STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS
WASHINGTON, SC. SUPERIOR COURT
(FILED: April 28, 2020)
ELIZABETH CUGINI : : V. : C.A. No. WC-2008-0722 : RHODE ISLAND BOARD OF : GOVERNORS FOR HIGHER : EDUCATION, d/b/a THE : UNIVERSITY OF RHODE ISLAND, : and MICHELLE NOTA :
DECISION
K. RODGERS, J. Before this Court are Defendants’ Rhode Island Board of Governors for Higher Education, d/b/a The University of Rhode Island (URI) and Michelle Nota
(Nota, and collectively Defendants) Motion for Summary Judgment pursuant to Super. R.
Civ. P. 56 and Plaintiff Elizabeth Cugini’s (Plaintiff of Cugini), Opposition and Motion for Partial Summary Judgment on Limited Rule 56(d) Issues. Defendants assert they are entitled to summary judgment on Counts I through VII of Plaintiff’s First Amended
Complaint alleging defamation, false light, violations of the Rhode Island Fair
Employment Practices Act (FEPA), and tortious interference with advantageous prospective economic relations. Conversely, Plaintiff contends that she is entitled to summary judgment on her four FEPA claims set forth in Counts III through VI. I
Facts and Travel
A
Plaintiff’s Hiring and Performance
This case arises out of a soured employment relationship between Plaintiff and
URI. Plaintiff last served as the Assistant Director of URI’s Alumni Relations Office, of which Nota was the Director.
Plaintiff began her employment with URI in 1992 as the Community Relations
Coordinator for the URI Graduate School of Oceanography. In that role, she organized events, coordinated fundraisers for alumni of the Graduate School of Oceanography, wrote press releases and served as media liaison. At all times during her employment with URI, Plaintiff was a member of the Professional Staff Association (PSA) bargaining unit.1 After thirteen years as the Community Relations Coordinator, Plaintiff was laid off due to lack of funding.
As a member of the union, Plaintiff was protected by certain recall rights provided in the collective bargaining agreement which entitled union members to be hired by URI if minimum job requirements were met. Plaintiff exercised her recall rights to obtain the position of Assistant Director of Alumni Relations for URI, effective August 1, 2005.
Nota was the Director of Alumni Relations and reported to both the Alumni Association
Executive Board and URI; Nota was also Cugini’s direct supervisor. Plaintiff was fifty- three years old at the time she was hired as Assistant Director. Of the eight employees
1 Plaintiff is also a member of the National Education Association of Rhode Island (NEARI), a separate bargaining unit. See Pl.’s Ex. 3, at 50 (Dep. Tr. of Cugini, Oct. 29, 2010). 2
Nota hired for the Alumni Relations Office between 1998 and 2005, Cugini was the only individual over the age of forty; however, of the thirty employees Nota supervised, eleven were over the age of forty.
At the outset of Plaintiff’s employment in the Alumni Relations Office, and so she could appreciate the unique role that alumni have within the URI community, Nota provided Plaintiff an orientation manual containing an overview of the Alumni
Association, an outline of alumni demographics, and an explanation of the programs supported by the Alumni Association. Defs.’ Ex. D, ¶ 3 (Statement of Nota to Rhode
Island Commission for Human Rights (RICHR)). Nota also reviewed, in detail,
Plaintiff’s responsibilities and the various types of programming the Alumni Relations
Office was charged to implement. Id. Such responsibilities included creating, coordinating, and supervising Alumni Relations programs and major special events. Pl.’s
Ex. 28 (Non-Classified Staff Job Requisition for Assistant Director Alumni Relations).
Plaintiff assured Nota she had the necessary experience to carry out these responsibilities.
Defs.’ Ex. D, ¶ 3.
During her tenure with the Alumni Relations Office from August 2005 to May
2006, Plaintiff’s performance came under fire. While Plaintiff organized several events with some degree of success, including a URI Day at McCoy Stadium, a Business School
Reunion, and a URI Homecoming Road Race, Nota believed that Plaintiff lacked the skills to be effective in her position. Nota’s belief was supported by statements made by other members within the Alumni Relations Office. By way of example, Jennifer Durand
Stalb, an Assistant Director of Alumni Relations who mentored Plaintiff in or about
August 2005 with regard to the URI Day at McCoy Stadium, expressed her concerns to
3
Nota at the outset of Plaintiff’s employment in the office regarding Plaintiff’s experience in running events and customer etiquette. Defs.’ Ex. D, ¶ 4. Another staff member,
Kristal Cardone (Cardone), reported to Nota that during Plaintiff’s first week on the job,
Plaintiff asked how to plan an event from start to finish, a basic qualification for the
Assistant Director position. Pl.’s Ex. 20, at 2 (Nota memorandum); see also Pl.’s Ex. 28.
During the fall 2005 URI Homecoming events in which Plaintiff was designated as the
“lead” liaison, Cardone reported to Nota that Plaintiff deflected questions from younger staff members by stating “I don’t know, you guys have done this before, do it the way you always do it.” See Pl.’s Ex. 20, at 2. Beyond the planning of events, Nota also feared that Plaintiff’s lack of professionalism threatened to alienate alumni from whom
URI relied on for financial support inasmuch as Plaintiff had arrived late at a sold-out alumni event, checked personal e-mails on an overhead projector in the presence of alumni, and served herself first in a buffet line before paying alumni were served. Defs.’
Ex. D, ¶¶ 10-11.2
From the beginning of her employment in the office, Nota met with Plaintiff three times a week to discuss Plaintiff’s responsibilities, the needs for the office, and to give direction. Id. ¶¶ 6, 20. Notwithstanding these frequent meetings, Nota observed that
Plaintiff continued to exhibit an inability to effectively manage her tasks, including administrative projects such as customizing correspondence directed to alumni and
2 Nota relied on other examples of Plaintiff’s inability to effectively and professionally perform the required tasks as the Assistant Director, as reported to her by staff members within the Alumni Relations Office or as she personally observed. See, e.g., Pl.’s Ex. 20; Pl.’s Ex. 6 (draft and undelivered Six-Month Probationary Performance Evaluation Reports for Plaintiff dated Feb. 1, 2006 and Mar. 22, 2006.) Further analysis of such examples is unnecessary in light of the posture of this case, to wit, identifying whether there exists genuine issue of material fact which would preclude the entry of summary judgment. 4 preparing a membership report for the Alumni Association Executive Board. See Pl.’s
Ex. 6, at 7-8; Pl.’s Ex. 7 (Feb. 28, 2006 Nota letter to Cugini). Despite numerous meetings with Nota specifically addressing the important membership report, Plaintiff still produced a report with incorrect information, formatting problems, and basic grammatical errors. Pl.’s Ex. 7. Ultimately, Nota issued Plaintiff a formal reprimand on
February 28, 2006. Id.
Plaintiff contends that her performance as Assistant Director of the Alumni
Relations Office was superior and that her work ethic, knowledge and maturity allowed her to produce quality events and complete all other job requirements. Pl.’s Ex. 2, ¶¶ 5-6,
8. She states that she excelled and had a strong overall performance as a new contributor to a new department notwithstanding Nota’s “best efforts to harass [Plaintiff] because of
[] age, her constant stream of demeaning negative feedback, her use of [] co-workers to denigrate [Plaintiff’s] performance, and her withholding of training, guidance and basic good faith support.” Id. ¶ 5; see also id. ¶ 9. Plaintiff denies that she was provided any training, guidance or orientation by Nota. Id. ¶¶ 5, 9. Plaintiff believes that Nota intended for Cugini to fail because Nota was forced to hire Plaintiff due to her union seniority. See id. ¶ 4. In response to this theory, Nota has acknowledged that two younger employees within the Alumni Relations Office, Cardone and Jesse Kenyon
(Kenyon), had also applied for the position of Assistant Director, but further explained that the hiring process ceased as a result of Plaintiff’s exercise of recall rights. Pl.’s Ex.
8, ¶ 2 (Nota’s Response to Requests for Admission).
Terri Pierson (Pierson), a manager in the Alumni Relations/Business Office, offered testimony by way of affidavit that she observed Nota treat Plaintiff in a hostile
5 manner not exhibited toward Cardone or Kenyon. See Pl.’s Ex. 5, ¶ 6 (Affidavit of Terri
Pierson). According to Pierson, Nota had explained to her that Nota had been forced to hire Plaintiff and “had six months in which to fire her.” Id. ¶ 4. Pierson also stated that
Nota asked that Pierson and other colleagues report only negative feedback of Cugini to
Nota. Id. ¶¶ 4, 7.
B
Union Involvement
According to Plaintiff, she experienced grossly discriminatory remarks and insults from Nota, and Nota treated her differently than younger employees. Pl.’s Ex. 1, at 3
(May 9, 2007 Charge of Discrimination filed with RICHR). A union meeting was held in
January 2006 to discuss Plaintiff’s job performance, with PSA grievance chair John
Blaney (Blaney) and NEARI union representative Patrick Crowley (Crowley) in attendance, as well as Assistant Vice President of Human Resources Ann Marie Coleman
(Coleman), Plaintiff and Nota. At that meeting, Nota presented a list of items she felt reflected Plaintiff’s poor performance. Id at 2-3; see also Pl.’s Ex. 20. According to
Plaintiff, during that meeting, “Nota became very aggressive and pounded her fists on the table yelling the age-based condemnation ‘Lisa Cugini doesn’t fit in.3’” Pl.’s Ex. 2, ¶ 12.
Calculating that she was on average thirty years older than all the event planners within the Alumni Relations Office hired by Nota, Plaintiff concludes that it was because of her
3 Plaintiff’s own statement of discriminatory acts submitted to the RICHR fails to reference this aggressive behavior. Instead, the original statement signed by Plaintiff on May 9, 2007 and the amended statement signed by Plaintiff’s counsel on July 30, 2007 merely state that when a NEARI union representative inquired of Nota whether her employees were allowed to make mistakes, Nota replied that “[Plaintiff] just didn’t get it.” Pl.’s Ex. 1, at 3, 10. 6 age that she did not fit in. Id. Nota denied that this exchange occurred. See Ex. 23,
¶¶ 23-24 (Answer to Amended Complaint); cf. Ex. 24, ¶¶ 23-24 (Amended Complaint).
On February 1, 2006, Nota drafted a performance evaluation for Plaintiff in which she detailed Plaintiff’s short-comings. See Pl.’s Ex. 6, at 1-5. This evaluation was neither signed nor delivered to Plaintiff.
On February 2, 2006, Plaintiff met with URI’s affirmative action officer, Robert
Gillis (Gillis); however, no formal complaint was ever made nor action taken by Gillis following that meeting. Pl.’s Ex. 1, at 4. Upon Gillis’ recommendation, however,
Plaintiff filed a grievance with her union. Id.4
A second union meeting took place on February 28, 2006, at which time Nota distributed to Plaintiff and other attendees a letter of reprimand dated that same day. Pl.’s
Ex. 3, at 52-56; see also Pl.’s Ex. 7. Blaney and Crowley were present at the February
28, 2006 meeting; Karen Mancini, a URI human resources officer, was also in attendance rather than Coleman. Pl.’s Ex. 3, at 53; see also Pl.’s Ex. 1, at 4, 12. Plaintiff maintains that Nota issued the letter of reprimand in retaliation for having filed a grievance. Pl.’s
Ex. 3, at 55. According to Plaintiff, the union determined that the issues raised in the letter of reprimand were supervisory in nature rather than disciplinary, and therefore no union action was taken. Id. at 56.
On March 22, 2006, Nota revised the performance evaluation for Plaintiff and significantly expanded upon Plaintiff’s short-comings with specific examples of poor performance, poor judgment, minimal creativity, lack of initiative, and lack of
4 When pressed at her deposition, Plaintiff was unable to recall who filed a grievance or when it was filed; however, she did state that it must have been after the January 2006 meeting and before the February 28, 2006 meeting. Pl.’s Ex. 3, at 53-54. 7 professional etiquette. See Pl.’s Ex. 6, at 6-14. Like the earlier evaluation, this evaluation was neither signed nor delivered to Plaintiff.
C
Plaintiff’s Access to Personnel Files
In late April or early May 2006,5 Plaintiff’s review of certain computerized material began a chain reaction which culminated in Plaintiff’s departure from the
Alumni Relations Office. In an effort to obtain and possibly revise a certain membership form to be mailed to graduating seniors inviting them to join the Alumni Association,
Plaintiff searched for past forms that had been used by other staff members in earlier years. While the entire staff of the Alumni Relations Office was at a luncheon off campus, Plaintiff states that she began a search from her own computer in her own office of the electronically maintained public folders created by certain individuals who had previously been responsible for sending out this membership form. One such staff member was Lisa Harrison (Harrison), Nota’s executive assistant. In searching
Harrison’s electronic files, Plaintiff came across a computerized folder designated
“Personnel” that was accessible to anyone within the Alumni Relations Office.6 Curious if there was anything relating to her within the “Personnel” folder, Plaintiff electronically opened the folder and observed there to be evaluations and letters of resignation. Plaintiff claims to have only opened up one evaluation and none of the letters of resignation, but
5 Plaintiff offers two different dates on when this event transpired: April 26, 2006 (see Pl.’s Ex. 3, at 74-76) and May 2, 2006 (see Pl.’s Ex. 1, at 5, 12; Ex. 24, ¶ 30). 6 Plaintiff appears to conflate files that are located on a “public server” and those that are readily accessible to a multitude of users within an office setting. Pl.’s Ex. 24, ¶ 31 (“a folder entitled ‘Personnel’ on the public server . . . and accessible to anyone”); cf. Pl.’s Ex. 3, at 81-82 (public folder accessible within the Alumni Relations Office and not to the whole world). The difference is immaterial to the issues before this Court. 8 otherwise concluded that there was nothing contained therein about her. Pl.’s Ex. 3, at
79-83.
When other staff members returned from the off-campus luncheon, Plaintiff immediately notified Carol Howland (Howland), assistant to Pierson, of the accessibility of the “Personnel” folder. Pl.’s Ex. 3, at 83-84. According to Pierson, Howland demonstrated to Pierson on Howland’s own computer how the subject “Personnel” file was readily accessed.7 Pl.’s Ex. 5, ¶ 13. Plaintiff also contacted Karen Byron (Byron), the executive director of the PSA, about the accessibility of the evaluations because she feared that her own evaluation, then scheduled for the next day, would be made public.
Pl.’s Ex. 3, at 84. In a telephone conversation, Byron asked Plaintiff to recite the steps she had taken to gain access to the “Personnel” folder; as Plaintiff described and retraced those steps to Byron, Plaintiff noted that the “Personnel” folder had been deleted from view. Id. at 85-86.
Immediately thereafter, the systems administrator, John Peltier (Peltier), and his assistant Mike Tagliaferri, soon arrived at the Alumni Relations Office to investigate how
Plaintiff could have accessed the “Personnel” computer file. Peltier showed Plaintiff an e-mail from Coleman, URI’s Assistant Vice President of Human Resources, which questioned, “How could Ms. Cugini have gotten into these files?” Id. at 86-87. Peltier’s response8 was that Plaintiff could have only accessed that file by going into Nota’s computer. Id. at 87. Nota was not associated with the e-mail exchange between Coleman
7Pierson stated that Howland showed her the day after the off-campus luncheon how the “Personnel” file was accessible, a time which differed from Plaintiff and Nota’s recollections. Pierson’s recollection of the time at which she viewed how the “Personnel” file was accessible differs from Plaintiff’s testimony and Nota’s. 8 It is unclear of the manner in which Peltier responded to Coleman—whether by e-mail, telephone or in person—or how Peltier shared his response with Plaintiff. 9 and Peltier or anyone else that implied that Plaintiff had illegally or improperly accessed the “Personnel” file. See id. at 86-90.
At some time while the IT personnel were responding to the events in the Alumni
Relations Office in late April or early May 2006, Nota was orally advised that unauthorized attempts had been made to log in to either her computer or Harrison’s computer, both of which stored the draft evaluation for Plaintiff’s upcoming six-month review. See Pl.’s Ex. 4, at 103-110. Also in the short time during or following the investigation by IT personnel, Coleman instructed Nota to ensure that no evaluations could be viewed, that all files reflecting the reviews of other staff members be locked, and that the open environment that had existed in the Alumni Relations Office be more restrictive when staff was not present. Id. at 118-19. Accordingly, Nota informed everyone who had any supervisory role over another staff member to start closing and locking their doors at the end of the day. Id. at 119-21.
The morning after Plaintiff had viewed the “Personnel” file, she reported to work at 8:00 a.m. to find that all the doors to the offices within the Alumni Relations Office were shut and locked with the exception of her door. Pl.’s Ex. 3, at 92. According to
Nota, Plaintiff was not supervising anyone at the time and therefore her computer did not require such security measures. See Pl.’s Ex. 4, at 121. According to Plaintiff, she learned that everyone but her had been told to close and lock their doors because there was a security issue. Pl.’s Ex. 3, at 92. Plaintiff immediately contacted her PSA union representative who advised her to leave the office and not stay for her evaluation. Id. at
95. Plaintiff never returned to the Alumni Relations Office after that day. Id. at 110.
10
D
Memorandum of Agreement
Within a matter of days of her last day reporting to the Alumni Relations Office,
Crowley, the Assistant Director of the NEARI, called Plaintiff and informed her that she could either accept a layoff or be terminated. Id. at 109. On May 10, 2006, Plaintiff entered into a Memorandum of Agreement (the MOA). Pl.’s Ex. 10. That document was signed by Plaintiff; Crowley, on behalf of NEARI; Blaney, the grievance chair for the
PSA; and a representative of URI. Id. The terms of the MOA placed Plaintiff on layoff status effective May 12, 2006 and gave her recall rights to seek employment with another
URI office, with the exception of any Alumni Association position, for a period of one year, through May 12, 2007. Id. It also required that the February 28, 2006 reprimand letter be removed from Plaintiff’s file. Id.
E
Plaintiff’s Filing with the Rhode Island Commission for Human Rights
On May 9, 2007, Plaintiff filed a Charge of Discrimination with the RICHR against Nota and against the “State of Rhode Island/University of Rhode Island” for alleged age-based discrimination. Pl.’s Ex. 1, at 1-8. An Amended Charge of
Discrimination, signed only by Plaintiff’s counsel, was filed on July 30, 2007. Id. at 9-
17. Upon receiving a Notice of Right to Sue from the RICHR on August 20, 2008, see
Pl.’s Ex. 37, Plaintiff filed her original Complaint on October 2, 2008 against Nota and
URI alleging certain facts and elements which constitute claims for age discrimination, written defamation, unlawful termination, hostile work environment, retaliatory termination, intentional infliction of emotional distress, breach of contract, and negligent
11 infliction of emotional distress. A First Amended Complaint was filed in March 2013 naming Nota and the Rhode Island Board of Governors for Higher Education d/b/a URI and specifying the following seven counts: written defamation; false light; discriminatory terms and conditions of employment; discriminatory hostile work environment; discriminatory termination of employment; retaliatory termination of employment; and interference with advantageous prospective economic relations.
On or about April 19, 2013, Defendants moved for summary judgment on all counts in the Amended Complaint. On October 25, 2013, Plaintiff filed her Opposition and Motion for Partial Summary Judgment on Limited Rule 56(d) Issues, in which
Plaintiff contends that she is entitled to summary judgment on all the FEPA counts
(Counts III through VI) because Defendants failed to produce credible evidence to support their “pretextual ‘poor performance’ defense.” Pl.’s Mem., at 61.
II
Standard of Review
In reviewing a motion for summary judgment, the preliminary question before this Court is whether there is a genuine issue as to any material fact which must be resolved. Rhode Island Hospital Trust National Bank v. Boiteau, 119 R.I. 64, 376 A.2d
323 (1977); O’Connor v. McKanna, 116 R.I. 627, 359 A.2d 350 (1976). If an examination of the pleadings, affidavits, admissions, answers to interrogatories, and other similar matters reveals no such issue and the moving party is entitled to judgment as a matter of law, then the suit is ripe for summary judgment. Super. R. Civ. P. 56(c); see also Neri v. Ross-Simons, Inc., 897 A.2d 42, 47 (R.I. 2006); Casey v. Town of
Portsmouth, 861 A.2d 1032, 1036 (R.I. 2004). In ruling upon a motion for summary
12 judgment, this Court must review such evidence in the light most favorable to the nonmoving party. Casey, 861 A.2d at 1036 (quoting Duffy v. Dwyer, 847 A.2d 266, 268-
69 (R.I. 2004)).
The “purpose of the summary judgment procedure is issue finding, not issue determination.” Estate of Giuliano v. Giuliano, 949 A.2d 386, 391 (R.I. 2008) (internal quotation omitted). “Summary judgment is a drastic remedy, and a motion for summary judgment should be dealt with cautiously.” Id. at 390 (internal quotation omitted); see also McPhillips v. Zayre Corp., 582 A.2d 747, 749 (R.I. 1990).
In the face of summary judgment, the party who opposes the motion “carries the burden of proving by competent evidence the existence of a disputed material issue of fact and cannot rest on allegations or denials in the pleadings or on conclusions or legal opinions.” Accent Store Design, Inc. v. Marathon House, Inc., 674 A.2d 1223, 1225 (R.I.
1996); see also McAdam v. Grzelczyk, 911 A.2d 255, 259 (R.I. 2006). It is not sufficient
“simply [to] show that there is some metaphysical doubt as to the material facts.”
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
From an evidentiary standpoint, a party responding to a motion for summary judgment must either “put up their evidence or shut up their case.” Wright v. Zielinski, 824 A.2d
494, 499 (R.I. 2003) (citing Bourg v. Bristol Boat Co., 705 A.2d 969, 971 (R.I. 1998)).
In matters which are not appropriate for the entry of summary judgment, it is permissible for this Court to consider the issue-narrowing mechanism set forth in Rule
56(d) of the Superior Court Rules of Civil Procedure. Thus, where appropriate, this
Court may grant partial summary judgment, issue an order establishing uncontroverted
13 facts, and leave other factual issues for determination at trial. See Russo v. Cedrone, 118
R.I. 549, 558, 375 A.2d 906, 910 (1977).
III
Analysis
A
Count I - Written Defamation
Plaintiff asserts Nota defamed Plaintiff by publishing an e-mail to the Alumni
Relations Office alleging that Plaintiff improperly accessed the computerized
“Personnel” file in late April or early May 2006. Am. Compl. ¶ 70. To succeed on a claim for defamation, “a plaintiff must prove: ‘(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) damages, unless the statement is actionable irrespective of special harm.”’ Marcil v. Kells, 936 A.2d 208, 212 (R.I.
2007) (quoting Lyons v. Rhode Island Public Employees Council 94, 516 A.2d 1339,
1342 (R.I. 1986)).
Whether a particular statement is defamatory “is a question of law for the court to decide rather than a factual issue for a jury to determine.” Id. at 213 (citing Alves v.
Hometown Newspapers, Inc., 857 A.2d 743, 750 (R.I. 2004)). Generally, a statement is defamatory if it is “‘false and malicious, imputing conduct which injuriously affects a
[person’s] reputation, or which tends to degrade him in society or bring him into public hatred and contempt . . . .’” Id. at 212-13 (quoting Reid v. Providence Journal Co., 20
R.I. 120, 124-25, 37 A. 637, 638 (1897)). A statement can be defamatory on its face or
14 by innuendo. Id. at 213 (citing Andoscia v. Coady, 99 R.I. 731, 735, 210 A.2d 581, 584
(1965)).
In Count I of Plaintiff’s Amended Complaint, Plaintiff makes detailed allegations concerning Nota’s conduct in the aftermath of the computer access events in late April or early May 2006. Am. Compl. ¶¶ 59-73. However, when pressed at her deposition to identify the writing she alleges to be defamatory and which is attributed to Nota, Plaintiff was unable to do so. Pl.’s Ex. 3, at 88-91. The only written documentation that existed in late April or early May 2006, just prior to Plaintiff’s last day at work in the Alumni
Relations Office, was an e-mail exchange between Coleman and Peltier, and there is no evidence offered that establishes that Nota was the genesis of any statement in that e- mail, that Nota adopted any statements in that e-mail, or that Nota was a recipient of or even aware of the e-mail. Id. at 90-91. Even viewing the evidence in the light most favorable to Plaintiff, Plaintiff has failed to offer any evidence that supports her claim of written defamation by Nota.
Beyond the specific allegations in Plaintiff’s Amended Complaint, Plaintiff now argues that Nota’s position statement submitted to the RICHR on June 28, 2007 is defamatory because it contained “all the knowingly false, fraudulent and defamatory statements made of and concerning Plaintiff. . . ” Pl.’s Mem. at 23; see also Pl.’s Ex. 3, at 89. This argument is also unavailing. Nota’s written statement occurred within the confines of a quasi-judicial proceeding, is absolutely privileged, and cannot serve as the basis of a defamation claim. Ims v. Town of Portsmouth, 32 A.3d 914, 928 (R.I. 2011).
For the foregoing reasons, this Court finds that Plaintiff has failed to sustain her burden of proving, by competent evidence, that there are genuine issues of material fact
15 with regard to her written defamation claim. In the absence of any written false and defamatory statement made by Nota, Defendants are entitled to judgment as a matter of law on Plaintiff’s written defamation claim. Therefore, Defendants’ Motion for
Summary Judgment on Count I of the Amended Complaint is granted.
B
Count II - False Light
Plaintiff next asserts “Nota’s over-published, over dramatized ‘lock down’ publicly deployed against Plaintiff publicly recast Plaintiff in the association of an untrustworthy sneak thief, security risk, criminal” in violation of G.L. 1956 § 9-1-28.1.
Am. Compl. ¶¶ 83, 88.
In order to recover for a violation of the right to be secure from publicity that reasonably places another in a false light before the public, it must be established that:
(1) “[t]here has been some publication of a false or fictitious fact which implies an association which does not exist;” and (2) “[t]he association which has been published or implied would be objectionable to the ordinary reasonable man under the circumstances[.]” Section 9-1-28.1(4). A false light claim differs from defamation inasmuch as it “requires that a plaintiff be ‘given unreasonable and highly objectionable publicity that attributes to [her] characteristics, conduct or beliefs that are false, and so is placed before the public in a false position.’” Cullen v. Auclair, 809 A.2d 1107, 1112
(R.I. 2002) (quoting Swerdlick v. Koch, 721 A.2d 849, 861 (R.I. 1998) and Restatement
(Second) Torts § 652E, cmt b at 395 (1976)) (emphasis added). A slander or defamation claim requires publication to a third party, see Marcil, 936 A.2d at 212; Alves, 857 A.2d at 751, without the additional element of “unreasonable and highly objectionable
16 publicity . . . placed before the public.” Cullen, 809 A.2d at 1112; Swerdlick, 721 A.2d at
861. Another critical difference is that an action for words spoken has a one-year statute of limitation, whereas a false light claim has a ten-year statute of limitation. See § 9-1-
14(a); cf. § 9-1-13(a). In this case, Plaintiff is unable to pursue a claim for slander based upon the one-year statute of limitation.
The allegations contained in Count II are essentially the same as those found in
Count I. See Am. Compl. ¶¶ 59-72; cf. id. ¶¶ 75-86. Whereas Plaintiff is unable to defeat summary judgment on Count I for failing to present any evidence of a writing attributed to Nota, Plaintiff is also unable to defeat summary judgment on Count II where there is no evidence that Nota placed any facts concerning Plaintiff into the public domain. Even viewing the facts in the light most favorable to Plaintiff, there is no evidence offered that would support a finding that facts concerning Plaintiff were placed before the public in a false position. Cullen, 809 A.2d at 1112; Swerdlick, 721 A.2d at
861. The Alumni Relations Office at URI and even the human resources officers within
URI9 do not constitute “the public” nor could the evidence of record support a finding that there was unreasonable publicity10 within those limited offices within the URI community. Cullen, 809 A.2d at 1112; Swerdlick, 721 A.2d at 861. Thus, without the need to analyze whether Nota was the source of any false or fictitious fact which implies
9 Plaintiff offers mere speculation rather than competent evidence that negative comments were made by Nota to Coleman. Even viewing this argument in the light most favorable to Plaintiff, any exchange between Nota and Coleman, or any other individuals within the Alumni Relations Office and/or Human Resources Office, does not constitute “publicity” or being “placed before the public.” Cullen, 809 A.2d at 1112; Swerdlick, 721 A.2d at 861. 10 While the “unreasonableness” of publicity may arguably be a factual question that would preclude summary judgment, see O’Connor, 116 R.I. 627, 359 A.2d 350, where there is no public disclosure of facts, it stands to reason that there can be no “publicity” at all, let alone “unreasonable publicity.” 17 an association involving Plaintiff which does not exist, Plaintiff is unable to demonstrate a critical element of a false light claim, to wit, that such facts were made to the public or were subject to unreasonable publicity.
For these reasons, Defendants’ Motion for Summary Judgment on Count II of the
Amended Complaint is granted.11
C
Counts III through VI - FEPA Claims
The crux of Plaintiff’s Amended Complaint focuses on the alleged discrimination she faced in the Alumni Relations Office. In Rhode Island, FEPA, codified at G.L. 1956
§§ 28-5-1 et seq., prohibits a wide range of employment practices including various types of discriminatory employment practices and provides as follows:
“It shall be an unlawful employment practice:
“(1) For any employer:
. . .
“(ii) [T]o discharge an employee or discriminate against him or her with respect to hire, tenure, compensation, terms, conditions or privileges of employment, or any other matter directly or indirectly related to employment.
. . .
“(5) For any employer or employment agency, labor organization, placement service, training school or center, or any other employee referring source to discriminate in any manner against any individual because he or she has opposed any practice forbidden by this chapter, or because he or she has made a charge, testified, or assisted in any
11 Because this Court finds that Defendants are entitled to summary judgment on Plaintiff’s false light claim, this Court need not reach Defendants’ argument that Plaintiff’s false light claim is time barred because it was not alleged in Plaintiff’s original Complaint and does not relate back to the original filing date. See Defs.’ Mem. at 16. 18
manner in any investigation, proceeding, or hearing under this chapter;
“(6) For any person, whether or not an employer, employment agency, labor organization, or employee, to aid, abet, incite, compel, or coerce the doing of any act declared by this section to be an unlawful employment practice, or to obstruct or prevent any person from complying with the provisions of this chapter or any order issued pursuant to this chapter, or to attempt directly or indirectly to commit any act declared by this section to be an unlawful employment practice[.]” Section 28-5-7.
Rhode Island courts look to decisions of federal courts construing Title VII of the
Civil Rights Act of 1964 to provide guidance in Rhode Island employment discrimination cases. Neri, 897 A.2d at 48; Newport Shipyard, Inc. v. Rhode Island Commission for
Human Rights, 484 A.2d 893, 898 (R.I. 1984).
Plaintiff alleges throughout her Amended Complaint that Nota was motivated by animus based on Plaintiff’s age. More specifically, Plaintiff avers that her rights under
FEPA were violated as follows: she was subject to discriminatory terms and conditions of employment based on age (Am. Compl. Count III and ¶ 91); she was subject to an intentionally hostile and abusive work environment because of her age (Am. Compl.
Count IV and ¶ 93); she was terminated because of her age (Am. Compl. Count V and
¶ 95); and she was terminated in retaliation for complaining about the age discrimination and harassment she experienced in her workplace (Am. Compl. Count VI and ¶ 98).
Plaintiff is unable to provide any direct, competent evidence of this alleged age-based animus. While “[p]roof of discrimination does not require evidence of the ‘smoking-gun’ variety,” Casey, 861 A.2d at 1038 (citing Center for Behavioral Health, Rhode Island,
Inc. v. Barros, 710 A.2d 680, 685 (R.I. 1998)), there must be some facts presented to support an inference that the employer engaged in unlawful age-based discrimination. Id.
19 at 1040; Neri, 897 A.2d at 51. Lack of evidence to support such an inference may be fatal to a FEPA claim at the summary judgment stage. See, e.g., Neri, 897 A.2d at 51-52;
Casey, 861 A.2d at 1039-40.
1
Age-Based Disparate Treatment
In a case such as this where Plaintiff’s employment discrimination case relies solely on circumstantial evidence, this Court applies the burden-shifting analysis formulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to age-based disparate treatment claims.12 Shoucair v. Brown University, 917 A.2d 418, 427 (R.I.
2007); Neri, 897 A.2d at 48; DeCamp v. Dollar Tree Stores, Inc., 875 A.2d. 13, 21 (R.I.
2005). Under the three-step analysis, “the burdens shift back and forth between plaintiff and defendant ‘to sharpen the inquiry into the elusive factual question of intentional discrimination.’” Casey, 861 A.2d at 1036 (quoting Barros, 710 A.2d at 685).
The first step in the analysis requires the plaintiff to make a prima facie case of age discrimination. Id. at 1036-37. The burden on the plaintiff to prove a prima facie case “is not especially onerous.” Barros, 710 A.2d at 685; see also DeCamp, 875 A.2d at
21; Casey, 861 A.2d at 1037. In an age-discrimination analysis based on adverse employment action, Plaintiff must satisfy the following to make out a prima facie case13:
“‘(1) she was at least forty years of age; (2) her job performance met the employer’s legitimate expectations; (3) the employer subjected her to an adverse employment action (e.g., an actual or constructive discharge); and
12 Counts III (discriminatory terms and conditions of employment) and V (discriminatory termination of employment) of Plaintiff’s Amended Complaint raise age-based disparate treatment claims. 13 The elements of a prima facie case in a disparate treatment cause of action will vary based on the type of employment action at issue such as termination, failure to promote or failure to hire. Neri, 897 A.2d at 49 n.4; Casey, 861 A.2d at 1036-37. 20
(4) the employer had a continuing need for the services provided by the position from which the claimant was discharged.’” Neri, 897 A.2d at 49 (quoting Ramirez Rodriguez v. Boehringer Ingelheim Pharmaceuticals, Inc., 425 F.3d 67, 78 n.11 (1st Cir. 2005)).
The second step requires the employer to rebut the prima facie case by offering a legitimate, nondiscriminatory reason for the adverse employment action. DeCamp, 875
A.2d at 21; Casey, 861 A.2d at 1036. “The offer of a legitimate, nondiscriminatory reason is a burden of production rather than persuasion . . ., and when produced, that reason eliminates the presumption of discrimination created by the prima facie case.”
Neri, 897 A.2d at 49; see also Wellborn v. Spurwink/Rhode Island, 873 A.2d 884, 889
(R.I. 2005).
At the third step, the plaintiff bears the ultimate burden of proof on the issue of discrimination by showing that the defendant’s legitimate, nondiscriminatory reason was merely a pretext, and that the real reason was unlawful animus. DeCamp, 875 A.2d at
21-22; Casey, 861 A.2d at 1038. To prove pretext, “[i]t is not enough for plaintiff merely to impugn the veracity of the employer’s justification; [she] must ‘elucidate specific facts which would enable a jury to find that the reason given is not only a sham, but a sham intended to cover up the employer’s real motive: age discrimination.’” Mesnick v.
General Electric Co., 950 F.2d 816, 824 (1st Cir. 1991) (quoting Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir. 1990)). Thus, if the plaintiff has made a prima facie showing and the defendant has articulated a non-discriminatory reason for its action, at the summary judgment stage the plaintiff is then required to produce competent evidence to create a genuine issue of material fact with respect to two points: (1) whether the employer’s articulated reason for its adverse action was a pretext; and (2) whether the real reason was discrimination. Quinones v. Buick, 436 F.3d 284, 289-90 (1st Cir. 2006);
21
Casey, 861 A.2d at 1038 (noting that proof that a legitimate, nondiscriminatory reason was a pretext insufficient on its own). While Plaintiff need not produce a “smoking gun,” she may rely on circumstantial evidence, including statistical evidence exhibiting a disparate treatment by Defendants of a member of a protected class in the workplace.
Casey, 861 A.2d at 1038; Mesnick, 950 F.2d at 824. Indeed, the United States Supreme
Court has noted that statistics are an important source of proof in employment discrimination cases. Hazelwood School District v. United States, 433 U.S. 299, 307-08
(1977).
Defendants’ challenge to Plaintiff’s age discrimination claims is based, in part, on
Plaintiff’s failure to establish a prima facie case. Defs.’ Mem., at 7, 9; see also Defs.’
Mem. in Opp’n to Pl.’s Mot. for Partial Summ. J. on Limited Rule 56(d) Issues, at 6.
Defendants do not challenge Plaintiff’s showing that her job performance met or exceeded the employer’s legitimate expectations. Moreover, Defendants’ analysis does not extend into considerations of their own non-discriminatory reasons for their actions, or the ultimate question of whether such non-discriminatory reasons were merely a pretext and whether the real reason was unlawful animus based on Plaintiff’s age.
a
Count III – Discriminatory Terms and Conditions
Defendants challenge Plaintiff’s prima facie case of age discrimination by asserting that she failed to demonstrate that she was replaced by someone substantially younger. Defs.’ Mem. at 9. Defendants rely on Mesnick, 950 F.2d at 823 in support of their argument. Mesnick specifies that the fourth element of a prima facie case of age discrimination requires a showing that “the employer sought a replacement with roughly
22 equivalent job qualifications, thus revealing a continued need for the same services and skills.” Id. (citing Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110 (1st Cir. 1989);
Menzel v. Western Auto Supply Co., 848 F.2d 327, 328 (1st Cir. 1988)). However, the
Mesnick court also reiterates the low burden of making out a prima facie case of discrimination:
“The burden of making out a prima facie case is ‘not onerous.’ [Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)]; see also Villanueva v. Wellesley College, 930 F.2d 124, 127 (1st Cir.) (the prima facie showing is ‘quite easy to meet’), cert. denied 502 U.S. 861 (1991). . .” Id.
The prima facie case has been characterized “as a ‘small showing,’ Reed v. LePage
Bakeries, Inc., 244 F.3d 254, 259 (1st. Cir. 2001), that is ‘not onerous,’ Santiago–
Ramos, 217 F.3d at 54, and is ‘easily made,’ Gillen v. Fallon Ambulance Serv., Inc., 283
F.3d 11, 30 (1st Cir. 2002).” Kosereis v. Rhode Island, 331 F.3d 207, 213 (1st Cir. 2003).
Our Supreme Court has made clear the fourth element of an age-discrimination claim involving an adverse employment action such as a termination: the employer had a continuing need for the services provided by the position from which the claimant was discharged. Neri, 897 A.2d at 49. Indeed, Defendants cite the same language to satisfy the fourth element of a prima facie discrimination case in their Motion for Summary
Judgment. Defs.’ Mem. at 7 (citing Torrech-Hernandez v. General Electric Co., 519
F.3d 41, 48 (1st Cir. 2008)). Whether the fourth element requires only a showing that there was a continuing need for services provided by the plaintiff’s position, as stated in
Neri, 897 A.2d at 49, or the additional showing that the employer sought a replacement with roughly equivalent job qualifications, as stated in Mesnick, 950 F.2d at 823, the
23 same finding results: that there was a continuing need for the services provided by a plaintiff’s position.
Even in the absence of direct proof that Defendants sought a replacement for
Plaintiff with roughly the same job qualifications, it can be assumed that the fourth element is satisfied where there is also the absence of evidence of a corporate downsizing. See DeCamp, 875 A.2d at 22 (fourth element in a prima facie case of gender-based disparate treatment where employer sought replacement with roughly equivalent qualifications was satisfied based only on lack of evidence of corporate downsizing and not direct evidence offered by plaintiff). Here, there is no evidence that
Plaintiff’s separation from the Alumni Relations Office was related to any downsizing or office restructuring; therefore, it can be assumed, for purposes of Defendants’ Motion for
Summary Judgment, that the Alumni Relations Office sought a replacement for Plaintiff with roughly equivalent qualifications, thus revealing a continued need for the same services and skills provided by Plaintiff’s previous position as Assistant Director. See id.; see also Mesnick, 950 F.2d at 823. Accordingly, to the extent Defendants’ dispositive motion is based on Plaintiff’s failure to satisfy the fourth element of her prima facie case, Defendants’ Motion for Summary Judgment as to Count III is denied.
Further, in Count III, Plaintiff claims that she suffered wrongful, discriminatory and abusive actions, and that she was unlawfully subjected to discriminatory terms and conditions of employment because of her age. Am. Compl. ¶ 91. While not identifying what specific terms and conditions of her employment she contends were
24 discriminatory,14 Plaintiff does allege, for instance, that Nota only sought negative comments regarding Plaintiff and that two younger employees, in particular, were not treated with the same hostility15 as Plaintiff was. See Pl.’s Ex. 5, ¶¶ 4, 6-7 (Pierson Aff.).
Plaintiff also offers evidence of the ages of co-workers within the Alumni Relations
Office. Pl.’s Mem., at 6 and n.1 (identifying various discovery responses providing the names, ages and dates of hire of co-workers). Given the not especially onerous burden placed on Plaintiff to make out a prima facie case of age discrimination, see Barros, 710
A.2d at 685, and viewing all the evidence in the light most favorable to Plaintiff in response to Defendants’ Motion for Summary Judgment, see Casey, 861 A.2d at 1036, this Court is satisfied that Plaintiff has sustained her burden of proving a prima facie case of age-based discrimination in the terms and conditions of her employment.
Accordingly, for these additional reasons, Defendants’ Motion for Summary Judgment on
Count III of Plaintiff’s Amended Complaint is denied.
14 Plaintiff takes a “kitchen sink” approach to laying out the facts in her Amended Complaint, her Affidavit, and her sixty-one-page Memorandum in Opposition to Defendants’ Motion for Summary Judgment and Motion for Partial Summary Judgment on Limited 56(d) Issues. It is unclear if Plaintiff is relying upon the same acts of the Defendants as the basis for her discriminatory terms and conditions claim in Count III, her discriminatory termination claim in Count V, and/or her hostile work environment claim in Count IV. Nonetheless, this Court is constrained to consider Plaintiff’s evidence —as myriad as such allegations are—with an eye toward issue spotting, not issue resolution, see Estate of Giuliano, 949 A.2d at 391, as well as viewing such evidence in the light most favorable to Plaintiff as the nonmoving party in this instance. Casey, 861 A.2d at 1036. 15 In the absence of specific terms and conditions that are alleged to be discriminatory, Count III of Plaintiff’s Amended Complaint sounds, in part, of a hostile work environment claim. However, given the comparison of Plaintiff’s treatment to the younger employees, this Court concludes that such a claim is separate and apart from the age-based hostile work environment claim, which is addressed in Count IV. 25
b
Count V – Discriminatory Termination
Beyond arguing that Plaintiff has failed to show that any alleged mistreatment was the result of her age, Defendants argue that they are entitled to summary judgment on
Plaintiff’s claim that she was terminated based upon her age because she was neither actually nor constructively discharged, and therefore, Plaintiff never clears the hurdle of establishing a prima facie case of age-based disparate treatment. Defs.’ Mem. at 7-8.
Defendants rely upon the May 10, 2006 MOA entered into by the Plaintiff, URI and
Plaintiff’s union representatives. See Pl.’s Ex. 10. Defendants’ contention presupposes that the MOA does not constitute a constructive discharge or, more generally, an adverse employment action. See Neri, 897 A.2d at 49; Ramirez Rodriguez, 425 F.3d at 78 n.11.
The third element of a prima facie case of age-based discrimination requires a showing that the employer subjected the employee to an adverse employment action.
Neri, 897 A.2d at 49. An adverse employment action is not limited to termination. “To be adverse, an action must materially change the conditions of plaintiffs’ employ.” Gu v.
Boston Police Department, 312 F.3d 6, 14 (1st Cir. 2002) (citing Blackie v. Maine, 75
F.3d 716, 725 (1st Cir. 1996)). Material changes may include “‘demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.’” Id. (quoting Hernandez-
Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir. 1998)).
To show a constructive discharge, a former employee must show that conditions were so intolerable that they rendered a seemingly voluntary resignation a termination.
26
Torrech-Hernandez, 519 F.3d at 50. The court in Torrech-Hernandez analyzed a constructive discharge as follows:
“‘The question is not whether working conditions at the facility were difficult or unpleasant,’ but rather, an employee ‘must show that, at the time of his resignation, his employer did not allow him the opportunity to make a free choice regarding his employment relationship.’ Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1135 (10th Cir. 2004). Thus, in order for a resignation to constitute a constructive discharge, it effectively must be void of choice or free will. Id.; see also Vega v. Kodak Caribbean, Ltd., 3 F.3d 476, 480 (1st Cir. 1993) (constructive discharge exists where employer’s actions ‘effectively vitiate the employees' power to choose work over retirement’); Equal Employment Opportunity Comm’n v. Univ. of Chicago Hosps., 276 F.3d 326, 332 (7th Cir. 2002) (‘When an employer acts in a manner so as to have communicated to a reasonable employee that she will be terminated, and the plaintiff employee resigns, the employer’s conduct may amount to constructive discharge.’).” Id. at 50-51.
Plaintiff was offered to accept either a layoff with recall rights or a discharge from her employment. Pl.’s Ex. 1, at 6, 14. While her deposition testimony and her affidavit do not expound upon the choice she was given for this Court to conclude that her seemingly voluntary layoff constituted a termination, Torrech-Hernandez, 519 F.3d at
50, this Court is again mindful of the “not especially onerous” burden that she must satisfy to set forth a prima facie case of age discrimination. Barros, 710 A.2d at 685.
Viewing the evidence in the light most favorable to Plaintiff as this Court must do, see
Casey, 861 A.2d at 1036, the choice between being laid off or being terminated, at a minimum, could constitute an adverse employment action resulting in Plaintiff’s involuntary separation—or termination—from her employment. Accordingly, there remains a genuine issue of material fact regarding whether Plaintiff was “terminated” in the sense of being actually or constructively discharged or otherwise having suffered an
27 adverse employment action which precludes the entry of summary judgment for
Defendants.
For these reasons, as well as the reasons set forth in Section III.C.1.a, supra, concerning the discriminatory terms and conditions of her employment, Defendants’
Motion for Summary Judgment on Count V is denied.
2
Hostile Work Environment
A hostile work environment claim is a form of discrimination barred by Title VII and FEPA. See Rivera-Rivera v. Medina & Medina, Inc, 898 F.3d 77, 91 (1st Cir. 2018).
In establishing a hostile work environment cause of action, Plaintiff must prove
“(1) [she] is a member of a protected class; (2) [she] was subjected to unwanted harassment; (3) that harassment was based upon . . . her [age]; (4) ‘that the harassment was sufficiently severe and pervasive so as to alter the conditions of [her] employment . . .’; (5) that harassment ‘was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and the victim in fact did perceive it to be so’; and (6) ‘that some basis for employer liability has been established.’” DeCamp, 875 A.2d at 22-23 (quoting O’Rourke v. City of Providence, 235 F.3d 713, 728 (1st Cir. 2001)).
A hostile work environment arises “‘[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult . . . that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’” DeCamp, 875 A.2d at 23 (quoting Harris v. Forklift Systems, Inc., 510
U.S. 17, 21 (1993)) (internal quotation marks omitted). “There is no ‘mathematically precise test’ to determine whether [a plaintiff has] presented sufficient evidence that he
[or she] was subjected to a hostile work environment.” Kosereis, 331 F.3d at 216
(quoting Harris, 510 U.S. at 21). Rather, courts must look to all the circumstances,
28 including the frequency and severity of the discriminatory conduct, whether it was physically threatening or humiliating, and whether it unreasonably interfered with the plaintiff’s work performance. Id. (citing National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101, 116 (2002); Gorski v. New Hampshire Department of
Corrections, 290 F.3d 466, 472 (1st Cir. 2002)); DeCamp, 875 A.2d at 24. An offensive utterance is not sufficient to create a hostile work environment. Harris, 510 U.S. at 21.
Moreover, offhand remarks and isolated incidents do not amount to discriminatory changes in the terms and conditions of employment. Faragher v. City of Boca Raton,
524 U.S. 775, 788 (1998).
Courts are instructed to “use ‘[c]ommon sense, and an appropriate sensitivity to social context,’ to distinguish between [] innocuous behavior and severely hostile or abusive conduct.” Kosereis, 331 F.3d at 216 (quoting Oncale v. Sundowner Offshore
Services, Inc., 523 U.S. 75, 82 (1998)). “Because this inquiry is fact specific, the determination is often reserved for a fact finder, see Marrero v. Goya of P.R., Inc., 304
F.3d 7, 19 (1st Cir. 2002), but summary judgment is an appropriate vehicle for ‘polic[ing] the baseline for hostile environment claims,’ Mendoza v. Borden, Inc., 195 F.3d 1238,
1244 (11th Cir. 1999) (en banc).” Pomales v. Celulares Telefonica, Inc., 447 F.3d 79, 83
(1st Cir. 2006).
As compared to a disparate treatment claim that is subject to the McDonnell
Douglas burden-shifting legal framework, see Section III.C.1.a, supra, a hostile work environment claim does not use the burden-shifting framework. DeCamp, 875 A.2d at 21 n.6. Thus, the ease with which a plaintiff can satisfy a prima facie case of age-based discrimination, see Reed, 244 F.3d at 259 n.3 (“small showing”); Santiago–Ramos v.
29
Centennial P.R. Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000) (“not onerous”); Gillen,
283 F.3d at 30 (“easily made”), does not hold true in analyzing a hostile work environment claim. Indeed, it is not uncommon for the summary judgment ax to fall upon a hostile work environment claim. See, e.g., Rivera-Rivera, 898 F.3d at 93
(summary judgment appropriate on gender-based hostile work environment claim where evidence was only that employee was screamed and yelled at but male colleagues were not and further holding that summary judgment not appropriate on age-based hostile work environment claim where she sustained daily taunting for two years for being old and worthless); Pomales, 447 F.3d at 83-84 (affirming summary judgment where insufficient evidence of sex-based hostile work environment based on single crude incident); Kosereis, 331 F.3d at 216-17 (affirming summary judgment on hostile work environment where name calling and teasing were not severe and pervasive and reprimands were frequent only due to employee’s frequent tardiness).
Plaintiff contends that she was constantly subjected to a hostile and abusive work environment because of her age. In support thereof, Plaintiff claims she was never complimented by Nota, was treated differently than other employees who are significantly younger than she, and told that she did not fit in. Plaintiff offers no evidence that offensive comments referenced her age; it was simply a conclusion she reached because others in the Alumni Relations Office were younger than she was.
Unlike the plaintiff in Rivera-Rivera, who withstood two years of daily comments that she was old, useless, slow and worthless, see id., 898 F.3d at 92-93, there is no correlation in this case between the allegedly offensive harassment and Plaintiff’s age.
This case is more akin to the gender-based hostile work environment claim in Rivera-
30
Rivera, in which the plaintiff alleged that screaming and yelling constituted a hostile work environment whereas her male colleagues did not suffer such egregious attention.
In that case, the plaintiff averred that two superiors, one being the co-owner of the company, constantly screamed and yelled at her to the point she felt physically threatened and believed they would hit or slap her. Id. at 94. Her gender-based hostile work environment claim was rooted in her allegation that her male colleagues did not suffer the same egregious attention. Id. In affirming summary judgment on this count, the First
Circuit reasoned as follows:
“While we agree with [plaintiff] that such behavior is (or at least should be) out of line in the work arena, we have nonetheless explained that ‘an employee claiming harassment must demonstrate that the hostile conduct was directed at [her] because of a characteristic protected by a federal anti- discrimination statute.’ Quiles-Quiles, 439 F.3d at 7–8. [Plaintiff], however, has failed to connect her alleged harassment to gender at all. Sure, she mentions that [her superiors] did not engage in the same type of screaming and yelling at male employees. But that doesn’t tell us much. Indeed, there is a plethora of reasons [plaintiff’s] superiors might have yelled and screamed at her (and not at their male employees) that have no nexus to her gender. Simply put, [plaintiff] has not done enough dot connecting for us to conclude that the harassment she alleges has as its basis her membership in a protected class--here, being a woman.” Id.
Like the plaintiff in Rivera-Rivera, Plaintiff here has also failed to connect the dots between the harassment she subjectively perceived and her membership in a protected class, to wit, being over the age of forty. Even viewing the evidence in the light most favorable to Plaintiff, she has failed to put up anything more than her own speculation and conjecture that the hostile conduct she claims to have experienced was directed to her because of her age, and therefore, her hostile work environment claim must be shut up at this juncture. See Wright, 824 A.2d at 499.
31
For these reasons, Defendants’ Motion for Summary Judgment is granted on
Count IV of Plaintiff’s Amended Complaint.
3
Retaliatory Termination
Plaintiff asserts in Count VI of her Amended Complaint that she was terminated in retaliation for her meeting with URI’s affirmative action officer, Robert Gillis, on
February 2, 2006. See Pl.’s Mem., at 51; see also Am. Comp. ¶¶ 97-99. Defendants argue that Plaintiff’s retaliatory termination claim fails because she was not terminated, and she fails to establish a prima facie case of retaliation where there is no causal relation between her “termination” and any protected conduct.
First, for the same reasons as discussed in Section C.1.b, supra, there remains a genuine issue of material fact regarding whether Plaintiff was “terminated” in the sense of being actually or constructively discharged or otherwise having suffered an adverse employment action. In the specific context of a retaliation claim, in order for an employment action to be adverse, it must have caused plaintiff harm, and its impact must be sufficient to dissuade a reasonable worker from making or supporting a charge of discrimination. Mariani-Colon v. Department of Homeland Security ex rel. Chertoff, 511
F.3d 216, 223 (1st Cir. 2007). Being offered the choice of being laid off or being terminated, as Plaintiff alleges, could dissuade a reasonable worker from making or supporting a charge of discrimination. See id. Viewing the evidence in the light most favorable to Plaintiff as this Court must do, see Casey, 861 A.2d at 1036, there exists a genuine issue of material fact whether Plaintiff did suffer an adverse employment action and whether that adverse action was her actual or constructive termination. Accordingly,
32 on the Defendants’ claim that Plaintiff was not terminated, this Court denies Defendants’ motion to summarily dismiss Count VI.
Next, the Court must consider whether Plaintiff has established a prima facie case to avoid summary judgment on her retaliatory termination claim. Like a discrimination claim which lacks direct evidence, a retaliation claim is subject to the same McDonnell
Douglas burden-shifting analysis, albeit with different elements of the prima facie case.
A prima facie case of retaliation requires a plaintiff to establish that (1) she engaged in protected conduct; (2) she suffered an adverse employment action; and (3) the action is causally connected to the protected conduct. Mesnick, 950 F.2d at 827; Shoucair, 917
A.2d at 427.16 Establishing a prima facie case of retaliation is not wholly dependent upon the success of an underlying discrimination claim; rather, “[i]t is enough that the plaintiff had a reasonable, good-faith belief that a [FEPA] violation occurred; that [the plaintiff] acted on it; that the employer knew of the plaintiff’s conduct; and that the employer lashed out in consequence of it.” Mesnick, 950 F.2d at 827 (citing Petitti v.
New England Telephone & Telegraph, Co., 909 F.2d 28, 33 (1st Cir. 1990); Manoharan v. Columbia University College of Physicians & Surgeons, 842 F.2d 590, 593 (2nd Cir.
1988)).
One way to prove that adverse employment action is causally connected to the protected conduct is to demonstrate that the employer’s knowledge of the protected activity is “close in time” to the adverse employment action. Wyatt v. City of Boston, 35
16 The balance of the McDonnell Douglas burden-shifting analysis tracks other discrimination claims as discussed in Section C.1, supra. Because Defendants’ focus is only on whether Plaintiff established a prima facie case, see Defs.’ Mem. at 12, this Court need not venture into the next steps in the burden-shifting analysis on Plaintiff’s retaliatory termination claim. 33
F.3d 13, 16 (1st Cir. 1994). A period of three months has been deemed to be sufficient proof of a causal connection to the protected conduct, see Rivera-Rivera, 898 F.3d at 85-
86, 96-97, while longer periods between the protected conduct and the adverse employment action have proven fatal to establishing a causal connection. See Mesnick,
950 F.2d at 828 (nine months between informal complaint and official agency complaint then additional nine months to time of firing); Oliver v. Digital Equipment Corp., 846
F.2d 103, 110-11 (1st Cir. 1988) (thirty-three months between EEOC filing and termination).
Plaintiff contends that there were two distinct adverse employment actions following her report to Gillis on February 2, 2006: (1) on February 28, 2006, in the form of what Plaintiff contends was a bogus written reprimand; and (2) on May 10, 2006, when she was subjected to an involuntary layoff. Pl.’s Mem., at 51. While distinct in time, viewing the evidence in the light most favorable to Plaintiff, they are inextricably intertwined and tighten the connection between Plaintiff’s February 2, 2006 meeting with
Gillis and her employment separation. A review of the factual allegations tracing these actions is in order.
Plaintiff met with Gillis on February 2, 2006. Although she could not recall when a grievance was filed as a result of that meeting, or by whom, Plaintiff stated that a grievance was filed on her behalf sometime between February 2, 2006 and the February
28, 2006 meeting she had with Nota in the presence of her union representatives and
Coleman from URI’s Human Resources. Pl.’s Ex. 3, at 53-54. While Nota claims she had no knowledge of Plaintiff’s grievance until she had instituted proceedings with the
RICHR, Pl.’s Ex. 4, at 177-78, Howland was approached by Nota inquiring whether she
34 or Pierson “had gone to the union for” Plaintiff, thus suggesting that Nota was aware of union involvement for Plaintiff’s benefit. See Pl.’s Ex. 17.
At that February 28, 2006 meeting, URI failed to take any action based upon the content of Nota’s letter of the same date reprimanding Plaintiff for poorly delivering a membership report to a member of the Alumni Association Executive Board because it did not constitute a disciplinary situation, see Pl.’s Ex. 3, at 55-56, yet Plaintiff’s union representative, Crowley, when asked by Plaintiff, confirmed that the letter was the first step in getting rid of Plaintiff. Id. at 56. Contrary to the explicit provision in the May 10,
2006 MOA that the February 28, 2006 letter would be removed from Plaintiff’s file, see
Pl.’s Ex. 10, ¶ 5, the letter remained in Plaintiff’s file. Viewing the evidence in the light most favorable to Plaintiff, there is a genuine issue of material fact whether the February
28, 2006 reprimand letter had any bearing on Plaintiff’s separation from employment in
May 2006.
Further, the three-month time period between Plaintiff’s meeting with Gillis on
February 2, 2006 and her separation in May 2006, coupled with an intervening reprimand, is of sufficient temporal proximity to constitute a causal connection as required to prove a prima facie case of retaliation. See Rivera-Rivera, 898 F.3d at 85-86,
96-97.
For these reasons, Defendants’ Motion for Summary Judgment on Count VI is denied.
35
4
Exhaustion of Administrative Remedies
Defendants next challenge that three of the four FEPA claims against Nota and all four FEPA claims against URI are barred by Plaintiff’s failure to exhaust her administrative remedies with the RICHR. The First Circuit has held that the test for determining whether a plaintiff has failed to exhaust her administrative remedies by not including a particular claim in the initial charge is whether the particular claim could reasonably be expected to grow out of the charge of discrimination. Powers v. Grinnell
Corp., 915 F.2d 34, 39 (1st Cir. 1990). In Powers, the defendant employer made a similar argument to the one made by Defendants here. There, the defendant alleged the trial court improperly allowed the plaintiff to introduce evidence outside the administrative charge which allowed plaintiff to plead a discriminatory termination rather than a narrower failure-to-hire claim. 915 F.2d at 36. In finding that the trial court did not err, the First Circuit noted, “[a]n administrative charge is not a blueprint for the litigation to follow.” Id. at 38. Rather, “the critical question is whether the claims set forth in the civil complaint come within the ‘scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.’” Id. at 39 (quoting Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).
Under the standard espoused by the First Circuit in Powers, Plaintiff is not deemed to have failed to exhaust her administrative remedies simply because she has added more counts than contained in the Charge of Discrimination. All of the facts and elements of the claims raised in Plaintiff’s First Amended Complaint were delineated and described for review by the RICHR. Therefore, the claims for discriminatory terms and
36 conditions, discriminatory termination and retaliatory termination17 could be expected to grow out of the facts alleged in the initial Charge of Discrimination signed by Plaintiff and the Amended Charge of Discrimination signed by Plaintiff’s counsel.
Moreover, URI was named in Plaintiff’s original Charge of Discrimination and in the Amended Charge of Discrimination and, indeed, participated in the RICHR proceedings. See Pl.’s Ex. 1; Pl.’s Ex. 13 (URI Response to RICHR, Nov. 8, 2007). Not only did Plaintiff’s administrative charge provide the RICHR with “‘information and an opportunity to eliminate the alleged unlawful practices through informal methods of conciliation,’” it also afforded “‘formal notice to the employer and prospective defendant of the charges that have been made against it.’” Id. at 37 (quoting Kloos v. Carter-Day
Co., 799 F.2d 397, 400 (8th Cir. 1986) (further citations omitted). URI participated in that process and now cannot be heard to complain that it is taken by surprise.
Finally, this Court is not persuaded by Defendants’ argument that the FEPA claims against URI should be dismissed because it was the Board of Governors d/b/a The
University of Rhode Island that is the proper party to this action, which entity was not named until the First Amended Complaint was filed, well beyond the requisite time following RICHR’s issuance of the Right to Sue letter. The claims against the Board of
Governors d/b/a The University of Rhode Island could be expected to grow out of the facts alleged in the original Charge of Discrimination and the amended Charge of
Discrimination filed with the RICHR, and those same claims arose out of the conduct, transaction or occurrence set forth in the timely filed original Complaint against Nota and
17 Because this Court has granted summary judgment as to Plaintiff’s age-based hostile work environment claim, it is unnecessary to consider whether that claim would have been barred under the doctrine of exhaustion of administrative remedies. 37
URI. See Super. R. Civ. P. 15(c). Indeed, URI defended itself before the RICHR and prior to the First Amended Complaint being filed. The Board of Governors d/b/a The
University of Rhode Island knew or should have known that but for a mistake in naming the proper legal entity, the action would have been filed against it in the first instance.
Super. R. Civ. P. 15(c)(2). Thus, the claims against the Board of Governors d/b/a The
University of Rhode Island relate back to the original Complaint filed in this Court.
For all these reasons, this Court denies Defendants’ request for summary judgment on Counts III, V and VI on the grounds of failure to exhaust administrative remedies.
D
Count VII - Interference with Advantageous Prospective Economic Relations Against Nota
In Count VII, Plaintiff alleges that she was deprived of significant benefits of employment which she would have continued to receive but for Nota’s actions.
Defendants first argue that this claim must fail because Plaintiff was not terminated and because such claims for tortious interference are only recognized against third parties; here, Nota was not a third party to Plaintiff’s employment contract. Additionally,
Defendants contend that this cause of action18 is barred by the exclusive remedy provision in the Rhode Island’s Workers Compensation Act (WCA).
18 Defendants raise this same defense in connection with Plaintiff’s written defamation claim and false light claim. See Defs.’ Mem. at 16. As this Court has already granted summary judgment in favor of Defendants on each of those claims, this affirmative defense will be focused on the remaining interference with prospective economic relations claim. 38
1
Tortious Interference Cause of Action
Defendants’ primary challenge to Count VII may be further divided into two parts. Defendants first assert that this claim must fail because it rests upon the allegation that Plaintiff was terminated from her employment. See Defs.’ Mem. at 12. As previously stated, there remains a genuine issue of material fact whether Plaintiff was actually or constructively discharged. See Sections III.C.1.b, III.C.3, supra. Further, viewing the evidence in the light most favorable to Plaintiff, even Plaintiff’s required layoff, as an alternative to being terminated, may constitute an impairment of her prospective economic relations with URI, with which Nota has allegedly interfered. For this singular reason, then, Defendants’ Motion for Summary Judgment on Count VII must be denied.
Next, Defendants urge that, because Nota is not a “third party” to Plaintiff’s employment with URI by virtue of her own employment with URI, Plaintiff’s claim for tortious interference must fail. A careful reading of the pertinent case law reaches a different conclusion.
The elements of a tort for tortious interference with business relations, or prospective economic relations, require proof of:
“(1) the existence of a business relationship or expectancy, (2) knowledge by the interferor of the relationship or expectancy, (3) an intentional act of interference, (4) proof that the interference caused the harm sustained, and (5) damages to the plaintiff. . . Malice, in the sense of spite or ill will, is not required; rather legal malice—an intent to do harm without justification—will suffice.” Mesolella v. City of Providence, 508 A.2d 661, 669-70 (R.I. 1986).
39
While a claim of tortious interference with business relations has traditionally been limited to actions against a third party who was not a party to the contract or to the prospective business relationship, two cases reveal otherwise. In Roy v. Woonsocket
Institution for Savings, 525 A.2d 915 (R.I. 1987), a former bank employee brought claims against the bank and a superior who recommended his firing. As to the superior, the plaintiff alleged that he tortuously interfered with his prospective contractual relations with the bank itself. Id. at 918-19. Notably, the superior in Roy was an employee of the defendant bank, in the same manner as Nota is an employee of Defendant URI. In affirming a directed verdict in favor of the superior, the Roy Court did not reject plaintiff’s claim because the superior was not a third party to the relationship between the plaintiff and the defendant bank, but rather based its ruling on the lack of evidence that could lead one to conclude that the superior acted with legal malice. Id. at 919.
In Jolicoeur Furniture Co., Inc. v. Baldelli, 653 A.2d 740, 753 (R.I. 1995), our
Supreme Court held that a mayor, who acts independently from the legislative branch of the city, could tortuously interfere with a contract to which the municipality was a party.
In doing so, the Court referenced the “numerous cases in the private sector [that] have addressed the ability of an agent to interfere with the contract of the principal.” Id.
(citation omitted).
In the instant case, then, Plaintiff is not precluded from asserting that Nota, as an agent of URI, tortuously interfered with Plaintiff’s prospective economic relations with
URI. Roy, 525 A.2d at 919. Because Defendants’ motion is premised solely on the argument that Plaintiff was not terminated and that Nota is not considered a third party
40 vis-à-vis URI, see Defs.’ Mem. at 13, Defendants’ Motion for Summary Judgment on
Count VII must be denied.
2
Workers’ Compensation Act Does Not Bar Plaintiff’s Claims
Further, Plaintiff’s cause of action is not precluded by the exclusivity provision in the WCA. Section 28-29-20 of the WCA provides:
“The right to compensation for an injury under chapters 29- 38 of this title, and the remedy for an injury granted by those chapters, shall be in lieu of all rights and remedies as to that injury now existing, either at common law or otherwise against an employer, or its directors, officers, agents, or employees; and those rights and remedies shall not accrue to employees entitled to compensation under those chapters while they are in effect, except as otherwise provided in §§ 28-36-10 and 28-36-15.” Section 28-29-20.
When construing a statute, this Court “has the responsibility of effectuating the intent of the Legislature by examining a statute in its entirety and giving the words their plain and ordinary meaning.” Matter of Falstaff Brewing Corp. Re: Narragansett
Brewery Fire, 637 A.2d 1047, 1049 (R.I. 1994). “If the statutory language is clear and unambiguous, ‘this Court must interpret the statute literally and must give the words of the statute their plain and ordinary meanings’ in determining the Legislature’s intent.”
Local 400, International Federation of Technical and Professional Engineers v. Rhode
Island State Labor Relations Board, 747 A.2d 1002, 1004 (R.I. 2000) (quoting Accent
Store Design, Inc., 674 A.2d at 1226).
While there is no Rhode Island case law that directly discusses the relationship between a tortious interference claim and the WCA’s exclusive remedy provision, this
Court finds the Rhode Island Supreme Court’s decision in Nassa v. Hook-SupeRx, Inc.,
41
790 A.2d 368 (R.I. 2002), to be instructive. In Nassa, our Supreme Court held that a claim for defamation was not barred by the WCA’s exclusive remedy provision because intangible injuries do not fall within the purview of the WCA. Id. at 375. In so holding, the Court examined the purpose of the WCA and noted, “[t]he WCA’s statutory purpose is to ‘improve the safety of the workplace and the rehabilitation to gainful employment of the injured worker . . .’” Id. at 371 (quoting DiQuinzio v. Panciera Lease Co., 612 A.2d
40, 42 (R.I. 1992)).
Under the Court’s reasoning in Nassa, it appears that Plaintiff’s interference with prospective economic relations claim is not contrary to the legislative intent of the WCA; barring claims for interference with prospective economic relations would do nothing to
“improve the safety of the workplace” or facilitate “the rehabilitation to gainful employment of the [employee].” Id. at 371 (internal quotation marks omitted). In light of the Court’s conclusion in Nassa—that the WCA’s exclusive remedy provision does not prevent a claim for intangible injuries—and the purpose of the statute—to improve safety of the workplace—it would appear, to this Court, the only injuries to which the
WCA’s exclusive remedy provision apply are tangible bodily injuries, not the type of injury which a claim for interference with prospective economic relations seeks to remedy.
Accordingly, this Court finds that Plaintiff’s claim against Nota as set forth in
Count VII of the Amended Complaint is not barred by the WCA’s exclusive remedy provision. For this additional reason, Defendants’ Motion for Summary Judgment on
Count VII must be denied.
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E
Plaintiff Is Not Entitled to Summary Judgment
In responding to Defendants’ Motion for Summary Judgment, Plaintiff boldly argues that she is entitled to summary judgment on each of the FEPA counts, Counts III-
VI. To grant such a request would require this Court to apply the full panoply of the
McDonnell Douglas burden-shifting analysis for the age-based disparate treatment claims and the retaliation claim19, conclude that there are no genuine issues of material fact, and determine that Plaintiff is entitled to judgment as a matter of law. Based upon the many factual issues that remain in connection with the discrimination and retaliation vel non, whether Plaintiff was actually or constructively terminated or otherwise suffered an adverse employment action, or whether Nota interfered with Plaintiff’s prospective economic relations with URI, Plaintiff faces an insurmountable challenge to succeed on her request for summary judgment.
Additionally, Plaintiff relies heavily on the unsupported and fanciful proposition that in weighing Plaintiff’s motion for summary judgment, this Court must disregard all evidence favoring Defendants as it is offered by witnesses who are biased, whose credibility is tainted, and whom a jury is not required to believe. Pl.’s Mem. at 18.
Plaintiff’s argument is entirely off base. The Court’s consideration of the evidence taken as a whole on a summary judgment motion is well established, as is this Court’s obligation to refrain from weighing the evidence. Moreover, because summary judgment is a drastic remedy, it is necessary to view all the evidence in the light most favorable to
19 As this Court has already determined that Defendants are entitled to summary judgment on Plaintiff’s hostile work environment claim in Count IV, Plaintiff’s argument in support of her request for summary judgment on that count need not be countenanced. 43 the non-moving party. To state otherwise and assert that Defendants’ evidence must be disregarded, particularly as Plaintiff now seeks summary judgment herself, borders on the absurd.
F
Rule 56(d)
Equally impertinent is Plaintiff’s request for certain findings of fact in accordance with Rule 56(d) of the Superior Court Rules of Civil Procedure. While Super. R. Civ. P.
56(d) may be an avenue to salvage some results from the considerable effort involved in denying a motion for summary judgment, see Rowey v. Children’s Friend and Services,
C.A. No. PC-1998-0136, at 6-7 (Dec. 12, 2003, Darigan, J.) (citing Wright, Miller &
Kane, Federal Practice and Procedure: Civil 3d § 2737), Plaintiff’s request for Super. R.
Civ. P. 56(d) findings extends well beyond the rubric of these cross-motions for summary judgment motion and the permissible bounds of Super. R. Civ. P. 56(d).
Plaintiff essentially asks this Court to adopt or declare the following facts: that
URI never enforced a policy prohibiting age discrimination, had no lawful workplace non-discrimination complaint policy, and failed to train Nota regarding prohibitions against workplace age discrimination and retaliation. See Pl.’s Mem. at 41. Beyond this
Court’s determination of the existence of genuine issues of material fact which preclude summary judgment in favor of Defendants, this Court will not venture into the evidentiary proof that Plaintiff intends to rely upon to support her causes of action.
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IV
Conclusion
For the foregoing reasons, this Court finds that Defendants are entitled to summary judgment on Plaintiff’s claims for defamation, false light, and hostile work environment, as set forth in Counts I, II and IV of Plaintiff’s Amended Complaint.
Defendants’ motion for summary judgment on Counts III, V, VI and VII is denied.
Plaintiff’s motion for summary judgment on Counts III-VI is denied in its entirety, and this Court further denies any request for findings pursuant to Super. R. Civ.
P. 56(d).
Counsel for Defendants shall prepare an order consistent with this Decision.
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RHODE ISLAND SUPERIOR COURT Decision Addendum Sheet
TITLE OF CASE: Elizabeth Cugini v. Rhode Island Board of Governors for Higher Education, d/b/a The University of Rhode Island, and Michelle Nota
CASE NO: WC-2008-0722
COURT: Washington County Superior Court
DATE DECISION FILED: April 28, 2020
JUSTICE/MAGISTRATE: K. Rodgers, J.
ATTORNEYS:
For Plaintiff: Charles S. Kirwan, Esq.
For Defendant: Jeffrey S. Michaelson, Esq.
46