Katz v. Organogenesis, Inc.

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

SUSAN KATZ, *

*

Plaintiff, *

*

v. * Civil Action No. 17-cv-11595-ADB

*

ORGANOGENESIS, INC., *

*

Defendant. *

MEMORANDUM AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY

JUDGMENT

BURROUGHS, D.J.

In this employment discrimination suit, Plaintiff Susan Katz alleges that her former

employer, Defendant Organogenesis, Inc. (“Organogenesis”), discriminated against her in

violation of federal and state law and terminated her based on her disabilities and her use of

Family and Medical Leave Act (“FMLA”) leave. [ECF No. 1-1 (“Complaint” or “Compl.”)].

Currently pending before the Court is Organogenesis’ motion for summary judgment. [ECF No.

28]. For the reasons set forth below, summary judgment is GRANTED in favor of

Organogenesis.

I. BACKGROUND

A. Factual Background

The following facts are either uncontroverted pursuant to Federal Rule of Civil Procedure

56 and Local Rule 56.1 or stated in the light most favorable to Ms. Katz, the non-movant.1

1 The Court notes that while Ms. Katz purports to controvert portions of the Defendant’s

Statement of Undisputed Facts (“SOF”), at times she fails to cite any record evidence in support

of her position. Controverted facts must be supported by reference to record evidence. See LR,

D. Mass 56.1 (“A party opposing the motion shall include a concise statement of the material

facts of record as to which it is contended that there exists a genuine issue to be tried, with page

Organogenesis is a pharmaceutical manufacturer that is subject to oversight by the Food

& Drug Administration (“FDA”) and must comply with the FDA’s Current Good Manufacturing

Practice regulations. [ECF No. 30 (“SOF”) ¶ 2]. Organogenesis works to comply with these

regulations by ensuring that preventive maintenance tasks on its equipment are carried out in a

timely manner and according to standard operating procedures (“SOPs”). [SOF ¶ 3].

Preventative maintenance and calibration tasks are tracked using a computerized maintenance

management system (“CMMS”). [SOF ¶¶ 5–6]. Staff must complete a written analysis of any

error, referred to as “deviations,” such as a missed preventative maintenance task. [SOF ¶ 9]. If

more than two related deviations occur, the standard practice is to initiate a “CAPA” (a

“corrective action preventive action” or “corrective and preventive action”) to analyze the root

cause. [SOF ¶ 10].

Ms. Katz was hired by Organogenesis in 2001 as a Facilities Coordinator to help

administer the CMMS for preventive maintenance, which was known as “MP2.” [SOF ¶¶ 11–

12]. On March 13, 2006, Ms. Katz was promoted to Senior Facilities Coordinator, but her

responsibilities largely stayed the same. [SOF ¶¶ 13–14]. Ms. Katz took medical leave for a

surgical procedure from September 27 to October 11, 2011, which did not adversely affect her

employment. [SOF ¶¶ 30–31]. Ms. Katz’s work with the MP2 system resulted in positive job

performance evaluations from her then-supervisors and a promotion in 2012 to Supervisor of

Facilities Planning. [SOF ¶¶ 15–17, 31; ECF No. 32-1 at 9]. As Supervisor of Facilities

Planning, Ms. Katz worked with the quality assurance department on audits, internal deviations,

references to affidavits, depositions and other documentation.”). The portions of the SOF not

specifically controverted with support in the record are deemed admitted. See Caban Hernandez

v. Philip Morris USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007) (“In the event that a party opposing

summary judgment fails to act in accordance with the rigors that [a local rule governing

summary judgment] imposes, a district court is free, in the exercise of its sound discretion, to

accept the moving party’s facts as stated.”).

CAPAs, and SOPs. [SOF ¶ 18]. Her direct supervisor was the Facilities Manager, who was

Mike Bukoff at the time of the promotion. [SOF ¶ 22]. Ms. Katz also supervised three direct

reports: Brenda Lehan, a facilities coordinator; George Severance, a document specialist; and

Marie Manning, a facilities associate. [SOF ¶¶ 19–21; ECF No. 32-1 at 14–15].

Between 2012 and early 2013, Organogenesis moved from the MP2 CMMS to a system

called Regulatory Asset Manager (“RAM”). [SOF ¶ 23]. The RAM system was intended to

replace both MP2, which tracked preventative maintenance management, and Calman, which

tracked calibration management. [SOF ¶ 24]. The data from both systems was migrated into the

RAM system. [SOF ¶ 24]. Ms. Katz was part of a team of approximately ten people that

transitioned preventative maintenance management from MP2 to the RAM system. [SOF ¶ 27;

ECF No. 35-1 at 5].

In 2013 or 2014, Ms. Katz began suffering from myofascial pain syndrome, a tightening

of muscles that causes headaches, fatigue, and pain. [SOF ¶ 32].2 She took medical leave in

May 2015 for three weeks for sinus surgery and used FMLA leave. [SOF ¶¶ 34–35]. This leave

did not adversely affect her employment. [SOF ¶ 36].

Near the beginning of 2015, a CAPA known as CAPA 15-007-DR (“the CAPA”) was

opened to address numerous problems with the RAM system. [SOF ¶ 37]. Ms. Katz was

involved with writing the CAPA and signed off on the action plan as the team leader. [SOF

¶¶ 38, 40; ECF No. 35-3 at 20 (noting that writing the CAPA was a “combined effort” of several

employees)]. The CAPA concerned preventive maintenance records that were not correctly

entered into the RAM system. [SOF ¶ 39]. The action plan for the CAPA included six tasks,

2 At some point, Ms. Katz was diagnosed with cervical dystonia, a condition causing neck pain,

but this condition did not affect her ability to work. [SOF ¶ 33]. Ms. Katz has also been

diagnosed and treated for depression since 2001. [SOF ¶ 29].

five of which listed either Ms. Katz alone or Ms. Katz and a subordinate or subordinates as those

responsible for its completion. [SOF ¶ 41].

In August or September of 2015, Mr. Bukoff and Cheryl McManamin, who supervised

Mr. Carmichael, the Calibration Manager, recommended promoting Mr. Carmichael to supervise

the preventive maintenance program. [SOF ¶ 43]. Shortly thereafter, from October 2015 to

January 2016, Ms. Katz took medical leave due to her myofascial pain. [SOF ¶¶ 45, 60].

Ms. Katz sought, but did not receive, FMLA leave for her absence from work between

October 2015 and January 2016. [SOF ¶¶ 50–55].3 Instead, Organogenesis approved a personal

leave of absence, originally covering the dates October 20, 2015 to January 6, 2016. [SOF ¶ 55].

Ms. Katz returned to work on January 12, 2016. [SOF ¶ 60]. While Ms. Katz was on medical

leave, Mr. Carmichael was put in charge of the CAPA. [SOF ¶ 46].

On January 13 and 14, 2016, an outside group, CAI Consulting, conducted a mock

inspection of Organogenesis’ facilities maintenance and engineering functions in preparation for

an upcoming audit. [SOF ¶ 61]. On January 18, 2016, CAI Consulting issued their report,

which identified several issues with the preventative maintenance program. [SOF ¶ 62]; see

[SOF ¶¶ 63–66]. On February 9, 2016, an Organogenesis internal audit identified 14 issues with

calibration and preventive maintenance records, ten of which were assigned to Ms. Katz for the

completion of “confirmation, root cause, immediate action, risk assessment and action plan.”

[SOF ¶ 74]. Following the internal audit, Mr. Bukoff was fired on February 22, 2016. [SOF

¶ 78]. A lead technician named Rocco Digirolamo was also fired that day. [SOF ¶ 79]. Mr.

Bukoff was told that his termination was based at least in part on his failure to address issues

3 Ms. Katz also sought, and was denied, short-term disability benefits through Prudential, which

she appealed with the help of Mr. Bukoff and Ms. McManamin. See [SOF ¶¶ 47–49].

identified in the recent audit. [SOF ¶ 80]. Dave Bartorelli became Interim Facilities Manager

and Ms. Katz’s supervisor. [SOF ¶ 81].

Between February 2016 and May 2016, Ms. Katz suffered from Bell’s Palsy, which

causes facial paralysis and pain and made it difficult for Ms. Katz to use a computer or read.

[SOF ¶ 83]. She was approved for FMLA leave from February 23, 2016 to March 8, 2016, and

briefly returned to work. [SOF ¶¶ 84–85].

During her brief return to work in early March, Ms. Katz met with Bill Moran and Ms.

Lehan and sent Mr. Moran a spreadsheet describing progress on the CAPA. [SOF ¶¶ 94, 96].

The parties dispute whether the RAM system was discussed when Ms. Katz met with Mr. Moran

and how Mr. Moran treated Ms. Katz relative to Ms. Lehan. [SOF ¶¶ 94–95; ECF No. 35-2 ¶¶

13–14, 17].

At the time, Mr. Moran was working for Organogenesis in La Jolla, CA and had applied

to be the director of facilities at the company’s Canton facility. [SOF ¶¶ 89, 90]. As part of the

application and hiring process, Mr. Moran had received the CAI Consulting report, which led

him to believe that the people responsible for the RAM system were not doing their jobs

properly. [SOF ¶¶ 91–92]. He also visited the Canton facility at least twice. [SOF ¶¶ 93].

On March 11, 2016, Ms. Katz received her 2015 performance evaluation. [SOF ¶ 86].

Mr. Bukoff, who had completed the evaluation prior to his termination, gave Ms. Katz a 2.5/5 for

the objective of “[a]ssist in managing a 100% completion of all PM’s.” [SOF ¶ 86]. Mr. Bukoff

noted that “overdue PMs were a result of disconnects between MP2, RAM, SOPs and quality

systems” and that “[a]cceleration of the implementation of corrective actions is needed to ensure

risk is mitigated.” [SOF ¶ 86]. Other employees involved with the CAPA were similarly

penalized in their reviews. [ECF No. 35-3 at 22–23]. Because the Bell’s Palsy was still

impacting her performance, Ms. Katz went on leave again and was approved for FMLA leave

from March 11 to April 28, 2016. [SOF ¶ 87]. She planned to return to work in early May.

[SOF ¶ 108].

While Ms. Katz was on leave, Mr. Moran interviewed for the facilities director job on

April 6, 2012 and was offered the job. [SOF ¶ 97]. He began performing job duties in April,

prior to his May 2 official start date. [SOF ¶¶ 98, 102]. On April 15, 2016, Mr. Moran received

a second report from CAI Consulting called a “GAP analysis,” which listed 145 issues [SOF

¶ 99; ECF No. 32-21 at 6–32]. Ten of these 145 issues were within Ms. Katz’s responsibility.

[SOF ¶ 101].

On May 2, 2016, Mr. Moran formally took over as facilities director and Mr. Carmichael

was promoted to Manager of Calibration and Maintenance, which was the position he had been

recommended for in the fall of 2015. [SOF ¶¶ 102, 107]. At this time, in addition to the CAPA,

there was also a second CAPA for the building monitoring system, which was the responsibility

of Dave Bartorelli, and several smaller CAPAs as well. [SOF ¶ 104]. Management and quality

assurance personnel were worried about the progress that had been made on the CAPA.4 [SOF

¶ 44]. Mr. Carmichael told Mr. Moran that he believed the problems with the preventative

maintenance program stemmed from Mike Bukoff’s failure to be involved. [SOF ¶ 106].

On May 17, 2016, Ms. Katz returned from FMLA leave, but was restricted to working no

more than five hours a day. [SOF ¶ 111]. That same day, Ms. Katz met with Mr. Moran who

4 It is unclear when management became concerned about progress on the CAPA, but the parties

agree that there were concerns by May 2016. See [SOF ¶ 25; ECF No. 31 ¶ 15; ECF No. 35-1 at

8].

told her that she could no longer work from home, which was a department-wide policy.5 [SOF

¶ 112]. He also asked how long she expected to be restricted to five hours a day. [SOF ¶ 112].

Ms. Katz and Mr. Moran met again in the last week of May. [SOF ¶ 113; ECF No. 35-2

¶ 18]. During this meeting, Mr. Moran asked Ms. Katz about her direct reports, “what is the

matter with you,” and when she could return to a full-time schedule. [SOF ¶ 113; ECF No. 35-2

¶ 18]. Mr. Moran noticed a “tic in [Ms. Katz’s] eye” and was aware that she had been out on

FMLA leave. [ECF No. 35-1 at 25]. Ms. Katz told Mr. Moran that she hoped to be able to work

full-time in two weeks. [SOF ¶ 113]. After the meeting with Ms. Katz, Mr. Moran wrote to the

Director of Human Resources and reported that

[he] spoke to [Ms. Katz] today about her position being 5 days a week moving

forward. She didn’t balk about it. Let’s see if she shows up on Monday June 6th.

I asked her when she will be back at full 8 hour day and she said next week. Two

questions[:] When is her disability period [o]ver? When can we proceed with re

org?

[SOF ¶ 115]. By this time, he had decided to eliminate Ms. Katz’s position. [SOF ¶¶ 116, 122].

Sometime in May 2016, Mr. Moran spoke with his superior, Chris O’Reilly, and relayed

his belief that Ms. Katz was responsible for the state of the RAM system and that a change was

needed. [SOF ¶ 117]. Mr. Moran also believed that Ms. Katz, along with Mr. Bukoff and Mr.

Bartorelli, were ultimately responsible for ensuring that the information in the RAM system was

correct. [SOF ¶ 118].

In a memorandum dated May 31, 2016, Mr. Moran documented his proposed

restructuring of the Facilities Department and his rationale for terminating Ms. Katz. [SOF

¶¶ 119–25]. The memorandum stated that Mr. Moran had reviewed the CAI Consulting report

5 While Ms. Katz was working with human resources to determine a date on which she could

return to work, it came to light that Ms. Katz had worked a Tuesday through Friday schedule for

over five years, during which she typically worked ten hours a day four days a week and

sometimes worked from home on Mondays. [SOF ¶ 108; ECF No. 32-1 at 74–75].

and other audit findings, which revealed “that there have been issues with the RAM system for

years as well as the previous system in use [MP2]” that “appear to have been the result, in part,

of the prior department management and staffing.” [SOF ¶ 120]. The memorandum noted that

Mr. Moran’s interviews with employees in the Facilities Department led him to focus on the

Facilities Administration group who were responsible for the RAM system and specifically on

the Supervisor of Facilities Administration role, which Ms. Katz held. [SOF ¶ 121]. The

memorandum stated that Ms. Katz had “oversight of the Administration staff and RAM system

during previous FDA audits, the CAI audit and also [was] responsible when CAPAs were

issued.” [SOF ¶ 121].6

Mr. Moran’s interviews also led him to learn that Mr. Carmichael, the calibration

manager, had previous experience managing a RAM system at another company, employees, and

with the calibration side of the RAM system at Organogenesis. [SOF ¶ 122]. Mr. Moran

concluded that “Organogenesis would then have two people [Mr. Carmichael and Ms. Katz] who

could potentially supervise the Facilities Administration staff; however, one of them [Ms. Katz]

has not demonstrated sufficient experience in RAM system operations.” [SOF ¶ 122]. Mr.

Moran concluded that Ms. Katz’s position could, therefore, be eliminated. [SOF ¶¶ 122, 125].

Mr. Moran did not review Ms. Katz’s personnel file or most recent performance review prior to

deciding to terminate her. [ECF No. 32-2 at 18].

6 Mr. Moran testified that he did not believe Mr. Carmichael took over ownership of the CAPA

until after Ms. Katz was terminated. [ECF No. 32-2 at 36]. The parties, however, do not dispute

that Mr. Carmichael took over the CAPA in October 2015 when Ms. Katz went on medical

leave. See [SOF ¶ 46; ECF No. 32-3 at 10]; see also [ECF No. 32-4 at 11 (listing Mr.

Carmichael as the responsible individual as of November 30, 2015)]. Ms. Katz and Mr.

Carmichael seem to have shared ownership of the CAPA in January 2016. See [ECF No. 32-11

at 5–6 (listing both Ms. Katz and Mr. Carmichael as responsible for various action items)].

In addition to deciding to eliminate Ms. Katz’s position, Mr. Moran also concluded that

the Facilities Administration department would need to hire a Facilities System Specialist, who

would be a subject matter expert for the RAM system. [SOF ¶¶ 123, 125]. The Facilities

System Specialist would be responsible for “daily administration of the RAM system” while Mr.

Carmichael would have “responsibility for calibration team, review of calibrations and the

Facilities Administration support personnel.” [SOF ¶ 123]. Mr. Moran observed that Ms. Katz

did not exhibit any the skills required by this new position “based on past audits, CAPA’s and

my experience with the department since March.” [SOF ¶ 124].

On June 1, 2016, Ms. Katz met with Mr. Moran and a human resources representative.

[SOF ¶ 126]. Mr. Moran informed Ms. Katz of the reorganization, that she was being

terminated, and that her direct reports Ms. Lehan and Mr. Severance would report to Mr.

Carmichael. [SOF ¶ 126]. Ms. Katz was on approved intermittent FMLA leave at the time.

[ECF No. 35-1 at 16; ECF No. 36 at 4 n.2].

On November 10, 2016, Mr. O’Reilly, Mr. Moran’s supervisor, emailed the

Organogenesis CFO an update on compliance efforts. [SOF ¶ 131]. He explained that “[w]e

terminated the Facilities Manager, Maintenance Coordinator and a Lead Technician earlier this

year due to compliance issues” and that Mr. Moran “was brought from the West Coast as the

new department director to facilitate the re-organization and improve performance of the group.”

[SOF ¶ 131]. Ms. Katz was the “Maintenance Coordinator,” Mr. Bukoff was the “Facilities

Manager,” and Mr. Digirolamo was the “Lead Technician.” [SOF ¶ 131]. Also in November

2016, Organogenesis hired a Facilities Systems Specialist. [SOF ¶ 134].

The CAPA was eventually completed on December 15, 2016. [SOF ¶ 132]. Shortly

thereafter, in early 2017, Mr. Bartorelli was terminated for job performance. [SOF ¶ 133].

B. Procedural History

On July 31, 2017, Ms. Katz initiated this action in Norfolk County Superior Court. [ECF

No. 1-1]. Organogenesis removed the case to this Court on August 24, 2017 and answered the

Complaint on August 29, 2017. [ECF Nos. 1, 8]. After fact discovery closed on June 29, 2018,

Organogenesis filed the instant motion for summary judgment on September 10, 2018. [ECF

No. 28]. On October 10, 2018, Ms. Katz opposed summary judgment, and on October 22, 2018,

Organogenesis filed a reply brief. [ECF Nos. 35, 36].

II. LEGAL STANDARD

Summary judgment is appropriate where the movant demonstrates 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 fact is material if its resolution might affect the outcome of the

case under the controlling law.” Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003).

“A genuine issue exists as to such a fact if there is evidence from which a reasonable trier could

decide the fact either way.” Id.

“To succeed in showing that there is no genuine dispute of material fact,” the moving

party must point to “specific evidence in the record that would be admissible at trial.” Ocasio-

Hernandez v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015). “That is, it must ‘affirmatively

produce evidence that negates an essential element of the non-moving party’s claim,’ or, using

‘evidentiary materials already on file . . . demonstrate that the non-moving party will be unable

to carry its burden of persuasion at trial.’” Id. (quoting Carmona v. Toledo, 215 F.3d 124, 132

(1st Cir. 2000)). Once the movant takes the position that the record fails to make out any

trialworthy question of material fact, “it is the burden of the nonmoving party to proffer facts

sufficient to rebut the movant’s assertions.” Nansamba v. N. Shore Med. Ctr., Inc., 727 F.3d 33,

40 (1st Cir. 2013).

In reviewing the record, the court “must take the evidence in the light most flattering to

the party opposing summary judgment, indulging all reasonable inferences in that party’s favor.”

Cochran, 328 F.3d at 6. The First Circuit has noted that this standard “is favorable to the

nonmoving party, but it does not give [her] a free pass to trial.” Hannon v. Beard, 645 F.3d 45,

48 (1st Cir. 2011). “The factual conflicts upon which [s]he relies must be both genuine and

material,” Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 397 (1st Cir. 2012), and the

court may discount “conclusory allegations, improbable inferences, and unsupported

speculation,” Cochran, 328 F.3d at 6 (quoting Medina-Muñoz v. R.J. Reynolds Tobacco Co., 896

F.2d 5, 8 (1st Cir. 1990)). Further, “[t]he mere existence of a scintilla of evidence in support of

the plaintiff’s position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

III. DISCUSSION

Ms. Katz brings three separate disability discrimination claims and a FMLA retaliation

claim: disability discrimination under the Americans with Disabilities Act (“ADA”) (Count I),

disability discrimination under Massachusetts General Laws ch. 151B (Count II), perceived

disability discrimination under Massachusetts General Laws ch. 151B (Count III), and retaliation

in violation of the FMLA (Count IV). “The ADA prohibits an employer from discriminating

against an otherwise qualified individual based on a real or perceived disability.” Murray v.

Warren Pumps, LLC, 821 F.3d 77, 83 (1st Cir. 2016). Massachusetts law contains a similar

prohibition against discriminating on the basis of handicap or perceived handicap. Id. Ms.

Katz’s state and federal disability and perceived disability discrimination claims are governed by

essentially the same legal framework. See Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 125 n.3

(1st Cir. 2009) (“We previously have noted that Chapter 151B ‘tracks the ADA in virtually all

respects.’” (quoting Gillen v. Fallon Ambulance Serv., Inc., 283 F.3d 11, 20 n. 5 (1st Cir.

2002))). Finally, “the FMLA prohibits retaliation against employees who take FMLA leave.”

Pagan-Colon v. Walgreens of San Patricio, Inc., 697 F.3d 1, 8 (1st Cir. 2012) (citing 29 C.F.R.

§ 825.220(c)). Although the FMLA does not expressly reference “retaliation,” courts have found

that the prohibition against retaliation is implicit in the statute. Colburn v. Parker

Hannifin/Nichols Portland Div., 429 F.3d 325, 331 n.2 (1st Cir. 2005).

Discrimination and retaliation claims under the FLMA, Chapter 151B, and the ADA are

analyzed under the three-step burden-shifting framework set forth in McDonnell Douglas Corp.

v. Green, 411 U.S. 792 (1973). Archambault v. Kindred Rehab Servs., Inc., No. 14-cv-11675-

ADB, 2016 WL 4555590, at *3 (D. Mass. Aug. 31, 2016) (first citing Ameen v. Amphenol

Printed Circuits, Inc., 777 F.3d 63, 69 (1st Cir. 2015); then citing Higgins v. New Balance

Athletic Shoe, Inc., 194 F.3d 252, 264 (1st Cir. 1999); and then citing Tobin v. Liberty Mut. Ins.

Co., 433 F.3d 100, 104 (1st Cir. 2005)).

Step one requires that the plaintiff establish a prima facie case of either retaliation or

discrimination under the relevant statute. McDonnell Douglas, 411 U.S. at 802. If the plaintiff

is able to establish this prima facie case, the Court infers discrimination, and, at step two, the

burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the

termination and to produce credible evidence to show that the reason advanced was the real

reason. Id. at 802–03. To satisfy step two, the defendant must “clearly set forth, through the

introduction of admissible evidence, the reasons for the [employee’s termination].” Hodgens v.

Gen. Dynamics Corp., 144 F.3d 151, 160–61 (1st Cir. 1998) (alteration in original) (quoting

Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)). “The explanation provided

must be legally sufficient to justify a judgment for the [employer].” Id. at 161. If the defendant

demonstrates a legitimate reason for its adverse action, “the presumption of discrimination drops

from the case” and the burden shifts back to the plaintiff. Id. At step three, the plaintiff “must

proffer evidence to establish that [defendant’s] non-discriminatory justification is mere pretext,

cloaking discriminatory animus.” Tobin, 433 F.3d at 105. The burden of proving unlawful

discrimination rests with the plaintiff at all times. Id.

The crux of the dispute on summary judgment is whether Ms. Katz has raised a genuine

issue of material fact as to whether discrimination motivated the adverse employment action. At

step one, Organogenesis does not concede that Ms. Katz has established a prima facie case of

discrimination, but neither party has briefed the issue in favor of addressing the pretext issue,

which controls. Accordingly, the Court assumes without deciding that Ms. Katz has met her

burden of establishing a prima facie case of discrimination and retaliation. Cf. Bonilla-Ramirez

v. MVM, Inc., 904 F.3d 88, 94 (1st Cir. 2018) (assuming without deciding that plaintiff

established a prima face case under McDonnell Douglas framework).

The parties agree that Organogenesis has met its burden of production under step two by

identifying three legitimate, nondiscriminatory reasons for terminating Ms. Katz, as outlined in

Mr. Moran’s May 31, 2016 memorandum: (i) that the ongoing problems with the RAM system

“on Ms. Katz’s watch” had led to negative audit findings, CAPAs, and problems with operations;

(ii) that Ms. Katz’s position was redundant of Mr. Carmichael’s role after the switch to the RAM

system and Mr. Carmichael had a stronger performance history; and, (iii) that Organogenesis

needed to create a position for a subject-matter expert to oversee the day-to-day administration of

the RAM system, and Ms. Katz was not qualified to fill this role. See [ECF No. 29 at 14; ECF

No. 32-23; ECF No. 35 at 6].

To survive summary judgment and make a showing of pretext, Ms. Katz must “clear two

significant hurdles:” first, she must refute Organogenesis’ evidence that it was Ms. Katz’s poor

performance and the department’s reorganization, not her disabilities, that constituted the real

reason for her termination; second, she must present evidence showing that Organogenesis’

asserted reasons were pretext masking discrimination. Tobin, 433 F.3d at 105; see Soto-

Feliciano v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 25 (1st Cir. 2015) (noting that, at summary

judgment, “a plaintiff must do more than merely ‘impugn the veracity of the employer’s

justification,’” and 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” of

discrimination (quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991)); cf.

Calero-Cerezo v. U.S. Dep’t of Justice, 355 F.3d 6, 26 (1st Cir. 2004) (noting that, at the

summary judgment stage, “the need to order the presentation of proof is largely obviated, and a

court may often dispense with strict attention to the burden-shifting framework, focusing instead

on whether the evidence as a whole is sufficient to make out a question for a factfinder as to

pretext and discriminatory animus” (quoting Fennell v. First Step Designs, Ltd., 83 F.3d 526,

535–36 (1st Cir. 1996)).

Organogenesis puts forth three distinct nondiscriminatory reasons for Ms. Katz’s

termination related to her allegedly poor performance and a departmental reorganization:

problems with the RAM system under Ms. Katz’s supervision, the redundancy of Ms. Katz’s

position in light of Mr. Carmichael’s promotion and her weaker performance history as

compared to Mr. Carmichael, and Organogenesis’ need for a RAM subject-matter expert. See

[ECF No. 29 at 14]. Ms. Katz’s brief focuses on demonstrating circumstantial evidence of

discriminatory intent, including the temporal proximity of her termination to the protected

activity, comments by Mr. Moran evidencing a retaliatory mindset, differential treatment, and the

credibility of Mr. Moran’s rationale for termination. [ECF No. 35 at 6–10]. The evidence Ms.

Katz presents calls into question the legitimacy of Organogenesis’ first rationale. See [id.]. For

example, Ms. Katz raises the temporal proximity of her return to work from FMLA leave to Mr.

Moran’s decision to terminate her employment and notes that her termination occurred “after

two brief meetings . . . in which [Ms. Katz’s] job performance or the RAM CAPA were never

discussed . . . .” [Id. at 6–7]. She contends that Mr. Moran’s comments to her and his

interactions with her in these two meetings demonstrate a retaliatory mindset and that a

reasonable inference from his statements is that “[her] medical leaves and [Mr. Moran’s] desire

to terminate her were connected . . . .” [Id. at 7]. Ms. Katz further argues that, as compared to

Mr. Bartorelli who was terminated after a year of attempting to correct issues with the RAM

CAPA, she “was terminated almost immediately after a return from a series of leaves which had

left her no opportunity to do any of the things Mr. Moran apparently wanted done with respect to

the RAM CAPA.” [Id. at 8–9]. Finally, Ms. Katz also asserts that Mr. Moran’s “stated reason

for termination” is not credible because he “did not review any of [her] fifteen-year employment

record, did not discuss her job performance with anyone, and did not speak with her about her

role in the RAM CAPA.” [Id. at 9–10].

The evidence Ms. Katz presents, however, fails to suggest that the reorganization

Organogenesis was undergoing, including Mr. Carmichael’s promotion and the company’s need

for a RAM subject-matter expert, was a sham. For instance, Ms. Katz identifies Mr. Carmichael

as a comparator and notes that Organogenesis states that he was promoted based on his “role and

track record in the company,” but she does not suggest that the reorganization was fictitious,

refute the rationale for his promotion, or dispute that his performance was objectively superior to

hers, including his performance on the RAM CAPA. See [id. at 8]; cf. Connell v. Bank of Bos.,

924 F.2d 1169, 1181–82 (1st Cir. 1991) (Torres, J., concurring) (concurring in upholding

summary judgment on age discrimination and retaliation claims because the record failed to

suggest that the reorganization that was the basis for plaintiff’s termination was “fictitious” and

because plaintiff failed to demonstrate that his performance, while satisfactory, was equal to or

better than employees who were retained in the reorganization).

Under the burden-shifting framework, “[w]hen an employer offers multiple legitimate,

nondiscriminatory reasons for an adverse employment action, a plaintiff generally must offer

evidence to counter each reason.” Sher v. U.S. Dep’t of Veterans Affairs, 488 F.3d 489, 508 (1st

Cir. 2007); see Rathbun v. Autozone, Inc., 361 F.3d 62, 79 (1st Cir. 2004); see also Fuentes v.

Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (holding that, to avoid summary judgment, a plaintiff

must present “evidence rebutting the employer’s proffered legitimate reasons” that would “allow

a factfinder reasonably to infer that each of the employer’s proffered non-discriminatory reasons

was either a post hoc fabrication or otherwise did not actually motivate the employment action

. . . .” (citation omitted)). In Sher v. U.S. Department of Veterans Affairs, 488 F.3d 489 (1st Cir.

2007), the First Circuit affirmed summary judgment for the Department of Veterans Affairs

(“VA”) on a Title VII national origin and religious discrimination claim because the plaintiff

could not show that “each of the VA’s legitimate, nondiscriminatory reasons for his removal was

pretext for discrimination.” 488 F.3d at 506–08. Similarly, in Rathbun v. Autozone, Inc., 361

F.3d 62 (1st Cir. 2004), the First Circuit affirmed summary judgment for an employer on a

unequal pay claim under Rhode Island law because the plaintiff’s evidence “[e]ven if fully

credited . . . succeed[ed] only in calling into doubt one of several rationales that [the employer]

has advanced for its decision.” 361 F.3d at 64, 72, 79. Although neither Sher nor Rathbun

addresses claims brought under the FMLA, the ADA, or Massachusetts General Laws ch. 151B,

the First Circuit’s application of the same burden-shifting framework is relevant. There is no

indication that the rule presented by Sher and Rathbun would not apply to a claim brought under

the FMLA, the ADA, or Massachusetts General Laws ch. 151B when adjudication of that claim

is governed by the McDonnell Douglas burden-shifting framework.

Accordingly, the Court concludes that Ms. Katz has not met her burden at step three of

the McDonnell Douglas burden-shifting framework to establish that Organogenesis’ non-

discriminatory justifications are mere pretext because she has not presented evidence rebutting

two of its three legitimate, non-discriminatory justifications. In coming to this conclusion, the

Court is mindful of the First Circuit’s instruction to “use restraint in granting summary judgment

where discriminatory animus is in issue.” Hodgens, 144 F.3d at 167 (quoting Denovellis v.

Shalala, 124 F.3d 298, 306 (1st Cir. 1997)). Although courts must be “particularly cautious”

when granting an employer’s motion for summary judgment when the determinative issue is

pretext, id. (quoting Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 928 (1st

Cir. 1983)), the situation presented by this case is not the quality of the employee’s evidence but

the lack thereof. Even if Ms. Katz could make out a genuine issue of material fact regarding one

of Organogenesis’ stated reasons for termination, her failure to contest the other two legitimate,

non-discriminatory reasons presented is dispositive. “[T]he question [on summary judgment] is

not whether there is literally no evidence favoring the nonmovant, but whether there is any upon

which a jury could properly proceed to find a verdict in that party’s favor.” De Arteaga v. Pall

Ultrafine Filtration Corp., 862 F.2d 940, 941 (1st Cir. 1988) (citing Anderson, 477 U.S. at 251).

The current record does not present a set of facts on which a jury could find in Ms. Katz’s favor

on any of her claims for discrimination or retaliation, and, thus, summary judgment is proper.

IV. CONCLUSION

Accordingly, Defendant’s motion for summary judgment [ECF No. 28] is GRANTED.

SO ORDERED.

September 20, 2019 /s/ Allison D. Burroughs

ALLISON D. BURROUGHS

U.S. DISTRICT JUDGE