Opinion
14-P-1935
02-29-2016
JASON E. CLIFTON v. UNO RESTAURANTS, LLC, & others.
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
Jason Clifton appeals from the entry of summary judgment in favor of Uno Restaurants, LLC, on his complaint under G. L. c. 151B, arguing that a genuine dispute exists over whether Uno's proffered reason for terminating him was a pretext. We affirm.
Background. We summarize the undisputed facts. Around July, 2006, Richard Hendrie began to take over direction of Uno's marketing department. At that time, Clifton, who is African-American, was interviewing for a position. In September, 2006, Uno hired Clifton as its director of creative services.
Clifton and Hendrie had a close working relationship. However, in 2008, Clifton responded negatively to comments made by Hendrie on a performance review. Clifton refused to sign the review but wrote down his objections, ending with, "PS, piece of advice, never refer to anyone or me as a 'horse' in any situation, most especially around respectful company like the CEO."
In January, 2010, Uno filed for Chapter 11 bankruptcy protection. As part of its recovery, Uno began to develop fast-casual dining concepts which would compete with chains like Au Bon Pain and Panera. In May, 2010, Uno hired Janet Perry as the director of "Four Walls" guest experience. Perry had significant experience in branding and marketing restaurant chains; specifically, at Au Bon Pain she was responsible for visual merchandising and design, and at Panera she served as vice president of communications, design, and merchandising. Perry was told to "partner with the Creative Director" as part of her work, and, although "there may have been some overlap in responsibilities between Clifton and Perry, many of the areas of their employment did not overlap."
Also, as a result of the 2010 bankruptcy, Hendrie's marketing budget for fiscal year 2011 was cut by more than $1 million. Hendrie reviewed his entire department to determine where cuts could be made. After he decided that Clifton's position could be eliminated and his duties absorbed by others, Hendrie terminated Clifton's employment. Perry assumed some of Clifton's duties after he left, while others were assigned to different people within the department or to an outside agency.
Clifton filed a complaint alleging that he was terminated because of his race in violation of G. L. c. 151B. Uno moved for summary judgment and Clifton opposed, arguing that a jury could conclude that the reduction in workforce was a pretext for replacing him with a white woman (Perry), and that Hendrie's 2008 reference to Clifton as "a horse" reflected his discriminatory animus. The motion judge "assume[d] for the purposes of the motion" the Clifton had established a prima facie case of discrimination, see Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 44-45 (2005) (Sullivan), and concluded that Uno had overcome the prima facie case with "substantial, unrebutted evidence that Hendrie's decision to terminate Clifton was due to the huge cut in the marketing department's budget for the fiscal year beginning in October, 2010." Finding "no evidence in the summary judgment record of any discriminatory conduct against Clifton by Uno based upon his race," the judge allowed Uno's motion.
Discussion. Summary judgment is appropriate where "all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). "In reviewing a grant of summary judgment, 'we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party.'" Pugsley v. Police Dept. of Boston, 472 Mass. 367, 370-371 (2015), quoting from Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 318 (2014). While "[s]ummary judgment is generally disfavored in cases involving employment discrimination because the question of intent requires a credibility determination," Godfrey v. Globe Newspaper Co., Inc., 457 Mass. 113, 119 (2010), we conclude that it was appropriate here because Uno "proffered admissible evidence to explain that in selecting [Clifton] . . . to lay off, it had business reasons for doing so unrelated to [his race,]" and because Clifton did not establish that the proffered reason was a pretext. Sullivan, supra at 51.
It is undisputed that Uno filed for bankruptcy in 2010, and that, as a result, the marketing department's budget was cut by over $1 million. Hendrie told Clifton that his and two other positions were being eliminated due to the budget cut, and Clifton testified that he believed this to be untrue because Perry was hired not long before. However, Uno's head of human resources testified that it would not have been unusual for the company to create a new position after emerging from bankruptcy, and Clifton does not challenge this assertion. Hendrie testified that he eliminated Clifton's position due to the budget cut; the head of human resources testified that "there were multiple restructurings in the organization" following the bankruptcy and that Clifton's position was eliminated because "there was redundancy, several redundancies for his role in the organization;" and it is undisputed that the other two eliminated positions had been held by a Puerto Rican male and a white female. "Chapter 151B 'does not grant relief to a plaintiff . . . unless the facts and circumstances indicate that discriminatory animus was the reason for the decision,'" Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 134 (1997), quoting from Smith v. Stratus Computer, Inc., 40 F.3d 11, 16 (1st Cir. 1994), and we agree with the motion judge that Uno "satisfied its burden of advancing a legitimate, nondiscriminatory reason for terminating the plaintiff, and supporting that reason with credible evidence." Id. at 129.
Clifton's argument that discriminatory intent can be inferred from Hendrie's hiring of Perry is unavailing, as the record does not support an inference that Perry was hired to, or did, replace Clifton. The May, 2010, hiring of Perry and another person does not show that Hendrie's stated reason for eliminating Clifton's position in October, 2010, was a pretext for racial discrimination where that other person was an African-American woman, and where Hendrie testified that he learned of the budget cut two months later in July, 2010. Rather than demonstrating discriminatory intent, undisputed evidence that Perry considered "Uno's marketing department [to be] one of the more diverse groups that she had worked with," that Hendrie hired Clifton with the "sense that [they] were partners," and that Hendrie even "put it out that he wanted [Clifton] to become a vice-president," supports Uno's position that its "general practice and policies concerning employment of racial minorities" was nondiscriminatory. Id. at 130 n.4.
Clifton testified that he was never part of the budgeting process and that he does not know how the system works.
Clifton's testimony that "he heard" that Hendrie's predecessor "gave [Clifton] a great recommendation, that he liked [Clifton] a lot," is insufficient to create a genuine dispute over whether Hendrie hired Clifton. See Flesner v. Technical Communications Corp., 410 Mass. 805, 817 (1991).
Clifton fares no better with his argument that Hendrie's 2008 reference to him as a "work horse" belies a discriminatory animus. See Somers v. Converged Access, Inc., 454 Mass. 582, 599 (2009) (once employer offers lawful reason for its action, the burden shifts back to the plaintiff to rebut the proffered reason "with evidence that it is a mere pretext and that the true reason that the plaintiff was not hired was discriminatory animus"). That incident occurred two years before Hendrie eliminated Clifton's position, and while Hendrie could not specifically recall it, he testified that he often "laud[s] people for being workhorses" because "[i]t's representative of how hard people are working." Clifton stated that he is "not offended by . . . being called a workhorse" and that he was not offended in 2007 when Hendrie stated in a performance review that Clifton is "a work horse of enormous integrity, producing prodigious amounts of work that are of [b]est in [c]lass quality," but that he took offense in 2008 because Hendrie "referred to [Clifton] as a horse[; t]his is the horse." Even taking the disputed fact that Hendrie's comment was racially derogatory in the light most favorable to Clifton, we do not think that it was "so powerfully offensive" that liability could be imposed based upon this single instance. Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. 398, 409 (2009). Instead, we agree with the motion judge that Clifton's "proof is insufficient, as a matter of law, to show that, when [he] was terminated, [Uno] had a discriminatory intent, motive, or state of mind based on [his race] and that any such animus was 'a material and important ingredient in the discharge.'" Sullivan, supra at 57, quoting from Knight v. Avon Prods., Inc., 438 Mass. 413, 426-427 (2003).
Clifton then acknowledged that Hendrie "used workhorse, not horse."
Summary judgment was proper on Clifton's claim for emotional distress damages because he does not allege that he "was compelled to curtail his life's activities as a result of the unlawful discrimination," Thomas O'Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. 549, 561 (2008), and because no "factual basis" for an award is "clear on the record." Stonehill College v. Massachusetts Commn. Against Discrimination, 441 Mass. 549, 576 (2004). See also Augis Corp., supra at 409, quoting from DeRoche v. Massachusetts Commn. Against Discrimination, 447 Mass. 1, 7 (2006) ("Such an award must be supported by 'substantial evidence of the emotional suffering that occurred, as well as substantial evidence of a causal connection between the complainant's emotional distress and the respondent's unlawful act'").
Judgment affirmed.
By the Court (Cypher, Wolohojian & Carhart, JJ.),
The panelists are listed in order of seniority. --------
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Clerk Entered: February 29, 2016.