve as vice president of manufacturing, a position two levels above the plaintiff and the direct supervisor of Messier.
After the plaintiff returned to work in May 2014, Howard began to question her job performance. He had identified Tiffany’s planning function, overseen by Messier and O’Rourke, as an “area of weakness” for the company.
Nonetheless, the plaintiff was rated as an employee who “frequently exceeds expectations” for calendar year 2013.
The plaintiff took a second leave for follow-up reconstructive surgery in July 2014. Although she had already exhausted her FMLA entitlement for the year, she was advised by human resources that her job would be protected.
Howard implemented a reorganization at the end of 2014, and O’Rourke’s job title was changed to director of strategic sourcing. Planning responsibilities shifted to a new hire, and the plaintiff continued to report to Messier.
After Howard expressed his concern over “inventory issues” and “management issues with [O’Rourke’s] direct reports,” Messier downgraded the plaintiff’s ranking in her 2014 performance review.
By fall 2015, Howard had planned a further restructuring of the plaintiff’s department. Two days after Howard sent an email to HR announcing his decision to eliminate the plaintiff’s position, she emailed the company of her intention to take another FMLA leave in 2016 to address complications from her prior surgeries.
About a month later, at Howard’s instruction, Messier informed the plaintiff that her position was being eliminated and said she could take a newly created, lower-level position or accept the standard severance package.
The plaintiff rejected both options and her employment officially ended on Nov. 13, 2015. In filing the present action against Tiffany, she claimed disability discrimination and retaliation in violation of the FMLA.
The defendant moved for summary judgment.
No knowledge of disability
Granting the defendant’s motion as to all counts, Smith concluded that O’Rourke did not establish a prima facie case of disability discrimination pursuant to the McDonnell Douglas burden-shifting framework.
The judge did not reach the novel question of whether the plaintiff could be deemed “disabled” under the federal statutes in light of her “anatomical loss” from her preventative surgeries, because she was not able to connect any disability to her termination.
Smith did not reach the novel question of whether the plaintiff could be deemed “disabled” under the federal statutes in light of her “anatomical loss” from her preventative surgeries, because she was not able to connect any disability to her termination.
“Under the … prima facie analysis, plaintiff must put forth evidence that she was ‘discharged in whole or in part because of [her] disability,’” Smith explained. “A critical piece of this causal nexus is that the decision-maker has knowledge of an employee’s disability prior to discharge.”
On that front, Smith noted that Howard expressly testified that he had no knowledge that the plaintiff was a carrier of the BRCA2 gene mutation while they worked together.
The judge was not convinced by O’Rourke’s contention that a jury could infer that Howard, in light of company conference calls and emails about her second leave request, was aware of her purported disability at the time he formulated his plan to fire her.
Smith pointed out that Messier, the person with knowledge of the plaintiff’s medical condition, testified that she did not discuss the specific reason for the leaves of absence with her superiors.
“Even in the light most favorable to plaintiff, these facts taken together are not sufficient to dispute Howard’s ignorance about her alleged disability — at most, they indicate that Howard and other Tiffany personal were aware that plaintiff had requested FMLA leave for ‘medical’ reasons,” he wrote.
No pretextual ‘pattern of behavior’
As for the second count, Smith concluded that even if O’Rourke had met her burden of making out a prima facie case of FMLA retaliation, Tiffany had set forth a legitimate, non-discriminatory reason for the plaintiff’s termination: that her position was eliminated because it was inefficient and redundant to have a director reporting to a group director in a department of four people.
And critically, Smith continued, the plaintiff could not produce sufficient evidence to demonstrate that the company’s articulated reason “was a pretext for discrimination and that the real reason for the termination was discriminatory animus.”
He emphasized that to show pretext, a plaintiff “must elucidate specific facts which would enable a jury to find that the reason given is not only a sham, but a sham intended to cover up the employer’s real motive.”
The plaintiff’s contention that a “pattern of behavior” evidenced Howard’s discriminatory motive did not rise to that level, Smith found.
For example, as for the plaintiff’s complaint that Howard questioned her 2014 attendance record, Smith wrote that even if true, there was no evidence that those inquiries were related to O’Rourke’s FMLA leave, as opposed to other absences she had taken throughout the year.
Smith likewise did not give weight to a 2014 email from Howard describing the plaintiff’s second leave of absence as “unfortunate.”
“Plaintiff’s second leave cannot form the basis for her FMLA retaliation claim because she had already exhausted her FMLA entitlement,” Smith wrote. “Further, even if the court reads this comment in relation to her [first] leave, it would be purely speculative to infer any causal connection between that comment and the elimination of plaintiff’s position sixteen months later, and plaintiff has not pointed to any evidence in the record to support such an inference.”
He further was not persuaded by O’Rourke’s assertions that pretext was shown by Howard setting her up in a director position only to determine months later that the job was redundant; by blaming the plaintiff for a subordinate’s resignation; and by insisting that Messier reduce the plaintiff’s rating on her 2014 performance evaluation.
Finally, Smith was not moved by the plaintiff’s claims that pretext was demonstrated by Howard’s decision to offer her the lower-level job in lieu of termination, as the job was newly created.
“Tiffany did not try to hide that it was eliminating plaintiff’s position — indeed, it offered her the choice between accepting a lower-level position or accepting the standard severance package at the same time,” the judge wrote. “[T]he fact that Tiffany offered plaintiff a lower-level position that did not yet exist is not particularly relevant to assessing the ‘real reason’ her position was eliminated.”
Based on his analysis, Smith concluded that the facts were not sufficient to raise a genuine issue of material fact as to whether O’Rourke was discriminated against based on her exercise of FMLA rights and granted summary judgment in favor of Tiffany.
