Opinion
16-P-969
07-28-2017
Jerome SPENCER v. LEVY RESTAURANT.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff-employee, Jerome Spencer, appeals from the entry of summary judgment in favor of the defendant-employer, Levy Restaurant, on the plaintiff's claim of employment discrimination. A Superior Court judge concluded that the plaintiff's termination was for legitimate nondiscriminatory reasons. We agree, and affirm.
We recite the material facts in the light most favorable to the nonmoving party—Spencer, drawing all reasonable inferences in his favor. See Nutt v. Florio, 75 Mass. App. Ct. 482, 483 (2009). Spencer, an African-American man, became involved in a dispute with his coworker, a Hispanic woman, during one of his shifts. According to Spencer's affidavit, his coworker told Spencer to "get ... away" from her tables. Spencer then told a manager that he "d[id] not take orders from immigrants." Levy Restaurant has an antiharassment policy which states that it "w[ould] not tolerate or condone any form of harassment ... that is based on" protected classes. During a meeting with an employee from human resources, Spencer stated he would be "waiting outside with the police." He was then placed on suspension pending an investigation. After the investigation, Levy Restaurant terminated Spencer's employment.
Upon becoming employed at Levy Restaurant, Spencer signed a form acknowledging his receipt of the antiharassment policy.
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Pursuant to statutory requirement, Spencer filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) claiming that his termination was the result of discrimination. MCAD found probable cause of discrimination, enabling Spencer to bring this suit alleging that Levy Restaurant engaged in a discriminatory disciplinary action. Levy Restaurant filed a motion for summary judgment, which the judge allowed.
We review the grant of a motion for summary judgment de novo to determine whether all material facts have been established and the moving party is entitled to judgment as a matter of law. See Nelson v. Salem State College, 446 Mass. 525, 530 (2006). To determine whether the plaintiff has established indirect or circumstantial evidence of discrimination, we employ the familiar three-part burden-shifting paradigm outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680-683 (2016).
First, the plaintiff must show "a prima facie case of discrimination." Bulwer, supra at 681, quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). The motion judge correctly assumed for purposes of summary judgment that Spencer had established a prima facie case of discrimination based on race.
Second, the burden shifts to the defendant to articulate a legitimate and nondiscriminatory reason for its termination of the plaintiff. Ibid. The record supports the motion judge's determination that Levy Restaurant established its burden. Spencer does not deny that he became involved in an altercation with another restaurant employee and made a racially charged comment, nor that he made statements regarding the police to a human resources employee.
At the final stage, the plaintiff bears the burden to show that the employer's articulated reason is not true, but a pretext. "[A]n 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.’ " Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 397 (2016), quoting from Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 139 (1976).
Spencer first claims that he had never been disciplined in in the almost ten years he had been working for the employer. However, this claim is refuted by Spencer's own testimony that in 2005 he was terminated for one week and then reinstated.
Spencer also claims that Levy Restaurant treated African-American employees disfavorably when implementing disciplinary procedures. However, Spencer introduced no supporting evidence amounting to anything other than bare allegations. A plaintiff must provide more than "sketchy evidence lacking a sufficient foundation for a legally relevant comparison." Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 131 n.6 (1997), quoting from Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994). Hearsay statements from other such employees to the plaintiff, which are inadmissible at trial, are not sufficient to defeat summary judgment. See McKenzie v. Brigham & Women's Hosp., 405 Mass. 432, 437-438 (1989).
In addition, Spencer argues that Levy Restaurant failed to utilize its progressive discipline policy in terminating him, but there is no evidence in the record documenting a progressive discipline policy.
Spencer also claims that the other employee in the altercation, who was Hispanic, was not disciplined. However, that employee is not similarly situated to Spencer; there is no evidence in the record that the other employee made charged comments regarding an employee's citizenship status or comments that could be interpreted as threatening to a manager. See Matthews, supra at 130, quoting from Smith, supra (comparator employee must be "similarly situated ‘in terms of performance, qualifications and conduct, without such differentiating or mitigating circumstances that would distinguish their situations' ").
Spencer's reliance on MCAD's finding of discrimination is also unavailing, as a finding of probable cause does not preclude summary judgment in favor of the defendant. See Matthews, supra at 134-135.
Finally, as to Spencer's six claimed issues of disputed material fact relevant to pretext, we agree, substantially for the reasons stated by the motion judge, that those issues are either not material or otherwise do not go to specific facts in dispute. Accordingly, we conclude summary judgment in favor of Levy Restaurant was proper.
Judgment affirmed.