Opinion
No. 15–P–1385.
10-31-2016
Thomas WELGOSS v. MASSACHUSETTS DEPARTMENT OF TRANSPORTATION.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Thomas Welgoss, challenges an order of a Superior Court judge granting summary judgment in favor of the defendant, the Massachusetts Department of Transportation (MassDOT), on his employment discrimination claim based on sex and age pursuant to G.L. c. 151B. The plaintiff was terminated by MassDOT following its merger with the Massachusetts Turnpike Authority (MTA). On appeal, the plaintiff claims that the motion judge erroneously concluded that he failed to establish a prima facie case of sex and age discrimination in the elimination of his position and, thus, improperly granted summary judgment in favor of MassDOT. We affirm for largely the same reasons stated by the motion judge.
1. Background. “We briefly summarize the basic facts in their light most favorable to [the plaintiff], the nonmoving party, reserving additional facts for later discussion.” Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 (2005). The plaintiff was hired as the director of risk management for the MTA in December, 2000. On November 1, 2009, MassDOT merged with and replaced the MTA. Shortly thereafter, the Governor instructed MassDOT to implement a budget reduction plan in accordance with G.L. c. 29, § 9C. The plan proposed a workforce reduction in three stages: voluntary layoffs, the elimination of managerial positions, and the elimination of administrative positions. Twelve managerial and administrative positions, including the plaintiff's, were eliminated. Of these positions, six were occupied by men and six were occupied by women. Five were occupied by employees known to be over the age of forty. At sixty-seven years old, the plaintiff was the oldest manager terminated.
The plaintiff's employment with MassDOT ended on February 26, 2010. MassDOT acknowledged that the plaintiff was terminated to save costs, not because of any performance deficiencies or other issues specific to him. One of the plaintiff's female subordinates, Lidy Chan, age forty-three, was not identified for layoff. Chan had worked under the plaintiff's tutelage as the MTA's risk financing manager for four years prior to the merger. The plaintiff testified that Chan's “job performance require[d] significant improvement” and that she had difficulty understanding and managing insurance policies, a key component of her job. Many of the plaintiff's duties following his termination were reassigned to Chan. Chan did not, however, receive the plaintiff's title, a raise, or any other benefits as a result of the additional work.
Although Chan began her employment at the MTA in 2006, the plaintiff did not perform any written evaluations of Chan from 2007 to 2010.
The plaintiff subsequently filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging that he was terminated because of his sex and age in violation of G.L. c. 151B. The plaintiff then commenced this action against MassDOT in Superior Court.
The plaintiff removed the case pursuant to G.L. c. 151B, § 9.
2. Discussion. a. Standard of review. Summary judgment is appropriate where the moving party demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016), quoting from Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474 (2013). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). “[W]e conduct a de novo examination of the evidence in the summary judgment record ... and view the evidence in the light most favorable” to the opposing party. Bulwer, supra, quoting from LaBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012).
b. Relevant legal principles. To prevail on a claim of employment discrimination pursuant to G.L. c. 151B, an employee must prove four elements: membership in a protected class, harm, discriminatory animus, and causation. Because direct evidence of discriminatory animus and causation rarely exists, a plaintiff may establish one or both of those elements using the three-stage burden shifting paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–805, (1973).
The plaintiff in the present case has not produced any direct evidence of sex or age discrimination, and we therefore confine our analysis to considering whether he has adduced sufficient circumstantial evidence to survive summary judgment under the McDonnell Douglas framework.
“Under the McDonnell Douglas formulation, [the plaintiff] bears the initial burden of establishing by a preponderance of the evidence a prima facie case of discrimination.” Sullivan, 444 Mass. at 40. In a “reduction in force case,” where an employer reorganizes its workforce, the plaintiff must demonstrate: (1) membership in a protected class; (2)performance of the job at “an acceptable level”; (3) termination; and (4) the layoff occurred in circumstances that raise a “reasonable inference of unlawful discrimination.” Id. at 41, 45. Specifically, with respect to the fourth element, the plaintiff must show that the employer retained employees outside of his or her protected class in the same position, or otherwise failed to treat the class neutrally in deciding which positions to eliminate. See id. at 43. See also Lewis v. Boston, 321 F.3d 207, 216–217 (1st Cir.2003). If the plaintiff makes such a showing, a presumption of discrimination arises. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). The employer may rebut this presumption by articulating a legitimate, nondiscriminatory reason for its decision. See ibid. The burden then shifts back to the plaintiff to produce evidence that the employer's articulated reason for its decision is “not true but a pretext.” Bulwer, 473 Mass. at 681, quoting from Blare, supra.
The fourth element, as generally formulated, requires the plaintiff to prove that the employer sought to fill his or her position by hiring another individual with similar qualifications. See Sullivan, supra. The Supreme Judicial Court has recognized, however, that in a reduction in force case, the fourth element is “nonsensical.” Ibid. “[T]he plaintiff is not replaced, nor does [his] employer ‘seek to fill’ the position, for the very purpose of a workforce reorganization is generally to reduce the number of employees.” Ibid.
b. Plaintiff's prima facie case. The dispute in this case concerns the fourth element of the plaintiff's prima facie case. The plaintiff argues that his layoff occurred under circumstances that raise a reasonable inference of unlawful discrimination because MassDOT retained Chan, a female subordinate twenty-four years younger than him, who had less experience and proficiency than him, and reassigned his duties to her. We disagree.
MassDOT does not dispute that the plaintiff satisfied the first three elements of his prima facie case. “Indeed, it is likely that in a reduction in force case every plaintiff claiming sex or age discrimination can easily satisfy the first three elements of the prima facie case.” Sullivan, 444 Mass. at 41. “Rather, the dispute will almost always concern the fourth element.” Ibid. We therefore focus our inquiry on whether the plaintiff produced sufficient evidence of the fourth element of his prima facie case.
MassDOT's retention of Chan does not give rise to a reasonable inference of unlawful discrimination because the plaintiff and Chan are not “similarly situated.” Trustees of Health & Hosps. of Boston v. Massachusetts Commn. Against Discrimination, 449 Mass. 675, 682 (2007), quoting from Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). Although it is not “absolutely necessary” for a plaintiff to provide a similarly situated comparator in establishing his or her prima facie case, it is “usually the most probative means of proving that an adverse action was taken for discriminatory reasons.” Id. at 683. A similarly situated comparator is one whose circumstances are “substantially similar to those of the [plaintiff] ‘in all relevant aspects' concerning the adverse employment decision,” such that “a prudent person ... would think them roughly equivalent.” Ibid., quoting from Ocean Spray Cranberries, supra.
Here, the plaintiff and Chan are not similarly situated because Chan held a different title, received different pay and benefits, and performed separate and independent duties from the plaintiff. Specifically, Chan was a union employee—not management—and earned approximately $22,500 less per year than the plaintiff. MassDOT explained that it terminated the plaintiff and retained Chan because the plaintiff earned a higher salary and occupied a management position, which was to be eliminated before union positions under the budget reduction plan. MassDOT also explained that following the merger, the need for extensive risk management decreased, because the Legislature provided increased protection from certain claims. Although Chan had less experience than the plaintiff, and the plaintiff testified that Chan had some difficulty performing her job, “our task is not to evaluate the soundness of [MassDOT's] decision making, but to ensure it does not mask discriminatory animus.” Sullivan, 444 Mass. at 56. Because the plaintiff has not provided any direct evidence of discrimination, and failed to demonstrate that MassDOT treated him differently than a similarly situated employee outside of his protected class, he has failed to raise a reasonable inference of unlawful discrimination.
See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138–139 (1976) (“even if the commission thinks the employer's action was arbitrary or unwise, the employer has fulfilled its obligation”); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766–768 (1986) (“[t]he reasons given for a decision may be unsound or even absurd,” but if the reasons are nondiscriminatory and no pretext can be proved, a plaintiff's claim must fail).
Moreover, although MassDOT reassigned the plaintiff's duties to Chan, such reallocation of duties does not amount to “retain[ing] personnel outside of [the] protected class in the same position.” Lewis v. Boston, 321 F.3d at 211, 214. See Sullivan, supra at 41. It is undisputed that the plaintiff's position was eliminated as part of a budget reduction plan at the Governor's directive pursuant to G.L. c. 29, § 9C. Moreover, Chan continued to perform her separate and independent duties in addition to assuming the plaintiff's responsibilities. She did not receive the plaintiff's job title, or any other management position, following the merger. As the motion judge aptly noted, the fact that many of the plaintiff's duties were reassigned to Chan shows only that he performed necessary work for the department. Making organizational changes to perform the same work with fewer employees is the defining feature of a reduction in force; it, alone, is not evidence of discrimination. The fact that six of the twelve eliminated positions were occupied by men and five were occupied by employees known to be over the age of forty also provides no evidence of either age or sex discrimination. The numbers alone and without further explanation appear neutral and provide no reasonable inference of discrimination.
We recognize that “summary judgment is a disfavored remedy” in discrimination cases and that the plaintiff's burden at this stage is “not onerous.” Sullivan, supra at 38, 40. However, the plaintiff in the present case “is unable to offer admissible evidence of [MassDOT's] discriminatory intent, motive, or state of mind sufficient to carry [his] burdens and support a judgment in [his] favor.” Id. at 39, quoting from Ocean Spray Cranberries, 426 Mass. at 127. MassDOT's retention of Chan and reassignment of the plaintiff's duties to her does not raise a reasonable inference of unlawful discrimination in this context. The motion judge therefore properly granted summary judgment in favor of MassDOT on the plaintiff's sex and age discrimination claims.
Even assuming that the plaintiff made out a prima facie case of sex and age discrimination, we would still affirm. As the motion judge concluded, MassDOT advanced a legitimate, nondiscriminatory reason for terminating the plaintiff over Chan: the need to reduce the agency's budget, his higher salary, his management position, and the decreased need for risk management following the merger. The plaintiff's attempts to prove these reasons false and a “mere pretext” are unpersuasive. Somers v. Converged Access, Inc., 454 Mass. 582, 599 (2009). He challenges MassDOT's cost-cutting rationale by arguing that MassDOT would have saved more money by retaining him because he was involved in efforts to recover more than $20,000,000 for the Commonwealth at the time of his termination. Such savings are speculative. Moreover, there is no indication MassDOT abandoned its efforts to recoup this money without the plaintiff. Finally, we do not judge the wisdom, or lack thereof, of MassDOT's short-term budget cutting strategy, just whether it gives rise to a reasonable inference of discrimination, which it does not here. See Sullivan, supra at 56.
Judgment affirmed.