Opinion
15-P-273
03-24-2016
MANUEL LEITE v. DEPARTMENT OF YOUTH SERVICES.
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
Manuel Leite appeals from a Superior Court judge's allowance of the Department of Youth Services' (DYS) motion for summary judgment on his claims of age discrimination, brought pursuant to G. L. c. 151B, § 4(1C), and retaliation, brought pursuant to G. L. c. 151B, § 4(4), and G. L. c. 119, § 51A(h). We affirm.
Background. We recite the facts from the summary judgment record, in the light most favorable to Leite, reserving some facts for later discussion. Leite began working as a group worker I at the DYS Plymouth secure detention facility in May, 2007, and was subsequently transferred to the Howland facility in Taunton in March, 2010. At all times relevant to this matter, Leite was over forty years of age.
The chronology of Leite's employment at DYS includes multiple disciplinary actions arising from his misconduct, and complaints to various administrative entities in response to his perception that said disciplinary actions resulted from improper conduct by DYS. We turn first to his disciplinary history, then to his administrative complaints, and finally to the incident that immediately preceded his termination.
a. Disciplinary history. On July 9, 2008, DYS suspended Leite for one day without pay for yelling at youth residents and refusing to obey the directive of his shift supervisor to leave the unit and calm down. In August, 2010, DYS imposed a five-day suspension without pay against Leite for leaving unsupervised and unmonitored a youth resident on "elevated watch." Leite grieved this suspension through his union representative; his punishment was reduced to a one-day suspension without pay, and his disciplinary letter was amended by DYS to exclude any reference to the youth resident being on elevated watch. As part of the agreement to reduce the suspension, Leite acknowledged that "he failed to properly and satisfactorily maintain supervision of a resident that he was assigned to monitor" and that such failure "jeopardized the health and well-being of the resident as well as the safety and security of the program." On November 10, 2010, DYS suspended Leite for five days for calling a youth resident a "little puss," which Leite admitted to. In connection with each suspension, DYS notified Leite, in writing, that similar misconduct would result in progressive discipline, up to and including termination.
b. Administrative complaints. Starting in May, 2010, Leite raised multiple complaints alleging that he was improperly subjected to discipline. First, in May, 2010, Leite complained to Maria Cordero, DYS director of human resources, that DYS was targeting older employees.
Next, on August 24, 2010, Leite filed the first of two complaints with the Massachusetts Commission Against Discrimination (MCAD). In his first MCAD complaint, Leite alleged that his 2008 suspension was a result of his age, and that the five-day suspension he initially received for the August, 2010, incident was in retaliation for his May, 2010, complaint to Cordero.
On August 30, 2010, Leite made the first of two telephone reports to the Department of Children and Families (DCF) pursuant to G. L. c. 119, § 51A (51A report). In this first 51A report, Leite claimed that the DYS policy that required DYS workers to make notations in a log book while at the same time monitoring residents on elevated watch resulted in the neglect of said residents. DCF dismissed this report without investigation because it did not pertain to child protective concerns.
A 51A report is made to DCF when a reporter has reasonable cause to believe that a child is suffering physical or emotional injury.
On September 2, 2010, Leite filed his second MCAD complaint, which included only a claim of retaliation. He alleged that in his monthly review in August, 2010, conducted after he filed his first MCAD complaint, his reviewer commented that Leite had raised his voice to a youth resident. Leite claimed that this comment was made in retaliation for filing his first MCAD complaint. He also alleged that Marisol Soto, a fellow group worker also over forty years of age, left unattended a resident on elevated watch, but was not disciplined, and that such disparate treatment was in retaliation for filing his first MCAD complaint.
On January 13, 2011, one week after his final act of misconduct, Leite made a second 51A report, this time alleging that "a 51A was filed against him due to an incident that occurred at the [Howland] Detention Center and he was calling to file a report against the Director of the program." He further alleged "violations at the program regarding staff to client ratios." DCF dismissed this second report without investigation because it did not pertain to child protective concerns.
c. Final incident and termination. Leite's final disciplinary action resulted from a January 6, 2011, incident, in which Gary Choate, a DYS maintenance supervisor, reported that Leite had used unnecessary and excessive force on S.E., a twelve year old resident. Amy Raff, a clinical coordinator at Howland, interviewed S.E., and filed a 51A report against Leite. John Pina, the Howland program director, conducted a preliminary review of the incident. This review involved, inter alia, interviewing multiple witnesses, including a second interview with S.E. Per DYS policy, Pina placed Leite on paid administrative leave pending an internal investigation of the incident.
The record reflected that S.E. was a "little kid" whereas Leite weighed 300 pounds.
The 51A report filed by Raff initiated an investigation by DCF, which proceeded contemporaneously with DYS's internal investigation. The DCF investigation ultimately found no reasonable cause to support the allegations of abuse.
Sheila Kelly, the DYS director of investigations, conducted DYS's internal investigation into the incident. Kelly concluded that, consistent with Pina's preliminary review, Leite had violated the DYS restraint and use of force policy, the DYS code of employee conduct, and the DYS training in de-escalation techniques. A show cause hearing followed, at which Leite was permitted to cross-examine the witnesses against him and to present a full defense. Based upon the evidence at this hearing, Dominic Gervasi, the DYS hearing officer, concluded that: DYS had conducted a fair investigation; Leite's actions violated the DYS policy and code; and DYS had just cause to discipline Leite. By letter dated August 15, 2011, the assistant commissioner of DYS terminated Leite's employment.
Leite told the investigators that he had unlocked S.E.'s door, entered the room first, and encountered an aggressive S.E. A video of the incident contradicted Leite's claim, as it showed that Choate had unlocked S.E.'s door and entered the room first, followed by Leite. The sequence of entry into the room was significant, as Choate told the investigators that while he was trying to talk to S.E., Leite walked around him and threw S.E. down on the fiberglass platform bed.
Discussion. On appeal, "[w]e review a grant of summary judgment de novo to determine whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Galenski v. Erving, 471 Mass. 305, 307 (2015). The moving party's burden is to establish the absence of a genuine issue of material fact on any relevant issue. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997). This can be done "by demonstrating that the opposing party has no reasonable expectation of proving an essential element of the case at trial." Ibid.
Because Leite lacked direct evidence of unlawful motive and causation for his discrimination and retaliation claims, we follow the three-stage burden-shifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 440-441 (1995) (employing three-stage analysis for discrimination claim based on indirect evidence). See also Mole v. University of Mass., 442 Mass. 582, 591 (2004) (same for retaliation claim). The first stage requires the plaintiff to establish, by a preponderance of the evidence, a prima facie case of alleged discrimination (or retaliation). See Mole, supra; Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 40 (2005). If the plaintiff succeeds at the first stage, the employer must then articulate nondiscriminatory (or nonretaliatory) reasons for its actions to satisfy the second stage. See Mole, supra; Sullivan, supra at 50. In the third stage, the plaintiff must produce evidence that the employer's articulated reasons were not genuine but rather a pretext. Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 682-683 (2016). The plaintiff's failure to satisfy his burden at either the first or third stage warrants dismissal of his claims.
We assume, without deciding, that the burden-shifting analysis applicable to a G. L. c. 151B claim applies also to a claim of retaliation under G. L. c. 119, § 51A(h). The judge and both parties employed such an analysis, and the failure to raise any argument to the contrary constitutes a waiver of any claim that a different analysis should be employed. See Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975).
In this case, we forego discussion of the prima facie case and turn immediately to the latter two stages. Leite has not challenged that DYS failed to proffer legitimate, lawful reasons for its termination decision. We thus turn to the dispositive third stage, and conclude, as did the judge, that Leite failed to meet his burden of producing evidence that DYS's articulated reasons for his termination were pretextual. Ibid.
These reasons, memorialized in his termination letter, included the DYS hearing officer's conclusions that: DYS had conducted a fair investigation; Leite had physically restrained a youth resident without justification and with excessive force, in violation of DYS's policies; and Leite failed to be truthful during the internal investigation. The letter further referenced Leite's inability or unwillingness to conduct himself in a professional manner, as demonstrated by his disciplinary history, which was documented in written warning letters introduced in the record. Thus, DYS met its burden of providing lawful reasons for its employment decision, supplemented by credible evidence. See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976).
In support of his claim of pretext, Leite first argues that he was subjected to harsher discipline for his conduct than his "younger" coworkers. While such disparate treatment could be probative evidence of discriminatory animus, Leite was required to show that the alleged comparators were similarly situated in all relevant aspects to him. See Matthews, supra at 129-130. See also Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Commn. Against Discrimination, 449 Mass. 675, 683-684 (2007) (applying comparators to first stage of McDonnell Douglas analysis). Leite's brief and conclusory allusion to the more favorable treatment of a few coworkers, unaccompanied by an appropriate comparative analysis, was inadequate to make that showing. We agree with the judge's findings that "[t]he summary judgment record is devoid of any statistical data, or other evidence, of any general practice by DYS that suggests an atmosphere of discrimination based on age," and that the record is "devoid of any circumstantial evidence suggesting that age based animus played any role in the treatment of Leite."
As DYS noted, Leite failed to establish the ages of these alleged comparators in the record.
Leite next argues that a jury could infer pretext from the fact that no other employee had been discharged "on the basis of an unsupported or supported 51A report." Although DCF ultimately did not support Raff's 51A report, that fact is immaterial for purpose of determining pretext. The issues investigated by DCF, while arising out of the same factual circumstances, differed materially from those resolved by DYS. Furthermore, Leite was not terminated on the basis of the DCF report, but on the conclusions from the comprehensive DYS investigation, including, but not limited to, the substantial evidence of Leite's use of excessive force on resident S.E., and Leite's disciplinary history and prior suspensions. Even if Leite may have been the only DYS employee terminated in connection with an unsupported 51A report, that fact, standing alone, was insufficient to meet Leite's stage-three burden. Compare Matthews, 426 Mass. at 129-134.
Finally, Leite contends that DYS's proffered reasons for terminating his employment were pretextual because DYS (through Pina and Kelly) took actions to ensure Leite's termination. While Leite is correct that a jury may infer unlawful animus and causation from proof that one or more of the reasons advanced for the adverse employment action was false, see Lipchitz v. Raytheon Co., 434 Mass. 493, 501-502 (2001), he fails to identify any facts from which such an inference could be drawn. Leite's suggestion that Pina should not have reinterviewed S.E. is unpersuasive, given the seriousness of the allegations and Pina's responsibilities as the Howland program director.
Contrary to Leite's assertion, the DYS internal investigation did not omit critical information and selectively focus on alleged inconsistencies in Leite's statement. In fact, Pina enclosed all documentation of the incident, including Soto's, Choate's, and Raff's reports, with his review.
Leite also failed to identify any material omissions in Kelly's findings, which were amply supported by the facts uncovered during her investigation. Choate's account, in contrast to Leite's, remained consistent throughout these proceedings. The surveillance footage corroborated Choate's version and demonstrated that Leite was not truthful with investigators. Kelly was warranted in crediting Choate's account over Leite's.
In the course of her investigation, Kelly interviewed several witnesses, and reviewed a significant amount of documentation as well as the hallway surveillance footage. To the extent that Leite argues that Kelly failed to obtain statements from three other employees who were "on the floor," there was no evidence that these employees had information favorable to Leite. Their names do not appear elsewhere on this record.
Stripped of conclusory allegations, Leite's claims of pretext are speculative and devoid of sufficient evidence (or any evidence) to satisfy his burden. In view of his failure to proffer evidence that any of DYS's proffered explanations were pretextual, Leite's claims of discrimination and retaliation were properly dismissed on summary judgment.
Where we conclude, as did the judge, that Leite failed to satisfy his burden of demonstrating pretext for an unlawful motive, we need not address whether Leite established a prima facie case of alleged discrimination or retaliation.
Judgment affirmed.
By the Court (Cypher, Meade & Neyman, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 24, 2016.