Opinion
No. 09-0095.
July 27, 2010.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTION FOR SUMMARY JUDGEMENT
INTRODUCTION
The plaintiff, Jennifer J. Wheeler, filed this action against the defendants, Eastern Bank ("Eastern") and Robert E. Griffin, Eastern's Executive Vice President and Director of Commercial Banking (together, the "Defendants"), asserting claims for gender discrimination, breach of contract, and breach of oral contract or, in the alternative, promissory estoppel. This case is before the court on the Defendants' motion for summary judgment. For the following reasons, the motion is ALLOWED.
This Court (Cratsley, J.) dismissed claims of unlawful retaliation against Eastern, Griffin, and Seyfarth Shaw LLP in an order dated August 12, 2009. In the same order, this Court dismissed all claims against defendant Charles M. Johnston.
BACKGROUND
The undisputed facts and the disputed facts viewed in a light most favorable to Wheeler, the non-moving party, are as follows.
In August 1998, Wheeler was hired by Eastern to be the Vice President of Operations in the Equipment Finance and Leasing Division ("Leasing Division"). Eastern's Leasing Division consisted of three units — sales, credit, and operations — and was staffed by six officers and two administrative employees. Senior Vice President Stephen O'Leary had overall responsibility for the Leasing Division, including the pursuit of new leasing business. Vice President of Credit Stephen Hunt's primary job responsibilities included underwriting new deals, monitoring Eastern's risk ratings, and pursuing new leasing business. Vice Presidents Mark Sexton, Neil Saveriano, and John Ingham pursued new leasing business. The Leasing Division's administrative employees included a secretary, Lisette Gonzalez, and a bookkeeper, Sotheary Fennell. Both Gonzalez and Fennell reported to Wheeler and primarily assisted with secretarial and administrative functions.
Wheeler's job principally involved operational and administrative matters and required her to use a number of computer software programs which could not be accessed remotely. In her deposition, Wheeler described her responsibilities as "everything other than going out and selling lease business, underwriting it, credit files and those types of things." Wheeler Dep. at 70:15-17. Although she occasionally assisted the other officers with sales and credit tasks, Wheeler was the only officer in the Leasing Division who was not responsible for pursuing new leasing business.
In November 2005, as part of a larger reduction in force (the "November 2005 RIF"), Eastern announced that it was closing the Leasing Division. It would no longer write new leases, but would maintain its lease portfolio until the existing leases amortized or were sold. The November 2005 RIF affected twenty-one officer-level employees both inside and outside of the Leasing Division. This case focuses on the lay-offs within the Leasing Division. O'Leary, Hunt, Sexton, Saveriano, and Ingham were laid off. Fennell remained in the Leasing Division and Gonzalez was transferred into Eastern's transition pool. Wheeler was the only officer in the Leasing Division whose position was not eliminated in the November 2005 RIF. The terminated officers received reportedly generous severance packages from Eastern in exchange for a release of claims. While the details of the severance packages were unknown to Wheeler, she was aware that each terminated officer received a package.
During the week following the November 2005 RIF, Wheeler contacted Nancy Stager, the Executive Vice President of Human Resources. Wheeler told Stager that she was concerned that she had no guarantee of continued employment or a severance package and wanted an employment contract. At the time she also began to speak with Griffin about her concerns. On November 10, 2005, in response to an inquiry from Wheeler regarding the anticipated length of her continued employment, Griffin responded that she was to remain at Eastern "[u]ntil the portfolio runs down or we sell it. . . ." Wheeler Dep. at 152:9-11. A few days later, Wheeler spoke with Griffin again. He told her that she was "going to be getting the same deal as the guys, and [Griffin] [was] in the process of working with [Stager] to get a written contract together." Id. at 162:20-23. Wheeler acknowledged that at the end of this conversation, the actual length of her continued employment remained undefined. A fourth conversation resulted in further assurances that Wheeler would "get [the contract] shortly." Id. at 170:5-6.
On November 18, 2005, Stager provided Wheeler with an unsigned memorandum entitled "Explanation of Benefits and Services" (the "Memorandum") which outlined the terms and conditions of Wheeler's continued employment with Eastern, including the requested severance package if she left. Wheeler was unhappy with the Memorandum because it was unsigned and, in her view, did not represent the entire agreement that she believed she had reached with Griffin. Notably, the Memorandum was vague on the termination date. Wheeler's current position would "continue to exist until the existing portfolio has amortized or until [Eastern] sells its Leasing portfolio to another institution." Joint Appendix of Summary Judgment Exhibits ("Jt. Ex.") B9, p. 1. The determination of when the portfolio was amortized or sold would be at the discretion of Eastern. Id.
After reading the Memorandum, Wheeler had a fifth conversation with Griffin to express her disappointment with the document. She told Griffin that she was frustrated with the continued lack of clarity regarding the length of her employment, as well as the inclusion of conditions, such as the execution of a general release, which had not been previously discussed. Wheeler acknowledged in her deposition that at the close of this conversation, she still did not have a commitment as to how long she would have to work to receive a severance package.
In mid-December 2005, Wheeler began searching for a new job. In an e-mail to recruiter Paul Luther dated December 28, 2005, Wheeler stated that she "will get ready to leave [Eastern] asap," and complained that she never received an employment contract from Eastern. Jt. Ex. B18. On December 30, 2005, Wheeler received an informal job offer from Greystone Equipment Finance Corporation ("Greystone"). On January 3, 2006, Wheeler e-mailed Stephanie Manganaro, a representative of one of Eastern's vendors. In this e-mail she once again noted that she had not received a contract from Eastern, but explained that she was moving on to "bigger and better things." Jt. Ex. B22. In her e-mail Wheeler also warned Manganaro that her "technical support people will have tons of calls from [Eastern] because no one has ever taken the time to learn the software and they are going to be in trouble after I go!" Id.
In a series of conversations beginning in late December 2005 and running through early January 2006, Wheeler expressed her frustration to Eastern over the lack of a contract, as well as the increased stress she felt in her position. At some point during these conversations, Griffin told Wheeler that she would receive a severance package if she remained in her position through early March, completing the month end processes for January and February. Wheeler contends that Griffin also informed her that she did not need to be on-site to continue her work. On January 4, 2006, Wheeler received a formal job offer from Greystone. She began working there on January 16, 2006. Wheeler never informed Eastern that she had accepted the position at Greystone. She did not return to work at Eastern after January 13, 2006.
Wheeler states that during her "free time" at Greystone she continued to work for Eastern by speaking over the telephone and via e-mail with Eastern's IT Department and bookkeeper, but does not contend that she told Eastern of her position with Greystone. Wheeler Dep. at 214:20-24. From January 16, 2006 through the end of the month, Wheeler drew full-time salaries from both Eastern and Greystone. During the week of January 16, 2006, Griffin left a document entitled "Severance Agreement, Release, and Waiver" ("Severance Agreement") on the chair in Wheeler's Eastern office. The Severance Agreement stated that Wheeler would be awarded a severance package if she remained employed with Eastern through March 10, 2006. Since Wheeler never returned to the office after January 13, 2006, she was unaware of the existence of the Severance Agreement.
On January 25, 2006, Wheeler e-mailed Griffin asking for a written employment contract. She stated that she had been answering e-mails and telephone calls related to Eastern's business and would continue to do so. The e-mail did not inform Griffin that she was then a full-time employee of Greystone. Griffin sent a letter to Wheeler dated February 2, 2006, which stated that Wheeler had not been available to assist Eastern, had not responded to messages since January 16, 2006, and was therefore not entitled to a severance package. According to the letter, "[Eastern's] willingness to extend any severance benefits to [Wheeler] was premised entirely on [Wheeler's] agreement to continue in [her] position for a defined period of time and to work diligently to assist [Eastern] in making a transition into its new operational structure." Jt. Ex. B12. Such assistance, according to the letter, required that Wheeler be present in the office and personally available to Eastern's management and staff.
DISCUSSION
Summary judgment will be granted when the moving party demonstrates the absence of a genuine issue of material fact on every relevant issue. Mass. R. Civ. P. 56(c); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997). The moving party may satisfy its burden by demonstrating that the opposing party has no reasonable expectation of proving an essential element of the case at trial. Matthews, 426 Mass. at 127. Although summary judgment is a disfavored remedy in discrimination cases based on disparate treatment, it is appropriate "where the motions demonstrate that the plaintiff is unable to offer admissible evidence of the defendant's discriminatory intent, motive, or state of mind sufficient to carry the plaintiff's burdens and support a judgment in the plaintiff's favor." Matthews, 426 Mass. at 127, quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440 (1995).
The non-moving party cannot defeat a motion for summary judgment by merely asserting that facts are in dispute. Mass. R. Civ. P. 56(e); LaLonde v. Eissner, 405 Mass. 207, 209 (1989). Rather, to defeat summary judgment, the non-moving party must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 714 (1991). "Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient." Cullen Enters., Inc. v. Massachusetts Prop. Ins. Underwriting Ass'n, 399 Mass. 886, 890 (1987), quoting Madsen v. Erwin, 395 Mass. 715, 721 (1985). I. Breach of Contract
Wheeler asserts that a breach of contract, presumably a written contract, occurred when the Defendants failed to award her a severance package similar to the severance packages awarded to the officers laid off in the November 2005 RIF.
Wheeler's own statements, however, confirm her understanding that no written contract existed. In an e-mail to recruiter Paul Luther dated December 28, 2005, Wheeler stated that she had "received nothing. . . .including the never received employment contract!" Jt. Ex. B18. Similarly, in an e-mail dated January 3, 2006, to Manganaro, Wheeler stated that she "asked them for a contract after the rest of the guys were let go and never received anything. . . ." Jt. Ex. B22. Wheeler's last request for a written contract, in an e-mail to Griffin dated January 25, 2006, confirms that even after she left Eastern to begin her job with Greystone, she did not believe that a written contract existed. II. Breach of Oral Contract
At oral argument, Wheeler's counsel appeared to concede that no written contract existed.
Wheeler also contends that the Defendants breached an oral contract. Wheeler argues that an oral contract was formed during her conversations with Griffin over the period from November 3, 2005 through early January 2006. This contract claim fails for two reasons. First, the material terms of this purported oral contract were never agreed upon. Second, assuming arguendo that an oral contract existed, Wheeler herself breached the contract by leaving her job prior to March 2006, before completing the month end processes for January and February.
Although one material element of an agreement — the date until which Wheeler had to work — was settled in the final conversations between Wheeler and Griffin, all material elements had not been agreed upon by the parties. See Rosenfield v. U.S. Trust Co., 290 Mass. 210, 217 (1935). Wheeler's understanding of her severance package was only that it would be similar to the severance packages awarded to the previously laid off Leasing Division officers. Wheeler conceded at deposition that she did not know what these packages included beyond general information that she overheard in the office.
Wheeler's reaction to her receipt of the Memorandum offers further evidence that there was, or would be, disagreement as to material terms of her severance package. Wheeler objected to the general release provision in the Memorandum and questioned the benefits provided since they had not been previously discussed. Further, a contract, written or oral, requires both offer and acceptance. See Vasconcellos v. Arbella Mut. Ins. Co., 67 Mass. App. Ct. 277, 280 (Mass. App. Ct. 2006). It is not enough that Eastern had made proposals to her; Wheeler never expressed her assent to any proposal. This is simply not a case in which Wheeler ever expressed to Eastern words to the effect that she was satisfied with the proposals, i.e., we have a deal.
But even more fundamentally, assuming arguendo that an oral contract was formed, it undisputedly included as a material term Wheeler's commitment to work through the beginning of March. It is also undisputed that Wheeler breached that material term. Wheeler contends that Griffin orally permitted her to work from home for the duration of her employment. Even assuming the truth of this contention, clearly Eastern did not agree that she could work full-time for Greystone beginning on January 16, 2006 and meet Eastern's needs in her spare time. Indeed, Wheeler does not argue that she ever told Eastern that she was going to be working for Greystone. In his affidavit filed in support of the Defendants' Motion for Summary Judgment, Griffin stated not only that he would not have allowed Wheeler to continue to be employed at Eastern if he knew that she had taken a full-time job with a competitor, but also that accepting such a position without the approval of Eastern violated Eastern's policy on moonlighting. See Jt. Ex. C ¶¶ 9-10.
In order to defeat the Defendants' motion, Wheeler must present evidence from which a jury could reasonably find that her oral contract with Eastern permitted Wheeler to work full-time for Greystone beginning in January. No such evidence has been presented. To the contrary, it is clear that Eastern's willingness to provide a severance package was dependent on Wheeler's willingness to commit to Eastern through early March.
III. Promissory Estoppel
In order to establish a claim of promissory estoppel, the plaintiff must prove that "(1) a promisor [made] a promise which he should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee, (2) the promise [did] induce such action or forbearance, and (3) injustice can be avoided only by enforcement of the promise." Loranger Constr. Corp. v. E. F. Hauserman Co., 6 Mass. App. Ct. 152, 154 (Mass. App. Ct. 1978), aff'd, 376 Mass. 757, 760-61 (1978).
Therefore, in order to satisfy the elements of promissory estoppel, Wheeler must show that (1) the Defendants promised her a severance package in exchange for her continued employment after the November 2005 RIF, (2) she relied on this promise to her detriment, and (3) injustice can be avoided only by enforcement of the promise. See id. The summary judgment record, however, establishes that both parties understood the promise to be the awarding of a severance package to Wheeler only upon her continued employment at Eastern until March 2006.
Moreover, even assuming that the first element of the promissory estoppel claim is satisfied — the promise of a severance package — the claim fails on the second element which requires actual action or forbearance in reliance on the promise. In her deposition testimony, Wheeler stated that she did not refrain from looking for a new job, she did not put off any offers of employment, and she did not expend any of her own funds in reliance on what she was told. In fact, Wheeler not only looked for a new job, but actually accepted one; she accepted a full-time position at Greystone and drew full-time salaries from both Eastern and Greystone from January 16, 2006, through the end of that month.
Because Wheeler cannot show any detrimental reliance on a promise made by Eastern, her promissory estoppel claim fails.
IV. Gender Discrimination
Finally, Wheeler asserts a claim for violation of G.L. c. 151B. Wheeler makes the novel claim that she was discriminated against when she was not terminated in the November 2005 RIF, along with the men in the Leasing Division. The elements of a Chapter 151B claim are "membership in a protected class, harm, discriminatory animus, and causation." Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005). The latter two elements of such a claim are generally established through indirect or circumstantial evidence following the burden-shifting framework first announced by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973), and incorporated into Massachusetts jurisprudence in Wheelock College v. Mass. Comm'n Against Discrimination, 371 Mass. 130, 135 (1976). Ordinarily, analysis begins by determining if the plaintiff has met her initial burden of establishing a prima facie case of discrimination by producing evidence sufficient to show that (1) she is a member of a protected class, (2) she performed her job at an acceptable level, (3) she was terminated, and (4) the employer sought to fill her position by hiring another individual with qualifications similar to hers. See Sullivan, 444 Mass. at 39-41; Abramian v. President Fellows of Harvard College, 432 Mass. 107, 116 (2000).
However, the burden-shifting framework is often ill-suited for application to reductions in force. In Sullivan, the Supreme Judicial Court recognized that in cases arising out of reductions in force, the first three elements of the prima facie case are often easily established, while the fourth element is "nonsensical" since by the very nature of a reduction in force "the plaintiff is not replaced, nor does her employer "seek to fill" the position . . ." See Sullivan, 444 Mass. at 41. Sullivan, however, also cautions that "because an employer seeks to reduce its workforce does not mean that it is free to make employment decisions on impermissible grounds . . ." Id. at 42. In the instant case, determining whether Wheeler has established a prima facie case of discrimination is further complicated by the fact that Wheeler was not terminated in the November 2005 RIF, rather she kept her job.
For the purposes of the following analysis, the court will assume that under the circumstances presented by this case, keeping one's job can constitute "harm" within the meaning of chapter 151B.
The court believes that this may be a case where it is better to "jump over" the question of whether Wheeler can establish a prima facie case of discrimination and simply address the ultimate question::Has Wheeler proffered sufficient admissible evidence in the summary judgment record from which a jury could reasonably find that the motivating for the Defendants' decision not to terminate her in the November 2005 RIF (and therefore not to offer her a severance package) was gender discrimination? See Wallace v. O.C. Tanner Recognition Co., 299 F.3d 96, 100 (1st Cir. 2002) (noting that in some cases it may be preferable for the court to "jump over" the starting point of the McDonnell Douglas framework and focus on the ultimate question, i.e., whether the totality of the evidence has raised a genuine issue of fact as to the discrimination claim). The court concludes that she has not.
In his affidavit, Griffin states that "Wheeler's position as Vice President of Operations in the Leasing Division was not eliminated in the November 2005 RIF because her job duties were focused on the administration of leases after they were booked in [Eastern's] leasing portfolio, a function for which [Eastern] expected to have a continuing need." Jt. Ex. C ¶ 5. Consistent with that statement, Stager, in the Memorandum provided to Wheeler in November 2005, described Wheeler's continuing duties as "assisting with the administration of [Eastern's] existing Leasing portfolio." Jt. Ex. B6, p. 1. And it is undisputed that Wheeler was the only officer in the Leasing Division whose primary job duties did not include credit or sales functions. Indeed, Wheeler herself acknowledged that she was not aware of anyone else at Eastern who could fill her role if she left, testifying that she possessed unique skills and knowledge pertaining to Eastern's leasing portfolio. Wheeler also alluded to her unique skill set in her e-mail to Manganaro, dated January 3, 2006, in which she told Manganaro that no one at Eastern had learned how to use the necessary software and that Eastern was "going to be in trouble after I go!" Jt. Ex. B22.
In response to the Defendants' evidence that Wheeler possessed important skills for lease administration that the male officers in the Leasing Division did not, Wheeler points to her affidavit filed in response to the Defendants' Motion for Summary Judgment. In that affidavit, Wheeler states that Sotheary Fennell was an "extremely accomplished and computer literate assistant" and, further, that "she had been thoroughly trained, and was easily able to access and to operate all required computer software programs which were utilized by the leasing department." Affidavit of Jennifer Wheeler in Response to the Defendants' Motion for Summary Judgment ¶¶ 35-36. However, this is not evidence that Wheeler had qualifications that her male counterparts did not, but rather that Eastern might have been able to terminate all of the officers in the Leasing Division and rely on administrative employees, had it wished to do so. That is not evidence of discriminatory animus. Moreover, to the extent that this affidavit is intended as evidence that Wheeler did not have a unique skill set, it is in direct contradiction to her deposition testimony. Wheeler offers no explanation as to why she now must correct her prior testimony. "If a party simply could offer a contradictory, post-deposition affidavit to defeat summary judgment without providing a "satisfactory explanation" for the contradiction, the purpose of summary judgment would be defeated." Mahan v. Boston Water and Sewer Comm'n, 179 F.R.D. 49, 53 (D.Mass 1998). The Wheeler affidavit does not create a genuine issue of disputed material fact on the question of whether Wheeler had important skills that her male counterparts did not.
In Mahan, the United States District Court stated that "when a party has given clear answers to unambiguous deposition questions, he or she cannot raise an issue of fact by submitting a subsequent affidavit that merely contradicts the deposition testimony" unless the post-deposition affidavit clarifies ambiguities. 179 F.R.D. at 52-53 (internal citations omitted).
In Sullivan, the court expressly stated that when considering which employees are to be terminated in a reduction in force, the employer could "determine which of the [employees] would best meet its ongoing business needs, provided it did not make the selection for impermissible reasons." 444 Mass. at 51. In this case, the primary duties of the terminated officers related to credit and sales functions which Eastern no longer required after the Leasing Division was closed. On the other hand, Wheeler's job responsibilities related to the administration of the existing lease portfolio, which Eastern would retain for some time. The Defendants' decision not to terminate Wheeler as part of the November 2005 RIF, and therefore not to offer her a severance package at that time, was clearly related to Wheeler's particular skill set — she was the officer in Eastern's Leasing Division who "would best meet its ongoing business needs." Id. Moreover, it is not disputed that Griffin offered Wheeler a severance package equivalent to that extended to the male officers on the condition that she remain in her position until March, after the January and February monthly closing processes had been completed. Wheeler chose not to do that, although she clearly attempted, surreptitiously, to give the appearance of continuing to work for Eastern, while working full-time for a competitor.
Simply stated, there is no evidence in the summary judgment record from which a jury could find that the motivating factor for the Defendants' decision not to lay Wheeler off and provide her with a severance package in November 2005 was gender discrimination.
ORDER
For the foregoing reasons, the Defendants' motion for summary judgment is hereby ALLOWED. Final judgment shall enter dismissing the complaint.