Rebecca Maloney v. City of Dover Recreation Department

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2023-0590, Rebecca Maloney v. City of Dover
Recreation Department, the court on August 21, 2024, issued
the following order:

The court has reviewed the written arguments and the record submitted
on appeal and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The plaintiff, Rebecca Maloney, appeals an order of the
Superior Court (St. Hilaire, J.) granting summary judgment to the defendant,
the City of Dover Recreation Department (city), on her claims of employment
discrimination under RSA 354-A:7 (2022), and violations of New Hampshire’s
Whistleblowers’ Protection Act, RSA chapter 275-E (2023). The plaintiff argues
that the trial court erred by determining that the city established
nondiscriminatory reasons for its adverse employment actions, and that she
failed to establish a genuine issue of material fact that the proffered reasons for
the adverse actions were pretextual. We affirm.

When reviewing a trial court’s decision granting summary judgment, we
consider the evidence submitted on summary judgment in the light most
favorable to the nonmoving party, and if no genuine issue of material fact
exists, we determine whether the moving party is entitled to judgment as a
matter of law. Hardy v. Chester Arms, LLC, 176 N.H. ___, ___ (2024), 2024
N.H. 5, ¶7; see RSA 491:8-a, II, III (2010). A fact is material if it affects the
outcome of the case under applicable law. Hardy, 176 N.H. at ___, 2024 N.H.
5, ¶7. If our review of the evidence discloses no genuine issue of material fact
and that the moving party is entitled to judgment as a matter of law, we will
uphold the trial court’s decision to grant summary judgment. Id. We review
the trial court’s application of law to the facts de novo. Id.

Within the context of a claim for employment discrimination under RSA
354-A:7, absent “direct evidence” of discrimination, a plaintiff “must resort to
the burden-shifting paradigm articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)” to establish a causal link between an adverse
employment action and the defendant’s alleged discriminatory animus
sufficient in order to survive summary judgment. Burnap v. Somersworth Sch.
Dist., 172 N.H. 632, 637 (2019). Under this framework, the plaintiff must first
establish a prima facie case of discrimination. Id. If the plaintiff has carried
the initial burden, the defendant must produce evidence of some legitimate,
nondiscriminatory basis for its action. Id. at 637 & n.3. At that point, the
plaintiff must “offer sufficient evidence of a genuine issue of material fact that
the proffered reason[s are pretextual] for unlawful discrimination.” Id. “[T]he
plaintiff must do more than dispute the employer’s stated justification; she
must elucidate specific facts which would enable a jury to find that the reason
given was not only a sham, but a sham intended to cover up the employer’s”
discriminatory motive. Id. at 637. A similar analysis applies to claims under
RSA chapter 275-E. See Appeal of Seacoast Fire Equip. Co. 146 N.H. 605, 608
(2001) (adopting McDonnell Douglas framework for whistleblower claims under
RSA chapter 275-E).

The burden of persuasion remains always upon the plaintiff. Burnap,
172 N.H. at 637 n.3. In opposing summary judgment, the plaintiff may not
“rest[] merely upon conclusory allegations, improbable inferences, and
unsupported speculation” to establish the employer’s motive or intent. Id. at
636 (quotation omitted).

In this case, the plaintiff, whom the city had employed as a lifeguard and
swimming instructor on a part-time, seasonal basis since 2004, asserts that
following her surgery in May 2017 to address a medical condition, the city
engaged in a series of adverse employment actions, including the hiring of a
younger colleague to a full-time position, motivated by discriminatory animus
based upon her age and disability. These actions culminated, according to the
plaintiff, with the city terminating her employment in September 2019, citing
the following grounds for the termination: (1) an incident on Labor Day of 2018
in which the plaintiff displayed poor lifeguarding skills and subsequently
misstated facts regarding the incident in an email to her supervisor; (2) the
plaintiff’s practice of submitting time to the city for reimbursement while she
was simultaneously being paid by a high school to coach swimming at the
city’s facility; (3) an incident in January 2019 in which the plaintiff submitted a
timecard that included time in which she was not present and working; and (4)
an incident in September 2019 in which the plaintiff was found to have been
involved in a false report of a rodent issue at the city’s pool facility.

In granting summary judgment, the trial court determined that the city
met its burden to demonstrate legitimate, nondiscriminatory grounds for its
challenged actions, and that the plaintiff failed to establish that those grounds
were pretextual. The plaintiff challenges the trial court’s analysis, arguing that
the city “attempted to offer legitimate nondiscriminatory bases for some, but
not all, of its actions,” and that “what justifications it does offer do not
withstand scrutiny” for purposes of summary judgment. We disagree.

As the trial court correctly observed, evidence in the summary judgment
record supports the city’s position that it hired the plaintiff’s colleague because
the colleague had a relevant degree, and because the colleague had expressed,
during her interview, vision for the position, including the development of
special needs programming. By contrast, the evidence establishes that the
plaintiff’s responses to questions regarding her “vision” concerning the position
expressed that “it wouldn’t change much of her daily work life. She was still
going to be opening the pool and working her current role.” That the person
2
hired for the position may not have subsequently fulfilled her stated vision for
it does not establish that the city’s decision to select her over the plaintiff on
that basis at the time that it selected her was a “sham” intended to hide its
discriminatory animus toward the plaintiff.

Likewise, evidence in the summary judgment record supports each of the
four nondiscriminatory, legitimate grounds cited by the city in terminating the
plaintiff’s employment in September 2019, and the plaintiff identifies no
evidence from which a jury reasonably could find, beyond speculation, that the
reasons offered were “shams” intended to hide an unlawful motive or motives.
To the extent that the plaintiff claims that the city had employment policies
that allowed her to work for a different employer while simultaneously being
paid by the city for the same time, or to submit timecards reflecting time that
she was not actually present and working due to inclement weather, she
presents no evidence corroborating her claims. Indeed, the affidavits and
employment policies introduced by the city demonstrate that: (1) hourly
employees, like the plaintiff, were required to submit timecards for the hours
they worked; (2) the city had a written policy expressly requiring employees not
reporting to work due to inclement weather, in the absence of the city’s
decision to curtail or limit relevant services due to weather, to utilize annual
leave or a personal day if available, and otherwise to be uncompensated for the
time missed; and (3) submission of a falsified timecard was a terminable
offense. To the extent the plaintiff seeks to ground her claims upon a number
of other alleged adverse actions under the McDonnell Douglas framework, we
have reviewed the summary judgment record, and conclude that the plaintiff
has failed to establish that the trial court erred by granting summary
judgment. See Gallo v. Traina, 166 N.H. 737, 740 (2014).

Affirmed.

MacDonald, C.J., and Bassett, Donovan, and Countway, JJ., concurred.

Timothy A. Gudas,
Clerk

3