Gudava v. Northeast Hospital Corporation

United States District Court

District of Massachusetts

)

Marina Gudava, )

)

Plaintiff, )

)

v. )

) Civil Action No.

Northeast Hospital Corporation, ) 17-12414-NMG

d/b/a Beverly Hospital, )

)

Defendant. )

)

MEMORANDUM & ORDER

GORTON, J.

This case arises out of an employment dispute between

Marina Gudava (“Gudava” or “plaintiff”) and her former employer,

Northeast Hospital Corporation (“NHC” or “defendant”). Gudava

alleges that NHC discriminated against her by failing to

accommodate her disability, retaliating against her and

ultimately terminating her employment. The Complaint states

five claims: 1) disability discrimination in violation of Mass.

Gen. Laws c. 151B (“Chapter 151B”) (Count I); 2) retaliation in

violation of the same statute (Count II); 3) wrongful

termination in violation of public policy (Count III); 4)

interference with her rights under the Family and Medical Leave

Act (“FMLA”) (Count IV); and 5) retaliation in violation of the

FMLA (Count V).

Pending before the Court is the motion of defendant for

summary judgment and to strike certain documents and statements

from plaintiff’s opposition to summary judgment.

I. Background

A. The Parties

In September, 2008, Gudava began working as a Staff

Pharmacist in the Pharmacy Department of Beverly Hospital

(“Beverly”), which is owned and operated by NHC. Beverly is a

full-service hospital and requires the presence of a Staff

Pharmacist to dispense medications at all times. NHC also owns

and operates Addison Gilbert Hospital (“AGH”) in Gloucester,

Massachusetts, which also requires the presence of a Staff

Pharmacist.

B. Scheduling at NHC Facilities

Staff Pharmacist schedules were prepared in advance by an

assigned Staff Pharmacist in four-week intervals and were

approved by the Pharmacy Operations Manager, Wendy Cahill

(“Cahill”). Staff Pharmacists were generally assigned to four

different kinds of shifts, including daytime (6:00 A.M. / 8:00

A.M. to 2:30 P.M. / 4:00 P.M.), swing (9:00 A.M. / 11:00 A.M. to

5:30 P.M. / 8:30 P.M.), evening (2:30 P.M. / 3:00 P.M. to 11:00

P.M. / 11:30 P.M.) and overnight (9:00 P.M. / 11:00 P.M. to 7:00

A.M.).

It was generally expected that all Staff Pharmacists would

be available to work any combination of the available shifts at

Beverly but NHC did hire some Staff Pharmacists to work

exclusively evening and overnight shifts. Assigned shifts at

AGH involved the review and approval of chemotherapy drugs. For

that reason, only Staff Pharmacists with specialized

chemotherapy training, such as Gudava, could be assigned shifts

at AGH.

C. Gudava’s Health Concerns and Medical Leave

In December, 2011, Gudava applied for intermittent leave

under the FMLA due to diagnosed migraine attacks. NHC granted

Gudava’s request and allowed her intermittent leave between

November, 2011, and November, 2012.

NHC approved at least seven subsequent requests for

intermittent FMLA leave due to Gudava’s medical problems.

Gudava explains that, at some point during that period, another

Staff Pharmacist made a negative comment about her use of FMLA

leave but Gudava did not report that incident to NHC.

In May, 2012, Gudava submitted to NHC a letter from her

doctor, Dr. Litvak, recommending that Gudava refrain from

working overnight shifts for a period of six months while she

underwent treatment for her migraine headaches. In accordance

with Dr. Litvak’s recommendation, NHC did not schedule Gudava to

work an overnight shift for six months.

In December, 2012, NHC requested that Gudava provide

additional information to support her request for continued

accommodation. Upon receiving a certification for medical leave

signed by Dr. Litvak, NHC renewed Gudava’s accommodation. She

did not work another overnight shift for the duration of her

employment with NHC after her second request was approved.

D. Harassment at NHC Facilities

In December, 2016, Gudava met with NHC Human Resources

(“HR”) personnel and Cahill, regarding allegations that she was

being terrorized, abused, bullied, harassed and discriminated

against at work. Gudava cited incidents of alleged abuse,

including: 1) two occasions on which Cahill gave Gudava a “look”

or “made a face” behind her back; 2) a period where Gudava was

assigned to work at AGH three days in a row without being asked

and without receiving a “thank you”; 3) an incident of Cahill

yelling at Gudava; 4) required participation in an

“unproductive” meeting about Gudava’s request for time off; and

5) her prohibition from serving on the Staff Pharmacists

Committee.

At her deposition, Gudava testified that Cahill also

physically accosted her and harassed her because Cahill viewed

Gudava as a “bad seed”.

NHC requested that Gudava provide a written recitation of

the alleged incidents. In response, Gudava’s counsel sent a

letter to NHC’s Director of Employment and Employee Relations

outlining various instances of alleged workplace misconduct.

NHC attempted to schedule a meeting with Gudava but she

declined, insisting that all communications should be through

her attorney.

E. Gudava’s Accommodation Request

In January, 2017, Gudava presented NHC with a letter from

Dr. Litvak recommending that she work only daytime hours because

afternoon and evening hours aggravated her migraine headaches.

NHC requested additional information to be provided by Dr.

Litvak, including answers to a list of questions and several

forms requesting an evaluation of Gudava in light of her

assignment as a Staff Pharmacist.

The following month, Gudava emailed NHC claiming that her

accommodation request was being unreasonably delayed. She met

with HR personnel the next day who explained that Gudava’s 2013

health records were insufficient to support her renewed request.

In March, 2017, NHC received the requested information from

Dr. Litvak, who opined that working daytime shifts (ending

before 6-7 P.M.) would help reduce Gudava’s frequent migraines.

NHC denied Gudava’s requested accommodation because,

according to NHC, it would have imposed an undue hardship on its

Staff Pharmacists in Beverly and at AGH. NHC maintained that if

Gudava worked only shifts ending before 6 or 7 P.M., other Staff

Pharmacists would be forced to absorb additional swing and

evening shifts, which would present significant retention and

recruitment issues for Staff Pharmacist positions at Beverly.

NHC instead offered Gudava a per-diem position, whereby she

would be scheduled based on the needs of Beverly, after full and

part-time staff schedules are finalized, and would not be

required to work swing, evening or overnight shifts.

Gudava immediately rejected NHC’s offer. In response, NHC

recommended that Gudava take a few days to reconsider. On April

14, 2017, Gudava sent NHC an email stating that she considered

the offer of per-diem employment “unacceptable, an insult and a

threat to [her] current employment.” NHC notified Gudava in

May, 2017, that, because she had rejected NHC’s offer, she would

be expected to work her regularly scheduled shifts.

F. Gudava’s Alleged Performance Issues

Throughout 2017, NHC maintained a Therapeutic Interchange

Program (“TI Program”) that directed Staff Pharmacists to follow

a certain protocol in substituting prescribed medications.

Clinical Coordinator Jennifer Mackey-LaBrecque (“Mackey-

LaBrecque”) conducted an audit of Staff Pharmacist compliance

with the TI Program beginning in May, 2017, and identified

Gudava as noncompliant. Gudava disputes that fact and insists

that she used her discretion to deviate from the TI Program only

when she determined, in her professional judgment, that doing so

was in the interest of the patient.

In June, 2017, Mackey-LaBrecque and Cahill met with Gudava

to discuss Gudava’s alleged noncompliance. The night after that

meeting, Gudava visited the emergency room and received a

recommendation from her neurologist that she remain out of work

for one week. Gudava submitted a request for continuous leave

under the FMLA the following day which NHC granted.

NHC also implemented a counseling program in 2017 that

involved Staff Pharmacists counseling patients on their

medications prior to the patient’s discharge (“the Patient

Counseling Program”). In September, 2017, Mackey-LaBrecque

conducted an audit of the Patient Counseling Program and

determined that for the previous 14 shifts, Gudava had not

complied with the Patient Counseling Program requirements.

G. NHC’s Investigation of Harassment

In June, 2017, upon her return to work after a week of FMLA

leave, Gudava received a “Level III Final Written Warning” (“the

First Warning”) for “insubordination and noncompliance”. Gudava

appealed through the internal NHC mechanism but the First

Warning was ultimately upheld.

The investigation conducted by NHC to assess Gudava’s

appeal resulted in allegations by Gudava of retaliation and

discrimination against her by Cahill. NHC sent Gudava a letter

requesting a meeting to discuss her allegations of workplace

misconduct to which Gudava did not respond.

In July, 2017, NHC began a formal investigation into

Gudava’s concerns about retaliation and harassment.

On July 6, 2017, Gudava left work early because she was

experiencing high blood pressure. She was seen by Employee

Health, who recommended that she be excused for the day. Gudava

did not, however, speak with Cahill prior to leaving work as

required by NHC’s “Work Rules” policy.

HR personnel contacted Gudava the following day to schedule

a time to discuss the allegations but Gudava did not feel well

enough to discuss her allegations at that time. An inquiry on

July 12, 2017, yielded the same response. Later that day, NHC

sent Gudava a letter requesting that she contact HR as soon as

possible to discuss her allegations.

Two days later, Gudava’s attorney emailed NHC and insisted

that Gudava would not meet with NHC personnel outside of her

attorney’s presence. NHC responded to Gudava in writing that HR

would not engage with outside counsel during routine

investigations and that, as a result, the investigation would be

finalized without Gudava’s input.

In August, 2017, HR personnel and Cahill met with Gudava to

discuss the results of the investigation. At that meeting,

Gudava was informed that NHC had uncovered no facts in support

of her allegations of retaliation and discrimination. Gudava

was also issued a “Level III Final Written Warning” (“the Second

Warning”) for leaving work early without approval on July 6,

2017.

NHC terminated Gudava’s employment in September, 2017,

effective October 3, 2017.

H. Procedural History

In July, 2017, Gudava, represented by counsel, filed a

Charge of Discrimination with the Massachusetts Commission

Against Discrimination (“MCAD”). That same day, she requested

permission to withdraw her charge and file a private right of

action in civil court. MCAD granted her request in August,

2017, and Gudava filed a complaint against NHC in Massachusetts

Superior Court in December, 2017. Defendant promptly removed

the case to this Court.

II. Defendant’s Motion for Summary Judgment

A. Legal Standard

The role of summary judgment is “to pierce the pleadings

and to assess the proof in order to see whether there is a

genuine need for trial.” Mesnick v. Gen. Elec. Co., 950 F.2d

816, 822 (1st Cir. 1991) (quoting Garside v. Osco Drug, Inc.,

895 F.2d 46, 50 (1st Cir. 1990)). The burden is on the moving

party to show, through the pleadings, discovery and affidavits,

“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 it “might affect the outcome of the

suit under the governing law . . . .” Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). A genuine issue of material

fact exists where the evidence with respect to the material fact

in dispute “is such that a reasonable jury could return a

verdict for the nonmoving party.” Id.

If the moving party satisfies its burden, the burden shifts

to the nonmoving party to set forth specific facts showing that

there is a genuine, triable issue. Celotex Corp. v. Catrett, 477

U.S. 317, 324 (1986). The Court must view the entire record in

the light most favorable to the non-moving party and make all

reasonable inferences in that party's favor. O'Connor v.

Steeves, 994 F.2d 905, 907 (1st Cir. 1993). Summary judgment is

appropriate if, after viewing the record in the non-moving

party's favor, the Court determines that no genuine issue of

material fact exists and that the moving party is entitled to

judgment as a matter of law. Celotex Corp., 477 U.S. at 322-23.

B. Counts I & II: Discrimination and Retaliation Pursuant

to Chapter 151B

1. Exhaustion

Defendant first argues that Gudava has failed to exhaust

her Chapter 151B claims for discrimination and retaliation in so

far as they are based on conduct that occurred after August 28,

2017. Gudava contends that she has fully exhausted her claims

by filing a complaint with MCAD.

MCAD is charged with addressing disability discrimination

in the Commonwealth. Everett v. 357 Corp., 904 N.E.2d 733, 746

(Mass. 2009). To that end, Chapter 151B requires a plaintiff to

exhaust discrimination claims with MCAD before filing a civil

action in Massachusetts Superior Court for discrimination or

retaliation. M.G.L. c. 151B § 5. A plaintiff need not await

final determination by MCAD; she may remove her MCAD complaint

to Massachusetts Superior Court either 90 days after the filing

of the complaint or sooner with MCAD’s consent. Id. § 9.

A plaintiff generally may not assert claims in a civil

action that are outside of the scope of the MCAD investigation.

Everett, 904 N.E.2d at 748. The MCAD complaint is not, however,

a “rigid blueprint” for the civil action. Id. The “scope of

investigation” rule counsels that a claim not expressly stated

in an MCAD complaint may nonetheless be asserted in a subsequent

civil action if “it is based on acts of discrimination that the

MCAD investigation could reasonably be expected to uncover.”

Windross v. Village Automotive Group, Inc., 887 N.E.2d 303, 307

(Mass. 2008). Claims of retaliation are typically covered by

the scope of investigation rule. See, e.g., Clifton v.

Massachusetts Bay Transp. Auth., 839 N.E.2d 314 (2005).

Gudava’s MCAD complaint did not allege any discriminatory

or retaliatory acts relating to her termination or any facts

that would potentially cause MCAD to investigate the reasons for

her termination. Indeed, her MCAD complaint could not have so

alleged because she was not terminated until after MCAD granted

her request to withdraw her complaint so she could pursue a

civil action. Any claim based on Gudava’s alleged wrongful

termination pursuant to Chapter 151B is, therefore, unexhausted.

See Everett, 453 Mass. at 603.

2. Timeliness

Defendant next contends that Gudava’s claims are untimely

insofar as they rely on conduct that occurred before September

27, 2016. Defendant concedes in its reply that

Ms. Gudava has not identified any conduct that

occurred before September 27, 2016, for which she

seeks to recover.

As a result, there is no issue with respect to timeliness for

the Court to resolve.

3. Disability Discrimination

To make out a prima facie case of disability discrimination

pursuant to Chapter 151B, a plaintiff must show that 1) she has

a qualified disability; 2) she was able to perform the essential

functions of her position with a proposed reasonable

accommodation; 3) such an accommodation was requested; 4) her

employer rejected that request; and 5) that rejection resulted

in some harm. Alba v. Raytheon, Co., 809 N.E.2d 516, 533 n.9

(Mass. 2004).

Chapter 151B “tracks the [Americans with Disabilities Act

(“ADA”)] in virtually all respects.” Gillen v. Fallon Ambulence

Serv., Inc., 283 F.3d 11, 20 n.5 (1st Cir. 2002). For that

reason, federal law interpreting the ADA is instructive. See,

e.g., Tate v. Dep’t of Mental Health, 645 N.E.2d 1159, 1163

(Mass. 1995).

NHC apparently does not dispute that Gudava has a

disability within the meaning of the law. Instead, NHC disputes

Gudava’s ability to perform the essential functions of a Staff

Pharmacist because her requested accommodation would require

that she work only day shifts ending before 6-7 P.M.

An employer need not forgo an essential function of a

position to accommodate and employee’s disability. See, e.g.,

Miller v. Illinois Dep’t of Corrections, 107 F.3d 483, 484 (7th

Cir. 1997). Gudava bears the burden of establishing that she

was able to perform “all essential, as opposed to marginal,

functions” of a Staff Pharmacist position. See Melo v. City of

Somerville, No. 18-10786, 2019 WL 1230365, *3 (D. Mass. Mar. 15,

2019). In evaluating the essential functions of a position, an

employer’s determination that a job requirement is essential,

while not definitive, is afforded “substantial weight.” Ward v.

Massachusetts Health Research Inst., Inc., 209 F. 3d 29, 34 (1st

Cir. 2000).

Informative of the essential functions inquiry here is

Laurin v. Providence Hospital, 150 F.3d 52 (1st Cir. 1998). In

Laurin, a registered nurse working in a 24-hour maternity unit

of a hospital sued her employer for disability discrimination

for failing to accommodate her request to work only day shifts

due to a seizure disorder. Id. at 54. The hospital maintained,

and the First Circuit Court of Appeals agreed, that the ability

to work a shift-rotation schedule was an essential function of

the role of a nurse in 24-hour hospital. Id. at 55-63.

Gudava attempts to distinguish Laurin by emphasizing that,

whereas the hospital in Laurin had never provided an exception

for the shift-work requirement, NHC accommodated Gudava by not

scheduling her to work the overnight shift for years and by

employing Staff Pharmacists to work exclusively evening, swing

and overnight shifts. NHC’s decision to accommodate Gudava

temporarily by allowing her to avoid working overnights does not

undermine its contention that it was unreasonable for Gudava to

be excused from working all evening and swing shifts

indefinitely. Furthermore, the hospital in Laurin also employed

individuals to work just evening and overnight shifts. Id. at

59. In short, Gudava’s attempts to distinguish Laurin are

unavailing and the Court agrees with NHC that the ability to

work more than a single shift in rotation is an essential

function of a Staff Pharmacist position at Beverly.

Even if shift work were not an essential function, Gudava’s

claim still fails because defendant met its burden of engaging

in the interactive process with Gudava and offering a reasonable

accommodation. An employer need not provide an employee with

the precise accommodation requested; it need only fulfill its

“duty . . . to engage in an interactive process.” Enica v.

Principi, 544 F.3d 328, 338 (1st Cir. 2008). Likewise, if the

employee fails to cooperate in the interactive process, the

employer may not be held liable for failure to accommodate.

E.E.O.C. v. Kohl’s Dept. Stores, Inc., 774 F.3d 127, 131-32 (1st

Cir. 2014).

NHC offered Gudava the alternative accommodation of a per-

diem position, which would have allowed her to avoid entirely

working swing, evening and overnight shifts. Several courts

have held that offers of part-time employment may be a

reasonable accommodation. See Magnussen v. Casey’s Mktg. Co.,

787 F. Supp. 2d 929, 958 (N.D. Iowa 2011); Pedroza v. Autozone,

Inc., 536 F. Supp. 2d 679, 699 (W.D. Tex. 2008). Gudava was not

obligated to accept this proposal but she was obligated to

engage in the interactive process with NHC. The record shows

that, to the contrary, Gudava rejected NHC’s proposal outright

and failed to respond to NHC’s numerous follow-up invitations

for reconsideration.

Accordingly, Gudava has failed to establish a prima facie

case of disability discrimination and summary judgment will be

entered for defendant.

4. Retaliation

To establish a prima facie claim of retaliation in

violation of Chapter 151B, plaintiff must demonstrate that

1) she engaged in protected conduct; 2) she suffered an adverse

employment action; and 3) the two were causally related.

Noviello v. City of Boston, 398 F.3d 76, 88 (1st Cir. 2003).

The parties do not dispute that Gudava engaged in protected

conduct. Defendant does, however, dispute whether Gudava

suffered an adverse employment action as a result of engaging in

that protected conduct.

As discussed above, Gudava cannot point to her termination

as an adverse employment action because such a claim, pursuant

to Chapter 151B, is unexhausted. An adverse employment action

may, however, be satisfied by demonstrating “sufficiently severe

or pervasive” workplace harassment. Noviello, 398 F.3d at 91;

see also Clifton v. Mass. Bay Transp. Auth., 839 N.E.2d 314, 318

(Mass. 2005).

A plaintiff may recover for retaliatory workplace

harassment if

the workplace is permeated with discriminatory

intimidation, ridicule, and insult that is

sufficiently severe or pervasive to alter the

conditions of the victim’s employment and create an

abusive working environment.

Noviello, 389 F.3d at 84 (quoting Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993)).

Gudava proffers a laundry list of conduct in which Cahill

purportedly engaged to support her hostile work environment

claim. For such conduct to be actionable, it must rise to “some

level of substantiality,” such that it materially altered the

conditions of Gudava’s employment. Noviello, 389 F.3d at 92.

The alleged harassment must also be both “objectively and

subjectively offensive,” such that a reasonable person would

perceive Cahill’s conduct as hostile or abusive, and that Gudava

in fact did perceive Cahill’s conduct to be so. See Faragher v.

City of Boca Raton, 524 U.S. 775, 787 (1998). The subjective

element is uncontroversial in this case.

With respect to the objective component, a court must “mull

the totality of the circumstances,” looking at factors such as

frequency and severity, whether the conduct was physically

threatening or humiliating and whether it unreasonably

interfered with the performance of the employee. Noviello, 389

F.3d at 92.

This Court is skeptical that the conduct described by

Gudava is sufficient to convince a reasonable jury that Cahill’s

conduct was so severe and pervasive that it amounts to creating

an actionable hostile work environment. Even if it did,

however, Gudava fails to carry her burden of establishing a

causal link between her engaging in a protected activity and the

claimed harassment. Indeed, Gudava offers nothing more than

mere speculation to connect the alleged hostile work environment

and her complaints about Cahill to her migraine headache

condition, proffering no substantive basis for the Court to draw

such a conclusion.

Accordingly, Gudava has failed to establish a prima facie

case of retaliation and summary judgment will be entered for

defendant.

C. Count III: Wrongful Termination

Gudava claims that NHC wrongfully terminated her in

violation of Massachusetts public policy when she was fired for

failing to implement an internal policy that she believed

compromised patient safety.

As a general rule, “an at-will employee may be terminated

at any time for any reason or for no reason at all.” See Upton

v. JWP Businessland, 682 N.E.2d 1357, 1358 (Mass. 1997). An

employer may nonetheless be held liable under Massachusetts law

for terminating an employee for a reason that violates a clearly

established public policy. Id. This rule was intended to

provide a course of redress for employees who are terminated

for, among other things,

asserting a legal right (e.g., filing a workers'

compensation claim), for doing what the law requires

(e.g., serving on a jury), or for refusing to disobey

the law (e.g., refusing to commit perjury)

Id.

The public policy exception does not, however, protect

employees from termination for reasons relating to internal

company politics, such as, failing to comply with internal

procedures, making internal reports of issues to high-

ranking officials, expressing disagreement with a

reorganization plan or complaining about trade practices.

Upton, 682 N.E.2d at 1359.

In Smith-Pfeffer v. Superintended of the Walter E.

Fernald State School, 533 N.E.2d 1368, 1369-70 (Mass.

1989), an employee of a facility for mentally handicapped

individuals was fired for opposing an internal policy as a

“threat to the well-being of the institution and its

residents.” The Supreme Judicial Court of Massachusetts

held that the employee’s termination did not violate

Massachusetts public policy because an employee, “even one

in a socially important occupation”, may not seek redress

in the courts for disagreeing with her employer’s policies.

Id. at 1371-72.

The public policy interest proffered by Gudava

regarding patient safety reflects an internal policy

disagreement with her employer’s policies. Consequently,

her termination does not violate public policy.

D. Count IV: Interference in Violation of the FMLA

A prima facie case of interference in violation of the FMLA

requires a plaintiff to show that her employer denied her FMLA

benefits to which she was entitled. Carrero-Ojeda v. Autoridad

de Energia Electrica, 755 F.3d 711, 722 n.8 (1st Cir. 2014).

Gudava alleges that Cahill interfered with her FMLA leave by

assigning her shifts after her doctor recommended that she be

excused from work on intermittent FMLA leave in June, 2017. As

defendant emphasizes, however, Gudava was scheduled to work the

shifts that allegedly interfered with her leave before she

requested FMLA leave in June, 2017.

In any event, the FMLA does not provide relief unless an

employee is prejudiced by any employer’s interference. Fraternal

Order of Police Lodge 1 v. City of Camden, 842 F.3d 231, 246 (3d

Cir. 2016) (internal quotations omitted). Here, Gudava was not

deterred from taking the intermittent and continuous leave to

which she was entitled in June, 2017, or, on this record, at any

other point in time. As a result, she cannot demonstrate

prejudice and is, therefore, not entitled to recovery under the

FMLA.

E. Count V: Retaliation in Violation of the FMLA

Allegations supporting Gudava’s FMLA retaliation claim

similar to those supporting her Chapter 151B retaliation claim

fall into two categories: 1) those relating to hostile work

environment and 2) those relating to termination. With respect

to the former, Gudava’s claim fails for the same reasons

articulated as to her Chapter 151B claim. Gudava’s FMLA claim

based on the latter category cannot, however, be disposed of in

the same manner as its Chapter 151B counterpart because it is

not subject to a corresponding procedural deficiency of failure

of exhaust.

To establish a prima facie case of FMLA retaliation based

on wrongful termination, Gudava must establish that 1) she

availed herself of a protected right under the FMLA; 2) she was

adversely affected by a decision of her employer; and 3) there

is a causal connection between her protected activity and the

adverse employment action. See Hodges v. Gen. Dynamics Corp.,

144 F.3d 151, 161 (1st Cir. 1998).

The first element is uncontested. The second element is

also satisfied because Gudava alleges that she was terminated by

her employer, a quintessential adverse employment action. See

id. at 160. The third element depends upon whether there is a

causal connection between the termination and the exercise of an

FMLA right. Gudava’s termination followed a period of

intermittent and continuous FMLA leave. Her claim is sufficient

to meet the prima facie burden. Hodges, 144 F.3d at 161

(explaining that the prima facie burden is “quite easy to meet”

and finding the causation factor met where the protected conduct

was followed close in time by the adverse action).

After a plaintiff has met her burden of establishing a

prima facie case, as Gudava has done here, the McDonnell Douglas

test allocates the burdens of production and persuasion in

determining whether NHC terminated Gudava’s employment because

of FMLA activity or for a legitimate, nondiscriminatory reason.

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800–06 (1973).

McDonnell Douglas counsels that the burden shifts initially

to the defendant to articulate a legitimate, nondiscriminatory

reason for the employee’s termination. Id. If the employer

meets its burden, any presumption of discrimination dissipates,

and the plaintiff retains the ultimate burden of demonstrating

that the employer’s stated reason for termination was

pretextual. Id. at 804.

Here, NHC has met its burden of proffering a legitimate,

nondiscriminatory reason for Gudava’s termination: her repeated

noncompliance with NHC policies. In support, defendant proffers

documented evidence of Gudava’s noncompliance with the TI

Program, the Patient Counseling Program and NHC’s Work Rules

Policy.

Attempting to carry her ultimate burden of demonstrating

that NHC’s proffered reason is mere pretext for discrimination,

Gudava retorts that although other Staff Pharmacists similarly

failed to comply with NHC policies, only she was terminated for

noncompliance. Although persuasive, Gudava’s response does not

support an entry of summary judgment in her favor. It does,

however, create a genuine issue of material fact as to the true

impetus for Gudava’s termination.

Accordingly, defendant’s motion for summary judgment on

Gudava’s claim of retaliatory termination in violation of the

FMLA will be denied.

III. Defendant’s Motion to Strike

Defendant moves to strike three categories of materials

from plaintiff’s opposition to summary judgment: 1) statements

from certain NHC employees; 2) statements in plaintiff’s

affidavit; and 3) several responses to defendant’s Statement of

Undisputed Material Facts (“SOF”).

A. Statements of Rita Matlis and Lillian Lammy

Defendant complains that the Court should strike from the

record plaintiff’s “Declaration of Rita Matlis”, attached as

Exhibit 5 to plaintiff’s opposition to defendant’s SOF (“the

Matlis Statement”) and an email Lillian Lammy sent to

plaintiff’s counsel, attached as Exhibit 6 to plaintiff’s

opposition to defendant’s SOF (“the Lammy Email”) for

noncompliance with Fed. R. Civ. P. 56.

A party claiming that a fact is or is not genuinely

disputed on summary judgment must provide support by citing to

materials in the record, including affidavits or declarations.

Fed. R. Civ. P. 56(c). Such an affidavit or declaration need

not be signed in the presence of a witness or notarized but it

must bear a signature, electronic or otherwise, that

substantially comports with the following form:

I declare (or certify, verify, or state) under penalty

of perjury under the laws of the United States of

America that the foregoing is true and correct.

Executed on (date). (Signature).

28 U.S.C. § 1745(1).

Neither the Matlis Statement nor the Lammy Email bear a

signature that remotely comports with § 1745(1) and, for that

reason, cannot be relied upon in opposition to defendant’s

motion for summary judgment. See Goldman, Antonetti, Ferraiuoli,

Axtmayer & Hartell v. Medfit Intern., Inc., 982 F.2d 686, 689-90

(1st Cir. 1993). Accordingly, the motion of defendant to strike

the Matlis Statement and the Lammy Email will be allowed.

B. Plaintiff’s Affidavit

Defendant moves to strike numerous statements in Gudava’s

affidavit submitted in support of her opposition to summary

judgment, on grounds that they 1) are inconsistent with prior

testimony, 2) reflect subjective beliefs; and 3) lack

specificity and support.

In deciding defendant’s motion for summary judgment, the

Court has given Gudava’s affidavit the credence it is due

considering the rules and law applicable to the content of

affidavits forming the record on summary judgment. On that

basis, defendant’s motion to strike plaintiff’s affidavit will

be denied.

C. Plaintiff’s SOF Responses

Defendant moves to strike several of Gudava’s responses to

NHC’s SOF because they are 1) “denials” that do not actually

deny the substance of the paragraph; 2) inadmissible hearsay;

3) unsupported by evidence; and 4) impermissible legal

arguments.

1. “Denials”

Responses to Paragraphs 11, 12 and 14: Gudava’s denials do

not affect the veracity of the substance of the respective

paragraphs and will, therefore, be treated as admissions.

Responses to Paragraphs 5, 25, 129 and 130: Gudava’s

denials are irrelevant to the substance of the respective

paragraphs and are limited to emphasizing that Cahill supervised

schedule preparation. Consequently, they will be treated as

admissions.

Responses to Paragraphs 66, 68, 90, 105, 106, 111, 113,

137, 139, 146 and 159: Gudava’s denials either do not address

the substance of the respective paragraphs or purport to add

additional, noncontradictory facts. Consequently, they too will

be treated as admissions.

Paragraphs 120, 122 and 158: Gudava’s denials address the

substance of the respective paragraphs and, accordingly, will be

treated as denials.

2. Hearsay

Defendant moves to strike Gudava’s responses to Paragraphs

118, 120, 121, 122, 123, 133 and 134 to the extent they rely on

the contents of Gudava’s written appeal of the First Warning she

received from NHC, which NHC contends is hearsay. Plainly, the

content of Gudava’s written appeal is hearsay: it is an out of

court statement, offered in evidence to prove the truth of the

matter asserted. Fed. R. Evid. 801(c). Regardless of whether it

satisfies an exception to the hearsay rule, defendant cannot

simultaneously rely on evidence of the First Warning it issued

to Gudava and bar Gudava from introducing evidence of her

written appeal of that warning. Fairness dictates that either

all or none of the entire record of Gudava’s First Warning,

including her appeal, will be admitted. See Fed. R. Evid. 106.

Accordingly, defendant’s motion to strike Gudava’s responses

relying on her appeal will be denied.

3. Noncompliance with Local Rule 56.1

Defendant next submits that several of Gudava’s responses

do not comply with Local Rule 56.1 because they do not cite to

evidence and instead deny the paragraph on the sole basis that

defendant’s only support is a “self-serving affidavit”.

Plaintiff is entitled to challenge the sufficiency of

defendant’s proffered evidence and such challenges will not be

deemed admissions.

Defendant also requests that the Court deem admitted

Paragraphs 182 and 183 because plaintiff failed explicitly to

deny or admit. Plaintiff claims she inadvertently omitted the

word “denied” but that her response supports a denial. The

Court agrees and will deem Paragraphs 182 and 183 denied.

4. Interposing Legal Argument

Finally, defendant claims that several of plaintiff’s

responses impermissibly include legal argument. The Court

agrees and, in its analysis of the sufficiency of the proffered

evidence, declines to accord any weight to legal arguments

contained in plaintiff’s responses.

ORDER

For the foregoing reasons, the motion of defendant for

summary judgment (Docket No. 40) is, with respect to plaintiff’s

claim of retaliatory termination in violation of the Family and

Medical Leave Act, DENIED, but is otherwise ALLOWED.

Furthermore, the motion of defendant to strike (Docket No.

58) is,

a. with respect to the written statements of Rita Matlis and

Lillian Lammy, submitted as Exhibits 5 and 6 to Docket

No. 55, ALLOWED;

b. with respect to the affidavit of Marina Gudava submitted

as Exhibit 1 to Docket No. 55, DENIED; and

c. with respect to plaintiff’s responses to defendant’s

Statement of Undisputed Material Facts, Paragraphs 5, 11,

12, 14, 25, 66, 68, 90, 105, 106, 111, 113, 129, 130,

137, 139, 146 and 159, ALLOWED but otherwise DENIED.

So ordered.

/s/ Nathaniel M. Gorton

Nathaniel M. Gorton

United States District Judge

Dated February 13, 2020