Persson v. Bos. Univ., CIVIL ACTION NO. 15-14037-JGD

• Decision Date: 25 February 2019
• Docket Number: CIVIL ACTION NO. 15-14037-JGD
• Parties: INGRID PERSSON, Plaintiff, v. BOSTON UNIVERSITY, Defendant.
• Court: U.S. District Court — District of Massachusetts

INGRID PERSSON, Plaintiff, v. BOSTON UNIVERSITY, Defendant.

CIVIL ACTION NO. 15-14037-JGD

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

February 25, 2019

MEMORANDUM OF DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

DEIN, U.S.M.J.

I. INTRODUCTION

The pro se plaintiff, Ingrid Persson, has brought suit against her former employer, Boston University ("BU" or "the university"), primarily over incidents that took place in her last year of employment with the university. The plaintiff, a white female, alleges that she and her coworkers were paid less than their counterparts in another office because the plaintiff's office was majority African-American. She further alleges that because she spoke out about this racial discrimination, as well as new practices at BU that she believed would violate federal regulations, she was bullied, threatened, and passed over for a position she had applied for. The plaintiff also asserts that she was constructively discharged from her position. Nearly four years after leaving BU, the plaintiff filed the instant action against the defendant, asserting the following causes of action: discrimination under Title VII of the 1964 Civil Rights Act ("Title VII"); discrimination under Mass. Gen. Laws ch. 151B, § 4; retaliation under Title VII; retaliation under the False Claims Act ("FCA"); and violations of the Family and Medical Leave Act ("FMLA").¹

This matter is presently before the court on the "Plaintiff's Motion for Summary Judgment" (Docket No. 77) and the defendant's "Motion for Summary Judgment" (Docket No. 73). Both parties seek summary judgment on all of the claims asserted.² For the reasons detailed herein, the defendant's "Motion for Summary Judgment" (Docket No. 73) is ALLOWED and the "Plaintiff's Motion for Summary Judgment" (Docket No. 77) is DENIED.

II. STATEMENT OF FACTS³

Under Local Rule 56.1, a motion for summary judgment must include a "concise statement of the material facts of record as to which the moving party contends there is no genuine issue to be tried, with page references to affidavits, depositions and other documentation." A party's failure to do so "constitutes grounds for denial of the motion." L.R. 56.1. Similarly, a party's opposition to a motion for summary judgment must provide the court with a "concise statement of the material facts of record as to which it is contended that there exists agenuine issue to be tried, with page references to affidavits, depositions and other documentation." Id. Failure to do so results in the moving party's facts being deemed as admitted. Id. ("Material facts of record set forth in the statement required to be served by the moving party will be deemed for purposes of the motion to be admitted by opposing parties unless controverted by the statement required to be served by opposing parties."). Moreover, courts do not consider hearsay on motions for summary judgment. Davila v. Corporacion De P.R. Para La Difusion Publica, 498 F.3d 9, 17 (1st Cir. 2007) ("It is black-letter law that hearsay evidence cannot be considered on summary judgment.").

Here, the "Plaintiff's Statement of Material Facts" (Docket No. 79) repeats the allegations in her complaint (along with the defendant's answer) without any citations to the record. Instead, the plaintiff has submitted a number of exhibits attached to her various pleadings. "This court is mindful that plaintiff is proceeding pro se," and thus "[her] pleadings are entitled to liberal construction." Geas v. DuBois, 868 F. Supp. 19, 22 (D. Mass. 1994). However, Ms. Persson "is a law school graduate who should have the ability and who has had the opportunity to comply with the requirements of [the local rules]." Ziegler v. Norton, No. CIV. 04-4098, 2006 WL 571866, at *1 (D.S.D. Mar. 6, 2006); see Worlds v. Thermal Indus., Inc., 928 F. Supp. 115, 122 (D. Mass. 1996) ("While this Court is mindful of its duty to construe liberally the pleadings of a pro se plaintiff, it cannot turn a blind eye to the clear mandate of procedural rules."). Nevertheless, the court has reviewed and analyzed the exhibits submitted by both parties and, as detailed below, determined that the material facts are not in dispute.⁴

Plaintiff's Employment History

In 2000, the plaintiff was hired by BU's School of Medicine in the Department of Dermatology as an administrative secretary. (DF ¶ 2). In 2008, the plaintiff joined what was then known as BU's Office of Research Administration (ORA),⁵ which provided technical and administrative support to researchers on BU's medical campus who were engaged in the preparation and submission of research proposals, and also assisted in the management of funded research projects. (DF ¶ 3; DEx. 9 at 3). During the period relevant to the instant action, five of the seven workers in the plaintiff's new office were African-American. (DEx. 5 at 17). The plaintiff was one of two white employees in the office. (Id.).

One aspect of the job for ORA staff members involved providing researchers with source numbers, which gave them access to the funds for their research project. (See DEx. 29 at 2). Research projects involving human subjects had to be reviewed and approved by anInstitutional Review Board ("IRB"), unless definite plans for the involvement of human subjects had not yet materialized. See 45 C.F.R. §§ 46.102, 46.109, 46.118.

In December 2008, the plaintiff received a performance evaluation of her work as a research administrator. (See DF ¶ 4; PEx. 7 at 5; DEx. 10). She subsequently wrote a letter expressing her displeasure with her evaluation, indicating that she believed "some of [her] value may have been overlooked." (DEx. 10). Shortly thereafter, in January 2009, the plaintiff emailed Boris Lazic, then-Director of Personnel at BU, stating, "I am concerned about my job - everybody is." (DF ¶ 4; DEx. 11). She explained that the assistant director, Tony Rufo, would not allow the plaintiff to take over all of the duties of a research administrator who was out on leave, and that "if this is the kind of decision-making that is leading the way . . . I'm out of a job that I am well-qualified for, and well-trained to do." (DEx. 11). Six weeks later, the plaintiff again emailed Mr. Lazic, asking if he would serve as a reference for her as she applied to other jobs. (DF ¶ 4). In so doing, she cited her "concerns about the direction management is taking here in ORA[,]" and, more specifically, the fact that management was intending to hire someone for an open position from outside of the department, rather than promoting from within. (DEx. 12).

On April 28, 2010, the plaintiff emailed Mr. Lazic to express her displeasure at a recent redistribution of the office workload that she viewed as a demotion. (DF ¶ 6; DEx. 13). She also speculated that her performance evaluations, which stated that she "meets expectations" and/or "exceeds expectations," were aimed at "keeping [her] at a certain level" within the office. (DEx. 13; see PEx. 7 at 7-9 (2009 performance evaluation)). She indicated that she was thinking of applying for a position on BU's Charles River Campus ("CRC"). (DEx. 13).

On June 23, 2010, the plaintiff provided Human Resources ("HR") with a work diary that she had been keeping on a personal flash drive. (DF ¶ 7). The diary entries primarily focus on the conduct of the plaintiff's then-supervisors, Jane Kinsel and Tony Rufo, who she believed were mismanaging the office. (See DEx. 15). The diary criticized what the plaintiff perceived to be "attacks on individuals in staff meetings, especially if anyone offers an opinion or suggestion that runs counter to [Dr. Kinsel's] decision-du-jour," and described one "verbal attack" at a staff meeting as "terribly unpleasant, very upsetting." (DF ¶ 8). She also noted in her diary that one area of concern was the providing of "source numbers . . . without IRBs in place." (Id.).

In multiple entries, the plaintiff complains about being paired with an African-American coworker who she believed "ma[d]e a racially divisive comment" to the plaintiff on the coworker's first day of work. (DF ¶ 9; DEx. 15 at 4, 5). Multiple diary entries focused on the fact that when she brought this to Dr. Kinsel's attention, Dr. Kinsel refused to pair her with someone else. (DEx. 15 at 4, 5). She also stated that she was "concerned about retaliation," and did not want to be fired. (DF ¶ 9; DEx. 15 at 6).

On August 12, 2010, the plaintiff emailed Mr. Lazic that she was looking for jobs outside of her office due to "the kind of erratic, defensive behavior on [Dr. Kinsel]'s part[.]" (DF ¶ 11; DEx. 16 at 1). She attached a document chronicling that Dr. Kinsel had remarked that the plaintiff "had problems with everyone in this office," and that Dr. Kinsel was planning to discuss her with HR. (DF ¶ 11). She also provided Mr. Lazic with new diary entries, including an email that she believed "is indicative of one of the many reasons why OSP is always having to answer for incompetence or sheer stupidity." (DEx. 16 at 2).

In December 2010, the plaintiff complained to Mr. Lazic about her most recent yearly performance evaluation. (DF ¶ 13). She again stated her belief that she was receiving mediocre performance reviews so as to keep her at the same salary level. (DEx. 17). She told Mr. Lazic that "[t]here are so many things that occur in OSP that I have to simply ignore for my own well-being." (Id.). Additionally, she referred to the prospect of a salary increase as "the same empty promise that was made to me last year." (DF ¶ 13). She also noted that she was starting another round of job applications and stated that the "office is managed so poorly, and I have more to give to BU." (Id.; DEx. 18).

In or around January 2011, one of the plaintiff's coworkers, Lance Mulleneaux, told the plaintiff that her "squeaky-wheel approach may cause others to get the impression that [she is] simply dissatisfied in general, and that [she] won't find happiness in any job." (DEx....