KAMEE VERDRAGER vs. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY AND POPEO, P.C., & others.
Supreme Judicial Court of Massachusetts
November 5, 2015. May 31, 2016.
474 Mass. 382 (2016)
Present: BOTSFORD, DUFFLY, LENK, & HINES, JJ.
Suffolk. Anti-Discrimination Law, Employment, Sex, Termination of employment. Employment, Discrimination, Sexual harassment, Demotion, Retaliation, Termination. Unlawful Interference. Practice, Civil, Summary judgment, Discovery.
In a civil action brought by an attorney (plaintiff) against the law firm that employed her and certain individuals in that firm (defendants), alleging discrimination on the basis of gender, the judge erred in granting summary judgment in favor of the defendants, where the plaintiff presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination [396-405], as well as evidence allowing an inference that both were the result of retaliation [405-410].
This court concluded that an employee‘s acts of self-help discovery in aid of claims under
In a civil action alleging tortious interference with contractual relations, the judge properly granted summary judgment in favor of the defendant on the ground that the claim was time barred because the relevant acts took place more than three years before the complaint was filed, where the proper vehicle for the plaintiff‘s claim would have been the administrative procedure provided in
CIVIL ACTION commenced in the Superior Court Department on November 3, 2009.
The case was heard by Peter M. Lauriat, J., on motions for summary judgment.
Robert Gault, David Barmak, Bret Cohen, R. Robert Popeo, and Donald Schroeder.1
Kamee Verdrager, pro se.
Joan A. Lukey (Justin J. Wolosz also present) for the defendants.
Ellen J. Messing, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.
Ben Robbins & Martin J. Newhouse, for New England Legal Foundation & another, amici curiae, submitted a brief.
LENK, J.
The plaintiff is an attorney who worked for a Boston law firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C. (firm). During the course of her employment with that firm, from June, 2004, to November, 2008, she complained to her superiors and, ultimately, to the Massachusetts Commission Against Discrimination (MCAD) that she was being subjected to discriminatory treatment on the basis of her gender — treatment that, she believed, led to her demotion in February, 2007. In the wake of this demotion, and on the advice of her attorney, the plaintiff searched the firm‘s document management system for items that might prove her assertions of discrimination. In November, 2008, after these searches were made known to the firm‘s chairman, the plaintiff‘s employment was terminated “for cause.”
In November, 2009, the plaintiff filed the present action in the Superior Court, which, as amended, named as defendants the firm, certain firm “members”2 with whom she worked, and the firm‘s chairman, R. Robert Popeo. The complaint alleged that
We conclude, first, that the plaintiff has presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation.7 Therefore, summary judgment for the defendants on those counts was inappropriate. Second, we hold that an employee‘s accessing, copying, and forwarding of documents may, in certain limited circumstances, constitute “protected activity,” but only where her actions are reasonable in the totality of the
1. Background. We summarize the facts, which are generally undisputed, “drawing inferences in favor of the plaintiff where they may reasonably be drawn from the facts.” Young v. Boston Univ., 64 Mass. App. Ct. 586, 587 (2005), cert. denied, 549 U.S. 832 (2006). To the extent that facts are disputed, we resolve them in favor of the plaintiff. See Miller v. Cotter, 448 Mass. 671, 676 (2007). We reserve certain details for later discussion.
After graduating from law school in 1999, the plaintiff practiced employment and labor law in New York. In June, 2004, she began work as a fifth-year associate at the firm‘s Boston office, in its employment, labor, and benefits (ELB) section.
Throughout the course of the plaintiff‘s employment, the firm had in place an “Electronic Information System [EIS] Acceptable Use Policy” (EIS policy). On June 16, 2004, the plaintiff signed a copy of that policy and agreed to be governed by its provisions. The plaintiff was trained in the use of DeskSite, a document management system used by the firm, at the beginning of her employment. She was told that she “was supposed to save almost all documents which she authored to the public section of DeskSite” and “was expected to search the system regularly in connection with her work.” Any documents in the “public” section of that system “were available to everyone in the firm who could access DeskSite.” Such documents could be accessed directly or could be found through a general word search of the system‘s contents. Users also could choose, however, to save documents in a “private” section of the system, accessible only to themselves or to individuals that they specified. The EIS policy provided that the “EIS should be used, with limited exceptions, only for job-related communications. Although personal use is permitted, employees should do so with the full understanding that nothing is private” (emphasis in original). Associates frequently used DeskSite for personal or nonbusiness reasons, including to check the time records of other associates to see “who was getting the most work.”
The firm also had in place a confidentiality policy, which stated that “[a]ll documents, correspondence, forms and other work
Shortly after joining the firm, in late June and early July, 2004, the plaintiff was assigned to work with Cohen, a member in the ELB section, to draft a brief on behalf of one of the firm‘s clients. In an electronic mail message dated July 19, 2004, Cohen stated that the client “has really liked our pleadings to date. Let‘s keep up the good work!” Another firm member, who also worked on the brief, later wrote in an evaluation that the plaintiff
“not only has a sound command of legal principles but she appears to have great intuition and reaction to legal issues that will make her an excellent advisor to clients and an attorney who has much to contribute to strategic issues in matters. On numerous matters in [this] case she has dropped by my office to discuss an issue and her intuitive response to the issue has been on point and well-considered. . . . I have not witnessed [her] interaction with clients, but I do know that she has had extensive contact with opposing counsel and the client in [this] matter. My impression is that [the client] has appreciated [the plaintiff‘s] counsel and that [she] is well-respected and had ‘run with the ball’ in connection with opposing counsel in the matter. . . . I would certainly like to work with her again on any matters that involve ELB litigation[.]”
The plaintiff maintains that, while Cohen and the plaintiff were working on this brief, he made a number of inappropriate, sexually charged comments to her.9 At some point in July, 2004, the plaintiff complained of these incidents to the firm‘s human resources office. In mid-August, 2004, the plaintiff spoke with, among others, the firm‘s managing director, Peter Biagetti, and with the attorney managing the ELB section, defendant Robert Gault, about the incidents. Gault and Biagetti met with Cohen in August, 2004, to discuss the plaintiff‘s assertions. Gault and Biagetti concluded that her complaints were “management style
In October, 2004, after a client complained to Cohen about the plaintiff‘s performance, Cohen asked the client to submit the complaint in writing, which Cohen then forwarded to Gault, the ELB section manager, and Starr, the director of human resources.11
Also in October, 2004, various individuals, both members and associates, told the plaintiff that Cohen was making negative remarks about her. In evaluating the plaintiff‘s performance in the fall of 2004, Cohen rated it as “usually below expectations.” He wrote that the plaintiff
“needs a great deal of help on her writing. She is smart and seems to have a great deal of institutional knowledge but, at least when I dealt with her, was unable to translate her knowledge into a cohesive thought. . . . Orally, I find that she does not speak with confidence. For example, she says ‘um’ a lot.”
The concerns regarding the plaintiff‘s writing were echoed in the comments of her other evaluators. Defendant Donald Schroeder, then a senior associate in the ELB section, who would later be promoted to membership, rated the plaintiff‘s performance as “always meets expectations.” In his written comments, however, he added that the plaintiff “needs to develop her analytical writing skills and organize her thoughts more clearly on paper.” Gault rated her work as “usually meets expectations” and noted that “I
In January, 2005, Cohen increased the scope of a research project he had assigned to the plaintiff. This project did not count toward her quota of hours billable to clients. Based on conversations she had at the time with her colleagues, the plaintiff maintains that the scope of the nonbillable work assigned to her was greater than that assigned by Cohen to other associates, a point that Cohen disputes.
On February 2, 2005, the United States Court of Appeals for the Fourth Circuit upheld a jury verdict in favor of a female employee in the firm‘s Virginia office. See Gallina vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, U.S. Ct. App., Nos. 03-1883 & 03-1947, slip op. at 12 (4th Cir. Feb 2, 2005) (Gallina). The jury found that, in violation of Federal antidiscrimination laws, the firm had retaliated against the employee for complaining of what she believed to be discriminatory treatment on the basis of her gender. Id. at 8. On February 11, 2005, Cherie Kiser, a member in the firm‘s Washington, D.C., office who chaired the firm‘s diversity committee, left a voicemail message for Popeo expressing her concern that the firm in general, and section manager Gault, in particular, did not take seriously employees’ complaints of gender discrimination. Popeo later spoke with Kiser, stating his commitment to combatting discrimination based on gender, but suggesting that Kiser was “overreacting” to what “she was hearing from Gault.”
In March, 2005, the plaintiff underwent her annual performance review. Among her evaluators were Schroeder and Gault. She received an over-all rating of “always meets expectations” in five competencies, and an over-all rating of “usually meets expectations” in another six competencies. Each evaluator also provided written comments. Gault wrote that the plaintiff “seems very smart but [I] think the writing issues may mask some of her inherent intellectual ability.” Schroeder wrote that “her writing style is too informal” and that “[s]he needs to proofread her work and pay more attention to detail.” Some of the other comments were positive, including a comment from Gault that the plaintiff “[s]eems to have a pretty good substantive knowledge of a lot of general employment law areas” and from Schroeder that she “is very good with clients.” In the fiscal year ending that month, the plaintiff had amassed thirty-three more billable hours per month
Also in March, 2005, Starr, the human resources director, and Rosemary Allen, a firm member who oversaw the firm‘s personnel matters, received complaints from six women that Cohen had made inappropriate comments to them. After investigating, Starr and Allen concluded that no gender-based discrimination had taken place.
On July 20, 2005, Eastern Point Consulting Group, Inc. (Eastern Point), a consulting company hired in the wake of the Gallina case to investigate allegations of discrimination, presented the findings from its investigation to the firm. Among other things, Eastern Point reported that many female attorneys, both members and associates, “believe it is more difficult for women than men at [the firm].” Starr was interviewed in the course of this investigation, and stated that there is a “tolerance for poor behavior” at the firm.
In September, 2005, after returning from her honeymoon, the plaintiff informed Gault that she was pregnant with her first child. Gault responded, “Well, I suppose these things happen. I guess we have your honeymoon to blame for this?”13 He then discussed the possibility of the plaintiff reducing her schedule to part time, although the plaintiff had not sought a reduction in hours or raised the possibility of such a reduction. Subsequently, the plaintiff experienced medical difficulties related to her pregnancy and was placed on short-term disability. Gault and Schroeder exchanged electronic mail messages in January, 2006, and March, 2006, in which each expressed that he was “frustrated” with the plaintiff‘s absences and lack of availability. Gault also spoke to the plaintiff‘s neighbors and discovered that she was performing work around her house that he did not believe was consistent with the medical conditions she reported.14
In March, 2006, the plaintiff underwent her second annual performance review. Gault was one of her evaluators. She received over-all ratings of “usually exceeds expectations” in four competencies, “always meets expectations” in six other competencies, and a rating of “usually meets expectations” in the eleventh area, business development. In a written comment, Gault
In a separate evaluation dated May 1, 2006, Schroeder wrote, among other things, that the plaintiff‘s “writing needs to improve” and that she “did not always communicate [her reduced] schedule to everyone in ELB and I had to handle a number of matters on an emergency basis.”15
On May 3, 2006, the plaintiff gave birth to her first child. She began a planned six-month maternity leave. In June, 2006, defendant David Barmak replaced Gault as section manager of the ELB section. While the plaintiff was on leave, she was informed that, based on the performance reviews she had received in March, 2006, prior to her leave, she would be subject to another, interim performance review. This review would be based on her performance during the first ninety days after her return from leave.16
The plaintiff returned to work on November 1, 2006. Thereafter, she registered a relatively low number of billable hours compared to other associates in the ELB section. By early February, 2007, the plaintiff had received two negative reviews of her work. One review criticized her for putting into a contract “poorly drafted language that needed to be redrafted in more conventional form.” The other review, from Schroeder, noted, among other things, that she took “too much time to complete [a writing] task” he had assigned her and that “I had to perform more editing than I normally need to do for memos done by more junior associates.” He also noted that “[d]espite a full-time schedule, she is coming
In or around February, 2007, Allen, the member overseeing personnel matters, told Popeo, the firm chairman, that the senior attorneys in the ELB section had requested that the plaintiff “be separated from the firm.” Popeo, in his deposition, recalled that he proposed demoting the plaintiff, or “set[ting] her back,” rather than firing her. He stated, “I participated in the decision to step her back rather than terminate her. Indeed, I asked the Employment and Labor Section to consider an alternative to termination.”
On February 23, 2007, Barmak and a member of the human resources department met with the plaintiff to inform her that she would be “stepped back” two years in seniority, which would lower her salary, but also would allow more time before any decision would be made on her eligibility for membership. According to that human resources officer, this decision was based on the plaintiff‘s having received “mixed reviews, [on the fact that there are] partners who won‘t work with her, [on] low utilization, [and on a] high billing rate.” Barmak later commented, regarding this decision, that the plaintiff
“is someone who is playing the system. She is out a lot, [and therefore] there is just a sense that she is not someone who is committed to practicing law, that she really doesn‘t want to be here, but as she often says, she is the ‘breadwinner’ . . . [and] she doesn‘t want to move on because of the money.”
On February 26, 2007, the plaintiff retained an employment attorney in contemplation of filing a discrimination complaint against the firm. At around that time, she filed an internal complaint alleging that the step-back was the result of gender discrimination. An internal body known as the Rapid Workforce Response Team, which included Biagetti, investigated this claim. The investigators concluded that no discriminatory conduct had taken place.
In April, 2007, the plaintiff‘s annual performance evaluation was completed. She received two evaluations, both strongly positive. One evaluator wrote that the plaintiff‘s “great work alone should help to drive more employment business to the firm.”
At some point before May, 2007, while the plaintiff was working on an assignment for a client using the DeskSite system,
In October, 2007, the plaintiff received three more evaluations, including one from Schroeder.19 All were strongly positive, with comments ranging from an observation that “[h]er interactions with [a specific client] have led to significantly more employment work for us,” to comments from Schroeder that “[s]he has shown some very positive signs in her development over the past year and I truly look forward to working with her.” In a section for “areas for improvement,” one evaluator wrote, “Nothing I can identify,” a second wrote, “None that I am aware of,” and Schroeder wrote, “I would like [the plaintiff] to get involved in bar association/trade association activities.”
Also in October, 2007, the firm solicited “upward feedback” from associates, in which they would provide anonymous comments evaluating members with whom they had worked. Cohen and Biagetti each received feedback stating that associates were concerned about their behavior towards women.
In February, 2008, the plaintiff took a second maternity leave, returning to work on September 3, 2008.
On November 13, 2008, the plaintiff conducted another search of the public section of DeskSite seeking documents related to gender discrimination at the firm. She found the transcript of voicemails left for Popeo over the period from February, 2005, through December, 2005, which she immediately copied and later forwarded in its entirety to her attorney.20 The transcript had been prepared by Popeo‘s administrative assistant and, pursuant to his usual practice, saved to the public section of DeskSite. Among the messages was the one described above, in which firm member Kiser criticized the behavior of Gault during a meeting about gender discrimination. Many of the other messages were from Popeo‘s clients or potential clients and concerned sensitive matters protected by rules of attorney-client confidentiality and privilege.
Also in November, 2008, in the wake of the national economic slowdown, the firm prepared to lay off employees. The plaintiff, among other associates, was selected for layoff. According to the firm, this was because of her low rate of billable hours, adjusted for the time that she had been on maternity leave. The plaintiff asserts that the low number of billable hours was the result of the “discriminatory and retaliatory conduct of” defendants who either did not assign work to her or discouraged others from doing so. On November 20, 2008, counsel for the firm contacted the plaintiff and offered to settle her discrimination case if she would accept the layoff. The plaintiff rejected this offer on November 21, 2008, and she was not then laid off. On the same day that the plaintiff rejected this offer, she visited the office of another firm member and showed the member a portion of the voicemail transcript containing messages left for Popeo. The member contacted Popeo. Thereafter, the firm‘s information technology department reviewed its records and learned that the plaintiff had conducted a number of searches of DeskSite that appeared to be related to her litigation against the firm. On November 25, 2008,
On September 2, 2009, the plaintiff filed a second complaint with the MCAD, alleging that the firm, in terminating her employment, had discriminated against her on the basis of her gender and that it had retaliated against her for having filed her first MCAD complaint. On November 3, 2009, the plaintiff brought the present action in the Superior Court, naming the firm, Gault, Barmak, and Schroeder as defendants. In January, 2010, she filed an amended complaint naming Popeo and Cohen as defendants. In February, 2010, the defendants filed an answer and counterclaims. In November, 2011, the defendants moved to dismiss on the basis of the plaintiff‘s asserted misconduct, i.e., her acquisition of documents by searching DeskSite. That motion was denied in July, 2012.
In January, 2013, the parties filed cross motions for summary judgment. The motion judge granted the defendants’ motion and dismissed all of the plaintiffs’ claims. Regarding the plaintiff‘s claim that the step-back was discriminatory, he concluded that she could not establish at trial that the firm‘s “reason for offering [her] a step-back rather than membership consideration . . . [was] pretextual; there is no evidence that it was designed to hide a discriminatory motive.” Similarly, the judge concluded that the plaintiff could not show that her termination was discriminatory because “there is no evidence that Mr. Popeo‘s decision to terminate [her] employment . . . was truly motivated by a desire to terminate her due to her gender or her pregnancies.”
With respect to the claim that the step-back was retaliatory, the judge concluded that
“[t]here is no evidence that the step-back option was designed to retaliate against [the plaintiff] for her complaints
He also concluded that the claims against Gault, Schroeder, and Cohen were time barred because their allegedly discriminatory acts took place outside the relevant limitations periods.22
2. Discussion. The plaintiff maintains that the judge erred in granting the defendants’ motion for summary judgment on her claims of gender discrimination under
We review a motion for summary judgment de novo. “In considering a motion for summary judgment, we review the evidence and draw all reasonable inferences in the light most favorable to the nonmoving party. The defendants, as the moving parties, have the burden of establishing that there is no genuine issue as to any material fact and that they are entitled to judgment as a matter of law.” Drakopoulos v. U.S. Bank Nat‘l Ass‘n, 465 Mass. 775, 777 (2013).
To survive summary judgment on claims brought under these provisions, an employee-plaintiff must produce evidence from which a reasonable jury may infer “four elements: membership in a protected class, harm, discriminatory animus, and causation.” Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001) (Lipchitz). The “question here is whether the plaintiff provided evidence from which a reasonable jury could infer the presence of the latter two elements, i.e., that the defendants bore discriminatory animus and that the animus was the reason the defendants [took adverse action with respect to] the plaintiff‘s employment.” See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016) (Bulwer).
Because employees rarely can produce direct evidence of discriminatory animus and causation, see Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005), they may survive a motion for summary judgment by producing “indirect or circumstantial evidence [of these elements] using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell Douglas).” Sullivan v. Liberty Mut. Ins. Co., supra at 39-40. “In the first stage, the plaintiff” must produce evidence of “a prima facie case of discrimination,” which would allow a jury to infer that “(1) [s]he is a member of a class protected by
Because “Massachusetts is a pretext only jurisdiction,” id., an employee may survive summary judgment by producing evidence “that the respondent‘s facially proper reasons given for its action against him [or her] were not the real reasons for that action,” Wheelock College v. Massachusetts Comm‘n Against Discrimination, 371 Mass. 130, 139 (1976), even if that evidence does not show directly that the true reasons were, in fact, discriminatory. See Bulwer, supra at 681-682; Lipchitz, supra at 500-501. Such indirect evidence is sufficient at the summary judgment stage because, “[c]ombined with establishment of a prima facie case . . . a showing of pretext eliminates any legitimate explanation for the adverse hiring decision and warrants,” but does not require, “a determination that the plaintiff was the victim of unlawful discrimination.” Blare, supra at 446. Under this familiar three-part test,
“[w]hile the plaintiff does bear ‘the burden of producing evidence’ that the employer‘s reasons are pretextual, . . . the burden of persuasion at summary judgment remains with the defendants, who, ‘as the moving part[ies], “ha[ve] the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if [they] would not have the burden on an issue if the case were to go to trial” ’ ” (citations omitted).
Bulwer, supra at 683.
(1) Evidence regarding step-back demotion. We begin by considering evidence that relates to the plaintiff‘s step-back. There are at least four categories of evidence from which a reasonable jury might infer that the reasons offered by the defendants for the adverse employment decision were pretextual.
First, the plaintiff points to specific instances in which “similarly situated [male] employees were treated differently” from the way she was. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997) (Matthews) (such evidence is “most probative means of establishing that the plaintiff‘s termination was a pretext“). For instance, defendant Schroeder‘s May, 2006, evaluations criticized the plaintiff for not being available for certain emergency assignments, and his March, 2006, electronic mail message noted that “[t]his is not a job where you can come and go as you please.” Yet, the plaintiff maintains in an affidavit there were “many occasions when [she] would be looking for Mr. Schroeder during business hours and would learn that he and [a particular junior male associate] were at the gym.” Similarly, when the plaintiff was nursing her first child, Schroeder evaluated
Second, there is evidence that Cohen attempted to undermine the plaintiff after she complained about his behavior, which may allow an inference that the plaintiff‘s perceived performance deficiencies resulted in part from Cohen‘s animus rather than from innate inadequacy. See generally Casarez v. Burlington N./Santa Fe Co., 193 F.3d 334, 338 (5th Cir. 1999), rehearing denied, 201 F.3d 383 (5th Cir. 2000) (evidence of pretext where supervisor undermined employee‘s performance); 1 Larson, Employment Discrimination § 8.04, at 8-85 (2d ed. 2015) (“employer‘s proffered justification for its action may also be shown to be pretextual if the respect in which the employee is allegedly deficient is of the employer‘s own making“). While Cohen initially complimented the plaintiff‘s work,26 this changed following her August, 2004, complaints, when she was told by various individuals that Cohen was “bad-mouthing” her. In October, 2004, Cohen asked a client to submit a written complaint against the plaintiff, which he then forwarded to Gault, the ELB section manager, and Starr, the human resources director. Cohen stated in his deposition that he had never previously solicited a written complaint against an associate. In January, 2005, Cohen gave the plaintiff a lengthy assignment that did not count toward her quota of billable hours, which the plaintiff maintained in her deposition was more extensive than parallel assignments given to other associates.27 In the wake of these incidents, a number of firm members, including Gault, told human resources staff during a meeting in February, 2005, that the plaintiff and Cohen could not work together and that Starr should seek to hire an attorney with qualifications similar to the plaintiff‘s.
Third, “a reasonable jury could interpret a number of the [criticisms made by] the plaintiff‘s evaluators and supervisors as re-
In particular, Barmak, who replaced Gault as manager of the ELB section, described his “impression” that the plaintiff did not have a high “level of commitment to her professional development and interest in advancement and was more concerned about somehow . . . potentially pursuing a [discrimination] claim.”28 When the plaintiff was pregnant for the first time, Gault sent a colleague an electronic mail message questioning her commitment to her work, noting that she was “out a lot [which she] says [is] attributable to her medical condition tho[ugh] I just got an e-mail re[garding] her taking about [four] days off . . . which I assume is vacation.”29 Schroeder wrote that he was “getting frustrated” because he “cannot give work to someone [like the plaintiff] when I don‘t know if they are going to be here on any given day.” While “[t]hese kinds of comments can, of course, admit of different interpretations by a jury,” see Bulwer, supra at 687, they could be understood to reflect a stereotypical view of women as not committed to their work because of family responsibilities. See Massachusetts Elec. Co. v. Massachusetts Comm‘n Against Discrimination, 375 Mass. 160, 168 (1978) (noting “stereotype that women belong at home raising a family rather than at a job as permanent members of the work force“).
Finally, there is evidence that women at the firm, and in the ELB section in particular, were subject to discriminatory treatment. See Matthews, supra at 130 n.4 (“evidence which may be relevant to the plaintiff‘s showing of pretext may include the employer‘s general practice and policies concerning” other members of protected class).
For example, the 2005 study by Eastern Point found that
“[m]any female [attorneys] . . . believe it is more difficult for
The report also indicated that “[m]any female and of color respondents believe that white men in the firm have a support network amongst themselves and that it is more comfortable and familiar within the firm for them.” Similarly, in a voicemail message for defendant Popeo, firm member Kiser said that, “with respect to these kinds of employment [discrimination] complaints, . . . [w]e . . . [cannot] stick our heads in the sand. We have done that for too long and that is what the problem is.”
Moreover, there is evidence that such disparate treatment was practiced by some of the same members who wrote the plaintiff‘s evaluations and investigated her discrimination complaints. Cohen‘s 2007 “upward feedback” included comments that “[h]e has engaged in harassing and inappropriate behavior toward many women” and that “[h]e indicates a clear bias against women in the workplace.” Biagetti, the firm‘s managing member to whom the plaintiff initially brought her concerns, received “feedback” that he “has different standards for men and women” and that he “judges women‘s work more harshly, and is less appreciative of women‘s work.”30 Kiser described Gault as responding to gender discrimination complaints by being “extremely defensive” and taking “the posture that somehow [the] complaints were not legitimate.” Kiser also stated that Gault was not “capable” of “separating himself from his own personal involvement and possibly his own personal feelings on such matters.”
According to the Eastern Point survey, many employees believed that disparate treatment affected “negatively . . . the firm‘s ability to retain women.” Statistics in the record support these assertions. When the plaintiff joined the firm, there were five female associates and four male associates in the Boston ELB section senior to her in terms of the year they had graduated from law school. Of those, all of the men were promoted to member,
while none of the women was.31 “[T]o the extent [these numbers] suggest that the highest ranks of [the] employer‘s organization are closed to members of a protected class, they may support an inference that the particular decision[s]” in question here were “tainted by an unlawful bias.” Lipchitz, supra at 508-509 (“evidence indicat[ing]” dearth of “women in the corporate ranks of the company” is “relevant, and may be properly introduced in a disparate treatment case“).(2) Evidence regarding termination. We turn to the termination of the plaintiff‘s employment in November, 2008. Given that the termination decision was made by Popeo soon after he discovered that the plaintiff had copied confidential documents, Popeo‘s explanation — that he fired the plaintiff for taking those documents — is doubtless plausible.
Nonetheless, there is evidence that Popeo‘s decision was in fact motivated by other considerations. For example, it is clear that he was kept informed, throughout the plaintiff‘s employment, of the plaintiff‘s discrimination claims and her performance deficiencies. He was told in the summer of 2004 of her discrimination complaints, apparently kept a file on her case in his office, and was involved in the decision to require her step-back. Even the decision to terminate her employment was not made by Popeo individually, but in consultation with Starr, the human resources director, and Allen, the member in charge of personnel matters, who themselves consulted regularly with ELB members regarding the plaintiff. Finally, the plaintiff‘s employment was terminated only a few weeks after she was selected for layoff, five days after the firm had offered to settle her claims in exchange for her agreement to a layoff, four days after the plaintiff had rejected that offer, and one day after Popeo had been informed of her decision in that regard. All of this would allow — although, of course, not require — a jury to infer that the incident with the documents merely provided an excuse to fire an employee who had long been viewed negatively by her supervisors, but who would not leave the firm voluntarily and who could not otherwise be terminated because of her pending discrimination claims.
ii. Defendants’ contentions. The defendants contend that, the above evidence notwithstanding, they are nonetheless entitled to
The defendants cannot be excluded from liability on this basis. Because Allen and Starr did not supervise the plaintiff‘s work, they based their decision to require a “step-back” on the opinions of the plaintiff‘s supervisors and evaluators. Similarly, Popeo decided to terminate the plaintiff‘s employment only after consulting with Starr and Allen, and after having been kept apprised, during the preceding months and years, of the negative views of the plaintiff‘s supervisors. “Where ‘the decision makers relied on the recommendations of supervisors [whose motives have been impugned], the motives of the supervisors should be treated as the motives for the decision. . . . An employer [may not] insulate its decision by interposing an intermediate level of persons in the hierarchy of decision, and asserting that the ultimate decision makers acted only on [the] recommendation‘” of others. Bulwer, supra at 688, quoting Trustees of Forbes Library v. Labor Relations Comm‘n, 384 Mass. 559, 569-570 (1981). See Staub v. Proctor Hosp., 562 U.S. 411, 420 (2011) (rejecting view that “the employer [is] effectively shielded from discriminat[ion]” claims when it “isolates a personnel official from an employee‘s supervisors, vests the decision to take adverse employment actions in that official, and asks that official to review the employee‘s personnel file before taking the adverse action“).
Second, the defendants contend that summary judgment was appropriate because the plaintiff‘s case rests on “conclusory allegations, improbable inferences, and unsupported speculation.”
Finally, the defendants argue that the claims against Gault and Schroeder are time barred because the underlying acts took place more than 300 days before the plaintiff filed her first MCAD complaint.32 See
b. Retaliation. The plaintiff also claims that both the step-back and the termination were retaliation for the “protected activity” of complaining of gender discrimination.33
i. In general. A claim of retaliation is separate and distinct from a claim of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000). An employee bringing a retaliation claim is not complaining of discriminatory treatment as such, but rather of treatment that “punish[es]” her for complaining of or otherwise opposing such discriminatory treatment. Ruffino v. State St. Bank & Trust Co., 908 F. Supp. 1019, 1040 (D. Mass. 1995). For this reason, a “claim of retaliation may succeed even if the underlying claim of discrimination fails, provided that in asserting her discrimination claim, the claimant can ‘prove that [she] reasonably and in good faith believed that the [employer] was engaged in wrongful discrimination’ ” (alterations in original). Psy-Ed Corp. v. Klein, 459 Mass. 697, 706-707 (2011) (Psy-Ed), quoting Abramian v. President & Fellows of Harvard College, supra.
To survive summary judgment on a claim of retaliation, an employee must produce evidence from which a jury could infer four elements. First, there must be evidence that the employee “reasonably and in good faith believed that the employer was engaged in wrongful discrimination.” Pardo v. General Hosp. Corp., 446 Mass. 1, 21 (2006). Second, there must be evidence that the employee “acted reasonably in response to that belief,” id., through reasonable acts meant “to protest or oppose . . . discrimination” (protected activity). See Fantini v. Salem State College, 557 F.3d 22, 32 (1st Cir. 2009). Third, there must be evidence that the employer took adverse action against the em-
Employees claiming retaliation do not often possess direct evidence of the fourth element, a forbidden motive. See, e.g., Psy-Ed, supra at 707. Therefore, they may prove a forbidden motive with indirect evidence, which courts evaluate using a three-stage burden-shifting paradigm similar to the one discussed in McDonnell Douglas, supra. See Psy-Ed, supra. At the first stage, the employee has the burden of producing evidence “that [s]he engaged in protected conduct, that [s]he suffered some adverse action, and that ‘a causal connection existed between the protected conduct and the adverse action‘” (citation omitted). Mole v. University of Mass., 442 Mass. 582, 591-592 (2004) (Mole). At the second stage, the “employer must then articulate a legitimate, nondiscriminatory reason for” the adverse employment decision. Esler v. Sylvia-Reardon, 473 Mass. 775, 780 n.7 (2016). At the third stage, the employee must produce evidence that the employer‘s “stated reason for [its adverse action] was a pretext for retaliating against her on account of her” protected activity. Id. The combination of a “prima facie case” of retaliation with “a showing of pretext” allows a jury to infer that there was no “legitimate explanation for the adverse [employment] decision” and that the employer‘s true motivation was retaliatory. See Blare, supra at 446.
ii. Step-back. We turn to the plaintiff‘s claim that her step-back was retaliatory. It is undisputed that, for purposes of summary judgment, the plaintiff has satisfied three of the four elements of a retaliation claim. In particular, the parties agree that the plaintiff reasonably and in good faith believed that she suffered discrimination; that she engaged in protected activity by complaining internally of that alleged discrimination; and that, in the form of the step-back, she suffered an adverse employment action.
The parties dispute, however, whether there is sufficient evidence of the fourth element — a forbidden motive — which requires proof that the plaintiff‘s protected actions were the reason the firm imposed the step-back. The plaintiff‘s contention in this regard, relying as it does on indirect evidence, must be analyzed using the three-stage burden-shifting paradigm discussed above. See Psy-Ed, supra. The defendants argue that the plaintiff fails at both the first and third stages of this paradigm.
As to the first stage, where the plaintiff must make out a prima facie case of retaliation, the defendants contend that the plaintiff
This contention fails because the plaintiff is not seeking to prove a “causal connection” through the temporal proximity of her protected acts to the adverse action she suffered. Instead, noting that “[t]emporal proximity is but one method of proving retaliation,” Chungchi Che v. Massachusetts Bay Transp. Auth., 342 F.3d 31, 38 (1st Cir. 2003), the plaintiff presents “[e]vidence of discriminatory or disparate treatment in the time period between the protected activity and the adverse employment action,” which “can be sufficient to show a causal connection” between the two (citations omitted). Mole, supra at 596, quoting Chungchi Che v. Massachusetts Bay Transp. Auth., supra. From such evidence, a jury may, though need not, infer that the “pattern of retaliatory conduct [began] soon after [the protected activity] and only culminate[d] later in actual” adverse action. Mole, supra, quoting Marx v. Schnuck Markets, Inc., 76 F.3d 324, 329 (10th Cir.), cert. denied, 518 U.S. 1019 (1996).
Here, the plaintiff first engaged in protected conduct in the summer of 2004, when she complained of gender discrimination to human resources officers and firm members. See Abril-Rivera v. Johnson, 806 F.3d 599, 608 (1st Cir. 2015) (it is protected activity to “complain about unlawfully discriminatory employment practices“). Following that protected conduct, and before the February, 2007, step-back, there is evidence, delineated supra, that the plaintiff was treated differently from similarly situated male colleagues, that her evaluators may have judged her through the lens of a stereotype, and that Cohen, her boss, tried to undermine her. From this evidence, a jury could, but need not, infer that a “pattern of retaliatory conduct [began] soon after [the protected activity] and only culminate[d] later in actual” adverse action (citation omitted). Mole, supra at 596.
Given that the plaintiff has made out a prima facie case of retaliation, we move to the second stage, where the defendants must
We therefore move to the third stage, where the plaintiff must present evidence that the defendants’ lawful explanation is pretextual. Although the defendants contend that the plaintiff can point to no such evidence, that is incorrect. As described supra, the plaintiff has presented evidence from which a jury might infer that a “pattern of retaliatory conduct [began] soon after” she complained of gender discrimination, “culminat[ing] later in” her step-back. See Mole, supra at 596; Chungchi Che v. Massachusetts Bay Transp. Auth., supra at 39 (inference of pretext from evidence of disparate treatment in wake of protected activity). From this, a jury may, but need not, infer that the plaintiff‘s perceived performance deficiencies were merely a cover, and that the step-back actually was motivated by her protected actions. This suffices to defeat the defendants’ motion for summary judgment as it concerns the step-back.
iii. Termination. We turn now to the plaintiff‘s claim that her termination was retaliatory. The plaintiff presents two arguments in support of this contention. First, she maintains that she was fired on the basis of a forbidden motive, i.e., for having engaged in the protected activity of filing discrimination complaints with the firm, before the MCAD, and in the Superior Court.34 She argues that the defendants’ proffered explanation — that they fired her for accessing, copying, and forwarding confidential documents in pursuit of her discrimination claim (self-help discovery) — is not the actual reason for her termination, but rather a pretext. Second, she contends that her acts of self-help discovery themselves constituted protected activity, such that, even if the defendants’ proffered explanation were true, they would not be absolved of liability.
(1) Pretext. As mentioned, the plaintiff argues that she was fired for having engaged in the protected activity of filing dis-
At the first stage, where the plaintiff must make out a prima facie case of retaliation, the contested issue is whether the plaintiff has produced sufficient evidence of a causal connection between the adverse action taken by Popeo (termination) and her protected activity (pursuing gender-discrimination complaints internally, at the MCAD, and in a court). In this regard, the plaintiff notes that Popeo fired her on November 25, 2008, a few weeks after she had been selected for layoff, five days after the firm had offered to settle her claims in exchange for her agreement to the layoff, four days after she had rejected that offer, and one day after Popeo had been informed of her decision in that regard. The temporal proximity between the firm‘s layoff decision, the plaintiff‘s decision not to settle her case, and the plaintiff‘s termination is one form of “circumstantial evidence that . . . can demonstrate” the required causal connection. See Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992).
The plaintiff also points to more direct evidence of Popeo‘s motivation. For instance, she notes Popeo‘s stated view that “you don‘t stay employed by a firm for the purpose of enhancing the value of your case as opposed to enhancing your career.” She further notes that Popeo consulted with Starr and Allen, who held views that the plaintiff might have been “falling back on claims of discrimination” and that she was “looking for issues to sue us on,” about the termination decision. While this evidence is capable of different interpretations, it would allow a jury to infer that Popeo fired the plaintiff not because of her unethical activity as such, but because of his view that the plaintiff should not remain at the firm while continuing to pursue her discrimination claims.
This evidence also allows an inference, as required at the third stage of the burden-shifting analysis, that the defendants’ stated reason for firing the plaintiff — her acts of self-help discovery —
(2) Self-help discovery. As noted, the plaintiff contends that, even if the defendants’ proffered reason for firing her — that she engaged in self-help discovery in support of her discrimination claims — ultimately is determined to be the real reason, it is nonetheless unlawful, because her acts of self-help discovery constituted protected activity under
The question whether an employee‘s acts of self-help discovery in aid of claims under
Taking this approach requires a determination, based on the
In reaching this conclusion, we do not ignore
“the concerns of employers that only a bright line rule that prohibits any employee from ever disclosing a document in pursuit of a discrimination claim and that equally prohibits any attorney from reviewing or considering such documents provided by employees will fairly protect their interests.”
Quinlan, supra at 271-272. But, while the employers’ “right to . . . expect that they will have the loyalty of their employees” must be part of the calculus, so, too, must the “right [of employees] to be free of discrimination in their employment and . . . to speak out when they are subjected to treatment that they reasonably believe violates that right.” Id. at 271. “Balancing all of those considerations is a difficult and important task.”36 Id.
We emphasize two points in this regard. First, the protections discussed here are limited, applying as they do only to employees pursuing claims under
We are not persuaded that where, as here, the plaintiff is an attorney, such that some of the documents at issue may be subject to the rules of attorney-client confidentiality and privilege, the plaintiff‘s actions should thereby be stripped of the protections afforded other employees by
The totality of the circumstances analysis to be applied in determining whether self-help discovery measures were reason-
The first factor asks “how the employee came to have possession of, or access to, the document.” Quinlan, supra at 269. This factor favors “the employee who [does not] find[ ] a document by rummaging through files or by snooping around in offices of supervisors or other employees.” Id.
A second factor seeks to “balance [the] relevance” of the seized documents to the employee‘s legal action against the disruption caused by the seizure “to the employer‘s ordinary business.” Id. at 270. In so doing, “the focus must be on whether the use or disclosure of the document unduly disrupted the employer‘s business, rather than on any effect it had on individual company representatives.” Id.
A third factor looks to “the strength of the employee‘s expressed reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery.” Id.
A fourth factor asks
“what the employee did with the document. If the employee looked at it, copied it and shared it with an attorney for the purpose of evaluating whether the employee had a viable cause of action or of assisting in the prosecution of a claim, the factor will favor the employee. On the other hand, if the employee copied the document and disseminated it to other
employees not privileged to see it in the ordinary course of their duties or to others outside of the company, this factor will balance in the employer‘s favor.”
Id. at 269.
A fifth factor takes into consideration “the nature and content of the particular document in order to weigh the strength of the employer‘s interest in keeping the document confidential,” id., while the sixth looks to “whether there is a clearly identified company policy on privacy or confidentiality that the employee‘s disclosure has violated.” Id. at 270. As the New Jersey Supreme Court noted, the “evaluation of this [latter] factor should take into account considerations about whether the employer has routinely enforced that policy.” Id.
A seventh and final factor takes into account “the broad remedial purposes the Legislature has advanced through our laws against discrimination, including [
The application of this test in particular cases may well result in determinations that certain acts of self-help discovery by the same employee are reasonable, while others are not. Indeed, where the nature of documents discovered by this means may run the gamut from the plainly relevant and not privileged to the not relevant and plainly privileged, that result would not be unexpected.38 Were this to be the case, the resolution of the claim of retaliation39 likely would entail a determination whether the employee‘s unreasonable and unprotected acts, “standing alone,
c. Tortious interference. The motion judge allowed Cohen‘s motion for summary judgment on the plaintiff‘s tortious interference claim because it was filed more than three years after the relevant acts took place and was, therefore, time barred. See
The plaintiff‘s contention is unavailing. The proper vehicle for her claims against Cohen would have been “the administrative procedure provided in”
3. Conclusion. The judgment on the claim for tortious interference is affirmed. The matter is remanded to the Superior Court for
So ordered.