Opinion
14-P-1344
08-24-2015
PATRICIA BURKE v. DIGITAS, LLC.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this age discrimination case, the plaintiff, Patricia Burke, appeals from a summary judgment in favor of her former employer, Digitas, LLC (Digitas). We affirm, substantially for the reasons stated by the Superior Court judge in his thorough and well-reasoned memorandum of decision.
1. Background. We briefly summarize the summary judgment record. Digitas is a worldwide advertising entity, operating with a special emphasis on digital, as opposed to print, advertising. As relevant here, Burke was initially hired at one of Digitas's print production group Boston offices in August, 1999, on a contract basis, at the age of forty-seven. About five years later, in 2004, Burke, then fifty-two years old, was promoted to a full-time position as a senior print production manager at Digitas's print advertising division.
In 2010, Digitas lost at least two major clients and was observing a significant trend of clients moving away from print advertising in favor of digital advertising. As a result, Digitas was experiencing a sustained revenue loss. Accordingly, Digitas decided a reduction in force (RIF) was necessary, and instructed its managers in the Boston-Detroit-Atlanta area to identify employees who might be laid off, and in turn, to terminate two of those employees from the print division.
The managers identified three employees -- Burke, a forty-one year old manager, and a twenty-seven year old manager -- as possible candidates for termination. The managers first chose the forty-one year old to be laid off, but had continued difficulty choosing whether to terminate Burke or the twenty-seven year old manager. This difficulty was due, in part, to the fact that Burke was in many respects a "strong print producer" who had impressive "technical skills." Ultimately, the managers chose to terminate Burke because she had what the managers characterized as a poor attitude and was highly emotional and volatile. As a result, Digitas terminated Burke and the forty-one year old manager. In all, in the Boston-Detroit-Atlanta area, Digitas laid off a total, including Burke, of fifty-eight employees (of the roughly 600 employed).
After several years of litigation, in 2013, Digitas moved for summary judgment. In turn, Burke filed an opposition to summary judgment. Subsequently, Digitas moved to strike Burke's opposition to summary judgment on the ground that Burke's opposition statements, in particular her responses to Digitas's statement of material facts, violated Superior Court Rule 9A(b)(5).,
The motion judge also allowed Digitas's motion to strike certain expert reports submitted by Burke and struck, as noncompliant with Superior Court Rule 9A(a)(5), Burke's three-page single-spaced summary judgment opposition and twenty-one-page memorandum of law. The judge's dismissal as to Burke's opposition and memorandum did not rely on her violation of rule 9A(a)(5). In fact, the judge specifically found that it was a "minor violation" which "would not ordinarily cause [the judge] to strike a party's Opposition." In addition, Burke has not raised any argument on appeal that the motion judge erred in striking the expert reports. Therefore the issue is waived.
In relevant part, Superior Court Rule 9A(b)(5) reads as follows:
"An opposition to a motion for summary judgment shall include a response to the moving party's statement of facts as to which the moving party claims there is no genuine issue to be tried. To permit the court to have in hand a single document containing the parties' positions as to material facts in easily comprehensible form, the opposing party shall reprint the moving party's statement of material facts and shall set forth a response to each directly below the appropriate numbered paragraph, including, if the response relies on opposing evidence, page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents. . . . For purposes of summary judgment, the moving party's statement of a material fact shall be deemed to have been admitted unless controverted as set forth in this paragraph. . . .
"An opposing party, with the response to the moving party's statement of facts, may assert an additional statement of material facts with respect to the claims on which the moving party seeks summary judgment, each to be supported with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents. Such an additional statement shall be a continuation of the opposing party's response described in Paragraph (b)(5)(ii), with an appropriate heading, and shall not be a separate document."
After a hearing, the motion judge issued a carefully crafted and detailed memorandum of decision awarding summary judgment to Digitas. First, the motion judge struck Burke's response to Digitas's statement of material facts as being in violation Superior Court Rule 9A(b)(5) and took as admitted all of Digitas's statements of fact. More particularly, the motion judge ruled that Burke's "violation [of rule 9A(b)(5)] . . . [was] so fundamental as to require that the Opposition be stricken and summary judgment be granted to Digitas." However, even after finding that Digitas was entitled to summary judgment on those stated grounds, the motion judge undertook the laboring oar of "ferreting" through Burke's summary judgment opposition and reviewed the record on its merits "as a backstop to [his] procedural decision." The motion judge concluded that even if Burke had properly complied with rule 9A(b)(5), Burke "fail[ed] to demonstrate a triable issue of fact." This appeal followed.
2. Discussion. On appeal, Burke first claims that it was "improper" for the motion judge to grant summary judgment on the "inadequacy of [Burke's] materials" and that the sanction imposed by the motion judge was "too severe." We disagree and conclude that summary judgment was appropriately entered on these grounds.
"Rule 9A(b)(5) is an 'anti-ferreting' rule designed to assist a trial judge in the all-too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge." Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 399 (2002). Here, Burke's response to the Digitas statement of facts did not comply even minimally with the requirements of rule 9A(b)(5). The motion judge observed, correctly we think, that Burke's response "is a 250-page single-spaced tome" in which "Burke purports to dispute facts, but does not actually do so." Furthermore, Burke's alleged "factual assertions were buried deeply in argument and . . . the way factual assertions were woven into argument made it unnecessarily and unreasonably difficult [for the motion judge] to identify which facts were genuinely in dispute." Id. at 400-401. In short, we agree with the motion judge that Burke violated both the letter and the spirt of rule 9A(b)(5) and that "[b]ecause Burke violated Rule 9A [to a drastic extent]" the motion judge correctly applied "Dziamba's anti-ferreting rule and [took] Digitas's statements [of material fact] as admitted." As a result, summary judgment was properly granted to Digitas because "there is no genuine issue as to any material fact and [Digitas] is entitled to a judgment as a matter of law." Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002).
As we discern no abuse of discretion or error in the motion judge's decision to strike Burke's response to Digitas's statement of facts as noncompliant with rule 9A(b)(5) and, after taking as admitted all facts asserted by Digitas, awarding summary judgment to Digitas, we need not resolve Burke's other claims on appeal.
Even if we considered the entire summary judgment record (including Burke's opposition materials), as did the motion judge, we would conclude that summary judgment was properly granted. In employment discrimination cases premised upon indirect evidence of age discrimination, such as this, the familiar three-stage burden shifting order of proof set forth in McDonnell Douglas Corp. v Green, 411 U.S. 792, 802-805 (1973), is controlling. See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976). At the first stage, the plaintiff must establish a prima facie case of age-based employment discrimination. "The prima facie case 'eliminates the most common nondiscriminatory reasons for the plaintiff's rejection,' thereby creating a presumption of discrimination." Blare v. Husky Injection Molding Sys. Boston, 419 Mass. 437, 441 (1995), quoting from Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254 (1981). If the plaintiff meets this initial burden, then at the second and next stage, the burden shifts back to the employer who must counter with a nondiscriminatory reasons for its employment decision. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-117 (2000). If the employer satisfies its burden, the burden shifts back to the plaintiff in the third and final stage to show that the basis for the employer's decision was unlawful discrimination. See id. at 117-118.
For the purposes of our review, we assume, as the motion judge concluded, that Burke made out a prima face case of age discrimination. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 40-46 (2005). Furthermore, at the next and second stage of the burden shifting paradigm, we think that Digitas met its burden of articulating a legitimate, nondiscriminatory ground for Burke's termination, i.e., that Burke was terminated as a result of business and economic necessities in the context of a RIF and in part due to, as described in the summary judgment record, Burke's poor, and at times, highly emotional and volatile attitude. See ibid. See also Chi-Sang Poon v. Massachusetts Inst. of Technology, 74 Mass. App. Ct. 185, 196 (2009) ("employer's second-stage burden is not heavy. It requires articulation and production, but not ultimate persuasion"). At the third and final stage, we also agree with the motion judge, and the summary judgment record does not show, that Burke "generated a genuine issue of material fact of pretext." Id. at 197.
We decline the plaintiff's request for appellate attorney's fees.
Judgment affirmed.
By the Court (Berry, Wolohojian & Agnes, JJ.),
The panelists are listed in order of seniority. --------
Clerk Entered: August 24, 2015.