Opinion
No. 02-2574.
December 21, 2004.
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
This age discrimination claim is brought by Plaintiff Diane M. Liljestrand ("Liljestrand") against Defendant First Allmerica Financial Life Insurance Company ("Allmerica") under G.L. c. 151 B. Liljestrand alleges she was terminated based on her age of 50 at the time of the adverse hiring decision, May 2, 2002.
FACTUAL BACKGROUND
Liljestrand was hired by Allmerica for a second time in 1992 in their Marketing/Communications department. According to one of Liljestrand's supervisors, Susan McVey ("McVey"), Allmerica began counseling Liljestrand about the need to improve her job performance in 2000.
From approximately mid-2000 to November 2001, Joe Costa ("Costa") was Liljestrand's direct supervisor. In January 2000, Costa told Liljestrand that she needed to improve her job performance in several ways, and followed this discussion with an email to her detailing the areas in which she should improve. These areas included: (i) following through on submitting jobs into production; (ii) keeping customers informed about the status of projects and obtaining information from customers to keep projects moving forward; (iii) ensuring timeliness and accuracy of jobs submitted into production; (iv) updating status reports with clear, understandable, and current information; and (v) reducing the amount of time spent on the phone dealing with personal issues. Later in the year, Costa met with Liljestrand to discuss her yearly Performance Evaluation. The document contained both positive and negative points. For example, while the document noted, "Diane is able to respond and anticipate future events" and "she has an excellent understanding of process and team measures," numerous negative aspects of her work were pointed out as well. Such comments included that some of her key clients were somewhat displeased with Liljestrand's work, and that she needed to improve onjob follow through, updating her customers on her work, being proactive in getting information from clients, and reducing personal time spent on the telephone.
In February 2001, Costa met with Liljestrand to discuss another Performance Evaluation. Similar to the previous evaluation, this document noted that while Liljestrand had made positive contributions to the company, she had several areas in which she needed to improve her performance. The ratings in the evaluation noted that Liljestrand met or exceeded the expectations set for her in a variety of areas. However, the document also noted numerous specific areas in which Liljestrand needed to improve, such as paying more attention to the details of project management and scheduling, ensuring timeliness and accuracy of projects, keeping status reports updated, and tracking time spent working on projects.
From November 2001 to February 2002, McVey was Liljestrand's direct supervisor. In February 2002, McVey met with Liljestrand to discuss her Performance Evaluation for work completed during the previous year. Although the evaluation noted a number of positive aspects of Liljestrand's work performance, it also set forth a number of areas in which Liljestrand should improve her performance, many of which were the subject of previous evaluations. The evaluation noted that Liljestrand had inconsistent project management skills, was easily distracted, was untimely in scheduling projects into production, was inconsistent with following through with some tasks, etc. The evaluation noted, "Diane has areas of inconsistent performance that is [sic] not acceptable given her experience and prior discussions with management around these same development needs over the past few years." Liljestrand contends that she disagreed with many of the negative points from the evaluation because she thought her own performance was good. During this meeting, McVey and Liljestrand discussed the fact that Liljestrand would get frustrated and emotional when given negative feedback. When Liljestrand noted that she got frustrated and was probably having a bad day, McVey allegedly stated that it was "probably hormonal."
On or about February 28, 2002, McVey delivered a Performance Written Warning ("Warning") to Liljestrand, explaining that her performance deficiencies were having an adverse effect in several ways, and that her performance needed to improve. The Warning detailed the following performance issues: (i) poor project management and communication skills; (ii) Unacceptable use and support of project tracking system; (iii) contradictory information to the customer on the status of a project; (iv) coordination of projects to external vendor without management knowledge or approval; (v) unorganized approach to projects and prioritization of projects; and (vi) withholding workload information and upcoming project information to Resource Manager and/or Creative Team resulting in at risk projects and rush jobs. In addition to memorializing the areas in which Liljestrand needed to improve, the Warning contained language noting that a lack of improvement in the stated performance areas may result in termination of employment.
From February 2002 until her termination in May 2002, Liljestrand reported to Christine Larson ("Larson"), who replaced Costa. During March and April 2002, Liljestrand's performance continued to have both positive and negative aspects. Although she received a "Bravo!" award from clients during that time, McVey and Larson received numerous complaints from customers about Liljestrand, including that she was missing deadlines, failing to provide accurate updates on project status, and not responding to their inquiries.
On May 2, 2002, Larson and a Human Resources Consultant notified Liljestrand that she was being terminated due to continuing performance problems. At the time, Liljestrand was 50 years old. Her replacement, Beth Lutz, was 30 years old at the time she was hired. Liljestrand filed a claim against Allmerica on December 5, 2002 for age discrimination under G.L. c. 1518.
DISCUSSION
A. Summary Judgment Standard of Review
Summary judgment shall be granted where there are no genuine issues as to any material fact and where 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). The moving party bears the burden of affirmatively demonstrating the absence of a triable issue, and that the summary judgment record entitles the moving party 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 Communications Corp., 410 Mass. 805,809 (1991); Kourouvacilis v. General Motor Corp., 410 Mass. 706, 716 (1991).
B. Summary Judgment in Cases of Employment Discrimination
In the context of discrimination cases, (as in negligence cases) summary judgment is usually not appropriate because the ultimate issue of discriminatory intent is factual. Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437,439 (1995). It is recognized that "where motive, intent, or other state of mind questions are at issue, summary judgment is often inappropriate." Flesner, 410 Mass. at 809. However, summary judgment in cases under G.L. c. 151B is appropriate in certain circumstances, such as if a plaintiff is unable to demonstrate a prima facie case or if the plaintiff is unable to present evidence showing that the employer's proffered reasons for terminating the employee were a pretext. Brunner v. Stone Webster Engineering Corp., 413 Mass. 698, 705 (1992); McKenzie v. Brigham Women's Hosp., 405 Mass. 432, 437-38 (1989).
C. Analysis
Massachusetts generally analyzes discrimination claims using the same guidelines as set forth under federal law. White v. University of Massachusetts at Boston, 410 Mass. 553, 557 (1991); Wheelock College v. Massachusetts Commission Against Discrimination, 371 Mass. 130 (1976). The formula set forth to analyze discrimination claims follows three stages. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). In the first stage, the plaintiff must establish a prima facie case of age discrimination. Id. at 802. To do this, she must show that (1) she was a member of a class protected by G.L. c. 151B i.e., that she was over forty years of age; (2) she performed her work at an acceptable level; (3) she was terminated; and (4) her employer filled the plaintiffs position with someone who had qualifications similar to the plaintiff' s. Blare, 419 Mass. at 441. See also Dickerson v. Hub Fabric Leather Co., 2004 WL 2915729 (Mass.Super. Nov. 10, 2004), quoting Knight v. Avonb Products, Inc., 438 Mass. 413, 423 (2003) (Suggesting that the inference of age discrimination does not arise unless the plaintiff is replaced by someone who is "substantially younger.").
If the prima facie case is established, a presumption of discrimination is established, and the analysis moves to the second stage in which the defendant bears a burden of production to articulate a legitimate, nondiscriminatory reason for terminating the plaintiff. Id. See Wheelock College, supra at 139 (burden of persuasion remains with the plaintiff throughout this process). If the employer can produce such a reason, supported by credible evidence, then it has rebutted the presumption of discrimination. Id. at 441-42. The employer's "burden of production is not onerous." Id. at 442.
In the third stage, the burden shifts back to the plaintiff to demonstrate that the employer's proffered reasons were a pretext meant to hide the real and unlawful reasons for the employer's actions. Id. at 444-45; Brunner, 413 Mass. at 700. Plaintiff must prove that the defendant "acted with a discriminatory intent, motive or state mind," Lipchitz v. Raytheon Co., 434 Mass. 493, 504 (2001), which can be demonstrated by circumstantial evidence, such as the inference of discriminatory animus that may be drawn from proof that one or more of the reasons advanced by the employer is false. Id.; Abramian v. President Fellows of Harvard College, 432 Mass. 107, 118 (2000). Thus, "if a plaintiff has . . . offered evidence sufficient to support a determination either that the employer's reason was a pretext or that the actual reason for the adverse hiring decision was discrimination, summary judgment for a defendant is inappropriate." Blare, 419 Mass. at 445.
1. The Prima Facie Case
Allmerica advocates that Liljestrand cannot establish a prima facie case of age discrimination because she cannot meet the second prong, which states that she had to be performing her work at an acceptable level. See Blare, 419 Mass. at 441. The record of Performance Evaluations and the Warning demonstrates a clear pattern of concern on the part of Liljestrand's supervisors about her performance in a number of areas. Whether or not Liljestrand agrees with these evaluations has no bearing on the company's assessment of her performance. Because of the proffered evidence demonstrating specifically that Allmerica did not believe Liljestrand was performing acceptably, she fails to establish the second prong of the prima facie case of age discrimination. See Duprey v. Raytheon Co., Civil No. 941007D (Middlesex Super. Ct. Feb. 29,1996) (Borenstein, J.), 1996 WL 1186944; see also Hillstrom v. Best Western TLC Hotel, 265 F. Supp. 2d 117, 124-25 (D. Mass. 2003) (holding that the plaintiff did not demonstrate that he was performing his work at an acceptable level because a new supervisor may determine an employee's job performance to be inadequate even though a previous supervisor believed the job performance was adequate).
2. Pretext for Discrimination
Even if a prima facie case were established, Liljestrand's claim would not survive summary judgment. Allmerica has satisfied its burden in the second step of the discrimination analysis by providing a legitimate, nondiscriminatory reason for firing Liljestrand — namely that her job performance was consistently deficient in several areas. The Performance Evaluations and the Warning provide sufficient evidence to support Allmerica's contention. See generally Wooster v. Abdow Corporation, 46 Mass. App. Ct. 655, 672-73 (1999); Locke v. W.R. Grace Co., 2004 WL 2915725 (Mass.Super. Nov. 16, 2004).
The burden then shifts back to Liljestrand to demonstrate that Allmerica's proffered reason for the adverse hiring decision was a pretext to hide discrimination. Blare, 419 Mass. at 444-45. Courts have noted that direct evidence of discrimination may not be available; thus, circumstantial evidence, including the treatment of the plaintiff by the employer during employment, may be the only proof available. Id. at 447, citing Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761,767 (1986). The only evidence of age discrimination put forth by Liljestrand is the isolated comment made by McVey that Liljestrand's emotional reaction could have been caused by hormones. The court has noted that "isolated or ambiguous remarks, tending to suggest animus based on age, are insufficient, standing alone, to prove an employer's discriminatory intent." Fontaine v. Ebtec Corp., 415 Mass. 309,314 n. 7 (1993). Although Liljestrand could have perceived the comment regarding hormones to be associated with her age due to the fact that many women of that age are going through menopause, that comment alone is not sufficient to allow a jury to find that Allmerica's reason for terminating Liljestrand was merely pretext. See Tardanico v. Aetna Life and Casualty Co., 41 Mass. App. Ct. 443,450 (1996) (comments that employee "had been around for a long time" and that his "bag was getting too heavy" were insufficient to demonstrate that employer's reason for the adverse hiring decision was a pretext); Compare Blare, 419 Mass. at 447 (where supervisor asking "Are you getting too old that you can't handle two machines?" and telling plaintiff that few people retire from Husky, taken into context with other workers not in the protected category who were not fired for committing similar errors, was sufficient to survive summary judgment).
Based on the record before the court, Liljestrand cannot meet her burden of demonstrating an unlawful motive on the part of Allmerica in its decision to terminate her employment. See Curtis v. City of Fitchburg, Civil No. 971375A (Worcester Super. Ct. April 4, 2003) (Fecteau, J.), 2003 WL 21500532 (holding that a former firefighter could not prove an unlawful motive on the part of the City in its failure to reinstate him).
ORDER
For the foregoing reasons, the defendant's motion for summary judgment is