The opinion of the court was delivered by: Steven J. McAuliffe United States District Judge
Beth St. Hilaire brought suit against her former employer, Morgan Stanley Smith Barney ("MSSB"), alleging that she was subjected to unlawful discrimination and wrongful termination. She says MSSB began discriminating against her after she missed time from work to assist and care for her ailing husband. Those absences, says plaintiff, prompted employees of MSSB to unjustly criticize her work, refuse to provide her with adequate training and support, and, eventually, terminate her employment - all in violation of the Americans with Disabilities Act ("ADA") and New Hampshire's Law Against Discrimination.
Additionally, plaintiff asserts that because MSSB feared she would eventually invoke her right to take unpaid leave under the Family Medical Leave Act (once that right vested, on the one year anniversary of her hiring), it preemptively (and unlawfully) terminated her employment. In other words, she says MSSB anticipatorily retaliated against her to prevent her from acquiring, and then exercising, rights under the FMLA.
MSSB denies that it discriminated against plaintiff, or that it subjected her to a hostile work environment, or that it unlawfully terminated her employment at will. Instead, says MSSB, it fired St. Hilaire for one reason: her well-documented history of carelessness, inattention to detail, and overall poor job performance. It moves for summary judgment, asserting that there are no genuinely disputed material facts and it is entitled to judgment as a matter of law. For the reasons discussed, that motion is granted.
When ruling on a motion for summary judgment, the court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir. 1990). Summary judgment is appropriate when the record reveals "no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In this context, "a fact is 'material' if it potentially affects the outcome of the suit and a dispute over it is 'genuine' if the parties' positions on the issue are supported by conflicting evidence." Int'l Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 199-200 (1st Cir. 1996) (citations omitted).
Nevertheless, if the non-moving party's "evidence is merely colorable, or is not significantly probative," no genuine dispute as to a material fact has been proved, and "summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). The key, then, to defeating a properly supported motion for summary judgment is the non-movant's ability to support his or her claims concerning disputed material facts with evidence that conflicts with that proffered by the moving party. See generally Fed. R. Civ. P. 56(c). It naturally follows that while a reviewing court must take into account all properly documented facts, it may ignore a party's bald assertions, unsupported conclusions, and mere speculation. See Serapion v. Martinez, 119 F.3d 982, 987 (1st Cir. 1997). See also Scott v. Harris, 550 U.S. 372, 380 (2007) ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").
I. Plaintiff's Job Performance.
MSSB hired St. Hilaire as a Registered Client Service Associate ("CSA") in its Portsmouth, New Hampshire office. In that capacity, she supported three MSSB Financial Advisors by answering the phones, responding to inquiries from their clients, processing paperwork, and updating client accounts. St. Hilaire was hired by MSSB as an employee at will. She began work on August 1, 2008. Her immediate supervisor was Valerie Margaritopoulos, the Operations Manager for the Portsmouth office. One of the Financial Advisors for whom St. Hilaire provided support - Richard Lyons - was the Branch Manager.
When plaintiff began working at MSSB, she received fairly substantial training. But, she did not have the benefit of a "desk buddy" (a nearby, more senior employee to provide on-thejob assistance) and, almost immediately, she struggled with at least some aspects of her job. Ms. Margaritopoulos responded by preparing an "SOS" manual for plaintiff, with specific instructions relating to each of the computer screens she needed to access within MSSB's computer system. Plaintiff also took online training courses offered by MSSB. Nevertheless, MSSB financial advisors, as well as their clients, complained about plaintiff's poor performance. In particular, concerns were voiced about her lack of professionalism when on the phone with clients of the firm, her lack of attention to detail, and her carelessness - performance problems that resulted in errors, like plaintiff placing an improper "market" sell order on behalf of a client, rather than a "limit" order, and incorrectly suggesting to an elderly client that her nearly $2 million account had no money in it (which, perhaps not surprisingly, prompted an anxious and teary phone call from the client to one of the financial advisors). Ms. Margaritopoulos repeatedly discussed those performance issues with plaintiff and explored ways plaintiff could improve. Additionally, other administrators in the office provided St. Hilaire with assistance and further training.
MSSB has documented (with record citations) numerous shortcomings in plaintiff's performance, as well as MSSB's efforts to address them with her, and the court will not chronicle them in detail. See generally Defendant's memorandum (document no. 7) at 3-6. See also Exhibits E through U to St. Hilaire Deposition (document no. 8); Affidavit of Maria Sampogna (document no. 10) ("I have worked for Smith Barney, now MSSB, for more than ten (10) years. During that time, I am not aware of any CSA who received more training and support than Plaintiff did during her employment with MSSB. I am also not aware of any CSA who had as much difficulty learning her duties as Plaintiff.").
It is sufficient to note that the list of mistakes that plaintiff made while employed at MSSB is substantial. Counsel for MSSB addressed each of those incidents with plaintiff during her deposition and, as to most of them, plaintiff does not deny that they occurred. See St. Hilaire Deposition at 30-125, and Exhibits E through V. Plaintiff does, however, offer an explanation or an excuse for nearly all of them, deflecting blame to co-workers, back upon MSSB for having failed to fully and properly train her, upon software shortcomings and computer "glitches," or upon the noisy work environment. See, e.g., Id. at 63, 71-72, 120-21, 158-59. See generally Exhibit GG to St. Hilaire deposition. Plaintiff's mistakes and omissions lead to at least one formal "verbal warning," as well as a written warning, specifically describing the types of errors that she was making and her need to address each of them. St. Hilaire's mistakes also lead to angry and/or distressed phone calls and e-mails from several MSSB clients to their financial advisors.
See, e.g., Exhibits G, J, O, and R to St. Hilaire Deposition.
By the spring of 2009, two of the financial advisors for whom St. Hilaire provided support were becoming increasingly irritated and troubled by her repeated mistakes and her apparent inability to grasp the essential requirements of her job. Their frustration is well-illustrated in an e-mail from Richard Lyons to Ms. Margaritopoulos in May of 2009:
Val - For the second time in less than a month Beth has messed up
addresses for one of my largest relationships and referral sources,
the  family. She changed the childrens' addresses to their parents'
home. This repeated inaccuracy on the part of Ms. Harrison*fn1
has jeopardized a client relationship which I have had for
over 20 years and represents approximately 7.5 million in household
assets and countless more referrals over the years which total over 20
million in my current book of business. We need to address the
carelessness on the part of Beth as soon as is possible. I am
extremely upset and concerned that she has been on warning almost
since she started working here and there has been little if any
improvement in her accuracy skills.
Exhibit V to St. Hilaire Deposition. See also Exhibit S (Employee Appraisal completed by David Gerasin on March 27, 2009) (opining that plaintiff needed to make "significant improvement" in several specified areas; stating that "I have been told by at least three clients that they are concerned that the follow-through from my assistant is not there . . . My own step-father, James , has mentioned that he is concerned, not necessarily for his accounts, but for my business;" noting that "Beth is not result oriented and does not proactively find ways to obtain results. She is very much reactive in nature, not a desirable feature in her position;" and concluding that "Bottom line, I am increasingly uncomfortable with the situation and have zero confidence at this point."); Exhibit T (Employee Appraisal completed by Richard Lyons) ("I feel that I cannot give work to Beth any longer and trust that it will be done correctly.").*fn2
Parenthetically, the court notes that, during her deposition, St. Hilaire admitted that she had no reason to believe that any of the criticisms of her work made by the three financial advisors she supported were related in any way to her use of leave time or her husband's illness. See St. Hilaire Deposition page 107, lines 3-5; page 115, lines 14-17; page 119, lines 22-23 through page 120, lines 1-2; page 123, lines 22-23 through page 124, line 1-2. The only employee of MSSB plaintiff believes actually discriminated against her because of her husband's illness was Ms. Margaritopoulos. See, e.g., Id. at pages 90-91.
Although Ms. Margaritopoulos was the operations manager of the Portsmouth office, she lacked the authority to fire plaintiff. See Margaritopoulos Affidavit (document no. 9) at para. 5. But, as noted above, she and at least two of the three financial advisors for whom plaintiff provided support were concerned about plaintiff's job performance. So, shortly after Mr. Lyons sent the e-mail complaining of plaintiff's continued poor performance and expressing his lack of confidence in her abilities, Ms. Margaritopoulos contacted MSSB's human resources department for guidance. She also spoke with her direct supervisor (James Gold), the assistant to the branch manager at another MSSB office (Maria Sampogna), and Mr. Lyons (in his capacity as Branch Manager of the Portsmouth office). According to Ms. Margaritopoulos, those discussions took about a month to complete (in part because a new person joined the human resources team). In the end, a unanimous decision to terminate plaintiff's employment emerged. See Margaritopoulos Affidavit at para. 32. See also Sampogna Affidavit at para. 26. On June 23, 2009, approximately 10 months after she began working at MSSB, St. Hilaire was informed that the company had decided to terminate her employment.
II. Plaintiff's Absences to Assist her Ailing Husband.
At the end of October, 2008 (approximately three months into plaintiff's employment at MSSB), plaintiff's husband was scheduled for hernia surgery. Two weeks before that surgery, plaintiff e-mailed Ms. Margaritopoulos and asked that she be permitted to take the day off from work. Ms. Margaritopoulos granted that request. On the day of the surgery, St. Hilaire and her husband learned that he had cancer. Plaintiff called Ms. Margaritopoulos to inform her of her husband's diagnosis. Ms. Margaritopoulos responded by telling plaintiff to take whatever time she needed to support her husband and family. St. Hilaire Deposition at 87-88, 151. Plaintiff took the next day off from work and no one spoke to her about, or criticized her for, her absences. Id. at 128-29. See also Exhibit X. Plaintiff also requested leave time on November 4 and 5, and December 2 and 3, 2008. Each of those requests was granted. See Exhibits AA, BB to St. Hilaire Deposition.
Additionally, plaintiff sought an exception to MSSB's leave policy and requested permission to carry-over 32 hours (approximately four days) of vacation/leave time from 2008 to 2009, so she might accompany her husband to New York for treatment. Exhibit DD to St. Hilaire Deposition. Although MSSB has a policy against permitting employees to carry-over unused paid leave time from year to year (a so-called "use it or lose it" policy), Ms. Margaritopoulos secured authorization from Mr. Gold for plaintiff to do so. Then, between January 28 and February 6, 2009, plaintiff requested and was permitted to miss work for eight days. It appears that she was paid for all eight of those days, even though she had only carried-over four earned days of vacation time from the prior year. St. Hilaire Deposition at 141. Plaintiff was not criticized or reprimanded in any way for having taken that time off. Id. at 137. In fact, plaintiff testified that she was never denied permission to take off time so she might assist her husband; each such request was granted, and no MSSB employee ever spoke to her or reprimanded her in any way for having taken that time from work. St. Hilaire Deposition at 131-32, 137, 145-46.
Because employees become entitled to FMLA leave only after completing one year of work, plaintiff did not qualify for FMLA leave during her tenure at MSSB. See 29 U.S.C. § 2611(2)(A). Not surprisingly, then, plaintiff testified that she was never a party to, nor did she initiate, any discussions about FMLA leave; she never asked MSSB about her FMLA rights; she never suggested that she intended to invoke her FMLA rights once she qualified ...