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O'Rourke v. Boyne Resorts

United States District Court, District of New Hampshire

February 7, 2014

Autumn O’Rourke, Plaintiff
Boyne Resorts d/b/a Loon Mountain Recreation Corporation, Defendant Opinion No. 2014 DNH 024

Leslie H. Johnson, Esq. Donald L. Smith, Esq. Margaret A. O’Brien, Esq.


Steven J. McAuliffe United States District Judge

Plaintiff, Autumn O’Rourke, brings this action against her former employer, Boyne Resorts, d/b/a Loon Mountain Recreation Corporation (“Loon Mountain” or “Loon”). She seeks damages for alleged acts of discrimination. More specifically, she says Loon violated Title VII, 42 U.S.C. § 2000e, by terminating her employment on account of her pregnancy. She also alleges that Loon retaliated against her fiance’s mother because O’Rourke filed a discrimination charge with the state human rights authority. In addition, O’Rourke advances several state common law and statutory claims. Loon moves for summary judgment, doc. no. 17, asserting that there are no genuinely disputed issues of material fact and that it is entitled to judgment as a matter of law.

Standard of Review

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, speculation, and unsupported conclusions. 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.”).


Except where noted, the following facts are undisputed. Loon Mountain is a year-round resort located in Lincoln, New Hampshire. In November of 2010, Loon Mountain hired O’Rourke as a seasonal employee in its Food and Beverage Department. A few weeks later, Loon also hired O’Rourke as a seasonal employee in its Accounting Department. O’Rourke split her time between the two departments. Seasonal employment at Loon Mountain coincides with the ski season, which usually runs from November to late March or early April.

Although O’Rourke’s employment in the Food and Beverage Department normally involved serving food and beverages at the Octagon Lodge, she was assigned to work at Java Junction on Saturday and Sunday, January 22 and January 23, 2011. Java Junction is located in a separate building from the Octagon Lodge. It is not a busy venue, and is generally staffed by a single employee. Part of the Java Junction employee’s job is to transport products from the Octagon Lodge to Java Junction, including soda, water, and other items. Plaintiff had not previously worked at Java Junction.

At the end of the workday on Saturday January 22, O’Rourke told her assistant manager, Julia Cyr, that she was pregnant and that the pregnancy was high-risk. She told Cyr that she would, therefore, need assistance moving product from Octogon Lodge to Java Junction. According to O’Rourke, Cyr seemed “very offset, set back” upon hearing that O’Rourke was pregnant. At her deposition, O’Rourke explained that “my feeling was that it was slightly irritating because of the time of year. We were coming into a vacation week, it was very busy, and my feeling was that it was an inconvenience at the time.” O’Rourke Dep., doc. no. 17-4, at 45.

Cyr agreed to have someone help O’Rourke move product from Octagon Lodge to Java Junction the next day, although she noted that Loon was short-staffed and that there might be a delay in getting assistance. Given the seasonal nature of O’Rourke’s employment with Loon, O’Rourke would not have worked for Loon during most of her pregnancy. O’Rourke’s seasonal employment was scheduled to end in less than three months – approximately the beginning of April. Her delivery due date was in September, about five months after her seasonal employment was expected to end.

O’Rourke worked at Java Junction the next day, Sunday January 23. A co-worker assisted her in moving soda and water from the Octagon Lodge to Java Junction. Later that morning, Cyr visited Java Junction as part of her normal rounds. When she entered the café, there were no customers and she could not see O’Rourke. According to Cyr, she looked around the corner and saw O’Rourke crouched behind the counter with a can of whipped cream in her hands and between her legs, with the top of the can pointed upward. Another can of whipped cream and spilled whipped cream were on the floor near her. According to Cyr, O’Rourke seemed “startled” when she saw Cyr. The two chatted for a few minutes and Cyr left the café.

Cyr testified at her deposition that she suspected that O’Rourke had been doing a “whippit.”[1] Cyr was aware that Loon had recently experienced losses of whipped cream from inventory at other Loon locations, and that Loon management was concerned that some employees had been using the whipped cream to do whippits.

Cyr testified that she wanted to make additional inquires before confronting O’Rourke. It is undisputed that Cyr returned to the Octagon Lodge and asked an employee to explain how a whippit is performed. The employee described the process, which was consistent with what Cyr says she saw O’Rourke doing at Java Junction. Cyr then asked two Food and Beverage Department employees to go to Java Junction to observe and report back to Cyr anything that seemed unusual. The first employee reported to Cyr that O’Rourke was not at Java Junction and that there was whipped cream on the floor. The second employee reported to Cyr that O’Rourke was at Java Junction, but was flustered and making odd statements about whipped cream.

Cyr then went to the Octagon Lodge and checked the product transfer sheet for Java Junction. The transfer sheet showed that seventeen cans of whipped cream had been transferred to Java Junction on the previous day, Saturday, January 22. Cyr informed Loon’s human resources department. She was advised to return to Java Junction with another employee, as a witness, and to question O’Rourke. Cyr returned to the café with Shannon Hartwell, another Food and Beverage Department manager. Cyr did not explain the situation to Hartwell because, she says, she wanted Hartwell to be an unbiased witness. Cyr approached O’Rourke and told her that there was “an inventory control problem with whipped cream” and that Cyr “suspected that she caught [O’Rourke] inhaling the whipped cream.” O’Rourke Dep., doc. no. 24-2, at 29. O’Rourke did not give Cyr any explanation. Instead, she asked Cyr “Why would I ever do something like that” while pregnant? Id. at 30. She also asked, “if you thought I was impaired . . . why would you let me stay for hours?” Id. at 32.

Cyr then asked O’Rourke to count the number of cans of whipped cream that were in inventory at Java Junction. Only four of the seventeen cans that had been brought over from the Octagon Lodge the day before remained in inventory. The thirteen cans that were no longer in inventory represented an unusually high amount of whipped cream use for a single day at Java Junction. Although several days later O’Rourke told other Loon authorities that she found used cans of whipped cream in the trash when she arrived at Java Junction that morning, she did not mention that purported fact to Cyr at the time Cyr questioned her.

Cyr then told O’Rourke that she would be sent home, but that O’Rourke first needed to meet with Ralph Lewis, Director of Operations, to discuss the situation. Cyr and Hartwell then accompanied O’Rourke to Lewis’s office. Lewis asked O’Rourke what she had been doing with the whipped cream. O’Rourke did not offer any explanation, but said “Ralph, you know me. This isn’t . . . something I would do. You know, like, I handle all the money for the resort. Stealing whipped cream or doing whipped cream . . . [is] not something in my character or something I would do.” Id. at 34.[2] Lewis told O’Rourke there would be a further investigation before a decision was made regarding her continued employment. Crediting O’Rourke’s version of the facts, it also appears that O’Rourke offered to take a drug test, have her bag searched, and take a lie detector test. Those requests were ignored.

Because Lewis was concerned that O’Rourke might be under the effects of nitrous oxide, he arranged for a security officer to take O’Rourke home. At her request, O’Rourke was taken instead to a local store.[3]

At some point on Sunday, Mary Aylward, a Loon seasonal employee (and the mother of O’Rourke’s fiancé) approached Cyr to find out what was happening with O’Rourke. At her deposition, Aylward recounted the following exchange with Cyr:

Q. And what happens when Julia [Cyr] returns?
A. I went downstairs with her and I asked her what ...

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