Opinion
14-P-1115
06-17-2015
CAROLE J. ZANIBONI v. MASSACHUSETTS TRIAL COURT.
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
After failing to be selected for the positions of head administrative assistant (HAA) and deputy assistant registrar (DAR), the plaintiff, Carole J. Zaniboni, brought age discrimination claims against the defendant, the Massachusetts Trial Court (Trial Court) under G. L. c. 151B. A Superior Court jury returned a verdict for the Trial Court on the DAR claim, and in favor of Zaniboni on the HAA claim. The trial judge denied the Trial Court's motion for judgment notwithstanding the verdict (judgment n.o.v.), but allowed its motion for new trial on the HAA claim. Zaniboni appealed from the portion of the decision granting a new trial, and the Trial Court cross-appealed from the portion of the decision denying judgment n.o.v. This court reversed the denial of the motion for judgment n.o.v. and vacated the order allowing a new trial. Zaniboni v. Massachusetts Trial Ct., 81 Mass. App. Ct. 216, 222 (2012).
On further appellate review, without reaching the merits, the Supreme Judicial Court held that the appeal was premature because the new trial motion had been allowed, no timely petition for interlocutory appeal under G. L. c. 231, § 118, first par., had been filed, and the Superior Court judge's report of the case pursuant to Mass.R.Civ.P. 64(a), 365 Mass. 831 (1974), was insufficient to permit the interlocutory appeal. Zaniboni v. Massachusetts Trial Ct., 465 Mass. 1013, 1013-1014 & n.1 (2013). The Supreme Judicial Court thus discharged the report and remanded the case to the Superior Court for further proceedings. Id. at 1015.
On remand before a different judge (the trial judge having retired), the Trial Court moved for reconsideration of the earlier denial of its motion for judgment n.o.v. The motion judge undertook reconsideration and allowed the Trial Court's motion for judgment n.o.v. A final amended judgment entered, from which Zaniboni now appeals. Taking a fresh look at the trial record, and independently of the earlier published opinion of this court in this litigation, we conclude there was no error in the allowance of judgment n.o.v., and we therefore affirm.
When reviewing a decision on a motion for judgment n.o.v., the standard is whether "anywhere in the evidence, . . . any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff." Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006), quoting from Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972). The review is de novo; "[w]e do not defer to the judge's view of the evidence but examine the case anew, following the same standard the judge is obliged to apply." MacCormack v. Boston Edison Co., 423 Mass. 652, 659 (1996). The verdict must stand if the plaintiff offered any evidence from which the jury could have reasonably reached the verdict, disregarding evidence favorable to the moving party. Smith v. Bell Atl., 63 Mass. App. Ct. 702, 711 (2005).
The three-stage order of proof in an age discrimination case is as follows: (1) the plaintiff must establish a prima facie case of age-based employment discrimination; (2) the defendant may counter with nondiscriminatory reasons for its employment decision; and (3) the plaintiff must show that the basis for the employer's decision was unlawful discrimination. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-117 (2000); Somers v. Converged Access, Inc., 454 Mass. 582, 595 (2009). The plaintiff can accomplish the third-stage showing by demonstrating that the nondiscriminatory reasons that the employer claims support the adverse decision are pretextual. See Abramian, 432 Mass. at 117.
At the first stage, the plaintiff must prove, by a preponderance of the evidence, five elements to establish the prima facie case of age discrimination: (1) the plaintiff belonged to the class protected by G. L. c. 151B, i.e., she was over forty years old; (2) she was qualified for the job; (3) despite her qualifications, she was not hired for the job; (4) a person with similar or inferior qualifications was hired; and (5) the person hired was at least five years younger. See Somers, 454 Mass. at 595.
The parties disagree only on whether Zaniboni satisfied the fourth element. Zaniboni provided sufficient evidence for a reasonable jury to find that Ms. Devitt, who was ultimately hired for the HAA position, had similar qualifications: both worked within the court system for many years, had supervisory positions, and had many similar responsibilities. Zaniboni satisfied her prima facie case of age discrimination, so we continue to an analysis of the second stage. See ibid.
At the second stage, the Trial Court provided nondiscriminatory reasons for its hiring decision, including substantial evidence that Devitt was a superior candidate, rebutting the presumption of discrimination. See Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 442 (1995), citing Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976). Zaniboni had fourteen years of experience in the Plymouth division of the Probate and Family Court Department; she served in a supervisory role; she was a level ten employee; and she had a background in accounting, office management, and secretarial skills. Devitt, however, was a stronger candidate because she had worked for the Plymouth division for over eighteen years; she was a level thirteen employee; she had worked in every department of the probate registry, several in supervisory roles; and she assisted administrative assistants with payroll issues. The Trial Court cited multiple reasons for hiring Devitt over Zaniboni, including the former's greater supervisory experience, having worked in many different departments within the court, being a higher level employee, and having seniority. See G. L. c. 151B, § 4(17)(a) (bona fide seniority systems are lawful).
Finally, at the third stage, Zaniboni had to "show that the basis of the employer's decision was unlawful discrimination," Abramian, 432 Mass. at 117; that is to say, that the Trial Court's reasons for hiring Devitt were pretextual. As the motion judge noted, the evidence Zaniboni introduced regarding six promotions, where people in their thirties were promoted in the Plymouth division, was "anecdotal, incomplete and confusing," and did not give rise to a reasonable inference of age bias. The only potential evidence of age bias came from the statements allegedly made by the judge hiring for the DAR position, which she denied making, rather than the HAA position at issue in this appeal. Zaniboni did not prove a causal relationship between these alleged statements and the hiring panel's decision because, at most, they could have affected only one of its three members. Even if there was some connection, it would not be enough. Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) ("isolated or ambiguous remarks" alone suggesting animus based on age are insufficient to prove discriminatory intent). The union contract required that the senior of two otherwise similarly qualified candidates be hired, in this case Devitt. Zaniboni failed to produce any evidence to refute the Trial Court's reliance on Devitt's superior qualifications. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 53-54 (2005) (no discrimination where employer produced evidence that other employees were better qualified than plaintiff).
There was no specific information about those six employment decisions, which included the one at issue in this appeal, and no general statistics on the overall hiring practices in the Trial Court system.
Although we must take these statements as true, see Doe v. Senechal, 66 Mass. App. Ct. at 76, they fail to prove discriminatory animus.
Two of the three hiring panel members did not work in Plymouth County.
Amended judgment affirmed.
By the Court (Katzmann, Milkey & Agnes, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: June 17, 2015.