McMillan v. MASSACHUSETTS SOC. OF CRUELTY TO ANIMALS

• Decision Date: 17 March 1995
• Docket Number: Civ. A. No. 92-11178-RGS.
• Citation: 880 F. Supp. 900
• Parties: Dr. Marjorie McMILLAN, v. MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; Dr. Gus Thornton; and Dr. Paul Gambardella.
• Court: U.S. District Court — District of Massachusetts

880 F. Supp. 900

Dr. Marjorie McMILLAN, v. MASSACHUSETTS SOCIETY FOR THE PREVENTION OF CRUELTY TO ANIMALS; Dr. Gus Thornton; and Dr. Paul Gambardella.

Civ. A. No. 92-11178-RGS.

United States District Court, D. Massachusetts.

March 17, 1995.

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Melissa Bayer Tearney, Beth O. Maloney, Marcus E. Cohen, Peabody & Brown, Dahlia C. Rudavsky, Ilyse Levine, Messing & Rudavsky, P.C., Boston, MA, for McMillan.

Susan L. Lennox, Marcus E. Cohen, Peabody & Brown, Boston, MA, for Massachusetts Soc. for the Prevention of Cruelty to Animals, Dr. Gus Thornton, Dr. Paul Gambardella.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

STEARNS, District Judge.

The plaintiff, Dr. Marjorie McMillan, a veterinary radiologist, brought this lawsuit against her employer, the defendant Massachusetts Society for the Prevention of Cruelty to Animals (MSPCA), and two of her supervisors, Dr. Gus Thornton, and Dr. Paul Gambardella. McMillan was employed as the Head of the Radiology Department at Angell Memorial Animal Hospital (Angell), an institution owned and operated by the MSPCA. McMillan alleges that during seven of her ten years at Angell, she was discriminated against on the basis of her gender in that she was paid less than her male counterparts in violation of Title VII of the Civil Rights Act of 1964, the Federal Equal Pay Act (29 U.S.C. § 206(d)), G.L. c. 151B, and G.L. c. 93 § 102.¹ She also alleges that she was fired in retaliation for pursuing her pay discrimination claim, and that her dismissal constituted a breach of contract and a negligent breach of her employer's contractual duty of care. Finally, she alleges tortious interference with advantageous relations by Gambardella and Thornton. Before the court is defendants' motion for summary judgment.

FACTS

The facts, viewed in the light most favorable to the plaintiff, are as follows. Mcmillan began her career as Director of Radiology at Angell in 1981. She worked continuously until December of 1983, when she took a leave of absence lasting through 1985. Angell maintains some twenty veterinarians on staff who provide direct care as well as instructional guidance to interns and postgraduate residents. Until 1988, Angell was divided into seven departments: Clinics, Cardiology, Intensive Care Unit, Radiology, Medicine, Surgery, and Pathology. Each department was headed by a "Director." In 1988, Clinics, Cardiology, and Intensive Care were merged into the Department of Medicine. The title of Department Director was changed to Department Head. McMillan's salary complaint dates from her return as Director of Radiology in 1985 (she does not claim to have been underpaid prior to that time). During McMillan's employment, Thornton, Gambardella, and two other male veterinarians made occasional comments that could have been construed as sexist.

Until 1989, Thornton served as Angell's Chief of Staff. In that position, he was responsible for setting salary levels for new employees and determining annual increases. In 1989, Thornton became President of the MSPCA and Gambardella became Chief of Staff. Gambardella designed and implemented a salary system which assigned a grade to every veterinarian and awarded annual increases in pay based on performance evaluations and ranges within each grade. In the year following the implementation of this new pay system, McMillan's salary jumped from $58,295 to $72,000. Notwithstanding this increase, it is undisputed that from 1985 until the termination of her employment on November 26, 1991, McMillan was paid less than any other Director/Department Head, while her job description was for all practical purposes indistinguishable from that of her male colleagues.

McMillan first discovered the pay disparity in August of 1989. She filed a gender discrimination claim with the MCAD in October of 1989. In January of 1990, McMillan entered into negotiations with Angell over the purchase of Windhover, a private aviary practice established by McMillan in Walpole, Massachusetts. McMillan sought either (1) to rent space at Angell to carry on the practice; (2) to sell the practice to Angell; or (3) to be paid separately for treating birds at Angell. The negotiations came to an impasse, and McMillan refused to treat birds any longer at Angell. (McMillan had been spending approximately six hours each week on aviary work.) On November 26, 1991, McMillan was fired without notice or warning. Within fifteen minutes of her termination, she was ordered to leave the premises. She was forbidden to re-enter Angell or to speak to staff who were on duty. The firing occurred two years after McMillan filed her MCAD complaint. McMillan had no written employment contract, but in March of 1990, the MSPCA distributed a Rules and Regulations Memorandum which McMillan contends has contractual significance.

SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate when, based upon the pleadings, affidavits, and depositions, "there is no genuine issue as to any material fact, and where the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Gaskell v. Harvard Cooperative Society, 3 F.3d 495, 497 (1st Cir.1993). "To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990). "As to issues on which the nonmovant has the burden of proof, the movant need do no more than aver `an absence of evidence to support the nonmoving party's case.' The burden of production then shifts to the nonmovant, who, to avoid summary judgment, must establish the existence of at least one question of fact that is both `genuine' and `material.'" In re Varrasso, 37 F.3d 760, 763 n. 1 (1st Cir.1994) (citations omitted). "In this context, `genuine' means that the evidence is such that a reasonable jury could resolve the point in favor of the nonmoving party." Rodriguez-Pinto v. Tirado-Delgado, 982 F.2d 34, 38 (1st Cir.1993). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 249-250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A genuine fact is considered material only when it has the "potential to affect the outcome of the suit under applicable law." Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir.1993). All reasonable inferences must be indulged in favor of the non-moving party when assessing whether disputed issues of fact are sufficient to block summary judgment, Oliver v. Digital Equipment Corp., 846 F.2d 103, 105 (1st Cir.1988), but "even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).

EMPLOYMENT DISCRIMINATION AND EQUAL PAY ANALYSES

To establish a Title VII prima facie case of discrimination based upon gender, a plaintiff must show: (1) that she is a member of a protected class; (2) that she met legitimate job performance expectations; (3) that she experienced an adverse employment action; and (4) that the employer sought a replacement of equal skill for the position. See Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir.1994); Brunner v. Stone & Webster Engineering Corp., 413 Mass. 698, 700, 603 N.E.2d 206 (1992). In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), and Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), the Supreme Court adopted a burden shifting analysis to be used in evaluating Title VII employment discrimination claims. Under the Supreme Court's formula, once a plaintiff has established a prima facie case of discrimination, a presumption of discrimination arises. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's termination. McDonnell Douglas, supra at 802, 93 S.Ct. at 1824; Burdine, supra at 253-255, 101 S.Ct. at 1093-95. If the employer produces evidence that an adverse employment action was taken for a legitimate reason, the McDonnell-Burdine presumption is rebutted and disappears from the case. St. Mary's Honor Center v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993). The burden of production then shifts back to the plaintiff, who must "introduce sufficient evidence to support two additional findings: (1) that the employer's articulated reason for the job action is a pretext, and (2) that the true reason is discriminatory. The plaintiff may rely on the same evidence to prove both pretext and discrimination, but the evidence must be sufficient for a reasonable factfinder to infer that the employer's decision was motivated by discriminatory animus." Smith v. Stratus Computer, Inc., supra at 16 (citations omitted).² The McDonnell-Burdine framework addresses only the formal allocation of the burdens of production; the "ultimate burden of persuasion" remains at all times with the plaintiff. St. Mary's, supra at ___, 113 S.Ct. at 2749; Blare v. Husky Injection Molding Systems, Boston, Inc., 419 Mass. 437, 445, 646 N.E.2d 111 (1995).

To establish a prima facie case under the Equal Pay Act, a plaintiff must show that: (1) her employer is subject to the Act; (2) that discrimination regarding wages occurred within the same working establishment; (3) that she performed work in a position requiring equal skill, effort and responsibility under similar working conditions; and (4) that she was paid less than a comparable employee of the opposite sex. The plaintiff is not required to show that the compared jobs are identical, only that they are "substantially equal." See Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223,...