Opinion
No. 06-3534-C.
January 4, 2008.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
The plaintiff, Maurice Broomes ("Broomes"), was formerly employed by the defendant, Blue Cross Blue Shield of Massachusetts ("Blue Cross"). The defendants, Suzanne Leary ("Leary"), Suzanne Seely ("Seely"), and Michael Avotins ("Avotins") (collectively "the Individual Defendants"), were Broomes superiors at Blue Cross. In his complaint, Broomes alleges that Blue Cross violated G. L. c. 151B by discriminating against him because of his race (Count I), that the Individual Defendants defamed him (Count II), and that the Individual Defendants interfered with his advantageous contractual relationship (Count III). Both Blue Cross and the Individual Defendants have moved for summary judgment pursuant to Mass. R. Civ. P. 56; Blue Cross on Count I and the Individual Defendants on Counts II and III. For the following reasons, the defendants' motions for summary judgment are allowed.
BACKGROUND
The undisputed facts and the disputed facts viewed in the light most favorable to the non-moving party, as revealed by the summary judgment record, are as follows.
In 1991, Blue Cross hired Broomes as a full-time Claims Examiner. Eventually, Broomes began working in the Enrollment Operations department where he ascended through the ranks to the position of Analyst IV. In Enrollment Operations, Broomes worked to ensure Blue Cross's computerized enrollment systems complied with the Federal Health Insurance Portability and Accountability Act of 1996. Broomes' day-to-day duties involved computer programming and overseeing some Enrollment Operations personnel.
Analyst IV is a "K" level position at Blue Cross; Blue Cross ranks positions from "A" to "Q."
From 1991 until 2001, Broomes received an "Exceeds Expectations" annual evaluation. However, in 2002, friction began to develop between Broomes and Seely, the Director of Enrollment Operations. Broomes was allegedly frustrated because Seely would not hire personnel to support him. In 2002, Broomes received a "Meets Expectations" evaluation. In June 2003, increasingly upset with Seely, Broomes tendered his resignation. After receiving Broomes resignation, Seely asked Broomes to reconsider. Seely convinced Broomes to return and he resumed his employment at Blue Cross. Broomes contends that his return to Blue Cross was contingent on Seely providing additional support for his position.
In June 2003, after Broomes return, Seeley reorganized Enrollment Operations, adding an additional managerial level above Broomes. Specifically, Seely created a Senior Manager of Technology and Business Coordination ("Senior Manager") position. This position required strong leadership skills and the ability to "professionally develop a team of 2 Managers and 2 Senior Analysts (level K) that provide automated enrollment solutions. . . ." The position also required the technical expertise necessary to coordinate with computer hardware and software engineers. In August 2003, Blue Cross advertised this position across the entire company and Seely brought the opportunity to Broomes' attention. Ten to fifteen Blue Cross employees, including Broomes and Leary, applied for the position.
Seely reviewed the applications and the resumes of each candidate. After reviewing Broomes' resume, Seely determined that Broomes was experienced as a Team Leader in Enrollment Operations and that Broomes had a Computer Systems Specialist Certificate and a Bachelor's of Science Degree in Business Administration from Northeastern University. Examining Leary's resume, Seely noted that Leary was a Senior Manager in the Customer Service department, overseeing five Supervisors, two Quality Coaches, and one hundred twenty-five Associates. Because Leary had previously worked under Seely in the Member Services department, Seely was also familiar with Leary's work. However, Leary did not have a Bachelor's degree or a technical education.
Seely interviewed candidates for the Senior Manager position. During each interview, Seely completed a questionnaire to evaluate the candidates. However, Seely did not complete an interview questionnaire for Leary, because the two engaged in an informal discussion. After reviewing the applications and conducting interviews, Seely concluded that Broomes' managerial experience did not compare to Leary's. Seely recommended to Avotins that Leary be given the Senior Manager position. Avotins accepted Seely's suggestion and promoted Leary to the Senior Manager position.
On September 15, 2003, Leary assumed the Senior Manager position, becoming Broomes direct supervisor. On October 1, 2003, Broomes met Leary for the first time. At that meeting, Broomes alleges that Leary "wiggled" her head in an unprofessional manner. Thereafter, Broomes glared at her. Because he could think of no other reason for Leary's behavior, Broomes concluded Leary was displaying discriminatory tendencies.
On October 21, 2003, Broomes sent an email to a coworker complaining that he was having to use his personal time to complete projects for Blue Cross. The coworker forwarded Broomes' email to Leary. On October 28, 2003, Leary and Seely thanked Broomes for his hard work.
In late October 2003, Seely, Leary, and Broomes met to discuss hiring a temporary worker to support Broomes. Seely and Leary gave Broomes the resume of Peter Jensen ("Jensen") and asked Broomes to provide feedback. Jensen was subsequently hired. While working at Blue Cross, Jensen sent a number of emails complaining to Leary that Broomes was uncooperative. Broomes alleges that Leary and Seely favored Jensen after Broomes observed that they met with Jensen more often than Broomes. Because Jensen was Caucasian, Broomes concluded Leary and Seely were acting in a discriminatory manner.
Between October 2003 and February 2004, Leary arranged to meet with Broomes about his job performance. Broomes failed to attend several of those meetings. When Broomes did attend, he appeared upset and frustrated.
Broomes notes that the defendants have not provided documentation showing he did not attend these meetings.
In February 2004, Leary concluded Broomes was not acting as a "team player." On March 4, 2004, Broomes received a "four" ("needs improvement") out of five on his 2003 annual evaluation. According to Broomes, a "four" is a bad evaluation. Broomes received half his potential bonus for 2003. Broomes met with Seely who intended to discuss his 2003 evaluation, however Broomes refused to read the evaluation, appearing upset and agitated.
On March 20, 2004, Broomes filed a complaint with the Massachusetts Commission Against Discrimination ("MCAD") and the Equal Employment Opportunity Commission ("EEOC"). In his MCAD/EEOC complaint, Broomes alleged that Blue Cross discriminated against him by denying his promotion to Senior Manager. On May 28, 2004, the EEOC dismissed Broomes complaint for lack of probable cause.
Leary was unaware of Broomes' MCAD or EEOC complaints until after Broomes was terminated.
Also in May 2004, Leary and Seely discussed Broomes' job performance and concluded that he should be terminated. Leary and Seely recommended to Avotins that Broomes be terminated. Broomes alleges that the Individual Defendants facilitated his termination, defaming him by saying that he was a deficient employee and that his coworkers found him threatening. On June 2, 2004, Blue Cross terminated Broomes. Broomes alleges that Blue Cross did not provide any reasons for his termination. After Blue Cross terminated Broomes, Christopher Boucher ("Boucher"), Broomes former manager, took over Broomes job duties and responsibilities. After his termination, Broomes amended his MCAD complaint to include discriminatory termination.
It is unclear whether Broomes' MCAD complaint has been stayed or resolved. However, Blue Cross does not dispute that Broomes present claim is properly before this court.
On August 22, 2006, Broomes brought this action against Blue Cross and the Individual Defendants. On October 22, 2007, Blue Cross moved for summary judgment on Count I of Broomes' complaint and the Individual Defendants moved for summary judgment on Counts II and III of Broomes Complaint.
DISCUSSION
Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Mass. R. Civ. P 56(c); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422 (1983); Community Nat'l Bank v. Dawes, 369 Mass. 550, 553 (1976). It is the moving party's burden to affirmatively demonstrate the absence of a triable issue, and that the summary judgment record entitles him to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). The moving party may satisfy this burden either by submitting affirmative evidence that negates an essential element of the opposing party's case or by demonstrating that the opposing party has no reasonable expectation of proving an essential element of his case at trial. Flesner v. Technical Commc'ns Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. Gen. Motors Corp., 410 Mass. 706, 716 (1991).
However, summary judgment is a disfavored remedy in discrimination cases based on disparate treatment "where motive, intent, or other state of mind questions are at issue. . . ." Brunner v. Stone Webster Eng'g Corp., 413 Mass. 698, 705 (1992), citing Flesner, 410 Mass. at 809. Still, where the plaintiff fails to provide sufficient evidence demonstrating discriminatory motive, summary judgment in favor of the defendant is appropriate. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995); Brunner, 413 Mass. at 705 (holding that the plaintiff failed to set forth sufficient facts demonstrating the defendant included her in a layoff because of her sex); McKenzie v. Brigham Women's Hosp., 405 Mass. 432, 437-438 (1989) (holding that the defendant had not presented any admissible evidence sufficient to defeat the plaintiff's motion for summary judgment).
I. Broomes' Claims for Race Discrimination and Discriminatory Retaliation (Count I)
In Count I of his complaint, Broomes alleges that Blue Cross discriminated against him because of his race with respect to his lack of promotion and with respect to his subsequent termination. General Laws c. 151B, § 4 dictates that it is unlawful "[f]or an employer, by himself or his agent, because of the race, color . . . or ancestry of any individual . . . 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." With respect to G. L. c. 151B discrimination claims, Massachusetts courts apply the Supreme Court's three-stage order of proof used pursuant to the federal anti-discrimination provisions of Title VII. Blare, 419 Mass. at 440, citing Wheelock Coll. v. Mass. Comm'n Against Discrimination, 371 Mass. 130, 134-136 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
When construing G. L. c. 151B, the Court has stated: "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." College-Town, Div. of Interco, Inc. v. Mass. Comm'n Against Discrimination, 400 Mass. 156, 163 (1987).
Under the first stage, the plaintiff has the burden of showing, by a preponderance of the evidence, a prima facie case of discrimination. Blare, 419 Mass. at 441. Generally, to succeed on his race discrimination claim, a plaintiff must demonstrate (1) membership in a protected class, (2) harm, (3) discriminatory animus, and (4) causation. Trustees of Health v. Mass. Comm'n Against Discrimination, 449 Mass. 675, 681-682 (2007); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005); Lipchitz v. Raytheon Co., 434 Mass. 493, 503 (2001). However, the elements that make up the plaintiff's prima facie case depend upon the specific facts of the case. Wheelock Coll., 371 Mass. at 135 n. 5. Therefore, with respect to Broomes' allegations that he was discriminatorily denied a promotion, he must demonstrate that (1) he was a member of a protected class; (2) he was qualified for the position sought; (3) he was considered and denied the position; and (4) other employees with similar qualifications who were not members of the protected group were promoted at the time the he was denied the promotion. Radvilas v. Stop Shop, Inc., 18 Mass. App. Ct. 431, 439-440 (1984). With respect to the alleged discriminatory termination, Broomes must demonstrate that: (1) he is a member of a protected class; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) that Blue Cross filled his position with another individual with qualifications similar to his own. See Blare, 419 Mass. at 441, citing White v. Univ. of Mass., 410 Mass. 553, 557 (1991). If Broomes can make out a prima facie case for discrimination, he establishes a rebuttable presumption of discrimination. Blare, 419 Mass. at 441, citing Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981).
A finding of discriminatory motive can be based upon reasonable inferences drawn from differences in treatment of two groups. Smith Coll. v. Mass. Comm'n Against Discrimination, 376 Mass. 221, 228 (1978).
Under the second stage, in response to the plaintiff's prima facie case for discrimination, the defendant employer must articulate a nondiscriminatory reason or reasons for the adverse employment action. Blare, 419 Mass. at 441, citing Wheelock Coll., 371 Mass. at 136. However, "an 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 Coll., 371 Mass. at 138. Therefore, if Blue Cross fails to articulate a nondiscriminatory reason for its actions, the presumption created by the preponderance of the evidence supporting the plaintiff's prima facie case entitles the plaintiff to judgment. Blare, 419 Mass. at 442.
Under the third stage of the analysis, once the plaintiff has articulated his prima facie case and the defendant has offered nondiscriminatory reasons for its employment action, the plaintiff must show by direct evidence that the defendant's reasons are pretextual or that the defendant's real motivation was discriminatory. Id. at 444-445. It follows that if Broomes can establish his prima facie case for discrimination, and if Broomes can produce sufficient evidence that Blue Cross's reasons were pretexual or that Blue Cross was actually motivated by discrimination, summary judgment in favor of Blue Cross would be inappropriate. Id. at 445.
A. Alleged Discriminatory Failure to Promote
In his complaint, Broomes alleges that Blue Cross discriminated against him when it failed to promote him. Here, neither party disputes that Broomes is African-American, that he was considered for the promotion and that he was not promoted. Thus, to make out his prima facie case for discrimination with respect to his failed promotion, Broomes must demonstrate that he was qualified for the position, and that other employees of similar qualification who were not African-American were promoted instead.
To support his claim, Broomes argues that Seely erroneously weighed his qualifications against Leary's. However, ultimately, Broomes has not provided sufficient evidence demonstrating he was qualified for the Senior Manager position. Most importantly, Broomes lacked experience overseeing other managers. Moreover, nothing in the summary judgment record with respect to Broomes' failed promotion supports a reasonable inference of discrimination. In particular, Broomes does not allege that he was treated differently than any of the other applicants besides Leary — who was promoted. Unable to provide sufficient evidence to support his prima facie case for discrimination, summary judgment in favor of Blue Cross, with respect to Broomes' failed promotion, is appropriate.
Broomes contends he was a particularly strong candidate given his technical computer-related expertise as well as his experience working in Enrollment Operations. Leary had experience overseeing supervisory employees and a previous working relationship with Seely despite lacking a technical background.
B. Alleged Discriminatory Termination
In Count I of his complaint, Broomes also alleges that Blue Cross discriminatorily terminated him. With respect to this allegation, Broomes must show membership in a protected class, that he performed his job at an acceptable level, that he was terminated, and that his position was filled by someone with similar qualifications. Again, neither party disputes that Broomes is African-American or that he was terminated. Therefore, with respect to his termination, to make out his prima facie case for discrimination, Broomes must demonstrate that he performed his job at an acceptable level and that someone with comparable qualifications filled his position.
The fact that Broomes exceeded expectations through 2001, and that he met expectations in 2002, suggests he was performing his job at an acceptable level. In addition, Blue Cross has not produced documentation indicating it ever disciplined Broomes. Moreover, after Broomes resigned in 2001, Seely asked him to return; Seely's actions indicate Broomes was a valued employee. The record also reflects that Boucher, an employee with similar qualifications to Broomes, took over Broomes' position. Thus, Broomes has established his prima facie case for discrimination by providing sufficient evidence that he performed his job at an acceptable level and that after his termination, a person with similar qualifications assumed his position.
Because Broomes has succeeded in establishing his prima facie case for discriminatory discharge, Blue Cross must put forth non-discriminatory reasons for terminating Broomes. To this end, Blue Cross notes that in 2003, Broomes became uncooperative and generally upset with his employer. In particular, Broomes failed to work constructively with other Blue Cross employees. Ultimately, Broomes' 2003 evaluation read: "Needs Improvement." Broomes thwarted Blue Cross's attempts to resolve his employment issues by failing to attend meetings and failing to accept his superior's criticism.
As Blue Cross has articulated non-discriminatory reasons for Broomes' termination, Broomes must put forth some evidence indicating that those reasons were pretextual or that Blue Cross's real motivation was discriminatory. However, nothing in the record indicates Blue Cross manufactured the reasons for Broomes' termination or that Blue Cross was motivated by discrimination. Broomes' allegations of discriminatory conduct on the part of his superiors are too speculative to survive summary judgment. Thus, summary judgment in favor of Blue Cross as to Count I of Broomes complaint is appropriate.
In his opposition to the defendants' motions, Broomes argues that the defendants have changed their account of events thereby indicating the articulated reasons for his discharge are pretextual. However, these variations do not amount to substantive changes in position sufficient to raise a genuine issue of material fact as to whether Blue Cross's reasons for terminating Broomes are false.
II. Broomes' Defamation Claim (Count II)
In Count II of his complaint, Broomes alleges that the Individual Defendants made defamatory statements that caused him not to be promoted, and ultimately, to be terminated. To succeed on his defamation claim, Broomes must show that the Individual Defendants published a false statement about him to a third party that either caused him economic loss or was the type of statement that is actionable without proof of economic loss. See, e.g., Phelan v. May Dept. Stores. Co., 443 Mass. 52, 55-56 (2004) (holding the plaintiff failed to demonstrate that a third party would have reasonably interpreted the defendant's conduct as defamatory); White v. Blue Cross Blue Shield of Mass., Inc., 442 Mass. 64, 66 (2004) (holding the defendant employer was not liable for defamation as it terminated the plaintiff based upon the alleged defamatory statements of a third party). A defamatory statement is one that "would tend to hold the plaintiff up to scorn, hatred, ridicule or contempt, in the minds of any considerable and respectable segment in the community." Stone v. Essex County Newspapers, Inc., 367 Mass. 849, 853 (1975).
In the context of an employer-employee relationship, an employer is privileged to "disclose defamatory information concerning an employee when the publication is reasonably necessary to serve the employer's legitimate interest in the fitness of an employee to perform his or her job." White, 442 Mass. at 71, quoting Bratt v. Int'l Bus. Machs. Corp., 392 Mass. 508, 509 (1984). This privilege serves the important purpose of promoting the free flow of information in the workplace. Bratt, 392 Mass. at 509. However, an employer loses this privilege if it (1) knew the information was false, (2) had no reason to believe it to be true, or (3) recklessly published the information unnecessarily, unreasonably or excessively. Dragonas v. Sch. Comm. of Melrose, 64 Mass. App. Ct. 429, 438 (2005) (holding that there was a genuine issue of fact as to whether the employer's alleged defamatory statements were false and as to whether employer made the statements with malice); Sklar v. Beth Israel Deaconess Med. Ctr, 59 Mass. App. Ct. 550, 558 (2003); see also, White, 442 Mass. at 71; Bratt, 392 Mass. at 509. The employee bears the burden of demonstrating that the employer acted recklessly. Foley v. Polaroid Corp., 400 Mass. 82, 95 (1987).
Here, Broomes alleges that the Individual Defendants defamed him when they criticized his work performance and made statements alleging that his coworkers found him threatening. However, these statements reasonably relate to the employer's legitimate interest in Broomes' fitness to perform his job. In fact, Broomes does not dispute that, as his supervisors, the Individual Defendants were authorized to share this alleged defamatory information pursuant to their conditional privilege. Nevertheless, Broomes maintains that the Individual Defendants abused their conditional privilege thereby making their statements actionable. Specifically, Broomes contends that the Individual Defendants had no reason to believe that the statements were true.
However, Broomes has failed to identify facts in the record sufficient to raise a genuine issue as to whether the Individual Defendants had no reason to believe or did not actually believe that Broomes was threatening to his coworkers or that his job performance was deficient. In fact, the summary judgment record indicates that Broomes was generally displeased with his employer, Blue Cross, and his superiors, the Individual Defendants. On one occasion Broomes even tendered his resignation only changing his mind after Seely coaxed him to return. In addition, the record indicates Broomes failed to work constructively with coworkers, demonstrating that his job performance was actually deficient. Thus, unable to raise a genuine issue of material fact whether the defendants abused their conditional privilege, summary judgment on Count II in favor of the Individual Defendants is appropriate.
III. Broomes' Interference with Contractual Relations Claim (Count III)
In Count III of his complaint, Broomes alleges that the Individual Defendants wrongfully interfered with his employment at Blue Cross. To make out his claim for interference with contractual relations, Broomes must demonstrate that (1) he had an advantageous relationship employment relationship with Blue Cross; (2) the Individual Defendants knowingly induced a breaking of the relationship; (3) the Individual Defendants' interference with the relationship, in addition to being intentional, was improper in motive or means; and (4) he was harmed by the Individual Defendants' actions. Blackstone v. Cashman, 448 Mass. 255, 260 (2007); Weber v. Cmty. Teamwork, Inc., 434 Mass. 761, 781 (2001); Abramian v. President Fellows of Harvard Coll., 432 Mass. 107, 122 (2000). To satisfy these requirements "something more than intentional interference is required." United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 815 (1990) (stating that evidence of ill will — the desire to cause injury — suggests an improper motive).
Improper means may include espionage, the exertion of leverage, and the use of false rumors. Schwanbeck v. Federal-Mogul Corp., 31 Mass. App. Ct. 390, 413 (1991), rev'd on other grounds by 412 Mass. 703 (1992). Improper motive includes an employer's actions that are spiteful, malignant, and unrelated to a legitimate corporate interest. Weber, 434 Mass. at 782.
Where the claim is asserted against an individual official of the employer, Broomes must demonstrate "improper motive or means" by showing the Individual Defendants' actions were motivated by "actual malice;" "implied malice" is insufficient. Weber, 434 Mass. at 781; Gram v. Liberty Mut. Ins. Co., 384 Mass. 659, 664 (1981). A showing of actual malice requires the plaintiff to demonstrate the defendant was personally hostile or harbored ill will towards the plaintiff. O'Brien v. New England Tel. Tel. Co., 422 Mass. 686, 690 (1996) (holding a defendant supervisor's daily screams and insults directed at the plaintiff were sufficient to show actual malice); Clement v. Rev-Lyn Contr. Co., 40 Mass. App. Ct. 322, 325 (1996) (holding the defendant's slandering of the plaintiff without basis and the defendant's threats of physical violence evidenced actual malice). Sometimes evidence of spiteful purpose or hostility cannot be demonstrated by direct evidence; therefore malice can be shown by proof of facts from which a reasonable inference of malice can be drawn. Sklar, 59 Mass. App. Ct. at 555, citing Gram, 384 Mass. at 664. However, the plaintiff must do more than simply show an adverse impact or a laundry list of facts that may or may not indicate that the defendant acted with actual malice. Alba v. Sampson, 44 Mass. App. Ct. 311, 315 (1997).
Unable to point to any direct evidence of malice, Broomes argues that the Individual Defendants' malicious intent can be reasonably inferred from their actions. However, nothing in the summary judgment record supports Broomes' contention. The Individual Defendants did not act in a manner that fell outside of their supervisory duties. Sklar, 59 Mass. App. Ct. at 556. In response to the Individual Defendants' allegations that Broomes was insubordinate, agitated, and aggressive, Broomes simply denies that he ever caused co-workers to feel threatened or that he acted inappropriately. Broomes must do more, however, than merely contest the defendants' allegations and assert the defendants' malicious intent. See Madsen v. Erwin, 395 Mass. 715, 721 (1985) ("Conclusory statements, general denials, and factual allegations not based on personal knowledge [are] insufficient to avoid summary judgment."). Ultimately, Broomes has failed to identify evidence in the record that would support the reasonable inferences necessary to create a genuine issue of material fact that the Individual Defendants acted with malice. Accordingly, summary judgment in favor of the defendants on Count III of Broomes' complaint is appropriate.
ORDER
For the foregoing reasons, Blue Cross's Motion for Summary Judgment is ALLOWED , and the Individual Defendants' Motion for Summary Judgment is also ALLOWED and a Final Judgment shall enter for the defendants in this action.