46 Mass. App. Ct. 665 | Mass. App. Ct. | 1999
The issue in this age and handicap discrimination case is whether the plaintiff produced sufficient evidence of pretext “to clear the summary judgment hurdle.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). The plaintiff, a manager in the defendant’s restaurant business, claims his discharge was in violation of State and Federal law, including G. L. c. 151B, § 4. A Superior Court judge allowed the defendant’s motion for summary judgment. The plaintiff appeals, arguing there was sufficient evidence of pretext to warrant sending the case to a jury. As to the claim of handicap discrimination, we agree.
1. Summary judgment issues. We address first certain questions concerning the defendant’s summary judgment materials, because their resolution affects the recitation of the facts. Among
In his opposition to the defendant’s motion for summary judgment in Superior Court, the plaintiff argued that the defendant’s “[employee] turnover rate statistics,” as set out in the letter, “are not competent or admissible as evidence.” He claimed the defendant destroyed the documents on which the statistics were based. On appeal, the plaintiff again complains of the destruction of the records used to calculate the turnover rates. He also challenges the defendant’s use of the lawyer’s letter, which was drafted after the plaintiff’s claim of discrimination, and argues generally that the defendant’s allegations as to the plaintiff’s performance are “unsupported by admissible documentary evidence.”
While these complaints may well have substantive merit, they are not properly before us because the plaintiff did not move to strike the inadmissible portions of Abdow’s affidavit. See Madsen v. Erwin, 395 Mass. 715,721 (1985). See also Mass.R.Civ. P. 56(e), 365 Mass. 824 (1974); Wright, Miller, & Kane, Federal Practice and Procedure § 2738, at 372-375 (1998). Compare Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.l (1997) (Supreme Judicial Court disregarded several parts of summary judgment affidavit because they contained hearsay and the affidavit had been challenged by motion to strike). The Superior Court judge was therefore within his discretion in considering the defendant’s affidavit. Madsen v. Erwin, supra. Moreover, there is no evidence in the record that the plaintiff requested copies of the underlying employee
2. The facts. Neither party disputes that the other met its initial burden in the first two stages of the discrimination analysis. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 440-442, and cases cited. The defendant, Abdow Corporation (Abdow), is a family-owned chain of nineteen restaurants in central Massachusetts. There are four specialty or dinner restaurants; the remainder are family restaurants. The plaintiff, Thomas Wooster, began work for Abdow as a management trainee at one of the defendant’s family restaurants in 1981, when he was thirty-six. In 1983, he became shift manager at the P.J. Scott dinner house restaurant in Chicopee and was promoted to executive manager of that restaurant four months later. He remained in that position until he was discharged in May, 1992, at the age of forty-seven. His replacement was a younger man, apparently with no handicap.
a. The plaintiff’s prima facie case: evidence regarding handicap and age. Because the defendant does not argue that the plaintiff has failed to establish a prima facie case of either age or handicap discrimination, for purposes of the appeal we assume the plaintiff has done so. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 128. See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 3 (1998), setting out the standards for proof of a prima facie case.
The plaintiff’s evidence, in the light most favorable to him, was as follows. During his employment with Abdow, the plaintiff suffered from chronic asthma, which required several medications, including steroids, to control. He explained the effect of the steroids on his mood to Ronald Abdow, and mentioned that the medications could cause future medical problems such as cataracts and diabetes. In fact, in January and March of 1992, he had two cataract operations. During the physical examination in preparation for the first eye surgery, he discovered he had diabetes, and he informed Paul Lichwan, Abdow’s vice-president for operations, of this new diagnosis. He
In December, 1991, Steven Abdow, Ronald’s son and the plaintiff’s supervisor, announced to Abdow’s restaurant managers that Abdow had decided to make employee health care a “controllable expense.” In announcing the change in policy, Steven Abdow admonished the managers to “make sure that we hire people . . . [who] are not going to be big insurance gobblers.” When the plaintiff asked whether Steven Abdow “[was] suggesting . . . that we fire the people that use the insurance . . . there was a very long pause.” Finally Steven Abdow said, “If you had a position for one individual, and you had two people for that position, if one of the people was going to be an insurance user or had reason for the insurance, and the other person didn’t, you would want to go with the person that didn’t.” The plaintiff was aware of the volume of his own insurance claims; he felt it was “like there was no end in sight.” Between December, 1991, and May, 1992, the plaintiff received calls from Abdow’s central office questioning medical expenses of other employees at the restaurant he managed.
The plaintiff claimed that managers at the other dinner restaurants were considerably younger than he; that when there was a vacancy for the manager at the flagship dinner restaurant, the job did not go to him but to a younger man; and that only five of the forty-seven managers were over age forty, and of those, two were demoted, two left, and he was fired. He provided no comparable information for managers under age forty.
b. The defendant’s legitimate nondiscriminatory reason. The plaintiff does not dispute that the defendant articulated a legitimate nondiscriminatory reason for his discharge — the plaintiff’s poor performance as a manager between December, 1991, and his termination in May, 1992. The defendant’s evidence of its reasons for discharging Wooster included the plaintiff’s deposition testimony acknowledging his receipt of a disciplinary report; Ronald Abdow’s deposition testimony claiming that the plaintiff’s job performance had deteriorated over time; and Steven Abdow’s deposition testimony containing certain details about the plaintiff’s performance, including violations of the defendant’s dress codes.
The MCAD letter reported high staff turnover rates in 1991 and 1992 at the restaurant the plaintiff managed; verbal abuse
3. Evidence of pretext and the appropriate standards. We now arrive at the third stage in the plaintiff’s order of proof of discrimination. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 440-443, and cases cited; Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 127-128, and cases cited. In order to prevail at this final stage, the plaintiff “must persuade the fact finder by a fair preponderance of the evidence that the defendant’s asserted reasons were not the real reasons . . . [for the plaintiff’s discharge].” Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 443, quoting from Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 700 (1992). In an appeal from summary judgment, “our task is to consider whether there is evidence which generates a genuine dispute of fact on the pretext point.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). In that task, “[o]ur reading of the summary judgment materials is in a light most favorable to the nonmoving party, here the plaintiff.” Ibid., citing Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 438.
In addition to the prima facie evidence set out above, which “remains as evidence in the case,” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 413 (1998); see Liacos, Massachusetts Evidence § 5.8.5, at 236-237 (6th ed. 1994), to demonstrate pretext the plaintiff offered written evaluations he had received covering the same period as the documents the defendant introduced to show nondiscriminatory motive. The plaintiff’s documents included an unsigned November 16, 1991, report on his restaurant’s condition headed with the words “fantastic job”; a specialty restaurant inspection form dated January 14, 1992, signed by Steven Abdow, awarding 86 points out of 100 and commenting “very nice”; a second specialty restaurant inspection form dated March 10, 1992,
a. Handicap discrimination claim. The Superior Court judge found that the plaintiff “failed [to] produce sufficient evidence that the reasons articulated by Abdow for his termination were a pretext for handicap[ ] discrimination.” However, in his memorandum of decision, the Superior Court judge failed to mention any of the written evaluations submitted by the plaintiff. Moreover, although he considered the evidence regarding health care costs, the judge observed that “[the plaintiff] presented] no evidence that Abdow ever inquired into [the plaintiff’s] own use of the plan or commented on his medical expenses.” But it is just this kind of “smoking gun” evidence that is not required, because it is “rare.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 445. “[T]he plaintiff’s ultimate burden of persuasion may be satisfied either by direct or circumstantial evidence of discrimination.” Id. at 445 n.8. “The ultimate issue of discrimination, raised by the plaintiff’s and defendant’s] conflicting evidence as to the defendant’s] motive, is not for a court to decide on the basis of affidavits [and other summary judgment materials], but is for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses.” Id. at 445.
The facts of this case are consistent with those in Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 446-447, where the Supreme Judicial Court concluded that conflicting evidence of satisfactory performance, combined with remarks about Blare’s ability to do his work and evidence that younger workers were not similarly disciplined, was sufficient to raise a genuine issue of material fact as to discrimination. See Handrahan v. Red Roof Inns, Inc., 43 Mass. App. Ct. 13, 15-17 (1997) (evidence of disciplinary warnings for failure to comply with unwritten time limits for cleaning motel rooms following disclosure of the plaintiff’s epilepsy, considered against gener
b. Age discrimination claim. The age discrimination count is a much closer question. The same factual dispute regarding the plaintiffs work performance applies to the plaintiffs claim of age discrimination. However, other than the undisputed fact that the plaintiff was over age forty at the time he was discharged, there is little evidence that the employer was concerned about the plaintiffs age. The question then is whether the “conflicting evidence” about the plaintiff’s work performance is sufficient evidence of pretext to withstand the motion for summary judgment.
To support a claim of discrimination, the plaintiff must produce “evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination. ‘[Ajbsent direct proof of [age] discrimination, evidence which may be relevant to the plaintiffs showing of pretext may include application of a certain criterion to employees [not within the protected category]; the employer’s general practice and policies concerning employment of [those within the protected category]; and the employer’s treatment of the plaintiff during [his] employment,’ ” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 447, quoting from Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. at 767. “The plaintiff bears the burden of persuasion on the ultimate issue of discrimination.” Blare, supra at 445.
The case law is consistent with these requirements, notwithstanding the court’s statement in Blare v. Husky Injection Mold
Here there are no remarks concerning age and no apparent connection between the evaluations and the plaintiff
To withstand a defendant’s motion for summary judgment, a plaintiff claiming discrimination must show something more than a conflict in the evidence regarding the employer’s legitimate, nondiscriminatory explanation for the employment decision and the plaintiff’s membership in a protected group. Compare Miner v. Connleaf, Inc., 989 F. Supp. 49, 53 (D. Mass. 1997) (“the concepts of pretext and discrimination are not wholly separate”). We conclude that as to his age discrimination claim, the plaintiff has no reasonable expectation of establishing such a link. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). See also Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 440 (“Where a defendant’s motion for summary judgment demonstrates that the plaintiff’s evidence of intent, motive, or state of mind is insufficient to support a judgment in plaintiff’s favor, we have upheld summary judgment in favor of defendants”).
4. Conclusion. The judgment of the Superior Court allowing the defendant’s motion for summary judgment on counts I, n, and III alleging age discrimination is affirmed. The judgment of the Superior Court on count IV alleging violation of the Americans with Disabilities Act, 42 U.S.C. § 12101, and on count VI alleging violation of G. L. c. 93, § 103, are also affirmed, because the plaintiff presented no arguments concerning these counts. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). As to count V, claiming handicap discrimination in violation of G. L. c. 15 IB, § 4(16), the judgment of the Superior Court is vacated, and the case is remanded to the Superior Court for proceedings on that count in accordance with this opinion.
So ordered.
The court’s observation, in Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. at 5 n.5, that “[e]vidence of employer attempts to contain or reduce workers’ compensation claims, without more, is not probative of handicap discrimination,” is not to the contrary. An employer may work with its employees to reduce workplace accidents.