Opinion
20-P-1039
08-10-2021
JOSEPH MAZZOCHIA & others [1] v. KEOLIS COMMUTER SERVICES, LLC.
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 plaintiffs timely appeal from a summary judgment entered in favor of their former employer, Keolis Commuter Services, LLC (Keolis). They claim that Keolis discharged them from their employment not for misusing the timekeeping system, but rather because of their ages, which ranged from fifty-three to fifty-five at the operative time. See G. L. c. 151B, § 4 (1C). We affirm.
Although the plaintiffs also purportedly appealed from the order denying their motion for reconsideration, that prejudgment order is subsumed within the judgment. The plaintiffs, however, failed to raise any argument addressing that order until their reply brief and have therefore waived it. Barkan v. Zoning Bd. of Appeals of Truro, 95 Mass.App.Ct. 378, 390 (2019). Nonetheless, we have considered certain factual information brought forward by the plaintiffs in connection with their motion.
Background.
We summarize the basic facts in the light most favorable to the plaintiffs, drawing all reasonable inferences in their favor, and reserving certain facts (disputed and undisputed) for later discussion. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016).
In 2014, Keolis hired the plaintiffs, long-term employees of Keolis's predecessors, to work on the Massachusetts Bay Transportation Authority (MBTA) commuter rail system. At or around the time of employment, each plaintiff acknowledged receipt of the Keolis code of conduct policy and other policies. The acknowledgement forms state that any employee who violates the code of conduct policy may be disciplined "up to and including termination."
On July 1, 2014, Keolis began operating and maintaining the commuter rail system for the MBTA, replacing the Massachusetts Bay Commuter Rail Company. Keolis employed Robert Mazzochia as an electrician; Joseph Mazzochia as a work equipment operator; and Brenda Lewis as a carman. All three worked within the mechanical department of Keolis and were members of different unions. Joseph Mazzochia served as a union representative in connection with disciplinary matters. Because Joseph and Robert share the same last name, we will refer to them as Joseph M. and Robert M.
For payroll purposes Keolis maintained employee time through the KRONOS timekeeping system. All hourly employees were required to swipe their personal badges (badges or cards) in at a time clock at the beginning of each shift and swipe out at the end of the shift.
In June 2016, Robert McNemar, Keolis's superintendent of cost control and contract compliance, observed Joseph M. on surveillance videotape swiping the badge of Scott Baker, a laborer in the mechanical department, through the timekeeping system. After noticing similar incidents involving other employees on the videotape, McNemar reported the irregularities to his boss, Kenneth Trahan, the chief mechanical officer. At Trahan's direction, McNemar conducted, over an approximately twenty-day period, a "punch audit" that generated timecards showing the exact times employees swiped in and out. McNemar cross-checked the timecards against video footage of the timeclock areas. During the audit period, nine employees, including the plaintiffs, were documented either swiping badges belonging to other employees, or allowing their badges to be swiped by other employees (swiping conduct). McNemar reported his findings to Trahan.
In other words, they intentionally took badges belonging to other employees, bearing the photographs and unique badge numbers of these employees, and swiped them through the Keolis timeclocks during the audit period; and in the case of Joseph M. and Robert M., allowed their own cards bearing their photographs and badge numbers to be swiped by others.
On July 15, 2016, Trahan issued "out of service notifications" for the nine employees for "actions that were detrimental to the service." Shortly thereafter, Mary Ann Lemon, a Keolis labor relations representative, notified the employees of the charges against them, and directed them to attend separate, formal investigative hearings. In August 2016, John McLaughlin, Keolis's director of labor relations, conducted the plaintiffs' hearings; and in decisions issued in August and September 2016, he found that the plaintiffs deliberately, willfully, and knowingly falsified payroll documents on multiple dates in June 2016, in violation of five code of conduct rules. "Based on the findings of the [h]earing [o]fficer, and in consideration of the serious nature of the proven charges," Trahan immediately terminated the plaintiffs.
The plaintiffs' efforts to secure reinstatement through internal appeals and binding arbitration were unsuccessful.
Discussion.
The plaintiffs raise three main issues on appeal. First, they argue that the motion judge abused her discretion in denying their motion to strike certain materials supporting Keolis's motion for summary judgment. Second, they argue that absent direct evidence (in the form of an affidavit) of the decisionmaker's reason for terminating them, Keolis did not meet its burden of articulating a legitimate reason for their termination, as required under the second stage of the McDonnell Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973); Bulwer, 473 Mass. at 680 681. Third, they argue that they raised a triable issue of fact that Keolis's reason for terminating them was a pretext. We address each of these arguments in turn.
Keolis does not challenge the judge's conclusion that the plaintiffs met their burden to establish a prima facie case of age discrimination, thus meeting the first stage of the McDonnell Douglas framework. "In the first stage, the plaintiff has the burden to show . . . a prima facie case of discrimination." Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). To do so, a plaintiff must provide "evidence that: (1) he [or she] is a member of a class protected by G. L. c. 151B; (2) he [or she] performed his [or her] job at an acceptable level; [and] (3) he [or she] was terminated." Id. See also Bulwer, 473 Mass. at 681.
1. Motion to strike.
The judge did not abuse her discretion in denying the plaintiffs' motion to strike all information relating to Keolis's purported reasons for terminating them. See Teamsters Local Union No. 404 v. Secretary of Admin. &Fin., 434 Mass. 651, 661 n.12 (2001). To begin with, the affidavits of McNemar, McLaughlin, and Katrina Maloney, Keolis's director of human resources, were based on personal knowledge and contained admissible and relevant information. As such, they could properly be considered in connection with Keolis's motion for summary judgment. See Billings v. GTFM, LLC, 449 Mass. 281, 295 (2007); Mass. R. Civ. P. 56 (e), 365 Mass. 824 (1974) ("[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein"). In addition, as the motion judge noted, the portions of Keolis's business records and personnel files relating to the internal, formal investigations of the suspected code of conduct violations, and the written decisions and assessments of discipline, are relevant to those inquiries and are admissible under Massachusetts law. See G. L. c. 233, § 78; Bulwer, 473 Mass. at 683 (poor performance evaluations in record satisfied employer's stage-two burden to produce lawful reasons for employment decision and credible evidence to show reasons advanced were real reasons for decision); Salvas v. WalMart Stores, Inc., 452 Mass. 337, 358-360 (2008) (employer's timekeeping records admissible and presumed reliable under business records exception to hearsay rule). Finally, the information was highly relevant because it bore directly on the reasons Keolis terminated the plaintiffs (stage two of the McDonnel Douglas framework) and whether those reasons were pretextual (stage three of McDonnell Douglas). [ See Bulwer, 473 Mass. at 681.
2. Evidence of articulated reason for termination. [
We review, de novo, the summary judgment motion, assessing whether Keolis, the moving party, met its "burden of establishing that there is no genuine issue as to any material fact and that [it] [is] entitled to judgment as a matter of law" (citation omitted).
"In the second stage, the employer can rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its [employment] decision." Bulwer, 473 Mass. at 681, quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). An employer may satisfy its production burden at this stage by "advancing a legitimate, nondiscriminatory reason for terminating [an employee], and supporting that reason with credible evidence." Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). The employer's burden at stage two is "not onerous." Blare, supra at 442.
The plaintiffs do not dispute that Keolis has consistently maintained that it terminated the plaintiffs for misusing the timekeeping system on multiple dates in June 2016, in violation of the Keolis code of conduct. Instead, they argue that -without an affidavit from the decisionmaker, Trahan, about his "mindset" -- Keolis did not come forward with sufficient evidence to meet its minimal burden of production. We are not persuaded.
To begin with, the summary judgment record contained ample contemporaneous evidence that Keolis's reason for terminating the plaintiffs was that they were caught engaging in impermissible swiping conduct during the audit. Second, the plaintiffs have cited no legal authority for the proposition that an employer can meet its stage-two burden only by submitting an affidavit from the decisionmaker. We see no reason to create such a rule here. Indeed, often the best evidence of an employer's reasons for terminating an employee will come from contemporaneous employment records, rather than from a post hoc affidavit created for purposes of litigation. Moreover, even if we were to assume for the sake of argument that evidence of Trahan's individual "mindset" were required, it could be found in the assessments of discipline contained in Keolis's business records and the plaintiffs' personnel files, which stated that Trahan based his termination decisions on the findings of McLaughlin and the serious nature of the proven charges.
We see two shortcomings with the plaintiffs' argument that, without an affidavit from Trahan, they were unable to assess or challenge the genuineness of his decision to terminate them. First, a summary judgment motion is not a substitute for discovery. The plaintiffs did not timely seek to depose Trahan, and they give no reason (let alone a good one) for their failure to do so. Thus, their predicament (if such it is) at allegedly being unable to fully assess, challenge, or rebut, Trahan's thinking is one of their own making. Second, to the extent the plaintiffs contend that the decisionmaker's intent is a critical piece of the employer's evidentiary burden, they conflate the second and third stages of the McDonnell Douglas burden-shifting framework. The stage-two standard adopted in our case law says nothing about state of mind, motive, or intent. See Matthews, 426 Mass. at 129.
3. Evidence of pretext.
To survive summary judgment with respect to the third prong of McDonald Douglas, the plaintiffs must produce evidence from which a jury could find that the employer's articulated reason for terminating them is not true. See Bulwer, 473 Mass. at 681. In broad strokes, the plaintiffs point to the following as evidence of pretext: (1) Keolis and its predecessor had tolerated a history of impermissible card swiping, including by managers; (2) Baker's affidavit disputing that he sent the text message to McNemar that triggered the audit; and (3) younger employees who engaged in the same card swiping conduct during the audit were not terminated.
Before examining each of these, we note that the evidence must be assessed within the context of the plaintiffs' theory of liability, which was that they were terminated because of their age, not because they engaged in impermissible card swiping during the audit. It is also important to note that the plaintiffs do not now (contrary to their position before) deny that they engaged in the card swiping conduct captured during the audit. The linchpin underlying the plaintiffs' theory of the case is therefore necessarily that Keolis designed and executed the audit to catch only employees over the age of forty engaging in card swiping in order to terminate them. We note that there is no evidence that the audit was designed in any particular way other than to start on a date that appears to hold no significance and to end twenty days later. We note further that there is no evidence of how many employees used the timekeeping system during the audit, nor of their ages. The absence of such evidence makes the plaintiffs' entire theory of the case particularly infirm. Nonetheless, we now turn to the plaintiffs' three bases for establishing pretext.
The plaintiffs provide no admissible evidence to support their assertion that Keolis conducted a short audit "specifically to capture only the [plaintiffs'] actions, and not that of others," and that a jury could so find. To the contrary, the summary judgment record showed that the duration of the audit was limited by the technology to a twenty or thirty-day period. Moreover, Joseph M. testified that under the operative collective bargaining agreements, disciplinary charges could only be brought within thirty days of infractions.
Although eight of the nine fired employees identified on the videotape were over the age of forty, the plaintiffs offer no evidence to place the figures in context such as the size of Keolis's workforce, or the number of employees in the protected category. There is no way, therefore, to know, assume, or infer, any statistical meaning from the fact that eight out of the nine employees caught were over forty. For all the record shows, the figure may be entirely consistent with the overall age profile of the employees using the timekeeping system during the audit. See
As we have stated, the plaintiffs aver that the card swiping conduct was a common and widespread practice at Keolis before the audit, including among managers who used it as a way for subordinates to be paid for time they did not actually work. Even accepting these assertions as true, there is no link between them and the events leading to the plaintiffs' termination. Even assuming that the plaintiffs engaged in card swiping misconduct as part of a common practice before the audit, there is no evidence to suggest that they suffered any employment consequence (let alone termination) as a result. The mere fact that a history of card swiping without employment consequences existed before the audit, without more, does not support a reasonable inference that terminating the plaintiffs for misconduct captured during an audit was a pretext.
To supply the "something more" here, the plaintiffs point to the dispute over what triggered the audit. McNemar claimed that the audit was triggered by a text from Baker; the plaintiffs claim that no such text was sent and, therefore, the premise for the audit was false and pretext can be inferred. There is indeed a dispute concerning whether Baker sent the text. But where it is undisputed that Baker was logged in at a time when he was in fact offsite (and video footage showed Joseph M. swiping Baker out hours later), and where the plaintiffs agree that Baker's actions "caused a 'punch audit' to be performed," the factual question of whether Baker sent the text to McNemar is not material. Moreover, even were we to assume that the audit was not, as the plaintiffs claim, triggered by a text from Baker, the plaintiffs have brought forward nothing to suggest that the audit, its findings, or its outcome were affected. As noted above, there is nothing to suggest that the audit was designed or conducted in a manner to target those in the protected age category or the plaintiffs themselves. For all that appears in the record, Keolis picked a twenty-day period for the punch audit and the plaintiffs happened to engage in swiping conduct during that time. There is no evidence to indicate that Keolis knew beforehand which employees would engage in card swiping during the audit.
McNemar averred that he became suspicious about Baker's activities as a result of a text he received from him about leaving work early for the day for a doctor's appointment (and then noticing that Baker was still logged in). Baker, however, averred that he never sent this text to McNemar. In rebuttal, McNemar submitted a supplemental affidavit averring that on June 22, 2016, he took a screen shot of the text from Baker and provided it to Trahan. He also attached an alleged copy of the text to his affidavit.
To the extent that an inference of pretext could be drawn from a conflict over whether Baker's text was in fact the triggering event for the audit, at most it could pertain to Baker.
Finally, the plaintiffs contend that similarly-situated younger employees were treated differently, thus supporting an inference of pretext as to the reason for their own terminations. See Matthews, 426 Mass. at 129 ("[t]he most probative means of establishing that the plaintiff's termination was a pretext . . . is to demonstrate that similarly situated . . . employees [outside the protected status] were treated differently"). These younger employees are Patricia Rosario, Wilfredo Vazquez, Jake Rosco, and Richard Patch. Patch, however, was over forty, and we therefore set him aside. We also set aside Rosco, because the plaintiffs point to nothing to support their naked contention that he was similarly situated. See Mass. R. A. P. 16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019).
Although the plaintiffs argue that "only those within the protected class were terminated for [code of conduct] violations," the summary judgment record does not support this. Not only was Joseph M.'s nephew, James Lopez, age twenty-five, terminated, Richard Patch, age forty-eight, was not. In addition, Lewis testified that an employee named Mike from the diesel house appeared on the videotape, but was not terminated. She estimated his age as "late forties . . . [m]aybe early fifties."
Without elaboration or explanation, the plaintiffs nakedly assert that two additional "younger" employees (James Adams and Kenny Demedina) received more favorable treatment from Keolis for similar or worse conduct, which did not occur during the audit. However, two of the three plaintiffs estimated Adams's age at over forty. Lewis testified that Adams was "probably" older than forty -- "[m]aybe either late forties or early fifties." Joseph M. admitted he did not know Adams's age, estimating it at "[i]n his forties, maybe . . . not sure . . . [h]e might be older." However, Robert M. estimated that Adams was "[f]orty, around," but he did not believe "[o]ver 40." Except for Joseph M.'s averment describing Demedina as younger, there is no evidence at all of Demedina's age, actual or estimated. Although the plaintiffs conducted background checks of certain employees like Patch and Rosco after summary judgment, they have not provided evidence of the actual ages of Adams and Demedina.
The plaintiffs misrepresent Patch's age in their brief as "in his late 30's." At summary judgment, none of the plaintiffs estimated Patch's age as falling under forty, or in the protected class. Joseph M.'s affidavit averment that Patch was "younger" than the plaintiffs did not place Patch in the protected category. In fact, as the plaintiffs confirmed after losing at summary judgment, Patch was forty-eight in 2016.
This leaves Rosario and Vasquez. As to Rosario, who is in her early thirties, the plaintiffs did not raise a triable issue that she was similarly situated to the plaintiffs in all relevant aspects. See Matthews, 426 Mass. at 129-134. First, unlike the plaintiffs, who now concede they engaged in the swiping conduct on multiple occasions, Rosario engaged in swiping conduct only once and there was a basis for Keolis to conclude that the incident was a mistake. Second, unlike the terminated employees, Rosario swiped the badge of another employee who was standing right nearby. That employee was her sister. Within a few minutes of the original swipes, Rosario promptly returned to the timeclock area and swiped twice again. Perhaps most importantly, there was no evidence that Rosario denied her conduct during the investigation. A comparator must be "similarly situated in terms of performance, qualifications and conduct, without such differentiating or mitigating circumstances that would distinguish their situations" (quotation and citation omitted). Id. at 130. See Wyman-Gordon Co. v. National Labor Relations Bd., 654 F.2d 134, 143 (1st Cir. 1981) ("termination is an appropriate and common response to employee dishonesty"); Moore v. NSTAR Elec. &Gas Corp., 320 F.Supp.3d 261, 269 (D. Mass. 2018) (where plaintiff terminated for dishonesty and abuse of benefit plan, evidence of disability did not undercut veracity of proffered reason for purposes of demonstrating pretext).
In his affidavit, Joseph M. avers that "[t]he video is very clear in that Ms. Rosario swipes once, pushes the button which meant her swipe was successful, and then swipes again; she repeats this a minute later, for a total of three swipes plus her own." As the judge pointed out, Joseph M. does not state that he observed Rosario swipe in four different cards; and in any event, because he lacked personal knowledge of the incident, his testimony would be inadmissible. See
Similarly, the plaintiffs did not raise a triable issue that Vazquez, age thirty-seven in 2016, was similarly situated to the plaintiffs in all relevant aspects. Although Keolis charged him with similar misconduct, Vazquez waived his right to a formal investigation and, in contrast to the plaintiffs, accepted "full responsibility" for his actions.
Conclusion.
For the reasons set out above, summary judgment was properly entered on the plaintiffs' age discrimination claims.
Judgment affirmed.
Wolohojian, Milkey & Shin, JJ.
The panelists are listed in order of seniority. ---------
The plaintiffs raise no appellate argument concerning other materials they challenged in their motion to strike, and we therefore need not consider them. See Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 467 n.12 (1997) (regarding waiver).
Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016).
Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 55 (2005) (statistical evidence "fail[ed] to rebut [employer]'s proffered reasons for laying off [plaintiff] and d[id] not, by itself, create reasonable inferences of discriminatory animus and causation").
Madsen v. Erwin, 395 Mass. 715, 721 (1985) ("[c]onclusory statements . . . and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment" [quotation omitted]). The judge properly concluded that Joseph M.'s affidavit was inadequate to create a factual issue.