Opinion
19-P-1678
01-19-2021
BRIDGET O'REILLY v. SHAW'S SUPERMARKETS, INCORPORATED, & others.
NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as 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 23.0 or 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 23.0
Bridget O'Reilly, a long-term employee of Shaw's Supermarkets, Incorporated (Shaw's), timely appeals from a summary judgment dismissing her gender discrimination, wrongful termination, and breach of contract claims. We affirm.
O'Reilly proceeds solely against Shaw's in this appeal. All claims not argued are deemed waived. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 n.1 (2005).
Gender discrimination. The plaintiff maintains that she was subjected to two adverse actions on account of her gender: (1) transfer to the director of customer satisfaction (DCS) position in September 2015 and (2) demotion to a store manager position in January 2016. We conclude that only the second claim is cognizable.
In support of its motion for summary judgment, Shaw's presented evidence that Kenneth Rinaldi, Shaw's vice president of retail operations, offered the newly-created DCS position to O'Reilly as a voluntary lateral change; and that although O'Reilly could have remained as the Vermont district manager, she accepted the position. This material fact was undisputed by O'Reilly for purposes of summary judgment. See O'Reilly's responses to Shaw's statement of undisputed material facts submitted under Rule 9A (b) (5) of the Rules of the Superior Court (2017) (Rule 9A [b] [5] response). Thus, O'Reilly's transfer to the DCS position was not adverse and cannot form the basis of a discrimination claim under G. L. c. 151B, § 4 (1).
Although O'Reilly purported to dispute the voluntariness of the assignment at the oral argument, she is bound by her earlier admission. See Godfrey v. Globe Newspaper Co., 457 Mass. 113, 121 (2010).
On the other hand, O'Reilly's "reassignment" to the store manager position, a lower-level position with lower pay, was a demotion and thus qualifies as an adverse action. See Yee v. Massachusetts State Police, 481 Mass. 290, 295-297 (2019). Shaw's concedes the point. We conclude, nevertheless, that the claim fails as matter of law.
Two elements of O'Reilly's discrimination claim (membership in a protected class and harm) are undisputed. O'Reilly may survive summary judgment by providing indirect or circumstantial evidence of the other two required elements (discriminatory animus and causation), using the familiar three-stage, evidentiary paradigm. See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 396-397 (2016); Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680-681 (2016). Adapting this paradigm to the circumstances of her case, O'Reilly was required to adduce, at the third stage, sufficient evidence from which a reasonable jury could infer that Shaw's articulated reasons for the demotion were not true. See Verdrager, supra at 397; Bulwer, supra at 681-683.
O'Reilly proffers no direct evidence of gender discrimination or causation that would permit her to utilize a mixed-motive framework of analysis. See Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 664-667 (2000) (distinguishing mixed-motive cases from pretext cases). Contrary to her assertions, the fact that the customer service position had previously been held only by women is not direct evidence of discrimination, although it could be treated as circumstantial evidence of gender stereotyping. In indirect evidence cases such as this one, we apply the three-stage, burden-shifting framework first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), and adopted by the Supreme Judicial Court in Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 137-139 (1976). See Sullivan, 444 Mass. at 39-40, 49 n.24.
For purposes of analysis, we have assumed that O'Reilly can meet her burden of establishing a prima facie case of gender discrimination, a nononerous burden. See Sullivan, 444 Mass. at 40. O'Reilly does not challenge Shaw's satisfaction of its second-stage burden. See Bulwer, 473 Mass. at 683 (employer must advance nondiscriminatory reasons for challenged action and support them with credible evidence).
Here, O'Reilly failed to raise a dispute of material fact as to pretext. The nondiscriminatory reasons given by Shaw's for O'Reilly's removal from the DCS position and demotion were (1) O'Reilly's failure to effectively partner with the store directors and district managers, (2) her inappropriate behavior at the Canton Shaw's after a "Code Blue" visit, and (3) the fact that the customer satisfaction index (CSI) program as designed by O'Reilly and approved by Rinaldi was not working, and the director position was eventually reverted to a manager level position (albeit not until two months after her demotion).
As part of the CSI program, O'Reilly and her team performed announced and unannounced "Code Blue" store visits, took pictures of the conditions, and completed a detailed report. At the conclusion of each Code Blue visit, O'Reilly, the "in-store experience director," met with the store director, the district manager, and others to discuss the team's findings, report, and CSI scores.
In 2015, Shaw's, one of the eight Albertsons divisions, was generating the lowest CSI scores within the organization. Rinaldi and James Rice, Shaw's president, were routinely called out and pressured to fix the problem. All agree that the company's top priority was improving the low CSI scores. In an attempt to improve the scores, Rinaldi and Rice elevated the manager of customer service to a director level position and selected O'Reilly because of her particular skills and reputation for the position. On September 15, 2015, Rinaldi offered O'Reilly the newly-created DCS position with the expectation that she would collaborate with the district managers to improve the CSI scores.
Soon thereafter, however, Rinaldi began to receive reports that O'Reilly was meeting and speaking with the store directors alone and leaving the district managers out of the process. One district manager complained that O'Reilly had conducted a Code Blue visit in his district without notifying him. Another district manager, Melonie Buchanan, was resistant to the program, and informed Rinaldi that she did not want O'Reilly in her stores because she created a negative atmosphere. In December of 2015, Rinaldi warned O'Reilly "[m]ore than once" that the district managers, including Buchanan, did not trust her. When O'Reilly asked whether she should step down, Rinaldi expressed hope "that she could rebuild trust," but "stressed that she needed to partner with the [d]istrict [m]anagers moving forward." Rinaldi instructed O'Reilly to meet with, among others, Buchanan "to calm her down" and to partner with her and gain her trust.
Although O'Reilly now objects to this particular statement as hearsay, she neither challenged it in her response to Shaw's Rule 9A (b) (5) statement, nor filed a motion to strike. See McCrea v. Flaherty, 71 Mass. App. Ct. 637, 644 n.9 (2008) (motion judge has discretion to consider hearsay where there was no objection or motion to strike).
The record establishes that after O'Reilly's visit to the Canton store in Buchanan's district on January 19, 2016, and discussion of the results with all levels of management and team members, O'Reilly engaged in a one-on-one conversation, outside the presence of Buchanan, with Maura Sweeney-Reeve, the store director. Sweeney-Reeve subsequently reported to Buchanan and Rinaldi that she considered the conversation "inappropriate" and gave several examples for her opinion. Sweeney-Reeve, another long-term employee, also informed Cynthia Garnett, the vice president of human resources (HR), that she was worried that Buchanan "would be thought negatively in this [and t]hat [she] didn't trust . . . [O'Reilly] . . . [not to] say anything about [Buchanan]"; and that she "had never been treated like that in all [her] years at Shaw's." Instead of "calm[ing Buchanan] down," O'Reilly's visit led to more complaints and more distrust.
For example, O'Reilly told Sweeney-Reeve that Rice's boss had sent O'Reilly there because he did not like Rice and was unhappy with Rice's job performance. Although O'Reilly was positive at first, she suddenly turned on Sweeney-Reeve, chiding her for not completing the required training of her employees and embarrassing Buchanan. She blamed Buchanan for Sweeney-Reeve's transfer to the underperforming Canton store. Sweeney-Reeve told Rinaldi that she cried "pretty hysterically" during the meeting. There is no evidence of record that O'Reilly denied making these statements.
This evidence was sufficient to establish Shaw's threshold showing that it had legitimate nondiscriminatory reasons for removing O'Reilly from the position.
O'Reilly has not, however, placed any facts in dispute concerning these incidents, nor has she offered evidence to suggest that there were other reasons for the demotion. Notably, she did not dispute at summary judgment that the program was not working, Shaw's third reason for her removal and demotion. See Godfrey v. Globe Newspaper Co., 457 Mass. 113, 121 (2010). Nor did she place the question whether she made the statements attributed to her into legitimate dispute. See note 8, supra. On these bases alone, summary judgment was warranted. Moreover, O'Reilly has not demonstrated that the complaints to Rinaldi were made after the January 29, 2016 demotion meeting. The fact that Rinaldi may have incorrectly believed that Sweeney-Reeve submitted a written statement to Shaw's, and that Sweeney-Reeve complained to Rinaldi only at Buchanan's direction did not contradict or undermine the failure to partner and inappropriate behavior justifications for her demotion. Finally, the references by Garnett, the vice president of HR, to O'Reilly as "princess" and "high maintenance" fell within the category of isolated and ambiguous remarks that did not raise a triable issue of pretext. See Bulwer, 473 Mass. at 686.
On appeal, O'Reilly makes no argument that similarly situated male managers were treated better after leaving an assignment for other positions. Compare Verdrager, 474 Mass. at 398. Nor did she claim at any time that her termination was retaliatory. These arguments are therefore waived. See Sullivan, 444 Mass. at 38 n.9.
Wrongful termination. O'Reilly alleges that Shaw's fired her on June 8, 2016, in retaliation for reporting potential Massachusetts food code violations to her managers. To start, the parties disagree about whether O'Reilly was terminated, an essential element of her claim. We assume, without deciding, that as the motion judge concluded, a genuine issue of material fact exists as to whether Shaw's constructively discharged O'Reilly. See GTE Prods. Corp. v. Stewart, 421 Mass. 22, 33-36 (1995).
To the extent that the basis of O'Reilly's claim is the retaliatory demotion short of a termination, no Massachusetts court has recognized such a common-law public policy claim.
The record calls the conclusion into question. O'Reilly filed her complaint in November 2016, claiming that she was constructively discharged. Yet as recently as May 7, 2018, in seeking long-term disability benefits, she represented to the Standard Insurance Company, through her mental health provider, that her current employer was Shaw's. As of September 25, 2018, the date of her Rule 9A (b) (5) response, she remained on leave, receiving long-term disability.
O'Reilly's claim, however, fails on the facts and the law. Under Massachusetts law, an employer is prohibited from terminating an at-will employee in circumstances that would violate a well-defined public policy. See Hobson v. McLean Hosp. Corp., 402 Mass. 413, 416 (1988) (recognizing that nurse fired for enforcing State and municipal patient safety laws stated claim for wrongful termination). As O'Reilly acknowledges, this exception to the at-will employment doctrine is interpreted narrowly. See King v. Driscoll, 418 Mass. 576, 582 (1994), S.C., 424 Mass. 1 (1996). Terminations for complaints lodged within an organization about internal matters are generally not actionable. See King, supra at 583; Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469, 474 (1992); Mello v. Stop & Shop Cos., 402 Mass. 555, 560-561 (1988). The question whether a retaliatory firing violates public policy is a question of law. See Wright, supra at 472; Falcon v. Leger, 62 Mass. App. Ct. 352, 365 (2004).
Here, O'Reilly admitted that prior to beginning her leave of absence on February 11, 2016, she did not report food safety issues to any government agency. She first reported these issues outside of the company to the Auburn and Sudbury boards of health in October 2016, not as part of the CSI program, but as a "personal choice." Even assuming these reports amounted to protected conduct, no jury could find that they caused or contributed to her constructive discharge in June 2016. See Mercado v. Manny's T.V. & Appliance, Inc., 77 Mass. App. Ct. 135, 144 (2010).
As for the internal Code Blue reports, even assuming O'Reilly was terminated for reporting potential food safety issues to her managers, the termination does not violate a clearly-established public policy. O'Reilly presented no evidence that she was required by law to make these reports. To the extent that O'Reilly relies on the Massachusetts Department of Public Health (DPH) regulations as a source of public policy and reporting obligation, they are plainly inapplicable to her situation. See 105 Code Mass. Regs. §§ 590.000 (2010) (governing minimum sanitation standards for food establishments). Moreover, at no point did O'Reilly reference these regulations in her Code Blue reports or invoke any legally guaranteed rights. There is also no evidence that O'Reilly complained about or opposed unlawful conduct or wrongdoing that threatened the public health or safety in these reports, or that she refused to engage in conduct that might be harmful to the public -- activities for which wrongful termination could be found. See Mercado, 77 Mass. App. Ct. at 139-141; Falcon, 62 Mass. App. Ct. at 363-365. As Shaw's DCS and the "[d]irector of [i]n-[s]tore [e]xperience," O'Reilly's regular job duties included documenting all food product that was out-of-code and did not meet Shaw's expectations, and working with the underperforming stores to improve the quality of the product and the CSI scores. In O'Reilly's words, food safety was not a "top priority of the [Code Blue] audits." As the motion judge noted, the Code Blue reports did not flag public health or safety issues, or government regulations and food codes, but rather noncompliance with Shaw's policies concerning food quality and freshness. In sum, we conclude that these internal reports designed to improve store performances and to turn Shaw's around do not implicate a sufficiently important public policy as to warrant extending protection from the at-will employment doctrine to O'Reilly.
Another employee, Brian McVarish, the director of food safety and risk management, was responsible for reporting food issues to the DPH. McVarish asked O'Reilly to partner with him to improve customer complaints about out-of-code products. She and McVarish planned to institute an internal "food safety refresh" at the company, including the reissuing and updating of coding policies and a new training program that would not involve any government agency.
Breach of contract. O'Reilly contends that Shaw's violated the parties' retention payment agreement, which called for four equal payments of $20,000 to be made annually to O'Reilly from 2014 to 2017. By its clear and unambiguous terms, however, O'Reilly was eligible for the special retention payments only if she fulfilled several conditions, including that she "remain actively working in [her] current or an equivalent position until July 8, 2017." See Hunneman & Co. v. LoPresti, 394 Mass. 406, 409 (1985). Here, O'Reilly admitted that Shaw's demoted her in January 2016 and that as of February 11, 2016, the date she started her medical leave, she was no longer "actively working" for Shaw's. Because O'Reilly was ineligible for incentive payments in 2016 and 2017, she cannot demonstrate a breach of the agreement by Shaw's. See Bulwer, 473 Mass. at 690.
Shaw's offered the incentive payments to "a select group of key management associates whose positions and job performance have been identified as critical to the turnaround of Albertson's [sic]." O'Reilly received two incentive payments in April 2014 and April 2015.
The contract further stated, "If you quit, cease actively working in an equivalent position for any reason, are discharged for any reason, [or you] are demoted . . . you will no longer be eligible for this special incentive."
On appeal, O'Reilly argues that were a jury to find in her favor on her discrimination and wrongful termination claims, it could also infer that Shaw's demoted her in order to retain the incentive payments in violation of the implied covenant of good faith and fair dealing. See A.L. Prime Energy Consultant, Inc. v. Massachusetts Bay Transp. Auth., 479 Mass. 419, 433-434 (2018). Raised so far as appears for the first time on appeal, the claim is not properly before us. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006). In any event, as demonstrated above, O'Reilly's predicate claims failed as matter of law, and no genuine issues of material fact exists on this record with regard to the lawfulness of her demotion. See Eigerman v. Putnam Invs., Inc., 450 Mass. 281, 288 (2007) (implied covenant cannot expand scope of contractual relationship). Summary judgment was properly granted on her breach of contract claim.
Judgment affirmed.
By the Court (Green, C.J., Sullivan & Shin, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: January 19, 2021.