Opinion
21-P-428
03-17-2022
NICHOLAS INTERNICOLA v. MASSACHUSETTS STATE POLICE & others.[1]
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
The plaintiff, a Massachusetts State police trooper, filed this retaliation action against the Massachusetts State Police, claiming that the State Police violated G. L. c. 151B, § 4 (4), by transferring him from one police troop to another in response to his exercise of the right to file a complaint of discrimination against a fellow trooper. The State Police moved for summary judgment, contending that the plaintiff could not establish a prima facie case for retaliation or demonstrate that the State Police's nonretaliatory reason for transferring him was a pretext. A Superior Court judge agreed and granted summary judgment for the State Police. For the same reasons well-articulated by the Superior Court judge, we affirm.
Background.
As we must, we recite the facts in the light most favorable to the plaintiff, the nonmoving party. Yee v. Massachusetts State Police, 481 Mass. 290, 292 (2019).
On March 2, 2012, the plaintiff and fellow State Trooper Timothy Gillespie, both assigned to State Police Troop F, had a physical and verbal altercation while working their respective shifts. During this altercation, Trooper Gillespie called the plaintiff and his family "the N-word" numerous times. The plaintiff is white, of Sicilian descent, and was born in Italy; he believed that Gillespie's racial comments were directed at his national origin. The plaintiff officially reported the altercation to his superiors on January 17, 2013. A workplace violence incident report was prepared on January 18, and, on January 22, Major William Christiansen referred the matter to his superiors at headquarters (Lieutenant Colonel Edward Amodeo and Lieutenant Colonel Sharon Costine) and requested that internal affairs conduct an investigation.
Troop F is "the unit headquartered at Logan International Airport in the East Boston section of Boston," and it provides more opportunities for overtime and paid details than some of the other State Police troops. See Yee, 481 Mass. at 292.
Just over one year following the first altercation, on March 28, 2013, a second verbal altercation occurred between the plaintiff and Trooper Gillespie, wherein Gillespie again called the plaintiff the "N-word." The plaintiff reported the altercation that same day and that report was also referred to internal affairs for investigation.
Over five months later, on September 5, 2013, as the plaintiff passed Trooper Gillespie in the Troop F parking lot, the plaintiff noticed Gillespie glaring at him and heard Gillespie mumble something incoherent under his breath. In response, the plaintiff stated to Trooper Gillespie, "your day is coming soon, very soon," or words to that effect. Immediately following this exchange, Trooper Gillespie reported to Lieutenant Steven Hines that the plaintiff made this statement. Lieutenant Hines then requested to speak with the plaintiff privately in his office. During that meeting, the plaintiff confirmed that he had made the statement, but explained to Lieutenant Hines that he was referring to the internal affairs investigations of the two prior encounters. The plaintiff screamed and yelled at Lieutenant Hines during the meeting, and Hines called the plaintiff a "baby," told him that he "put [his] back to a wall," and asked the plaintiff, "why can't you do your job?"
Following that meeting, Lieutenant Hines reported to Major Christiansen's office and informed him that the plaintiff made this statement to Trooper Gillespie, as well as the fact that the plaintiff suggested that he may not be able to control himself around Gillespie. As a result, Major Christiansen called Lieutenant Colonel Amodeo at headquarters and recommended that the plaintiff be transferred to a different troop due to concerns for the "safety of the barracks." Lieutenant Colonel Amodeo approved the plaintiff's transfer. Major Christiansen also consulted with Lieutenant Colonel Costine via telephone, and they decided to give the plaintiff two paid days off to ensure that the plaintiff and Trooper Gillespie remained separated prior to the plaintiff's transfer.
Later that same day, Major Christiansen and Lieutenant Hines met with the plaintiff together. During this meeting, Major Christiansen informed the plaintiff that he was being transferred from Troop F and provided him the option to choose which troop he would like to transfer into. Major Christiansen also directed the plaintiff to take two days off with pay. The plaintiff elected to be transferred to Troop A, and his transfer became effective on September 6, 2013. An internal affairs investigation was subsequently initiated concerning the September 5, 2013, incident. On September 2, 2014, based on the advice of counsel, the plaintiff accepted a permanent transfer from Troop F to resolve all internal affairs investigations, including two investigations unrelated to the events of this suit.
Discussion.
"Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." Boazova v. Safety Ins. Co., 462 Mass. 346, 350 (2012). When "the opposing party will have the burden of proof at trial, the moving party must demonstrate, by reference to materials properly in the summary judgment record, unmet by countervailing materials, 'that the party opposing the motion has no reasonable expectation of proving an essential element of that party's case.'" Carey v. New England Organ Bank, 446 Mass. 270, 278 (2006), quoting Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). "We review a decision to grant summary judgment de novo." Boazova, supra.
General Laws c. 151B, § 4 (4), makes it unlawful for "any person, employer, labor organization or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint . . . under section five." Where, as here, the plaintiff lacks direct evidence of retaliatory motive, the plaintiff has "the burden of establishing a prima facie case of retaliation, and, in the wake of the defendant['s] introduction of nonretaliatory reasons for the various actions taken, the burden of proving that the articulated nonretaliatory reasons were pretext." Mole v. University of Mass., 442 Mass. 582, 591 (2004).
1. Prima face case.
"A prima facie case of retaliation requires the plaintiff to show (1) his engagement in protected conduct; (2) the infliction of some adverse action; and (3) a causal connection between the two." Bulwer v. Mount Auburn Hosp., 86 Mass.App.Ct. 316, 335-336 (2014), S.C., 473 Mass. 672 (2016). The State Police argue that summary judgment was appropriate because the plaintiff cannot reasonably expect to establish a causal connection between his complaints against Trooper Gillespie, made in January and March 2013, and his transfer from Troop F in September 2013. See Carey, 446 Mass. at 278. We agree.
The chronology of events is one method to prove causation, see Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., 474 Mass. 382, 407 (2016), but the plaintiff's effort to do so here fails. While a causal link may be inferred "[w]here adverse employment actions follow close on the heels of protected activity, ... as the elapsed time between those two events becomes greater, the inference weakens and eventually collapses." Mole, 442 Mass. at 595. "The cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close.'" Id., quoting Clark County Sch. Dist. V. Breeden, 532 U.S. 268, 273 (2001). Generally, the adverse employment action must be "in the immediate aftermath of the employer's becoming aware of the employee's protected activity," Mole, supra at 592, and periods of multiple months are insufficient. See Dube v. Middlesex Corp., 59 Mass.App.Ct. 734, 741 n.3 (2003) ("one event following another is not, by itself, sufficient evidence of causality to establish a prima facie case of unlawful retaliation, particularly where, as here, the two events are separated by months, not days"). See also Calero-Cerezo v. United States, 355 F.3d 6, 25 (1st Cir. 2004) ("Three and four month periods have been held insufficient to establish a causal connection based on temporal proximity"). Accordingly, here, where approximately eight and five months separated the plaintiff's mid-January 2013 and late-March 2013 complaints from his September 2013 transfer, a causal connection between the events cannot be established by temporal proximity alone.
The plaintiff contends that summary judgment was improper because, viewing the record in the light most favorable to him, there are disputed issues of fact concerning whether he made an additional complaint to Lieutenant Hines on September 5, 2013, regarding Trooper Gillespie's conduct, and whether Major Christiansen was informed of that complaint prior to making the decision to transfer the plaintiff. The plaintiff relies on evidence that (1) Major Christiansen testified in his deposition that he did not recall precisely what Lieutenant Hines said to him during their meeting on September 5, and (2) Hines testified in his deposition that he informed Christiansen at their meeting about what had transpired with the plaintiff earlier in the day, when the plaintiff was in Hines's office. We are not persuaded. The plaintiff fails to acknowledge that both Lieutenant Hines and Major Christiansen recalled discussing the plaintiff's statement to Trooper Gillespie, but neither recalled their conversation verbatim or discussing anything beyond the statement. To defeat a summary judgment motion, the plaintiff must do more than "rest on his . . . pleadings and mere assertions of disputed facts." LaLonde v. Eissner, 405 Mass. 207, 209 (1989). In the absence of affirmative evidence to the contrary, the plaintiff cannot rely solely on Lieutenant Hines's and Major Christiansen's lack of recollection as to the specifics of the conversation to create a disputed issue of fact about whether they discussed the plaintiff's purported September 5 complaint. See Kourouvacilis, 410 Mass. at 711.
The plaintiff also contends that a disputed issue exists concerning whether Major Christiansen consulted with Lieutenant Colonel Amodeo and Lieutenant Colonel Costine prior to or after meeting with the plaintiff and Lieutenant Hines on September 5, 2013. The plaintiff maintains that he also made a complaint to Major Christiansen during his meeting with the Major and Lieutenant Hines, and, if Major Christiansen consulted with Lieutenant Colonel Amodeo and Lieutenant Colonel Costine after that meeting, then, according to the plaintiff, the decision to transfer him was made immediately following Christiansen's knowledge of his complaint. This claim, however, is belied by Major Christiansen's specific averment that he consulted both of his superiors before meeting with the plaintiff on September 5, 2013. Accordingly, the decision to transfer the plaintiff preceded Major Christiansen's knowledge of any complaint made that day. In the end, summary judgment was properly granted, because the plaintiff could not reasonably expect to demonstrate causation by temporal proximity.
The plaintiff contends that it is disputed whether Major Christiansen consulted his superiors before meeting with the plaintiff because Lieutenant Hines testified at his deposition that, after he spoke with Major Christiansen alone, they together called the plaintiff to his office. It is true that, during his deposition, Lieutenant Hines did not mention Major Christiansen's phone call with his superiors; however, Lieutenant Hines averred in his interrogatory responses that Major Christiansen called headquarters prior to the two requesting the plaintiff's presence in Christiansen's office. We therefore discern no disputed issue of material fact on this point. See Godbout v. Cousens, 396 Mass. 254, 261 (1985) (no disputed issue where facts not controverted by evidence).
2. Pretext.
Even if the plaintiff could demonstrate causation and make out a prima facie case for retaliation, he has failed to present sufficient evidence that the State Police's articulated reason for his transfer -- the safety of the barracks -- was a pretext.
Once a plaintiff establishes a prima facie case of retaliation, "the 'employer must then articulate a legitimate, nondiscriminatory reason for' the adverse employment decision." Verdrager, 474 Mass. at 406, quoting Esler v. Sylvia-Reardon, 473 Mass. 775, 780 n.7 (2016). This burden is not an onerous one, as "'[t]he reasons given for a decision may be unsound or even absurd,' and the action may appear 'arbitrary or unwise,' nonetheless the defendant has fulfilled its obligation." Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997), quoting Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766-768 (1986). We agree with the motion judge that the State Police's articulated reason for transferring the plaintiff based on concerns for the safety of the troop was sufficient to rebut the plaintiff's prima facie case. See Verdrager, supra at 397. It then became incumbent upon the plaintiff to produce evidence that this reason was "not true but a pretext." Id., quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 443 (1995).
"[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, even if that evidence does not show directly that the true reasons were, in fact, discriminatory" (quotations and citation omitted). Verdrager, supra. Here, the plaintiff has come up empty. The plaintiff argues that pretext may be inferred by the fact that the State Police did not take more severe action in response to its safety concerns, such as requiring the plaintiff to undergo counseling or confiscating his service weapon. However, "our task is not to evaluate the soundness of [the State Police's] decision making, but to ensure it does not mask discriminatory animus." Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 56 (2005). See Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991), cert, denied, 504 U.S. 985 (1992) ("Courts may not sit as super personnel departments, assessing the merits -- or even the rationality -- of employers' nondiscriminatory business decisions"). "The employer's reasons need not be wise, so long as they are not discriminatory and they are not pretext." Brooks v. Peabody & Arnold, LLP, 71 Mass.App.Ct. 46, 52, 55 (2008), quoting Tardanico v. Aetna Life & Cas. Co., 41 Mass.App.Ct. 443, 44 8 (1996). Because the plaintiff has not produced any evidence to support an inference that the State police transferred him from Troop F for any reason other than safety concerns, summary judgment properly entered. See Id. at 56, quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990) ("summary judgment may be appropriate if the nonmoving party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation").
Judgment affirmed.
The panelists are listed in order of seniority.