1

 L’Etoile advised the court that she is voluntarily

dismissing her claims under N.H. Rev. Stat. Ann. § 354-A:7, I, V.

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Nicole L. L’Etoile

v. Civil No. 06-cv-00390-JL

Opinion No. 2008 DNH 163

New England Finish

Systems, Inc.

O R D E R

The defendant, New England Finish Systems, Inc. (“New

England Finish”) moves for summary judgment on claims by its

former employee, Nicole L. L’Etoile, alleging sex discrimination,

including a hostile work environment, and retaliatory discharge

in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e-2(a)(1), 2000-e-3(a).1 New England Finish has

also moved to strike a number of the statements relied on in

L’Etoile’s objection to its summary judgment motion. This court

has jurisdiction under 28 U.S.C. § 1331 (federal question). For

the foregoing reasons, New England Finish’s motion for summary

judgment is granted in part and denied in part, and its motion to

strike is denied as moot.

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 1 of 23
2 The court notes that New England Finish has filed motions

in limine seeking to exclude the same evidence at trial. Those

motions will be ruled on in the ordinary course.

2

I. Applicable Legal Standard

Summary judgment is appropriate where the “pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c). In making this determination, the “court

must scrutinize the record in the light most flattering to the

party opposing the motion, indulging all reasonable inferences in

that party’s favor.” Mulvihill v. Top-Flite Golf Co., 335 F.3d

15, 19 (1st Cir. 2003). The following background facts are set

forth in accordance with this standard. In determining those

facts, however, the court has not relied on any of the evidence

challenged by New England Finish’s motion to strike, making that

motion moot.2 See Evans v. Taco Bell Corp., 2005 DNH 132, 10

(denying motion to strike as moot where challenged evidence was

treated as irrelevant to summary judgment motion).

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 2 of 23
3

II. Background

L’Etoile, a member of the Painters and Allied Trades

District Council #35, was hired by New England Finish, a

construction company, in January 2002, through a telephone call

to one of its field supervisors, Raymond Houle. Houle told

L’Etoile, who had been working as a drywall finisher since 1984,

that he would call her whenever New England Finish had a job

where it needed a woman, such as its upcoming job installing

drywall in a luxury condominium project in Boston, The Belvedere. 

Houle later testified that, on construction projects done as part

of the “Boston Plan,” the city requested that a certain

percentage of workers be women. Houle also acknowledged that,

consistent with what he told L’Etoile when he hired her, this

requirement affected the majority of the jobs to which she was

assigned while working for New England Finish.

 Starting with the Belvedere job, L’Etoile worked as a

drywall taper for New England Finish during six separate periods

between January 14, 2002 and April 14, 2004. At the end of each

of these periods--except for the last--the parties agree that

L’Etoile was laid off as a particular job wound down and the

company’s need for tapers correspondingly decreased. L’Etoile

claims, however, that the company chose to lay her off, rather

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 3 of 23
3 L’Etoile bases this argument largely on Houle’s testimony

that, from April 5, 2002 to January 31, 2003, he considered her a

“core worker,” i.e., an employee to whom he had a responsibility

to keep on the job; as a result, a core worker ended up working

an average of forty-eight weeks each year. L’Etoile points out

that, over the span of her employment with New England Finish,

she worked much less frequently than that. 

4

than similarly skilled male workers, due to her gender.3

 In

fact, L’Etoile testified, during her regular calls to Houle to

inquire about available work during her periods of layoff, Houle

said that he would re-hire her as soon as New England Finish got

a job that required a woman, like the Belvedere job had.

New England Finish, on the other hand, says that it laid off

L’Etoile instead of other tapers “because she was not as

productive as other workers, was not as flexible as to the work

she would do and was generally a more difficult employee to

manage.” In particular, New England Finish claims that L’Etoile

worked more slowly than the other tapers, stopped working earlier

in the day than they did, smoked on job sites where it was

prohibited, and expressed reluctance to do sanding work,

especially on ceilings, as well as to work in high places or

carry her taping compound up flights of stairs. L’Etoile, in

turn, hotly disputes New England Finish’s assertions, which are

based largely on the testimony of Andre Pomerleau, the foreman

who supervised L’Etoile on several of her jobs for the company. 

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 4 of 23
4 L’Etoile acknowledged that she did not want to work in

high places, but only when she had to work there alone, which she

considered a safety risk.

5

L’Etoile denies that her performance suffered from any of the

claimed deficiencies,4

 and states that she was never criticized

for any of them by her supervisors--with the exception of a

complaint by Pomerleau, during her last job for New England

Finish, that she had packed up early on one occasion, which

L’Etoile disputes in any event. 

L’Etoile also recounts a series of sexist comments by

Pomerleau and her other supervisors at New England Finish,

starting with statements since her hiring by Pomerleau and her

other foreman on jobs for the company, Roger Hallee, that they

did not want women there. Specifically, L’Etoile testified to

occasions when she overheard Hallee say, to other workers, “I

don’t like women on my job,” and--in reference to L’Etoile

herself--“See, fucking women on the job. They don’t want to do

what we tell them to do.” L’Etoile also testified to an incident

where she heard Hallee say, in response to seeing her talking

with a male co-worker, “Him and his fuckin’ women’s lib.” 

According to L’Etoile, her other foreman, Pomerleau, often

used a French-language expression which translates to “Les Christ

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 5 of 23
5

 It appears to be undisputed that L’Etoile understands

French, and that she understood what the phrase meant.

6 Pomerleau’s wife, Cecile, also worked as a taper for New

England Finish; she was the only other woman who ever worked with

L’Etoile on any of the company’s jobs.

6

des femmes!”--French for “Goddamned women!”--in her presence,5

proceeding to list a number of tasks attendant to drywall

installation that women did not want to do. This happened as

recently as April 2004, while L’Etoile was working on what turned

out to be her last job for New England Finish. L’Etoile further

testified that Pomerleau said, while she was working on the

Belvedere job, that she would be “the first one out” when layoffs

began “because we only have to keep one woman here.”6 L’Etoile

testified that hearing such comments--which Pomerleau has denied

making--caused her to feel “like a little piece of trash”

compared to her male co-workers.

In late March 2004, while working on a job with Pomerleau,

L’Etoile confronted him with a copy of the Technical Assistance

Guide for Federal Construction Contractors, a publication by the

Office of Federal Contract Compliance of the Department of Labor

to assist employers in following nondiscrimination and

affirmative action laws in their dealings with the federal

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 6 of 23
7 During a visit to the agency’s field office, L’Etoile had

learned, among other things, that she was entitled to the same

employment opportunities as men.

7

government.7

 In the days prior to the confrontation, L’Etoile

had argued with Pomerleau when he claimed New England Finish

needed to have women only on certain jobs; she used the Technical

Assistance Guide in an attempt to prove her point that the

company was required to hire women on all jobs. Though Pomerleau

did not read the guide at that point, his wife did, telling him,

“It’s there in black and white . . . you have to have women on

all job[s] as an equal opportunity.” Pomerleau considered the

guide “a joke,” and did not read it himself.

This was the first time L’Etoile had complained about the

treatment of women at New England Finish. Soon after, Pomerleau

complained to Houle--also for the first time--about L’Etoile’s

performance on the job, during a discussion of which tapers to

lay off as the work on the current project petered out. In fact,

until that point, Houle had never heard complaints about L’Etoile

from anyone, though he claims to have personally noticed her

smoking on the job once, and that she did not work as efficiently

as the other tapers. Houle testified that, based on these

observations and Pomerleau’s complaint--which included the

charges that L’Etoile did not want to sand or carry her compound

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 7 of 23
8 In support of her contrary position, L’Etoile points to

pages from Houle’s deposition transcript, but they do not support

that view, even when read in the light most favorable to her.

8

up stairs--the men agreed that she should be the next taper laid

off. There is no evidence, however, that Pomerleau told Houle

during this discussion about having been confronted with the

Technical Assistance Guide by L’Etoile.8 

L’Etoile was indeed laid off, on April 14, 2006, in an

action that New England Finish has admitted was a “termination”

in its answer filed in this action. Houle testified that New

England Finish has not attempted to re-hire L’Etoile for

essentially the same reasons he gave for laying her off; he

further testified that the company’s generalized slowdown in the

years since has also played a factor, but acknowledged that other

tapers have been hired during that time. New England Finish has

stated in its answer, however, that L’Etoile’s union sent the

company a letter directing it to terminate her for failing to

attend mandatory safety training--a rationale that Pomerleau and

Houle have since explained had nothing to do with their actions,

since, among other reasons, they had already terminated L’Etoile

by the time the letter was received.

 On July 16, 2004, L’Etoile filed a charge of discrimination

against New England Finish with the New Hampshire Human Rights

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 8 of 23
9

Commission, alleging, inter alia, the sex discrimination, hostile

environment, and retaliation claims alleged in this action. 

After the Equal Employment Opportunity Commission, in reliance on

its state counterpart’s finding of no probable cause for

L’Etoile’s claims, issued her a notice of her right to sue, she

commenced this action.

III. Analysis

New England Finish moves for summary judgment on each of

L’Etoile’s claims, arguing that (A) insofar as they rely on acts

that occurred more than 300 days prior to when L’Etoile filed her

charge of discrimination with the Human Rights Commission, they

are barred by the applicable statute of limitations, (B) L’Etoile

cannot show a hostile environment claim as a matter of law, and

(C)-(D) L’Etoile cannot make out a prima facie case of

discrimination in any of her layoffs, or retaliation in her

ultimate termination but, even if she can, she cannot rebut New

England Finish’s legitimate, nondiscriminatory reasons for those

actions. The court will consider these arguments in turn.

A. Whether Certain of L’Etoile’s Claims Are Time-Barred

An employee must file a charge of discrimination under Title

VII “within three hundred days after the alleged unlawful

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 9 of 23
9 This is the limitations period for a plaintiff who, like

L’Etoile, initially files the charge with a state or local agency

empowered to grant relief from the alleged unlawful practice. 

See 42 U.S.C. § 2000e-5(1).

10

practice occurred.”9 42 U.S.C. 2000e-5(e)(1). For purposes of

this rule, “[e]ach discriminatory act starts a new clock for

filing charges alleging that act. The charge, therefore, must be

filed within the . . . 300-day period after the discrete

discriminatory act occurred.” Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 114 (2002). It is undisputed that a number

of the “discrete discriminatory acts” encompassed by L’Etoile’s

discrimination claim, i.e., her layoffs on March 4, 2002, June

24, 2002, January 1, 2003, and August 15, 2003--occurred more

than 300 days before she filed her charge of discrimination on

July 16, 2004. L’Etoile’s claim that each of those layoffs was

illegally motivated by her gender is time-barred. See Hargett v.

Valley Fed. Savings Bank, 60 F.3d 754, 763-64 (11th Cir. 1995)

(ruling that lay-off started running of Title VII limitations

period, despite subsequent alleged discriminatory act); London v.

Coopers & Lybrand, 644 F.2d 811, 816 (9th Cir. 1980) (describing

layoff as an example of a discrete act that starts the

limitations clock). L’Etoile offers no argument to the contrary.

What L’Etoile does argue is that her hostile environment

claim is not time-barred because, while it relies on acts by her

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 10 of 23
10 L’Etoile also suggests that she may use evidence of her

supervisors’ sexist comments, even though they occurred outside

the limitations period, in support of her retaliation claim. 

That is an evidentiary issue that is not properly before the

court in the context of the summary judgment motion, so the court

expresses no view on the admissibility of any of those statements

at this point. See note 1, supra.

11

supervisors outside of the limitations period, it also relies on

acts within that period, viz., Pomerleau’s cursing about women’s

subpar abilities as drywall installers in April 2004. “Provided

that an act contributing to the [hostile environment] claim

occurs within the filing period, the entire time period of the

hostile environment may be considered by a court for purposes of

determining liability.” Morgan, 536 U.S. at 117. L’Etoile is

therefore correct that New England Finish’s statute of

limitations defense has no effect on her hostile environment

claim.10 New England Finish’s motion for summary judgment on

limitations grounds is granted as to L’Etoile’s claim of

discrimination in the layoffs that occurred on August 15, 2003,

and earlier, but is otherwise denied.

B. L’Etoile’s Hostile Environment Claim

Title VII prohibits sex based-discrimination in the form of

workplace harassment “sufficiently severe or pervasive to alter

the terms and conditions of [the victim’s] employment and create

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 11 of 23
12

an abusive working environment.” Meritor Sav. Bank v. Vinson,

477 U.S. 57, 67 (1986) (internal quotation marks omitted). To

violate Title VII, such an “environment must be both objectively

and subjectively offensive, one that a reasonable person would

find hostile or abusive, and one that the victim did in fact

perceive to be so.” Faragher v. City of Boca Raton, 524 U.S.

775, 787 (1998). Here, the defendants do not dispute, for

purposes of their summary judgment motion, that L’Etoile

subjectively perceived the environment on the New England Finish

jobs as offensive, only that no reasonable person could

objectively see it that way because the complained-of behavior

was not “sufficiently severe or pervasive.” The court disagrees.

“The objectivity severity of harassment should be judged

from the perspective of a reasonable person in the plaintiff’s

position, considering all the circumstances.” Oncale v.

Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998) (internal

quotation marks omitted). These circumstances include, but are

not limited to (a) the frequency of the discriminatory conduct,

(b) whether it is physically threatening or humiliating, or a

mere offensive utterance, and (c) whether it unreasonably

interferes with an employee’s work performance, but none of these

single factors is required. Harris v. Forklift Sys., Inc., 510

U.S. 17, 23 (1993). Given the fact-intensive nature of this

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 12 of 23
13

inquiry, whether a plaintiff’s particular working conditions rose

to the level of a hostile environment can be resolved on summary

judgment in appropriate cases, but is an inquiry “often reserved

for a fact finder,” Pomales v. Celulares Telefonica, Inc., 447

F.3d 79, 83 (1st Cir. 2006), as New England Finish acknowledges.

L’Etoile testified that, from the beginning of her tenure

with New England Finish, both of her foremen, Pomerleau and

Hallee, repeatedly indicated that they did not want women on the

job. Both men expressed this sentiment by cursing women in front

of L’Etoile and demeaning their abilities, comments that were

directed specifically at L’Etoile on more than one occasion. 

There is no question that remarks of this nature can support a

hostile environment claim. See Lipsett v. Univ. of P.R., 864

F.2d 881, 905 (1st Cir. 1988) (ruling that female doctors’

suffering a “constant verbal attack, one which challenged their

capacity as women to be surgeons . . . could be found to have

contributed significantly to the hostile environment”); see also,

e.g., Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 788 (7th

Cir. 2007) (overturning summary judgment for employer on hostile

environment claim “[a]lthough most of [the] alleged comments were

sexist rather than sexual,” including supervisor’s remarks that

women did not belong on the job).

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 13 of 23
11 In a like vein, New England Finish suggests that

L’Etoile’s testimony alone is inadequate, arguing that she “has

been unable to produce a single witness” to corroborate these

allegations. But this court is not aware of any authority,

either with regard to hostile environment claims specifically or

in a broader context, requiring a plaintiff to provide her own

testimony to survive summary judgment.

14

New England Finish attempts to minimize the significance of

these comments, arguing that L’Etoile has not identified enough

“specific statements” to survive summary judgment on her hostile

environment claim. To be sure, “conclusory allegations” do not

suffice to defeat summary judgment, Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990), but L’Etoile came forward with a

good deal more than that in her deposition testimony.11 She

testified, for example, that Pomerleau made his French-language

“Goddamned women!” comments “often.” Although she identified

only two specific instances, the court cannot, in deciding New

England Finish’s motion for summary judgment, construe that

testimony to mean that those were the only two times Pomerleau

ever did that. See Billings v. Town of Grafton, 515 F.3d 39, 50

(1st Cir. 2008) (relying on plaintiff’s testimony that harassing

conduct “happened a lot” in reversing summary judgment against

her on hostile environment claim).

Furthermore, L’Etoile also testified to a number of comments

from Hallee, and all of the complained-of remarks occurred in a

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 14 of 23
12 The court acknowledges that New England Finish disputes

this characterization, arguing that the decision to lay off

L’Etoile on April 14, 2004, was just that; it was not until later

that the company decided not to re-hire her again. But the

evidence, when taken in the light most favorable to L’Etoile,

suggests that she was effectively terminated on April 14, 2004,

which, in any event, New England Finish has admitted in its

answer. So the court will interchangeably refer to the April 14,

2004, action as a layoff or a termination. 

15

context where she was told, by both Houle and Pomerleau, that she

was there only because New England Finish was required to have a

woman working on certain jobs. In any event, “there is no magic

number of incidents required to establish a hostile environment

claim.” Boumehdi, 489 F.3d at 789. When the evidence is

examined in the light most favorable to L’Etoile, the defendants

are not entitled to summary judgment on this claim.

C. L’Etoile’s Discrimination Claim 

New England Finish argues that L’Etoile cannot make out a

prima facie case of sex discrimination in any of her lay-offs,

and that, even if she can, she cannot rebut the company’s

proffered legitimate, nondiscriminatory reasons for those

layoffs. Given the ruling that the statute of limitations bars

L’Etoile’s claims arising out of her layoffs of August 15, 2003,

and earlier, the court will consider this argument only as to the

layoffs of December 8, 2003 and April 14, 2004--the latter of

which effectively served as a termination.12

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 15 of 23
16

To establish a prima facie case of a discriminatory layoff,

an employee must show “that he or she (1) was a member of a

protected class, (2) met the employer’s legitimate jobperformance expectations, (3) was laid off, and (4) that the

employer either did not treat members of the protected class

neutrally or retained persons not within the protected class in

the same position.” Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995);

see also, e.g., Currier v. United Techs. Corp., 393 F.3d 246, 254

(1st Cir. 2004). If the employee succeeds in making this

showing, which is “not onerous,” the burden shifts to the

employer to articulate a legitimate, nondiscriminatory reason for

laying off the plaintiff. Cruz-Ramos v. P.R. Sun Oil Co., 202

F.3d 381, 384 (1st Cir. 2000) (citing St. Mary’s Honor Ctr. v.

Hicks, 509 U.S. 502, 506-07 (1993)). If the employer succeeds in

making that showing, the burden shifts back to the employee to

show “(1) that the employer’s articulated reason for laying off

the plaintiff is a pretext and (2) that the true reason is

discriminatory.” Udo, 54 F.3d at 13.

New England Finish argues that L’Etoile cannot show a prima

facie case of discrimination because “the possibility . . .

exist[s] that she was laid off due to problems with her

performance.” But the mere “possibility” that an employee did

not meet his or her employer’s legitimate expectations does not

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 16 of 23
17

entitle the employer to summary judgment on a discrimination

claim, provided the employee adduces “minimally sufficient

evidence” to the contrary. Vega v. Kodak Caribbean, Ltd., 3 F.3d

476, 479 (1st Cir. 1993). Here, L’Etoile has shown that, despite

New England Finish’s stated concerns about her performance, those

were (with one exception) never previously voiced to her and,

indeed, the company kept rehiring her after laying her off. This

evidence suffices to establish a prima facie case that she was

qualified to work as a taper. See Currier, 393 F.3d at 248-54

(ruling that employee with “record of proven success” made out

prima facie case of qualifications, despite negative reviews);

Brennan v. GTE Gov’t Sys. Corp., 150 F.3d 21, 27 (1st Cir. 1998)

(ruling that employee had shown prima facie case of

qualifications where he “received acceptable rankings in

virtually every appraisal” in his previous reviews); Woodman v.

Haemonetics Corp., 51 F.3d 1087, 1092 (1st Cir. 1995) (similar).

L’Etoile concedes that New England Finish has met its burden

of articulating a legitimate, non-discriminatory reason for the

layoffs, i.e., that she was less valuable as an employee, in

terms of both her productivity and her flexibility, than her coworkers who remained. In attempting to expose this as pretext,

L’Etoile disputes each of the particular shortcomings proffered

by the company, emphasizing again that she had essentially never

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 17 of 23
13 There is also the fact that, when New England Finish

laid off L’Etoile in both December 2003 and April 2004, it was

actually increasing the number of tapers in its employ on a

company-wide basis.

18

been criticized for her work in the past. Evidence that an

employer has never previously voiced its stated concerns over an

employee’s performance may suggest that those concerns are

pretextual. See Hidalgo v. Overseas Condado Ins. Agencies, Inc.,

120 F.3d 328, 336-37 (1st Cir. 1997); Mulero-Rodriguez v. Ponte,

Inc., 98 F.3d 670, 675 (1st Cir. 1996); Hebert v. Mohawk Rubber

Co., 872 F.2d 1104, 1115-16 (1st Cir. 1989).

L’Etoile also relies on the sexist comments allegedly

uttered by her foremen, Hallee and Pomerleau; such “[s]tatements

by a supervisor carrying the inference that the supervisor

harbored animus against protected classes of people or conduct

are clearly probative of pretext.” Hodgens v. Gen. Dynamics

Corp., 144 F.3d 151, 171 (1st Cir. 1998). Finally, L’Etoile

points to evidence that, on both December 8, 2003 and April 14,

2004, she was laid off as New England Finish completed work on a

job for which it was required to employ a woman, in keeping with

the remarks by both Pomerleau and Houle that she would be

assigned only to such jobs.13 These kinds of remarks can also

show discriminatory animus. See, e.g., Billings, 515 F.3d at 56-

57 (relying on employer’s comments linking its actions to

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 18 of 23
19

employee’s pending discrimination lawsuit in reversing summary

judgment for employer on retaliation claim).

L’Etoile’s evidence, taken as a whole, suffices to create a

genuine issue as to whether New England Finish’s justifications

for laying her off on the dates in question are pretextual and

whether, in fact, the true reason for those layoffs was

discriminatory animus. While this evidence is not overwhelming

by any means, “where a plaintiff in a discrimination case makes

out a prima facie case and the issue becomes whether the

employer’s stated nondiscriminatory reason is a pretext for

discrimination, courts should be particularly cautious about

granting summary judgment.” Hodgens, 144 F.3d at 167. In an

exercise of that caution, this court denies New England Finish’s

motion for summary judgment on the discrimination claims.

D. L’Etoile’s Retaliation Claim

The burden-shifting framework used to resolve employment

discrimination claims under Title VII is also used to resolve

retaliation claims. See Hodgens, 144 F.3d at 160. To make out a

prima facie case of retaliation, an employee must show (1) he or

she engaged in a protected activity, (2) he or she suffered a

materially adverse action, and (3) a causal connection between

the protected activity and the adverse action. See, e.g., 

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 19 of 23
20

Mariani-Colon v. Dep’t of Homeland Sec. ex rel. Chertoff, 511

F.3d 216, 223 (1st Cir. 2007). If the employee carries this

“relatively light burden,” id. at 224, the burden shifts to the

employer to articulate a legitimate, non-discriminatory reason

for the adverse action. See, e.g., Billings, 515 F.3d at 55. 

“If the employer’s evidence creates a genuine issue of fact, the

presumption of discrimination drops from the case, and the

plaintiff retains the ultimate burden of showing that the

employer’s stated reason for terminating him was in fact a

pretext for retaliating against him.” Hodgens, 144 F.3d at 161.

 In moving for summary judgment on L’Etoile’s retaliation

claim, New England Finish argues that she cannot show a causal

connection between her protected conduct--confronting Pomerleau

with the Technical Assistance Guide in late March 2004--and her

subsequent termination, either for purposes of her prima facie

case or to rebut the company’s proffered non-discriminatory

reasons for firing her. But, as L’Etoile notes, the “temporal

proximity” between when she confronted L’Etoile and when she was

laid off, which was less than three weeks, itself suffices to

demonstrate a prima facie case of retaliation. Mariani-Colon,

511 F.3d at 224. 

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 20 of 23
14 New England Finish also argues that “three weeks is an

inordinately long time in an industry where people are laid off

on a daily basis.” While this argument may have some merit, it

is undercut by the fact that the company was actually increasing

its number of tapers at that point, see note 13, supra, as well

as by the ambiguity in the record--which must be construed in

L’Etoile’s favor--as to how long passed between her confronting

Pomerleau and his complaining to Houle, as opposed to when the

layoff actually occurred. At this stage, it cannot negate

L’Etoile’s temporal proximity theory. 

15 Specifically, Houle testified, in reference to this

decision, that he and Pomerleau “both came to an agreement that

work had slowed down and that she was the next one,” in keeping

with the company’s practice of making layoff decisions in

“[c]ombination” between the two men.

21

New England Finish challenges this conclusion,14 pointing

out that “to draw such an inference, there must be proof that the

decisionmaker knew of the plaintiff’s protected conduct when he

or she decided to take the adverse employment action.” Pomales,

447 F.3d at 85. This argument is premised on the view that,

because Pomerleau did not tell Houle about the confrontation with

L’Etoile until long after the firing, that protected conduct

could not have figured into Houle’s decision to terminate her.

But, while it is undisputed that Houle had the ultimate

authority to hire and fire employees, he gave testimony that,

when taken in the light most favorable to L’Etoile, suggests that

Pomerleau participated in the decision to lay her off on April

14, 2004.15 This evidence creates a genuine issue of fact as to

whether the “decisionmaker” on L’Etoile’s final layoff was indeed

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22

unaware of her protected conduct. See Pomales, 447 F.3d at 85

(ruling that employee could not establish retaliation where

decisionmaker lacked knowledge of protected conduct and there was

“no proof” that those at the company who did “participated [in]

or otherwise influenced” the decision); Santiago-Ramos v.

Centennial P.R. Wireless Corp., 217 F.3d 46, 55 (1st Cir. 2000)

(reversing summary judgment for employer on discrimination claim

based in part on sexist comments by subordinate who “was in a

position to influence . . . the key decisionmaker”).

As just discussed in the analysis of L’Etoile’s

discrimination claim, which also arises, in part, out of the

April 14, 2004, termination, she has come forward with sufficient

evidence to create a genuine issue as to whether the company’s

stated reasons for firing her were pretexts for unlawful

retaliation. In the case of her retaliation claim, however,

there is also the fact that, in its answer to L’Etoile’s amended

complaint, New England Finish gave an entirely different reason

for terminating her, i.e., that she had failed to complete

mandatory safety training. But Pomerleau and Houle attempted to

retreat from this rationale at their depositions, as discussed

supra. These kinds of shifting explanations for an employer’s

challenged action can demonstrate pretext. See, e.g., Billings,

515 F.3d at 56. Based on this and the other evidence already

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surveyed, New England Finish’s motion for summary judgment on

L’Etoile’s retaliation claim is denied.

IV. Conclusion

For the foregoing reasons, New England Finish’s motion for

summary judgment (document no. 23) is granted as to L’Etoile’s

discrimination claim, insofar as it arises out of the layoffs of

March 4, 2002, June 24, 2002, January 1, 2003, and August 15,

2003, but is otherwise denied. New England Finish’s motion to

strike (document no. 28) is denied as moot.

SO ORDERED.

____________________________

Joseph N. Laplante

United States District Judge

Dated: August 29, 2008

cc: Heather M. Burns, Esq.

Charla B. Stevens, Esq.

Case 1:06-cv-00390-JL Document 60 Filed 08/29/08 Page 23 of 23