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Linda Gavin v. Liberty Mutual Group Inc.

September 5, 2012


The opinion of the court was delivered by: Landya McCafferty United States Magistrate Judge

Opinion No. 2012 DNH 154


In a case that has been removed from the New Hampshire Superior Court, Linda Gavin is suing her former employer, Liberty Mutual Group Inc. ("Liberty Mutual"), in three counts, asserting claims for constructive discharge (Count I), wrongful termination (Count II), and enhanced compensatory damages (Count III).*fn1 Before the court are: (1) Liberty Mutual's motion for summary judgment; and (2) its motion to strike portions of Gavin's memorandum of law in opposition to summary judgment and her affidavit in support thereof.*fn2 Gavin objects to both motions. For the reasons that follow, Liberty Mutual's motion for summary judgment is granted and, as a result, its motion to strike is denied as moot.

Summary Judgment Standard

"To prevail on summary judgment, the moving party must show that 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Markel Am. Ins. Co. v. Diaz-Santiago, 674 F.3d 21, 29 (1st Cir. 2012) (quoting Fed. R. Civ. P. 56(a)). "[A]n issue of fact is genuine if 'a reasonable jury could resolve it in favor of either party.'" Markel, 674 F.3d at 29-30 (quoting Basic Controlex Corp. v. Klockner Moeller Corp., 202 F.3d 450, 453 (1st Cir. 2000)). "In determining whether a genuine issue of material fact exists, [the court] construe[s] the evidence in the light most favorable to the non-moving party and make[s] all reasonable inferences in that party's favor." Markel, 674 F.3d at 30 (citing Flowers v. Fiore, 359 F.3d 24, 29 (1st Cir. 2004)).

"The object of summary judgment is to 'pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required.'" Davila v. Corporacion de P.R. para la Diffusion Publica, 498 F.3d 9, 12 (1st Cir. 2007) (quoting Acosta v. Ames Dep't Stores, Inc., 386 F.3d 5, 7 (1st Cir. 2004)). "[T]he court's task is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir. 2009) (citations and internal quotation marks omitted).

"The non-movant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists." Sanchez-Rodriguez v. AT&T Mobility P.R., Inc., 673 F.3d 1, 9 (1st Cir. 2012) (quoting Iverson v. City of Boston, 452 F.3d 94, 98 (1st Cir. 2006)). "However, 'a conglomeration of conclusory allegations, improbable inferences, and unsupported speculation is insufficient to discharge the non-movant's burden.'" SanchezRodriguez, 673 F.3d at 9 (quoting DePoutot v. Raffaelly, 424 F.3d 112, 117 (1st Cir. 2005)). "Rather, the party seeking to avoid summary judgment must be able to point to specific, competent evidence to support his [or her] claim." SanchezRodriguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).


The following factual recitation is drawn largely from the statement of undisputed material facts in Liberty Mutual's memorandum of law. While Gavin devotes a considerable portion of her memorandum to a host of factual issues, she challenges only two of the facts from Liberty Mutual's statement in the manner required by the Local Rules of this district. That is, she does not respond to Liberty Mutual's factual statement by incorporating into her memorandum "a short and concise statement of material facts, supported by appropriate record citations, as to which [she] contends a genuine dispute exists so as to require a trial." LR 7.2(b)(2). That said, the court turns to the basic facts of this case.

Gavin began working for Liberty Mutual in 2002. In 2004, she was promoted to the position of assistant controller in the cash-management department. Her immediate superior was John Salmon. "In November of 2007, Mr. Salmon . . . met with [Gavin] regarding her job performance and provided her a detailed memorandum regarding her shortcomings with regard to communication and other issues." Def.'s Mem. of Law (doc. no 26-1), at 3. Liberty Mutual supports that statement with a copy of the memorandum Salmon gave Gavin. Gavin attempts to create a triable issue regarding the November 2007 meeting in the following way:

Liberty [Mutual] now also claims in its Motion for Summary Judgment ("Motion") that Salmon had discussions with Gavin in late 2007 detailing instances of Gavin's communication problems. This flies in the face of the draft warning prepared by Salmon as to [a] January 16, 2008 meeting, and attached hereto as Exhibit O. No reasons for a performance warning are set out in Exhibit O, and the reasons are simply marked with three (3) x's.

More significantly, Exhibit O states after the three (3) x's "how do you feel about this/Are you surprised by it?" If Salmon had met with Gavin and had given her detailed instances of Gavin's communication problems or other issues prior to the January 16, 2008 meeting, it would make no sense to ask her "how do you feel about this/Are you surprised by it?"

Pl.'s Mem. of Law (doc. no. 28-1), at 15 (emphasis in the original). While Gavin appears to suggest that Salmon did not meet with her in November of 2007 or did not talk to her about communication problems, she did not deny either the fact of the November discussion or its content in the affidavit she submitted in support of her objection to summary judgment. In any event, Gavin's speculation and inferences, see SanchezRodriguez, 673 F.3d at 9, are insufficient to create a factual basis from which a reasonable jury could find either that Salmon did not meet with her in November of 2007, or that he did not discuss her job performance with her, which are the relevant factual statements she appears to challenge, see Markel, 674 F.3d at 29-30 (describing the dimensions of a genuine issue of fact, for purposes of summary judgment).

On January 4, 2008, Gavin sent an e-mail containing confidential information about another employee by using the "reply all" button rather than the "reply" button, which resulted in the transmission of that information to people who should not have received it. Salmon got the e-mail and went to Gavin's office to speak with her about it. When he saw how upset she was, he told her to go home.

Gavin did go home, and reported to Liberty Mutual that she was ill and would be out of work for some time. She returned to work on January 16, having used approximately eight days of flexible time off ("FTO"), which was one of her employment benefits. The day Gavin returned to work, Salmon met with her to discuss her performance. At that meeting, Salmon gave Gavin two options. The first was to continue as an assistant controller in the cash-management department and receive a written warning concerning her job performance. The second was to take a six- to nine-month assignment in the treasury department, while receiving her full compensation and benefits. Salmon told Gavin that if she took the second option, and did not obtain another position at Liberty Mutual before the temporary position expired, she would be eligible for severance pay. "During the January 16, 2008 meeting, [Gavin] informed Mr. Salmon that she would accept the temporary position in the Treasury Department." Def.'s Mem. of Law (doc. no. 26-1), at 5. Although Gavin disputes the voluntariness of her acceptance of the temporary position, she does not dispute the fact that she accepted the position, on whatever terms it was offered.

On March 19, Gavin sent a letter to Salmon that stated, in pertinent part: "I hereby submit my resignation from my position at Liberty Mutual effective April 4, 2008." Def.'s Mot. Summ. J., Ex. D (doc. no. 26-5). At her deposition, Gavin was asked why she did not stay at Liberty Mutual through the end of her temporary assignment. She explained her early departure this way:

I did what any reasonable person would do under the circumstances. I had a family. I had a kid in college. I was in a temporary position that I knew . . . would end. It was a poor economy. I mitigated my losses by ...

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