419 Mass. 437 (1995), Blare v. Husky Injection Molding Systems Boston, Inc.

Citation:419 Mass. 437, 646 N.E.2d 111
Case Date:February 09, 1995
Court:Supreme Judicial Court of Massachusetts

Page 437

419 Mass. 437 (1995)

646 N.E.2d 111

Donald BLARE



Supreme Judicial Court of Massachusetts, Worcester.

February 9, 1995

Argued Nov. 7, 1994.

[646 N.E.2d 113]

Page 438

Harvey A. Schwartz, Boston, for plaintiff.

Rosemary J. Nevins, Springfield, for defendants.


ABRAMS, Justice.

At issue is whether the Superior Court judge applied the appropriate standard in allowing the defendants' motions for summary judgment in a case alleging age discrimination under G.L. c. 151B (1992 ed.), and G.L. c. 93, § 103 (1992 ed.). 2 For the reasons stated in this opinion, we conclude that the defendants' motions for summary judgment should not have been allowed. We reverse and remand for further proceedings.

1. Facts. Reviewing the materials submitted for the summary judgment motion in the light most favorable to the nonmoving party (Blare), Wheatley v. American Tel. & Tel. Co., 418 Mass. 394, 396, 636 N.E.2d 265 (1994); White v. University of Mass. at Boston, 410 Mass. 553, 557, 574 N.E.2d 356 (1991), we recite the following facts. The plaintiff was employed by Husky as a machine operator from 1984 until April, 1992. At the time he was terminated, plaintiff was fifty-seven years old.

From 1984 until 1992, the plaintiff's file was free of disciplinary notices. The plaintiff does not dispute that his supervisor submitted formal disciplinary notices against him during the four months preceding his termination (January 1, 1992, until April, 1992). Rather, the plaintiff presented evidence that workers not within the protected age category

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who had similar disciplinary records were not terminated. To further support his contention that age, and not the disciplinary notices, were the basis of his termination, the [646 N.E.2d 114] plaintiff alleged that his supervisor asked on at least one occasion, "Are you getting too [sic] old that you can't handle two machines?" The plaintiff's affidavit further alleged that the supervisor told him that few people retired from Husky. On April 27, 1992, the plaintiff was terminated and younger employees assumed his duties.

The defendants filed motions for summary judgment on the ground that in admitting the notices the plaintiff failed to present evidence tending to show that Husky's explanation that its decision based on the notices was a pretext. The judge ordered summary judgment be entered for the employer on the ground that the record was devoid of evidence "to dispute the basic accuracy of the four documented disciplinary incidents of quality errors and low productivity in the three months between January 20 and the April 27 termination." We allowed the plaintiff's application for direct appellate review. We now reverse and remand for further proceedings.

2. Summary judgment standard. Summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment. 3 Brunner v. Stone & Webster Eng'g Corp., 413 Mass. 698, 705, 603 N.E.2d 206 (1992) ("where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate"), quoting Flesner v. Technical Communications Corp., 410 Mass. 805, 809, 575 N.E.2d 1107 (1991), because the ultimate issue of discriminatory intent is a factual question, Anderson v. Bessemer City, 470 U.S. 564, 572-573, 105 S.Ct. 1504, 1510-1511, 84 L.Ed.2d 518 (1985) (issue of intent in Federal discrimination cases is a question of fact). The ultimate question of the defendants' state of mind is elusive and rarely is established by other than circumstantial evidence, Wheelock College v. Massachusetts

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Comm'n Against Discrimination, 371 Mass. 130, 137, 355 N.E.2d 309 (1976), which requires the jury to weigh the credibility of conflicting explanations of the adverse hiring decision.

However, summary judgment is not always inappropriate in discrimination cases. Where a defendant's motion for summary judgment demonstrates that the plaintiff's evidence of intent, motive, or state of mind is insufficient to support a judgment in plaintiff's favor, we have upheld summary judgment in favor of defendants. See Brunner, supra, 413 Mass. at 705, 603 N.E.2d 206 (summary judgment for defendant where plaintiff failed to offer evidence sufficient to carry burden of persuasion on employer's discriminatory motive); McKenzie v. Brigham & Women's Hosp., 405 Mass. 432, 437-438, 541 N.E.2d 325 (1989) (summary judgment for defendant where plaintiff offered no admissible evidence that would carry burden of persuasion on intent at trial); Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 770, 493 N.E.2d 867 (1986) (summary judgment for defendant where plaintiff did not offer evidence sufficient to carry burden of persuasion on employer's discriminatory motive at trial).

3. Three-stage order of proof in discrimination cases. General Laws c. 151B, § 4 (1992 ed.), provides in relevant part: "It shall be an unlawful practice: ... 1B. For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification." Section 1(8) of G.L. c. 151B (1992 ed.) provides that "[t]he term 'age' unless a different meaning clearly appears from the context, includes any duration of time since an individual's birth of greater than forty years."

In applying Massachusetts' antidiscrimination statute, it has been our practice to follow the three-stage order of proof set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII. See Wheelock College v. Massachusetts Comm'n Against Discrimination,

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371 Mass. 130, 134-136, 355 N.E.2d 309 (1976), citing McDonnell Douglas Corp. [646 N.E.2d 115] v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); White v. University of Mass. at Boston, 410 Mass. 553, 557, 574 N.E.2d 356 (1991). Our holding in College-Town, Div. of Interco, Inc. v. Massachusetts Comm'n Against Discrimination, 400 Mass. 156, 163, 508 N.E.2d 587 (1987), stated that in interpreting G.L. c. 151B, "we may look to the interpretations of ... the ... Federal statute; we are not, however, bound by interpretations of the Federal statute in construing our own State statute." See also Lynn Teachers Union, Local 1037 v. Massachusetts Comm'n Against Discrimination, 406 Mass. 515, 521-522 n. 7, 549 N.E.2d 97 (1990).

Because the trial judge ruled that the plaintiff failed to "dispute the basic accuracy" of the disciplinary notices, the issue in this case is what evidence the plaintiff is required to produce at the third stage in the order of proof in discrimination cases to clear the summary judgment hurdle. It is useful to review each stage in the order of proof before reaching this issue.

In the first stage, the plaintiff has the burden to show by a preponderance of the evidence a prima facie case of discrimination. Since our decision in Wheelock College, supra, a plaintiff carries the burden of a prima facie case of discrimination with evidence that: (1) he is a member of a class protected by G.L. c. 151B; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) his employer sought to fill the plaintiff's position by hiring another individual with qualifications similar to the plaintiff's. See also White, supra, 410 Mass. at 557, 574 N.E.2d 356. We noted in Wheelock College, supra, 371 Mass. at 135 n. 5, 355 N.E.2d 309, that the elements of the plaintiff's initial burden may vary depending on the specific facts of a case. The prima facie case "eliminates the most common nondiscriminatory reasons for the plaintiff's rejection," Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981), thereby creating a presumption of discrimination.

In the second stage, the employer can rebut the presumption created by the prima facie case by articulating a legitimate, nondiscriminatory reason for its hiring decision. Wheelock College, supra 371 Mass. at 136, 355 N.E.2d 309, quoting McDonnell Douglas

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Corp., supra. "[A]n employer must not only give a lawful reason or reasons for its employment decision but also must produce credible evidence to show that the reason or reasons advanced were the real reasons." Wheelock College, supra at 138, 355 N.E.2d 309. This burden of production is not onerous. If the defendant fails to meet its burden, however, then the presumption created by the preponderance of evidence supporting a prima facie case entitles plaintiff to judgment.

Once the defendant articulates a nondiscriminatory reason for the challenged hiring action, the proceedings have reached the third stage in the order of proof. What the plaintiff must prove in the third stage of the order of proof has been controversial in Federal courts. 4 Prior to the Supreme Court's recent decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the Federal circuit courts of appeals were divided into "pretext plus" and "pretext only" jurisdictions. Those in favor of the pretext plus position argue that the presumption of intentional discrimination [646 N.E.2d 116] created by the plaintiff's prima facie case "bursts" when the defendant satisfies its second-stage burden of production, and requires a plaintiff in the third stage to prove that intentional...

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