Opinion
No. 14–P–1935.
10-28-2016
Jason E. CLIFTON v. UNO RESTAURANTS, LLC, & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In February, 2016, a panel of this court, in a memorandum and order issued pursuant to our rule 1:28, affirmed the judgment in favor of the two defendants, Uno Restaurants, LLC, and Uno Restaurant Holdings Corporation (collectively, Uno), on Jason E. Clifton's complaint under G.L. c. 151B. Clifton v. Uno Restaurants, LLC, 89 Mass.App.Ct. 1109 (2016). Thereafter, the Supreme Judicial Court denied without prejudice Clifton's application for further appellate review and remanded the case for reconsideration in light of Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016). Upon reconsideration, we again conclude that the judgment must be affirmed.
Discussion. An employer seeking summary judgment on an employee's claim under G.L. c. 151B, must demonstrate the absence of a triable issue regarding (1) whether the employee is a member of a protected class, (2) whether the employee “was subject to an adverse employment action,” (3) whether the employer “bore ‘discriminatory animus' in taking that action,” and (4) whether “that animus was the reason for the action (causation).” Bulwer, supra at 680 (citations omitted). See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005). The first two elements are satisfied here, where it is undisputed that Richard Hendrie told Clifton, a black male, that he was being terminated as a result of a $1 million budget cut to the marketing department.
Uno filed a petition under Chapter 11 of the Bankruptcy Code in January of 2010.
To show the absence of a genuine dispute regarding the last two elements, Uno offered the testimony of Hendrie, senior vice-president of marketing, that he “considered [Clifton] from the very beginning [to be his] partner in devising what the ... Uno brand was,” that he “admired [Clifton] to the very end,” and that he “always felt this is a good man.” Clifton was never in jeopardy of losing his job until the budget cuts and, to Hendrie, the decision to terminate Clifton “was not a matter of this guy needs to go anyway.” Hendrie testified in detail to the budgeting process and the manner in which funds are appropriated. Roger Ahlfeld, senior vice-president of human resources, also testified to the budget cuts. Pursuant to the parties' Superior Court Rule 9A joint statement of material facts, it is undisputed that bankruptcy caused Uno to close twenty-six company-owned restaurants and to lay off more than 950 people. “Notwithstanding the improved financial condition of the company, the closure of so many restaurants resulted in a significant reduction in Uno's ability to generate sales and revenue, and Uno was forced to undertake additional cost-saving initiatives.”
Clifton was required to respond to these materials with “specific allegations sufficient to establish a genuine issue of material fact” regarding the veracity of Hendrie's stated reason for terminating him. Barron Chiropractic & Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800, 804 (2014). Clifton is “entitled to a jury trial if there is some indication [in the record] from which an inference of [discriminatory animus] could be drawn,” Godbout v. Cousens, 396 Mass. 254, 259 (1985), and, as clarified by Bulwer, 473 Mass. at 683, his only burden is to produce some evidence that budget cuts were not the real reason for his termination. Clifton relies on a statement by the chief financial officer (CFO) at a meeting “that our budget sheet, or balance sheet, or whatever it was the best it had ever been, and that we were in good standing all around,” and the undisputed fact that Hendrie hired three people in the six-month period preceding Clifton's termination.
Clifton's testimony regarding statements made by the CFO at a monthly meeting on an unspecified date would not be admissible at trial. The CFO did not testify and did not submit an affidavit. Affidavits from other meeting participants are not in the record. Clifton testified that he was never part of the budget process, that he does not know when the budgets are formed for the fiscal year, and that he does not know “how the system works.” His unsupported belief that Hendrie lied about the budget cuts is insufficient to defeat Uno's well-supported motion. See P & F Constr. Corp. v. Friend Lumber Corp. of Medford, 31 Mass.App.Ct. 57, 58–59 (1991).
In conducting a de novo review, we are careful not to “consider the credibility of the witnesses or the weight of the evidence.” Riley v. Presnell, 409 Mass. 239, 244 (1991). Rather, we evaluate the sufficiency of the parties' showings under Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002), and Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974).
Next, Clifton points to Hendrie's hiring of three people in the six months preceding Clifton's termination as evidence that budget cuts were not the real reason therefor. It is undisputed that Hendrie hired a white woman and a black woman before the budget was prepared and before he learned of the cuts to his department. Clifton argues that the hiring of white woman Janet Perry evidences Hendrie's discriminatory intent because she was hired to replace Clifton. Hendrie and Perry deny this.
Contemporaneous documents submitted by Uno in support of its motion for summary judgment show that Perry was hired as “[d]irector of [c]ommunications [d]esign and [m]erchandising” (Clifton was the creative director), to work with Hendrie and Clifton, and Perry states in her affidavit that she was hired to “partner” with Clifton. Uno employee Victor Aranda testified that Perry and Clifton worked collaboratively on projects, and that he reported to Hendrie after Clifton was terminated. Thereafter the marketing department was restructured, and Aranda reported to Perry. Each person in the department “had to wear more hats” and take on more responsibilities after the restructuring, but Perry did not assume Clifton's title. Ahlfeld testified that Perry took over a “portion” of Clifton's duties following the restructuring, and it is undisputed that Perry also assumed duties previously performed by the director of marketing and by Hendrie. Clifton's evidence that Perry assumed his job consisted of his testimony that her duties were similar to his and a LinkedIn page, accessed by Clifton in February of 2011, showing that Perry had the same background as Clifton. In light of Uno's showing, Clifton's “sole thing for knowing what [Perry's duties were after he left]”—“looking on LinkedIn and checking her updates”—is insufficient to establish the existence of a genuine dispute whether Perry was hired to replace him. See Barron Chiropractic & Rehabilitation, P.C., 469 Mass. at 804 (“Bare assertions made in the nonmoving party's opposition will not defeat a motion for summary judgment”).
Insofar as Clifton relies on the circumstances surrounding Perry's hiring, Ahlfeld testified that there was not a hiring freeze during the bankruptcy, and Clifton offers no evidence “that the defendants did not follow [any] written procedures” in hiring her. Bulwer, 473 Mass. at 687. Clifton's argument that the simultaneous terminations of himself and a Puerto Rican male evidences discrimination ignores Clifton's testimony that a white woman, a white man, and two other women were terminated in the same year that he was, and Clifton does not identify any “specific instances in which ‘similarly situated [white female] employees were treated differently’ from the way” he was. Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 398 (2016). The bare assertions in Clifton's unverified complaint are insufficient to carry his burden under Mass.R.Civ.P. 56(e), 365 Mass. 824 (1974). See Godbout, 396 Mass. at 263 ; Barron Chiropractic & Rehabilitation, P.C., supra.
Finally, Clifton alleges that Hendrie's 2008 reference to him as a “workhorse” shows that Hendrie bore discriminatory animus when he terminated Clifton in 2010. Hendrie testified that he uses the term as a compliment to “laud people” for how hard they are working. Hendrie “is competent to testify as to his own intent,” Godbout, supra at 261, and Clifton testified that he is not offended by being called a workhorse. While Clifton states that he was offended in 2009 or 2010 because Hendrie called him “a horse,” he later states that Hendrie “used workhorse, not horse.” Clifton points to no other comments by Hendrie that would suggest racial animus, and Clifton's “feelings of the moment,” without more, “carry no weight” in opposing a motion for summary judgment. Hartford Acc. & Indem. Co. v. Millis Roofing & Sheet Metal, Inc., 11 Mass.App.Ct. 998, 999 (1981).
Our rule disfavoring summary judgment in a case where a party's state of mind or motive is at issue “is not an absolute rule.” Dolan v. Airpark, Inc. (No. 1), 24 Mass.App.Ct. 714, 717 (1987). Taking the record “as a whole” rather than viewing the hiring of Perry and the termination of Clifton and a Puerto Rican male “in isolation,” no rational juror could “conclude that the reasons for the plaintiff's discharge were pretextual.” Bulwer, supra at 684.
We deny Clifton's request for appellate attorney's fees.
Upon further consideration after remand from the Supreme Judicial Court we again conclude that the judgment must be affirmed.