Scarlett v. City of Bos.

• Decision Date: 19 July 2018
• Docket Number: No. 17-P-998,17-P-998
• Citation: 107 N.E.3d 1179,93 Mass.App.Ct. 593
• Parties: Lisa SCARLETT v. CITY OF BOSTON.
• Court: Appeals Court of Massachusetts

93 Mass.App.Ct. 593
107 N.E.3d 1179

Lisa SCARLETT
v.
CITY OF BOSTON.

No. 17-P-998

Appeals Court of Massachusetts, Suffolk..

Argued March 5, 2018
Decided July 19, 2018

Mitchell J. Notis, Boston, for the plaintiff.

Lena-Kate K. Ahern, Assistant Corporation Counsel, for the defendant.

Present: Vuono, Hanlon, & Wendlandt, JJ.

WENDLANDT, J.

After the defendant Boston public school department (BPS) declined to renew her employment contract to work as a second grade teacher, the plaintiff, Lisa Scarlett, brought an action in two counts, alleging, inter alia, that BPS violated G. L. c. 151B, § 4, by discriminating against her on the basis of her race (count I). A Superior Court judge allowed BPS's motion for summary judgment and dismissed her complaint. On appeal, we apply the familiar three-stage McDonnell Douglas paradigm for assessing an employer's motion for summary judgment with respect to an employee's claim of racial discrimination in the context of a work force reduction. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See also

107 N.E.3d 1182

Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138, 355 N.E.2d 309 (1976). Finding that Scarlett met her burden under this paradigm, we reverse the judgment as to count I.¹

Background. We briefly summarize the material facts in the 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, 825 N.E.2d 522 (2005). In November of 2009, Scarlett, a black woman of Jamaican descent, was hired as a full-time provisional teacher, teaching second grade in a general education classroom at the David A. Ellis elementary school (Ellis school), a school which is part of BPS. Provisional teachers are hired under one-year contracts. Every spring, BPS issues "reasonable assurance letters" to provisional teachers whom it intends to retain for the following school year.² Scarlett received a reasonable assurance letter in the spring of 2010, and her contract was renewed for the 2010-2011 school year. Again, Scarlett taught second grade in a general education classroom.

In October of 2010, BPS entered into an interim settlement agreement with the civil rights divisions of the United States Departments of Justice and Education regarding services provided to "English Language Learner" (ELL) students. Pursuant to the settlement agreement, BPS agreed to provide ELL students with sheltered English immersion (SEI) programs in core content classes, and also to train and to hire a sufficient number of teachers to serve ELL students.³ In order to adequately serve its diverse student body,⁴ BPS began requiring its provisional teachers either to obtain English as a second language (ESL) certification or to attend ESL "category" trainings.⁵

In the 2010-2011 school year, the racial demographics of the student body and staff at the Ellis school were as follows:

 Student Body Staff
                 Hispanic 61.4% 28.2%
                 Black 37.0 46.2
                 White, Asian, or 1.5 23.1 (White)
                 other/multiracial
                 Native American 0 2.6
                

As previously indicated, Scarlett's race is black.

107 N.E.3d 1183

Approximately forty percent of Ellis school students were ELL students.

In February of 2011, Norman Townsend became principal of the Ellis school, and shortly thereafter was informed that BPS faced a $63 million budget shortfall for the upcoming 2011-2012 school year. BPS was required, as a result, to reduce staff. The Ellis school was no exception; Townsend was forced to reduce the Ellis school staff, including some provisional teachers. In doing so, Townsend prioritized maintaining the services, including the SEI program,⁶ it was providing to its ELL students, many of whom required services in Spanish.

There were seven provisional teachers, including Scarlett, whose contracts were subject to nonrenewal in view of the budget shortfall: two Hispanic SEI teachers (one was ESL certified and the other was not, but had majored in Spanish in college); three ESL certified white teachers (two of whom taught SEI classes and one of whom taught music); and two black teachers (Scarlett and a math specialist). Scarlett and the math specialist both lacked SEI teaching experience, and the math teacher also lacked ESL certification. Scarlett had been working on her ESL certification and received it on June 17, 2011, three days after BPS informed her that her contract would not be renewed for the 2011-2012 school year.

In connection with the annual "probable organization" meeting, during which BPS administration representatives met with leadership from the Ellis school to decide how properly to staff the school for the upcoming 2011-2012 school year, Townsend recommended that neither Scarlett nor the other black provisional teacher (the math specialist) be renewed.⁷ Scarlett did not receive a reasonable assurance letter, and in June of 2011,⁸ BPS informed Scarlett that, due to budget constraints, her contract would not be renewed for the 2011-2012 school year.⁹ The math specialist also did not receive a reasonable assurance letter and was not renewed; his position was cut at the end of the 2010-2011 school year.¹⁰

Procedural history. Scarlett filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging that she was terminated because of her race or national origin in violation of G. L. c. 151B, § 4. MCAD dismissed the complaint for lack of probable cause. Scarlett then commenced the present civil action against BPS in Superior Court. Ruling on BPS's motion for summary judgment, the judge "assume[d] that Scarlett ha[d] made out a prima facie case of discrimination based on her race/color and national origin," but granted summary judgment in favor of BPS even though Scarlett had produced evidence that BPS had provided "inconsistent reasons" for her termination.

107 N.E.3d 1184

In doing so, the judge reasoned that "the mere existence of evidence that in some contexts may support an inference of pretext does not defeat summary judgment, if no reasonable trier of fact could find discriminatory animus when all the evidence and reasonable inferences favorable to the plaintiff are considered." This appeal followed.

Discussion. We review the allowance of a motion for summary judgment de novo to determine whether the moving party has established that, viewing the evidence in the light most favorable to the opposing party, "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, 46 N.E.3d 24 (2016), quoting from Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474, 984 N.E.2d 286 (2013). See Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). An employer seeking summary judgment in a discrimination case faces a high burden because "the question of the employer's state of mind (discriminatory motive) is elusive and rarely is established by other than circumstantial evidence." Sullivan, 444 Mass. at 38, 825 N.E.2d 522 (quotation omitted). Accordingly, summary judgment in such cases is "disfavored." Ibid.

General Laws c. 151B, § 4, as amended by St. 1989, c. 516, § 4, provides, in pertinent part, that "[i]t shall be an unlawful practice ... [f]or an employer ... because of the race [or] color ... of any individual ... to discharge from employment such individual ...." To survive summary judgment on claims brought under this provision, an employee alleging discrimination must produce evidence from which a reasonable jury may infer "four elements: membership in a protected class, harm, discriminatory animus, and causation." Lipchitz v. Raytheon Co., 434 Mass. 493, 502, 751 N.E.2d 360 (2001). Here, only the last two elements -- discriminatory animus and causation -- are in question.

Because direct evidence of these elements is rare, an employee may survive summary judgment by providing "indirect or circumstantial evidence [of these elements] using the familiar three-stage, burden-shifting paradigm [originally set forth] in McDonnell Douglas Corp. v. Green, 411 U.S. [at] 802-805 [93 S.Ct. 1817]," Bulwer, 473 Mass. at 681, 46 N.E.3d 24 (quotation omitted), and adopted by the Supreme Judicial Court in Wheelock College, 371 Mass. at 138, 355 N.E.2d 309. At the first stage of this paradigm, the employee must establish, by a preponderance of the evidence, a prima facie case of discrimination. Sullivan, 444 Mass. at 40, 825 N.E.2d 522. In a "reduction in force case" such as the present case,¹¹ in order to meet this burden, the employee must produce evidence that (i) she is a member of a protected class; (ii) she performed her job at an acceptable level; (iii) she was terminated; and (iv) her layoff occurred in circumstances that raise a reasonable inference of unlawful discrimination. Id. at 41, 45, 825 N.E.2d 522. If the employee is successful at establishing a prima facie case, the burden shifts to the employer, at the second stage, to rebut the prima facie showing by "articulating a legitimate, nondiscriminatory reason for its employment decision." Bulwer, 473 Mass. at 681, 46 N.E.3d 24 (quotation omitted). "[A]n employer must not only give a lawful...