Opinion
14-P-1628
11-10-2015
ALICJA BUDNIK v. BIOGEN IDEC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Covered by three protected statuses, Alicja Budnik brought this action, claiming that her employer, Biogen Idec (Biogen), discriminated against her in the terms and conditions of her employment, committed retaliation, and constructively discharged her. See G. L. c. 151B, § 4(1), (1B), (4), and (16). A judge of the Superior Court granted Biogen's motion for summary judgment. We affirm.
Facts. Compiled independently from the summary judgment record, the operative facts were not in dispute. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005). From 2001 until late 2009, all was well with Budnik's employment. In 2006, she was promoted from process operator II to process operator III in the purification department of Biogen. During biannual reviews from 2006 to 2009, Budnik's supervisors consistently rated her as a solid performer.
Beginning in 2004 or 2005, Budnik also worked parttime for Massachusetts General Hospital (MGH).
In early 2008, at Biogen's suggestion, Budnik applied for and received intermittent leave under the Family and Medical Leave Act (FMLA). With this accommodation, Budnik received schedule flexibility allowing her to perform the essential functions of her position. In mid-2008, at Budnik's request, Biogen switched her to a shift where she came under the supervision of Peter Stevenson.
In 2007, Budnik was diagnosed with severe anxiety and panic disorder. Biogen has not challenged that Budnik qualifies as handicapped within the meaning of the antidiscrimination statute. See G. L. c. 151B, § 1(17).
Relations took a decidedly downward tilt in 2009. After Budnik confided in Stevenson that she was doing so well managing her disability that she was able to discontinue her medications, Stevenson, while remaining "cordial and reasonable in day-to-day routine communications," acted very disrespectfully during their one-on-one meetings. Stevenson criticized her for errors that did not occur and blamed the mistakes of others on her. When she challenged the correctness of his conclusions, he "accused her in a rude tone of being defensive."
At one of their meetings in 2009 prior to her year-end evaluation, Stevenson told Budnik she should find another job and leave the purification department. Of the eight process operators on the shift at the time, Budnik was the oldest and the only female. At first, Budnik agreed to leave. A few days later, however, Budnik told Stevenson she had changed her mind.
At a meeting, Budnik stated to Stevenson, "I am not going to look for a different job because I love this job. I'm very skilled. I value what I'm doing and my performance, and I value who I am. I won't be [a] different person than who I am. I cannot be younger. I can't be a male performer. I'm a woman." Stevenson made no response.
For two to three hours on March 1, 2010, Budnik met with Nancy Duran, Biogen's human resources business partner, discussing her allegations of discrimination. Informed by Budnik that she did not feel safe at work, Duran placed Budnik on paid administrative leave pending an investigation. Although she would have preferred to continue working, Budnik admitted that that action was reasonable. Two days later, Budnick completed an intake questionnaire at the Equal Employment Opportunity Commission (EEOC). Budnik then filed a formal charge of discrimination with the EEOC against Biogen.
On March 15, 2010, the day on which the results of Biogen's investigation into Budnik's allegations were to be shared, Budnik notified Biogen that she would be out sick. Shortly thereafter, EEOC notified Biogen of Budnik's discrimination charges, and while the parties agreed to participate in the voluntary mediation program, no mediation occurred. Budnik's medical problems began to escalate. She never returned to Biogen.
According to Budnik, EEOC advised her to remain out of work and to have no contact with Biogen until further proceedings before the EEOC, and she followed this advice; EEOC also informed her that Biogen cancelled three mediation sessions. These statements, offered by Budnik to explain why she failed to contact Biogen for a month, were inadmissible hearsay, properly disregarded by the judge. See Mass. G. Evid. §§ 801(c), 802 (2015).
After receiving no response to two warning letters urging Budnik to contact Biogen and advising her that her continued unexcused absences might result in the loss of her job, Biogen informed Budnik that her employment was "terminated" effective April 16, 2010.
Discussion. In conducting our de novo review of the grant of summary judgment, we must determine "whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991).
In order to establish a prima facie case of discrimination, Budnik was required to show that she was subjected to an adverse employment action. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004) (retaliation); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 41 (gender and age); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 120 (2010) (disability). An adverse employment action may be established through evidence that the employee had been materially "disadvantaged in respect to salary, grade, or other objective terms and conditions of employment." MacCormack v. Boston Edison Co., 423 Mass. 652, 663 (1996).
Here, most of the conduct relied on by Budnik, including Stevenson's disrespectful tone and attitude change, fell into the category of subjective and intangible impressions that are nonactionable under c. 151B. Compare Bain v. Springfield, 424 Mass. 758, 765-766 (1997). None of the discrete actions relied on met the adverse action test. First, the 2009 end-of-year performance evaluation did not constitute an adverse employment action. At worst, the eleven-page evaluation was a mixed review, containing both positive and negative statements. The evaluation repeated certain critiques from earlier evaluations by Stevenson and other supervisors, and Budnik does not claim that any of them amounted to an adverse employment action. Overall, Stevenson rated Budnik as a solid performer, a rating Budnik had consistently achieved. See Hall v. FMR Corp., 667 F. Supp. 2d 185, 200-201 (D. Mass. 2009) (unfair performance evaluation, standing alone, cannot constitute adverse employment action).
A false statement inserted into a performance evaluation with malicious intent could in an appropriate case constitute an adverse action. Nothing of the sort was shown here. Budnik offered no competent proof to support her contention that Stevenson had no good faith basis for expressing his opinions about her limited skill set and troubleshooting abilities. See Madsen v. Erwin, 395 Mass. 715, 721 (1985) (conclusory statements and factual statements not based on personal knowledge are insufficient to avoid summary judgment). To the extent that Budnik now suggests these criticisms came out of the blue, in his 2009 mid-year evaluation, Stevenson instructed her to focus on her limited skill set, and Budnik herself had set the goal of improving her troubleshooting skills, one she admittedly did not meet by year-end. Even if Stevenson unfairly blamed her for a production error that did not occur, she was not disciplined in connection with the incident. See Pedicini v. United States, 480 F. Supp. 2d 438, 454 (D. Mass. 2007), citing with approval Sweeney v. West, 149 F.3d 550, 557 (7th Cir. 1998) (unfair reprimand stopping short of discipline for conduct employee "did not engage in or should not have been responsible for" was not adverse employment action).
Finally, Budnik cannot establish on this record that Stevenson's statement that she had unexcused absences was false or that she suffered any actual harm that would qualify as an adverse employment action. In short, nothing Stevenson had to say about Budnik impacted her employment in any tangible manner.
To the extent that Budnik maintains that as evidenced by Stevenson's collective acts, she was subjected to workplace "bullying" and harassment, so far as appears, that theory of adverse action was not raised below. Budnik has also failed to support this claim on appeal with legal analysis. The claim is thus not properly before us. See Cariglia v. Bar Counsel, 442 Mass. 372, 379 (2004); Selmark Assocs., Inc. v. Ehrlich, 467 Mass. 525, 540 (2014). In any event, were we to reach the merits, we would conclude that Budnik's proof was inadequate, as matter of law, to support a hostile work environment claim. See Scott v. Encore Images, Inc., 80 Mass. App. Ct. 661, 669-670 (2011).
Although a termination is unquestionably an adverse employment action, here, Budnik failed to rebut with admissible evidence Biogen's explanation for the job separation (Budnik's month-long, unexcused absence).
Even if Budnik placed the job abandonment issue into legitimate dispute, no jury could reasonably find that Biogen's real reason for the termination was discriminatory or retaliatory. See Mole v. University of Mass., 442 Mass. at 592; Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 54-57. With one exception in nine years of employment, Budnik had always made her supervisors aware of her absences before her shifts started. Budnik admitted that Biogen had no reason to know about the alleged advice given to her by the EEOC. See note 4, supra. Notified by Budnik's newly-retained attorney of a possible medical reason for Budnik's lack of communication, Biogen offered to reinstate Budnik less than three weeks after the termination. That offer undermined the inference of retaliation flowing from the short time span between Budnik's protected conduct and her separation from employment.
By that time, Budnik was working full-time at MGH pursuant to her April, 2010, request. Through her attorney, Budnik notified Biogen that she would not be returning to Biogen.
No direct evidence of discrimination was established on this record. First, Stevenson's statement to Budnik that she should leave the department and find another job was not direct evidence of discrimination. Second, Budnik's ensuing explanation for her refusal to leave the department was not a clear-cut accusation of unlawful discrimination to which a denial was naturally expected. See Weston-Smith v. Cooley Dickinson Hosp., Inc., 282 F.3d 60, 67 (1st Cir. 2002).
While the disparate treatment of employees outside the protected class would be strong evidence of pretext, Budnik's proof here was inadequate to show that any process operator similarly situated in all relevant respects was treated more favorably in any term or condition of employment. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). Moreover, the facts of record relating to Biogen's payment and promotion of Budnik during her employment were inadequate to establish pretext. See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 767-768 (1986); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 55-56.
Judgment affirmed.
By the Court (Cohen, Carhart & Blake, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk
Entered: November 10, 2015.