United States District Court, D. New Hampshire
[Copyrighted Material Omitted]
For Eric Rolfs, Plaintiff: Tracy A. Bernson, LEAD ATTORNEY, Bernson Legal PLLC, Dover, NH; Michael T. Pearson, Pearson Legal PLLC, Dover, NH.
For Home Depot USA, Inc., Defendant: Robert P. Joy, LEAD ATTORNEY, M. Amy Carlin, Tracy Thomas Boland, PRO HAC VICE, Jeffrey S. Siegel, Morgan Brown & Joy LLP, Boston, MA.
Landya McCafferty, United States Magistrate Judge.
Asserting claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and New Hampshire's Law Against Discrimination, N.H. Rev. Stat. Ann. (" RSA" ) ch. 354-A, Eric Rolfs has sued his former employer, Home Depot U.S.A., Inc. (" Home Depot" ) for sex discrimination (Count I) and retaliation (Count II). Before the court is defendant's motion for summary judgment. Plaintiff objects. For the reasons that follow, defendant's motion for summary judgment is granted.
Summary Judgment Standard
" Summary judgment is warranted where 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" McGair v. Am. Bankers Ins. Co. of Fla., 693 F.3d 94, 99 (1st Cir. 2012) (quoting Fed.R.Civ.P. 56(a); citing Rosciti v. Ins. Co. of Penn., 659 F.3d 92, 96 (1st Cir. 2011)). " 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 Am. Ins. Co. v. Díaz-Santiago, 674 F.3d 21, 30 (1st Cir. 2011) (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.'"
Dávila v. Corporación de P.R. para la Diffusión Pública, 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 nonmovant may defeat a summary judgment motion by demonstrating, through submissions of evidentiary quality, that a trialworthy issue persists."
Sánchez-Rodríguez 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 nonmovant's burden.'"
Sánchez-Rodríguez, 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."
Sánchez-Rodríguez, 673 F.3d at 9 (quoting Soto-Ocasio v. Fed. Ex. Corp., 150 F.3d 14, 18 (1st Cir. 1998)) (internal quotation marks omitted).
A good argument could be made that Home Depot's ten-page, fifty-two paragraph statement of material facts is more extensive than the " short and concise statement of material facts," LR 7.2(b)(1) (emphasis added), contemplated by the Local Rules of this District. Rolfs' Rule 7.2(b)(2) counter statement, which runs for more than eighteen pages, is longer, less concise, and more argumentative than Home Depot's statement. In addition, Rolfs does not identify a single fact from Home Depot's statement " as to which [it] contends a genuine dispute exists so as to require a trial." LR 7.2(b)(2). Because Rolfs does not challenge any of the facts in Home Depot's statement, those " that are supported by appropriate record citations," LR 7.2(b)(1), are, necessarily, deemed admitted, see LR 7.2(b)(2). Accordingly, the facts related in this section are drawn, in the first instance, from Home Depot's memorandum of law, see id., but are also augmented by facts drawn from " other materials in the record," Fed.R.Civ.P. 56(c)(3).
Rolfs started working for Home Depot in 2004 and was made manager of Home Depot's Manchester store in 2006. In early 2008, Gene Kelly became Rolfs' District Manager. Shortly after Kelly assumed that position, he took several of his store managers, including Rolfs, to a strip club. There is no evidence that Rolfs went unwillingly. As Rolfs' District Manager, Kelly visited Rolfs' store once or twice a week, and generally spent between thirty minutes and two hours " walking" the store and discussing his findings with Rolfs.
At some point in mid to late 2008, during one of Kelly's visits to Rolfs' store, Rolfs introduced Kelly to one of his customers, a woman who worked as buyer for a local contractor and who visited his store relatively frequently.  After Kelly shook the customer's hand, " he walked behind her and kind of went, whoa [and] rolled his eyes." Doc. no. 30-31 (Rolfs Dep.), at 22. 
Between the time Kelly first met the customer and the end of 2008, Kelly made comments about her to Rolfs, or made physical gestures such as a thumbs-up, between five and ten times. In particular, Kelly referred to the customer as " a nice piece of ass," doc. no. 30-31 (Rolfs Dep.), at 23, and asked Rolfs when he was " going to put it to her," id. at 33. When Rolfs expressed disinterest in pursuing sexual relations with the customer, Kelly asked him whether he was " a homo," id. at 38.  In 2008, Rolfs did not mention Kelly's in-store boorishness to anyone at Home Depot and did not ask Kelly to stop it. Rather, he tried to change the subject when Kelly started talking about the female customer.
In January of 2009, Rolfs attended a Home Depot holiday that was being held at a restaurant. Near the end of it, Kelly launched into a loud discussion of Rolfs' interactions with the female customer.  Kelly initially directed his remarks to guests at the party, but subsequently spoke to two other diners at the restaurant who were not attending the party. In his deposition, Rolfs described Kelly as saying:
[to other Home Depot employees:] Look at this fucking homo. He's a - he's a, you know, What is he a fag? He's not going to fuck - just because he's married he's not going to fuck this smoking hot piece of ass? I mean, she's all over him and he just won't do it just 'cause he's married?
. . . .
. . . Oh, I'd love to just give it to her hard, you know, and he won't do it just because he's married and blah, blah, blah, blah. . . . [to other diners in the restaurant not associated with the Home Depot party:] Look at this fucking homo. He just won't cheat on his wife just because - or he won't fuck this smoking hot piece of ass just because he's married. Can you believe that? Can you believe this guy?
. . . .
[to Rolfs:] You're a fucking homo. You're a fucking pussy. You know, just because you're married, you're not going to fuck this smoking hot piece of ass. [to other diners:] Can you believe this fucking homo for not . . . fucking this woman.
Doc. no. 24-1, at 9-11.
On the way out of the party, Kelly told several of the attendees that he was taking them to a strip club. Rolfs went along.
After the holiday party, Kelly continued to make comments about Rolfs' female customer that were similar to those he made before the holiday party. Then, an incident occurred during one of Kelly's store visits that Rolfs has described this way:
A. . . . [I]t got to the point where it was excessive after the Christmas party and he said to me, Hey, what are you going to do? She was - I was getting called up to that area, to the pro desk again for her [i.e., the female customer]. And whenever you're walking with a district manager, they even know that the customer takes precedent, and Gene was cognizant of that fact, so he was walking up with me.
And comments - we were approximately near the lumber aisle, and I'll never forget this, he said, Hey, you know, there's no one out back, are you going to take her? Whatever, some kind of a[n] off-colored comment that really finally was it. And I said, Come on, Gene, and I threw my hands up and I walked away. I walked up to the pro desk because she was there.
Now, whether he just slowed down because I was going to speak to the customer or whether I outpaced him, I don't know, but we separated after that and I dealt with the customer. And he - when I went to go look for him afterwards, he had his stuff and was leaving and forever after that it was changed. That was the defining moment. I'll never forget it.
Q. When did that occur?
A. It was approximately in - some time in around spring to summer of 2009.
Doc. no. 30-31 (Rolfs Dep.), at 25-26. Later in his deposition, Rolfs further described the " Come on, Gene" incident:
A. Again, it was everything I've already said, but we were walking up, and I could see her [the female customer] at the desk because you can see them from the area we were walking near the lumber aisle, you can actually see the pro desk from where we were. I don't know if that had something to do with it because as we were walking up I don't know if - I'm saying to myself she's going to look at this district manager, who she already said to me is creepy, is he making eyes? Is she going to see this? Is she seeing me? I'm trying not to look, okay, so I don't know if that put pressure on me to say come on - because he was making comments as we were walking up to the desk, okay.
So as somebody's making comments about someone that you're walking up to meet, it throws your train of thought off because you're trying to think about what you're going to do, to say to this person, say hello, you know, you're trying to get ready for the interaction. Then you've got this other person saying to you hey, you know, when are you just going to fuck her, whatever? When are you just going to get it over with, right? I don't know if the whole thing just came to a head at that moment because she was there, he was there, we were walking and I felt pressure because we were walking up and I said - finally, I said, that's it, no more of this I said, " Come on, Gene," and I walked away. . . .
Q. But you didn't say that's enough, no more, you said " Come on, Gene" ?
A. I said come on.
Q. You didn't say anything other than " Come on, Gene" ?
A. No, but - I didn't say anything. I said, " Come on, Gene," and I threw my hands up.
Doc. no. 24-1, at 26-27.
The " Come on, Gene" incident was the first time Rolfs ever said anything to Kelly about Kelly's comments concerning the female customer. After the " Come on, Gene" incident, Kelly did not engage in any further in-store boorishness. However, on several occasions, another manager who had attended the holiday party mentioned the party in the presence of Kelly and Rolfs, and Kelly did nothing to cut off the other manager's comments.
According to Rolfs, during the fall of 2009, Kelly made various management decisions with the express purpose of setting him up to fail. Specifically, Rolfs claims that Kelly assigned his two most effective assistant managers to other stores, and replaced them with chronically underperforming assistant managers, and did so at times when such changes would be particularly disruptive.
In late October or early November of 2009, Kelly walked Rolfs' store with Paul Deveno, Home Depot's Regional Vice President. Deveno identified several deficiencies. Thereafter, Kelly issued Rolfs a Performance/Discipline Notice (" P/DN" ), document no. 24-8, dated November 8, 2009. The P/DN identified problems with customer service, holiday set-up, and performance " on the D25 Gold Cup" during the week of November 2. In December, Kelly issued Rolfs a second P/DN, document no. 24-9, based upon maintenance problems identified during a December 3 store walk.  Rolfs' second P/DN also includes the following statement: " Please
note that three (3) or more documented performance counseling's on a Performance and Discipline Notice within a rolling three month period require a Performance Improvement Plan." Doc. no. 24-9, at 2.
Rolfs alleges that the store walk that resulted in his first P/DN was scheduled for a day when Kelly knew that he would be away from his store. Rolfs also argues that the criticisms in the two P/DNs were inaccurate, overly subjective, or based on conditions that resulted from Kelly's own management decisions which, in Rolfs' view, were made in order to make him look bad.
On December 17, Rolfs spoke by telephone with Charles Worcester, Home Depot's Regional Associate Relations Manager. He mentioned his two P/DNs, Kelly's in-store boorishness, and the party rant.
Two days after the telephone conversation, Rolfs sent Worcester an e-mail in which he discussed the P/DNs, and also wrote:
The writeups I've spoken to you about as I see it are preemptive strikes on my career due to me being the focus of a drunken sexual harassment tirade by Gene Kelly that took place in front of every store manager in the district at our Christmas party last year. I was screamed at and told that I was a " F--ing P--" b/c I didn't " F--" one of my female customers and cheat on my wife. He then proceeded to confront two random male customers just walking out of the mens room by our table and yelled at them asking " How much of a F--ing P-- is this guy for not F--ing a piece of a-- who's drop dead gorgeous just b/c he's married" . This incident was witnessed by every sm in d264, jason carter and matt shea.
Charlie, I was publicly humiliated and never expected to have to deal with this type of situation when I came to work for The Home Depot. It[ ] [ha]s been almost a year now and I've been doing everything in my power both mentally and emotionally to put that confrontation behind me and try to have a decent working relationship with Gene Kelly. Unfortunately, the memories of this incident are constantly being reinforced by the day to day comments from Gene asking me " So how's your girlfriend? Did you sleep with her yet?" . These comments are causing me to constantly confront the fact that I am obviously not living up to his expectations by not engaging in sexual relationships with female customers outside of marriage. I've also begun to worry that hourly associates could possibly overhear his comments and start spreading rumors. Additionally, at concord's inventory last week this incident involving Gene and myself was once again brought up in group discussion by all of the SMs and Gene acknowledged how it was a " funny night" . I immediately felt the embarrassment and humiliation all over again and my boss smiled taking pride in the incident.
Doc. no. 30-10.
Kelly issued Rolfs a third P/DN, document no. 24-10, dated January 25, 2010. That P/DN noted problems that were identified during store walks on November 2 and December 3, 2009, and reexamined during store walks on January 12 (conducted by Kelly, and officials referred to as " DOM" and " DHRM" ) and January 16 (conducted by Kelly). Rolfs contends that the criticisms in the third P/DN were inaccurate, and has produced evidence that neither he nor his staff ever saw Kelly in his store on January 16, and that Kelly does not appear on any of the store's surveillance video for that day.
On February 8, 2010, Rolfs met with Deveno. It is undisputed that Rolfs mentioned
Kelly's in-store boorishness and the party rant at that meeting.
On February 10, 2010, Kelly received verbal counseling that was documented in a P/DN. That P/DN states, in pertinent part:
2 - Eric Rolfs has not had any performance conversations until recently - and why is that? Perception is that it is because Paul is pushing the issue with Gene.
3 - Gene is too close to his SM and district team. Gene feels too comfortable with them and makes inappropriate comments and uses inappropriate language frequently - many times within an ear shot of associates. His behavior violates the respect policy.
4 - Gene does not know how to model effective leadership for his weaker SMs (Eric Rolfs, Bill McLean and Dan Kalkoff) and in turn they are struggling.
Doc. no. 30-4. In another part of Kelly's P/DN, under the heading " State the improvement & action plan to address [the] issue," id., the P/DN states, in a recitation of corporate values: (1) " The Company is committed to providing an environment of mutual respect, free of harassment and discrimination for our associates, customers and vendors," id.; and (2) " The Home Depot will not tolerate any retaliation or threats of retaliation against anyone who exercises his or her legal rights under any employment laws or makes good-faith reports of workplace harassment, sexual harassment or discrimination . . .," id. The P/DN goes on to define both " retaliation" and " protected conduct."
From March 8 through 11, 2010, Kelly and Rolfs attended a Home Depot store-managers meeting in Los Angeles. In Los Angeles, Kelly invited several store managers to a strip club. Rolfs declined.
On March 16, 2010, Kelly issued Rolfs a fourth P/DN, document no. 24-11, based upon conditions related to maintenance and shopability that Kelly identified during store walks on March 2 and March 12. Rolfs again contests the validity of the criticisms in the P/DN, and points out that the March 12 walk was conducted the day after he returned from Los Angeles, before he had a chance to address the issues on which Kelly based the P/DN.
On March 22, Rolfs had a second meeting with Deveno. With regard to Kelly's sexually oriented conduct, Rolfs complained that in Los Angeles: (1) when another manager brought up Kelly's party rant, Kelly did nothing to prevent him from continuing to talk about it; and (2) Kelly invited him to a strip club. That same day, Rolfs sent Deveno an e-mail mentioning: (1) Kelly's " vulgar taunting and questioning of [his] 'manhood' dealing with the fact that [he] wouldn't have sex and cheat on [his] wife with a female customer," doc. no. 30-21; and (2) the Los Angeles strip-club invitation which, in Rolfs words, " reinforce[d] the harassment [he] received at [Kelly's] hands as earlier discussed," id. With regard to his understanding of the reason why Kelly had issued the four P/DNs, Rolfs explained:
The language in Gene's write up makes it very clear he is looking to build a case right before reviews are given to place me on the path toward termination. I again believe this stems from the sexual harassment I received at his hands at the district xmas party '09.
The next day, Kelly placed Rolfs on a sixty-day Performance Improvement Plan (" PIP" ). Under the heading " Leader's Summary Assessment" in a document titled " Performance and Development Summary," the ...