Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
50 N.E.3d 778
Mass.2016Background
- Verdrager, an associate in Mintz Levin’s Employment, Labor & Benefits section (2004–2008), complained internally about sexually suggestive comments by partner Bret Cohen and later filed an MCAD complaint after being "stepped back" (demoted) in seniority in Feb 2007.
- While represented by counsel, Verdrager conducted targeted searches of the firm’s document management system (DeskSite) between 2007–2008, copying and emailing some documents (including a voicemail transcript) to her personal account and to counsel; some materials were in the system’s public section.
- In Nov 2008 the firm selected Verdrager for layoff and made a settlement offer tied to accepting layoff; after she refused, firm chairman Popeo learned of her DeskSite searches and terminated her for cause, and later filed an ethics complaint against her.
- Verdrager sued in Superior Court asserting gender/pregnancy discrimination and retaliation under G. L. c. 151B § 4, plus related claims; the motion judge granted summary judgment for defendants on all claims; Verdrager appealed and the SJC allowed direct review.
- The SJC reversed as to the discrimination and retaliation claims (finding triable issues of pretext and causation) and affirmed dismissal of the tortious-interference claim against Cohen as time-barred and preempted by c.151B procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Verdrager’s step‑back (demotion) was unlawful gender discrimination | Verdrager: mixed/positive evaluations, disparate treatment of male peers, evidence of stereotyping and biased practices show pretext for demotion | Firm: legitimate nondiscriminatory reasons (mixed reviews, low utilization, partners unwilling to work with her) | Triable issues exist; summary judgment improper — jury could infer pretext and discriminatory animus |
| Whether termination was unlawful gender discrimination | Verdrager: termination followed long history of adverse treatment and occurred after she pressed claims — firing may be pretextual | Firm: termination for cause based on unauthorized access/copying of confidential client/firm materials | Triable issues exist; factual record permits inference that stated reason was pretextual |
| Whether Verdrager’s internal complaints and self-help document searches constitute protected activity (retaliation claim) | Verdrager: both internal complaints and copying/forwarding documents to counsel were protected opposition activity | Firm: searches violated firm policy and ethical duties and are unprotected; termination was for those violations | Internal complaints are protected; self-help discovery may be protected only if reasonable under the totality of circumstances — issue for trial (court sets the reasonableness, but facts for jury) |
| Whether tortious interference claim against Cohen survives | Verdrager: some of Cohen’s actionable acts fall within limitations | Cohen: claim time‑barred and the statutory c.151B process is exclusive remedy for employment discrimination | Affirmed for Cohen: common‑law claim preempted/time‑barred; proper vehicle was c.151B administrative process |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden‑shifting framework for circumstantial discrimination/retaliation)
- Lipchitz v. Raytheon Co., 434 Mass. 493 (elements for c.151B discrimination claim and pretext analysis)
- Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (Massachusetts pretext‑only standard and evidence of stereotyping)
- Staub v. Proctor Hosp., 562 U.S. 411 (attribution of biased supervisor’s motives to employer when relied upon in decision)
- Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (self‑help discovery/oppositional activity must be reasonable to receive protection)
- Quinlan v. Curtiss‑Wright Corp., 204 N.J. 239 (endorsing totality‑of‑circumstances, multi‑factor reasonableness test for employee removal of employer documents)
- Pardo v. General Hosp. Corp., 446 Mass. 1 (elements for retaliation claim under c.151B)