McDonnell v. Certified Engineering & Testing Co.

• Decision Date: 31 July 1995
• Docket Number: Civ. A. No. 94-10318-DPW.
• Citation: 899 F. Supp. 739
• Court: U.S. District Court — District of Massachusetts
• Parties: Patricia McDONNELL, Plaintiff, v. CERTIFIED ENGINEERING & TESTING CO., INC., Defendant.

899 F. Supp. 739

Patricia McDONNELL, Plaintiff, v. CERTIFIED ENGINEERING & TESTING CO., INC., Defendant.

Civ. A. No. 94-10318-DPW.

United States District Court, D. Massachusetts.

July 31, 1995.

Kevin G. Powers, Boston, MA, for plaintiff.

M. Robert Dushman, Brown, Rudnick, Freed & Gesmer, Boston, MA, Catherine E. Reuben, Robinson & Cole, Boston, MA, for defendant.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

I.

Patricia McDonnell (McDonnell), brought the instant action against her former employer, Certified Engineering & Testing Co., Inc. (Certified) alleging that Certified dismissed her in November of 1991 immediately after she informed her supervisor that she was pregnant. This dismissal, McDonnell alleges, violated state and federal laws prohibiting discrimination based on gender and disability.

Certified has moved for summary judgment asserting that it terminated McDonnell as part of a management decision to eliminate her position. Certified contends that management had made the decision to terminate McDonnell before it became aware that she was pregnant and that it is only coincidental that she was laid off the same day she informed her supervisor that she was pregnant. Certified also argues that McDonnell has not demonstrated that her pregnancy qualifies her as "handicapped" and entitled to protection of the anti-discrimination statutes prohibiting discrimination based on disability.

The question whether improper considerations caused McDonnell's termination cannot be resolved on a summary judgment record. The issue must be presented to the factfinder at trial for determination on the merits. Accordingly, I will deny defendant's motion for summary judgment.

II.

Glenn Sylvester, Vice President and part owner of Certified (Complaint ¶ 6), hired McDonnell on December 8, 1986, (id. ¶ 4; see also Sylvester Dep. at 23). McDonnell served for nearly four years as a Director of Human Resources (Complaint ¶ 4); Certified acknowledges that she "performed her duties in a competent and professional manner." (Answer ¶ 5; Complaint ¶ 5.)

On November 19, 1990, McDonnell told Sylvester, her supervisor, that she was pregnant. (Complaint ¶ 6.) Minutes later, according to Sylvester, he informed Leonard Seale, Certified's President, that McDonnell was pregnant. (Sylvester Dep. at 27.) Several hours later, Seale asked to meet with McDonnell (Complaint ¶ 8; Ans. ¶ 8); Sylvester also attended this meeting (Pl.Ans. to Interrog. ¶ 5). "At the meeting, Mr. Seale congratulated the plaintiff for her pregnancy, and told her that she was being laid off as of November 23, 1990." (Complaint ¶ 8; Ans. ¶ 8.)

Certified contends that its decision to terminate McDonnell predated her announcement that she was pregnant. Sylvester testified that the issue of McDonnell's pregnancy was not a factor in the decision of whether to terminate her. (Sylvester Dep. at 64-65.) He also testified that McDonnell's termination was entirely unrelated to her performance. Id. at 25. Instead, Certified asserts, due to financial problems it had "instituted a program to lay off a number of its corporate personnel whose time could not be billed directly to clients and who were considered as part of the corporate overhead." (Def.Mem. at 1.)

A. November 14, 1990 Directors' Meeting

According to Certified, a recommendation was made by Certified's "foreign investors" to terminate McDonnell and several other employees at a November 14, 1990, Board of Directors meeting. Id. at 2. The minutes of that meeting indicate that such a recommendation was made. (Minutes 11/14/90 Board Meeting at 11.)¹ At one point during discovery, Certified indicated that it decided to terminate McDonnell at this meeting:

The decision to lay off the plaintiff was made at a meeting of the Board of Directors held in New York City on Wednesday, November 14, 1990, commencing at approximately 2:00 p.m. Participating in the meeting were Leonard Seale, Glenn Sylvester, Wayne Crandelmere, Calvin Thompson, Francois Carrette and Alain Thieffry.

(Def.Ans. to Interrog. No. 11.) However, Sylvester testified, based on his review of the minutes of the meeting, that no vote on the lay off question was taken. (Sylvester Dep. at 44.) He noted, however, that "layoffs, firings and so forth were handled by management. It wasn't required that we would have a Board of Directors' meeting to discuss a person or an employee or employees that would be laid off." Id. at 45-46.

B. November 15 (?) 1990 Management Meeting

Certified further asserts that at a subsequent meeting attended by Seale, Sylvester and Wayne Crandelmere, another Certified manager, a decision was made to lay off McDonnell, among others. (Def.Mem. at 2.) Although Sylvester did not recall the date of that meeting at his deposition (Sylvester Dep. at 46-47), he identified notes he took at that meeting that were dated November 15, 1990, id. at 50. Sylvester testified that the decision to lay off McDonnell occurred at this meeting. Id. at 48. Although the meeting notes are not entirely legible, they do contain a list of nine names under the heading "Corporate" and a column apparently indicating each named person's salary (in thousands). (Notes dated 11/15/90; Def.Mem.Ex. A-4.)² "Tricia" McDonnell is on the list; also included are Bill Czar, Dick Holloway, Deb Holland, Ginny (with the notation "1/2x"), Deb A. and Don (the latter two accompanied by the notation "assign to Weymouth"). Id. The salaries of these seven are tabulated, and below that line are listed "Lynn S." and Wayne (in place of the latter's salary is a "?"). Id. Sylvester testified that "the decision was made to lay all of those people off who were on that list." (Sylvester Dep. at 48.)

C. November 19, 1990 Phase II Plan Memorandum

Certified points to a memorandum from Seale to other Certified managers and investors to support its position that the decision to terminate McDonnell was made before she announced that she was pregnant. Seale's memorandum, dated November 19, 1990, referred to an attached "Phase II, Proposed Cost Reduction Plan" that "describes the cost reductions which we are implementing as a consequence of the decisions reached at the Board of Directors Meeting" the previous week. (Seale Cover Mem.; Def.Mem.Ex. A-3.) The Phase II Proposed Plan indicated that the actions it described were "to be implemented during the week of 19 November 1990." (Phase II Plan at 1; Def. Mem.Ex. A-3.) The Plan's section on "Corporate Staff Reductions" indicated that "the following seven employees will be laid off, or have the time they charge to the Corporate payroll reduced, effective Friday, 23 November, 1990:"

                                                                 Annual
                   Name                 Position             Salary Reduction
                W. Czar         Controller                   $ 53,996
                R. Holloway     Manager, Data Systems          47,249
                T. McDonnell    Manager, Human Resources       18,982    (1)
                D. Holland      Receptionist                   18,780    (2)
                L. Simcox       Marketing Analyst              28,000
                C. Falletti     Secretary                      11,929    (3)
                G. McGrath      Secretary                      12,896    (4)
                Annual Cost Reduction                        $ 191,772
                Weekly Cost Reduction                        $  3,688
                

Id. The "(1)" next to McDonnell's salary indicated that she was then "working part-time @ 3 days/week." Id. The notations for Holland, Falletti and McGrath indicated that each of those employees would have all or a portion of their salaries charged to "Weymouth" and, in addition, Holland would be cut back to part-time. Id.

While the list of employees identified in the notes from the 11/15/90 meeting and the subsequent Phase II Proposed Plan are similar, they are not identical. I note the following differences. Deb A., Don and Wayne all appear on the 11/15 list but were not listed on the Plan as part of the 11/23/90 layoffs. Also, C. Falletti, who appears on the Plan and was laid off, was not on the 11/15/90 list.³

Based on the information provided in the November 19, 1990 Plan, Sylvester's testimony that "the decision was made to lay all of those people off who were on the November 15, 1990 list" (Sylvester Dep. at 48) is not entirely accurate. Of the nine people included on the November 15 list, only four—Czar, Holloway, McDonnell and Simcox—were laid off. A fifth, Holland, was reduced to part-time. "Ginny" McGrath, who appeared on the November 15 list, was not laid off, her salary was simply shifted from the corporate payroll. And, as mentioned above, Deb A., Don and Wayne, who were on the 11/15 list, were not laid off.

At the summary judgment motion hearing, the parties were asked to provide the court with greater specificity regarding the November 23, 1990 layoffs. The parties stipulate as follows:

According to the defendant's records, the following individuals, mentioned as part of the "Phase II Proposed Cost Reduction Plan" were all women: D. Holland, L. Simcox, C. Falletti, and G. McGrath.

With respect to the two males listed in that same document (W. Czar and R. Holloway), Mr. Czar was not re-hired. The plaintiff believes that Mr. Holloway was re-hired, possibly as a consultant. The defendant's position is that it subsequently engaged Mr. Holloway on a part-time consulting basis....

The plaintiff's statement that "two other males were laid off but hired back," referred to R. Holloway ... and another individual named Demitrius Douros, who was laid off several weeks before the plaintiff was laid off and who was rehired at some time after the plaintiff was laid off.

(Stipulation of 5/5/95, ¶¶ 1-3 (citation omitted).)⁴ Following the submission of this stipulation, Certified filed an affidavit indicating that Holloway, the former computer information systems manager, worked as a part-time consultant for Certified following his layoff in November of 1990. In 1991, according to this affidavit, Holloway worked 722 hours; in 1992, he...