Opinion
Civil Action No. 01-11369-DPW
April 15, 2003
MEMORANDUM AND ORDER
Evelyn Panias brings this suit against the City of Lynn, Massachusetts Public Schools, its superintendent Nicholas Kostan, and Daniel Driscoll, the Director of Special Education for the Lynn Public Schools, (collectively "defendants"), alleging discrimination in their alleged refusal to give her a job as a Certified Occupational Therapist Assistant. Before me is the defendants' motion for summary judgment which, for the reasons set forth below, I will grant.
I. BACKGROUND
A. The Parties
The plaintiff, Evelyn Panias, ("Panias") is a forty-nine year old African-American woman who resides in Lynn, Massachusetts. During the times material to this action, the years 1997-2002, Panias was between 44 and 48 years of age. She has worked regularly in a variety of capacities for the Lynn public school system since 1984. She is currently employed by the Northshore Education Consortium ("Consortium") as a Certified Occupational Therapist Assistant ("COTA") through which she works in the Lynn public school system.
Defendant Lynn Public Schools is an entity of the Commonwealth of Massachusetts which provides primary education to children in Lynn, Massachusetts. The Lynn Public School system is a participant in the Consortium, which is an educational collaborative organized pursuant to G.L. ch. 40, § 4e.
Defendant Daniel Driscoll ("Driscoll") has been employed by the Lynn Public Schools as Director of Special Education since 1988. As one of his duties, Driscoll has responsibility for hiring all Certified Occupational Therapists Assistants ("COTAs") for the Lynn public school system.
Defendant Nicholas Kostan is named in his role as the current Superintendent of the Lynn Public Schools.
On August 22, 2002, I allowed the defendants' motion to substitute Kostan for James Mazareas, who had been succeeded by Kostan as Superintendent of the Lynn Public Schools.
B. Procedural History
Panias filed a complaint with the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination on August 21, 2000 alleging that the defendants had discriminated against her on the basis of her race and age in failing to promote her to a COTA position. EEOC investigated the matter and on May 8, 2001 issued a letter notifying Panias that it would take no action on her charge. Panias filed this lawsuit on August 6, 2001.
C. Factual History
Evelyn Panias began working for the Lynn Public Schools as a lunch aide, supervising children during their lunch period and recess period. Panias worked as a lunch aide until 1987-88 when she became a teacher's aide. As a teacher's aide, Panias's responsibility included assisting the classroom teacher in implementing the daily curriculum. While a teacher's aide, Panias was assigned to a number of different schools in the Lynn school system.
On or about September 1992, Panias was assigned to work as a teacher's aide for children with severe and multiple handicaps. She held this position for approximately three years.
Around July, 1994, Panias informed Driscoll of her intent to apply to the COTA program at North Shore Community College. Panias was accepted into the program in 1995 and requested an educational leave of absence for the 1995-96 academic year, which she received. Panias subsequently applied for and received educational leaves of absence for the 1996-97 and 1997-98 school years to enable her to complete her COTA degree.
Panias received her temporary license as an Occupational Therapy Assistant on May 14, 1998. Approximately one week later, Panias notified the Lynn Public Schools that she would be returning from her leave of absence and was available to work "as a substitute teacher assistant immediately." She received her Occupational Therapist Assistant degree from North Shore Community College on May 29, 1998.
Sometime in May, 1998 Panias met with Driscoll and informed him that she wanted a position as a COTA. Panias submitted her resume and requested that Driscoll keep her in mind when COTA positions came available. According to Panias, Driscoll told her that there were no positions available at the time. Panias recalled that "later that year" a position became available but Driscoll told her that he "had someone in mind" for the COTA position.
On September 9, 1998, Susan Ofilos-Felton, a white woman in her mid-thirties, was hired as a COTA by Lynn from the Consortium. Ofilos-Felton had been employed by the Consortium from September 1995 to June 1997, during which time she worked in the Lynn Public Schools. Like Panias, Ofilos-Felton received her OTA degree from Northshore Community College in May 1998.
Panias worked as a substitute teacher's aide from May 1998 until the end of the academic year. Panias returned to her former position as a regular teacher's aide at the Callahan School when school resumed in the fall of 1998. Panias worked as a teacher's aide from 1998-2000.
In May 1998, Wendy Wright-Johnston, a white woman in her mid-thirties, graduated from the North Shore Community College COTA program along with Panias. From 1987 to 1998, Wright-Johnston had been employed as a clerk-typist for the Lynn School Department. Wright-Johnston requested and received a leave of absence from this job in order to join the Consortium in September 1998. Wright-Johnston was employed by the Consortium as a COTA through May 2000. She was appointed to a permanent position as a COTA on the Lynn payroll the following school year.
In March of 2000, Driscoll offered Panias a position as a substitute COTA to fill in while Wright-Johnston was on maternity leave from her Consortium placement. Panias accepted the position and was granted a leave of absence from her teacher's aide job. Panias worked as a substitute COTA on the Lynn payroll from March 29, 2000 through the end of the school year, at which time she was reassigned to her teacher's aide position.
At some point in the Spring of 2000, Panias learned that a full-time COTA position in the Lynn system would soon become available, although the job had not yet been posted or advertised. This was apparently the position to which Wright-Johnston was later appointed. Panias wrote to Driscoll to express her interest in a COTA position. At a meeting with Driscoll on May 17, 2000 Panias reiterated her interest in the COTA position. Driscoll told Panias that the Lynn Public Schools had a policy of hiring COTAs through the Consortium. Driscoll also told Panias that her lack of experience as a COTA was an obstacle to getting the position she desired.
At this meeting, Driscoll offered Panias a position in the Consortium through which she would receive a placement in the Lynn system as a COTA. Driscoll explained that by taking such a position Panias would conform to Lynn's policy of hiring through the Consortium and would provide her with the experience she would ultimately need to receive a permanent COTA job in the Lynn system.
Panias however declined the offer of a COTA position through the Consortium. Panias stated in her deposition that she refused the Consortium placement because accepting it would require her to give up her seniority, longevity, and vacation which, she felt, was "giving up quite a bit" for a part-time position. Panias then asked Driscoll if she could work as a COTA through school as opposed to through the Consortium, to which Driscoll reiterated the Lynn policy of preferring to hire COTAs through the Consortium.
Driscoll stated in his deposition that the Lynn Public Schools had joined the Consortium around 1996. According to Driscoll, participation in the Consortium was advantageous to member school systems because it allowed members to offer additional programming, such as programs for disabled children, at reduced tuition rates through pooling and centralized distribution of staff.
According to Driscoll, individuals seeking permanent COTA work in the Lynn Public Schools are first referred to the Consortium for placement in the system as a temporary COTA. Driscoll stated that when it determined that it had a need for a COTA, Lynn, through Driscoll, would file a form requesting that the Consortium place a COTA in the district.
Driscoll explained that Lynn preferred to use the Consortium for the initial placement of COTAs because the placement allowed Lynn to save money on its payroll while providing children within the system the services they needed; during the period the COTA from the Consortium was thus employed in the Lynn system, he or she remained an employee of the Consortium. Moreover, according to Driscoll, these placements enabled Lynn to evaluate the work performance of COTAs within the Lynn system before placing them on the District's payroll. Finally, Consortium placements provided prospective COTAs with valuable on the job experience. After working successfully in the Lynn system through their Consortium placement for an extended period, Consortium COTAs could then be hired onto the Lynn Public Schools' payroll as the need for additional assistants arose.
Around June 12, 2000, Lynn circulated a document titled "Alphabetic Certification Report" purporting to list the system's employees, their professional certifications, if any, and their seniority dates. The list defined Panias's seniority date as January 28, 1987, corresponding to the date she assumed her position as teacher's aide. The list also contained the notation "COTA" next to Panias's name.
Panias apparently understood this "seniority list" to indicate that she was being granted seniority as a COTA from January 1987, even though she had not completed her training and received her COTA license until May, 1998. Panias stated that she "had no idea why [Lynn] would do something like that" but nevertheless believed that this grant of seniority would enable her to get a COTA position in the Lynn system without having to first work through the Consortium.
On the basis of this information, Panias completed a bid sheet for the posted COTA position and submitted it to the Lynn Public Schools Personnel office on or around June 15, 2000. Panias also sent a resume, cover letter and related materials to Patricia Libby, the Human Resources Manager for Lynn indicating that she was applying for a COTA position. Upon receipt of Panias's application, employees in the personnel office told Panias that she could not bid for the COTA job. Representatives of the Personnel office apparently told Panias that Driscoll did all the hiring for COTA positions and that "it was the law." When Panias asked them to explain her entry on the "seniority list," they told her that it was "a mistake."
On August 21, 2000, Panias filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) and the Equal Employment Opportunity Commission (EEOC) alleging that the Lynn Public Schools had discriminated against her on the basis of her race and age in not giving her a position as a COTA. Meanwhile, on August 28, 2000, Wright-Johnston was hired for the permanent COTA position on the Lynn payroll. Ultimately, EEOC declined to act on the charge.
On January 14, 2002, Panias accepted a placement with the Consortium and began working as a part-time COTA in the Lynn Public Schools. Panias requested and received a leave of absence from her teacher's aide position so that she could assume the Consortium position. Panias is currently employed by the Consortium as a full-time COTA working in the Lynn public school system.
In January 2002, Lynn hired Kelly Simeone, a white woman in her mid-thirties, as a COTA. Simeone had worked in the Lynn Public Schools through the Consortium from May 2000 to January 2002. Simeone received her degree as an Occupational Therapist Assistant from North Shore Community College in June 2000.
II. DISCUSSION
Panias alleges that the Lynn School District, Driscoll and Kostan discriminated against her on the basis of age and race in their failure to "promote" her to a position as a COTA in the Lynn system. Panias specifically alleges racial discrimination in violation of Title VII, 42 U.S.C. § 2000e et seq., age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and gender and race discrimination in violation of Massachusetts G.L ch. 151B, § 4 ("151B").
Although Panias's Complaint and Response to the Defendants Interrogatories states that she had been denied a COTA position in the Lynn system by discrimination based on "her age, race and sex," the latter contention is nowhere developed or explained. For example, Panias's EEOC Complaint filed on August 21, 2000 states charges based only on age and race discrimination. In her deposition, Panias stated that "as far as gender, I don't have a problem," conceding that the COTAs who were hired by Lynn from the Consortium between 1997-2000 were also women. For these reasons therefore, it does not appear that Panias is seriously pursuing her stated claim of gender discrimination under ch. 151B. Even were she to persist in her gender discrimination claim, however, in addition to the reasons I discuss below regarding discrimination generally, Panias would be unlikely to prevail given that all but one of the successful applicants for the COTA position were women who received their positions after working for a number of years as COTAs through the consortium.
The defendants move for summary judgment, contending that Panias has failed to raise a genuine issue of material fact sufficient to show that the failure to give Panias a COTA position on the Lynn payroll was based on discriminatory animus. Specifically, the defendants contend that they have articulated two legitimate non-discriminatory reasons for not hiring Panias as a COTA when she applied in 1998 and 2000, and that Panias has failed to show that these reasons are mere pretexts masking discriminatory animus.
A. Standard of Review
Each of the claims at issue here is governed by the three part test articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973), establishing an order and burden of proof in the trial of discrimination claims based principally on circumstantial evidence. See Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 141 (2000). Federal courts have consistently applied the McDonnell Douglas burden shifting analysis to claims of discrimination. See Reeves, 530 U.S. at 141-42 (acknowledging application of McDonnell Douglas framework to claims of age discrimination under ADEA); St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (burden of production rules established by McDonnell Douglas apply to Title VII discriminatory treatment claims); Zapata-Matos v. Reckitt Coleman, 277 F.3d 40 (1st Cir. 2002) (McDonnell Douglas applies to claims of Title VII national origin discrimination); Udo v. Tomes, 54 F.3d 9, 12 (1st Cir. 1995) (applying McDonnell Douglas rule to age discrimination cases under the ADEA); LeBlanc v. Great American Ins. Co., 6 F.3d 836, 842 (1st Cir. 1993) (same). The Supreme Judicial Court of Massachusetts has also adopted the McDonnell Douglas test for adjudication of claims under G.L. ch. 151B. Abramian v. President and Fellows of Harvard College, 432 Mass. 107 (2000) (following three stage order of proof articulated in McDonnell Douglas for discrimination claims under state law); Wheelock College v. Massachusetts Commission Against Discrimination, 371 Mass. 130 (1976); see also Lewis v. City of Boston, 321 F.3d 207, 213 (race discrimination claim under G.L. ch. 151B proceeds under "three stage burden shifting paradigm first set out in McDonnell Douglas").
Under the McDonnell Douglas paradigm, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. 411 U.S. at 802; see Reeves, 530 U.S. at 142; St. Mary's Honor Center, 509 U.S. at 506; Lewis, 321 F.3d at 213-14; LeBlanc, 6 F.3d at 842; Abramian, 432 Mass. at 116. Once the plaintiff has met this obligation, the burden shifts to the defendant to articulate a legitimate, non-discriminatory reason for the employer's action. As the court in Lewis emphasized, the defendant's burden is one of production rather than of persuasion; in other words, if the defendant produces evidence tending to support a non-discriminatory reason for the employment decision, the presumption of discrimination afforded by the prima facie case disappears and the plaintiff must adduce evidence demonstrating that the allegedly non-discriminatory motive was, in fact, merely a pretext masking illicit discriminatory motive. 321 F.3d at 213-14; see Reeves, 530 U.S. at 142; St. Mary's Honor Center, 509 U.S. at 511 (rejection of defendants' proffered reasons as pretextual permits, but does not mandate, a finding of discrimination); LeBlanc, 6 F.3d at 843; Abramian, 432 Mass. at 118 (establishing that defendants' reasons for employment action were pretextual allows plaintiff to survive motion for a directed verdict).
Once the McDonnell Douglas presumption drops out, the remaining issue is discrimination vel non, that is whether the plaintiff can show that the protected trait actually motivated the employer's action. See Reeves, 530 U.S. at 141, 143; St. Mary's Honor Center, 509 U.S. at 511; Zapata-Matos, 277 F.3d at 45. The reviewing court must consider all the available evidence, including the plaintiff's prima facie case, to determine whether or not the disputed employment action was in fact based on discriminatory animus. See id. "On summary judgment, the question is whether the plaintiff has produced sufficient evidence that [she] was discriminated against . . . to raise a genuine issue of material fact." Zapata-Matos, 277 F.3d at 45. "The plaintiff cannot avoid summary judgment if the record is devoid of adequate direct or circumstantial evidence of discriminatory animus on the part of the employer." LeBlanc, 6 F.3d at 843.
B. Analysis
To establish a prima facie case of race or age discrimination under Federal or Massachusetts law under the McDonnell Douglas test in connection with a disputed appointment, the plaintiff must show 1) that she is a member of a protected class; 2) that she applied for and was qualified for a job for which the employer was seeking applicants; 3) that despite her qualifications, she was rejected; and, 4) that after she was rejected, the position remained open and the employer continued to seek applicants for persons of [her] qualifications. See McDonnell Douglas, 411 U.S. at 802; Lewis, 321 F.3d at 213; Udo, 54 F.3d at 12; Abramian, 432 Mass. at 116.
The defendants assume for the purposes of their summary judgment argument that Panias has established her prima facie case of age and race discrimination under McDonnell Douglas. As a result, defendants focus their challenge on the second and third prongs of the McDonnell Douglas paradigm, namely what they allege are two legitimate, non-discriminatory reasons supporting the denial of a COTA position to Panias and Panias's failure to rebut those reasons as mere pretexts.
Defendants reserve the right to argue that Panias was not initially qualified for the COTA position and therefore did not establish a prima facie case of discrimination under McDonnell Douglas.
1. Lynn's Justifications
The defendants contend that they have offered two legitimate explanations for their employment actions regarding Panias's COTA application. First, they cite Lynn's putative policy of utilizing the Northshore Education Consortium to provide initial placement of COTAs within the Lynn Schools. Second, they state that Panias was not accepted for a COTA position because of her lack of experience relative to that possessed by the successful applicants.
To rebut a prima facie case of discrimination, an employer must satisfy a burden of production. See Reeves, 530 U.S. at 142 (employer's burden of production involves no credibility assessment); St. Mary's Honor Center, 509 U.S. at 507; Lewis, 321 F.3d at 213-14; LeBlanc, 6 F.3d at 844-45. "The defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Center, 509 U.S. at 507 (internal citations omitted, emphasis in original).
In support of their justifications, the defendants point to Lynn's participation since at least 1996 in the North Shore Education Consortium. Driscoll stated that the policy of the Lynn Special Education Department was to use COTAs employed by the Consortium to satisfy the needs of the Lynn system, and, when the need arose, to hire for full-time COTA positions on the Lynn Public School's payroll only those persons who had first passed through the Consortium program. Driscoll offered two basic reasons for Lynn's utilization of the Consortium: the scheme was financially beneficial to the Lynn system in keeping COTAs off the Lynn payroll; the process provided a way to train and evaluate COTAs before offering them full-time positions. In support of his claim regarding Lynn's COTA hiring policy, Driscoll offered the "Hiring District Staff" memo of 1998 which delineates Lynn's hiring policy and relation to the Consortium.
The affidavit of Barbara Gratiano, the Director of Finance and Personnel for the Consortium, also supports the defendants' contention that it was Lynn's policy to use temporary COTAs within the Consortium and to hire these individuals when full-time positions subsequently became available. Specifically, Gratiano affirms that each of the three COTAs hired by Lynn, (Ofilos-Felton, Wright-Johnston, and Simeone) worked for the Consortium in placements within the Lynn system for at least eighteen months prior to being hired by Lynn.
The question of the work experience of applicants for COTA positions, the second justification offered by the defendants of their denial of a COTA position to Panias, is also directly related to the individual's decision to accept placement by the Consortium. In this respect, the defendants' claim that the decision to offer COTA positions to Ofilos-Felton, Wright-Johnston, and Simeone rather than to Panias was attributable to their greater experience working as COTAs in the Lynn system, a direct consequence of their decision to participate in the Consortium. As noted above, each of these individuals worked for a period of at least eighteen months in the Lynn Public Schools through the Consortium.
Based on this evidence, I conclude that the defendants have satisfied their burden under McDonnell Douglas to produce legitimate non-discriminatory reasons for the denial of Panias's request for a COTA position. See St. Mary's Honor Center, 509 U.S. at 507; Zapata-Matos, 277 F.3d at 45.
2. Pretext
I turn to the third and final prong of the McDonnell Douglas test which requires a plaintiff to rebut the defendants' justifications as pretextual. As the Supreme Court held in St. Mary's Honor Center, once the defendant has articulated specific justifications for the adverse decision, the "McDonnell Douglas framework — with its presumptions and burdens — is no longer relevant." 509 U.S. at 510; see Reeves, 530 U.S. at 142; Lewis, 321 F.3d at 214; LeBlanc, 6 F.3d at 843 ("[I]n an age discrimination case, once the employer articulates a legitimate, nondiscriminatory reason for its decision to discharge the employee, the McDonnell Douglas presumption drops out of the picture").
At this point in the analysis, not only does the presumption of discrimination afforded by the prima facie case fall away, but the plaintiff is required to produce evidence that "the proffered reason was not the true reason for the employment decision and that race was." St. Mary's Honor Center, 509 U.S. at 508 (internal quotation and citations omitted). However, "the trier of fact may still consider the evidence establishing the plaintiff's prima facie case and inferences properly drawn therefrom . . . on the issue of whether defendant's explanation is pretextual.'" Reeves, 530 U.S. at 143, quoting Texas Dep't of Community Affairs, v. Burdine, 450 U.S. 248, 256 (1981). Ultimately, the question is of the sufficiency of the plaintiff's evidence. Zapata-Matos, 277 F.3d at 45.
Panias contends that these justifications are in fact pretexts, masking the defendants' discriminatory animus against her. Specifically, Panias argues that Driscoll's assertion that Lynn prefers to hire COTAs through the Consortium is false. Panias contends the pretextual nature of this "policy" is evidenced by the fact that Driscoll, as the head of Special Education for Lynn, never issued a clear statement declaring that COTAs would be hired exclusively through the Consortium. Panias also seeks to challenge this putative policy on the grounds that one of the three women hired as COTAs by the Lynn School system, Susan Ofilos-Felton, had not "completed" the COTA program in the Consortium until 1998, and that, in any event, Ofilos-Felton did not actually work as a COTA in the Consortium.
At the outset, I note there is nothing in the record to indicate that the reasons proffered by the defendants' were a pretext for discrimination against Panias based on sex. See note 2 supra. All of the successful applicants for COTA positions in the Lynn system between 1997-2002, the period at issue in this case, were women. Moreover, of the seven COTAs hired by the Lynn Public Schools from the Consortium since 1993, only one was male. Panias has offered no evidence tending to show that the claimed justifications for the employment decision, namely the COTA hiring policy as described by Driscoll, or the superior work experience rationale were in any way attempts to disguise discriminatory animus based on Panias's gender.
Moreover, there is nothing in the record to show that the stated justifications disguised discriminatory animus based on Panias's race or age. Although Panias asserts that Driscoll's purported failure to announce the Special Education Department of the Lynn system's policy to use COTAs supplied by the Consortium, and then to hire permanent COTAs from the Consortium demonstrates pretext, nothing in the record supports this contention. As Driscoll stated in his deposition, the decision to hire COTAs in this way was "implicit" in Lynn's membership in the Consortium. In other words, in Driscoll's view, part and parcel of the statutory authority to participate in an educational collaborative under ch. 40 is the ability of member school districts to use the mechanism to fulfill staffing requirements, including the need for COTAs. To support his assertion that the Lynn Special Education Department utilized a hiring program with the Consortium, Driscoll produced the "Hiring District Staff" document which shows that, at least since 1998, Lynn observed a policy of hiring though and from the Consortium.
In support of her argument that the claimed hiring policy is a pretext masking racial and age discrimination, Panias offers the unsubstantiated allegation that Ofilos-Felton was not hired from the Consortium, that she did not "complete" the Consortium program, and that, while working for the Consortium, she did not serve as a COTA in the Lynn system. These allegations are not supported by the record here. For example, Gratiano specifically attests to Ofilos-Felton's participation in the Consortium from September 1995 to June 1997. Moreover, Ofilos-Felton received placements through the Consortium for a period of two years. There is no evidence in this record that "completion" of any set term of service through the Consortium is a prerequisite to hiring by Lynn. In any event, each of the three COTAs hired by Lynn worked through the Consortium at least eighteen months. By contrast, at the time of her applications in 1998 and 2000, Panias had no work experience through the Consortium.
In challenging the defendants' justification of their decision on the grounds of the superior work experience of the other candidates, Panias contends that Ofilos-Felton was not actually working as a COTA in the Lynn system while employed by the Consortium. Although the record provides few details as to the actual work assignments of the individuals placed in the Lynn School District by the Consortium, the absence of this detail does not reveal the Lynn policy to be a pretext. While it is true that Ofilos-Felton's resume describes the duties of her placement through the Consortium during 1995-97 as "Therapeutic Aide in Autistic/PPD Classroom," this fact alone does not invalidate the defendants' explanation for the hiring decisions. For example, neither Driscoll's testimony nor the Hiring District Staff document state that only those individuals working as COTAs for the Consortium may apply for COTA positions in the Lynn system. Lynn's stated preference for those applicants who have had the opportunity to work and be observed in the Lynn system in certain settings could reasonably apply to the kind of therapeutic assistance apparently performed by Ofilos-Felton while working for the Consortium. Furthermore, insofar as Panias alleges that the other successful COTA candidates lacked relevant experience, there is no record support for this allegation. Moreover, Panias does not offer any evidence to suggest that Lynn's statement of the greater work experience of the other successful COTA applicants, Wright-Johnston and Simeone, was false.
In light of Panias's contentions, it is significant that, at the May 17, 2000 meeting, Driscoll specifically informed Panias of the Lynn arrangement with the Consortium and told her that, notwithstanding her COTA license, her lack of COTA experience would hinder her in getting a COTA position on the Lynn payroll. Driscoll then offered her a position in the Consortium. But Panias declined the offer, believing that she would be giving up too much to take a leave of absence from her teacher's aide position for the part-time COTA job. The record shows that, in contrast to Panias's admitted reluctance to give up her seniority, longevity and vacation to work in the Consortium, the other COTA applicants took leaves of absence from their former positions in order to be put on track for a later COTA opening.
Likewise, Panias's argument that she should have been "promoted" to a COTA position on the basis of her seniority within the Lynn system, without first working through the Consortium, does not expose the defendants' work experience justification as a pretext. While it is true that Panias's thirteen or more years of service to the Lynn Public Schools as a teacher's aide, and prior to that, as a lunch aide, afford her greater rights under the terms of the collective bargaining agreement pertaining to "paraprofessionals," Panias has offered nothing in the record to refute the defendants' assertion that COTA positions are governed by an entirely different collective bargaining agreement to which paraprofessional seniority does not apply.
Specifically, the defendants offer evidence showing that under the terms of the several collective bargaining agreements covering the workforce of the Lynn Public Schools, an employee is only permitted to bid for positions within the same contract group. According to the uncontroverted affidavit of Patricia Libby, the Personnel Director of the Lynn Public Schools, teacher' aides and COTAs are covered by different collective bargaining agreements, which means that seniority gained in one position does not enable one to bid for a position in another. Panias's conclusory statement that "seniority is always a relevant consideration" is not sufficient to refute the unrebutted evidence supplied by the defendants that one may not be promoted into a COTA position on the basis of seniority but must rather apply through other processes. Furthermore, the record establishes that each of the other individuals hired as COTAs by Lynn since 1998 went through the Consortium process before being hired.
As the preceding discussion makes clear, I have concluded that Panias has not established that the justifications offered by the defendants were pretexts masking discriminatory animus, and has thus failed to satisfy her obligations under the McDonnell Douglas burden shifting analysis.
Even if I had found, however, that the defendants' stated justifications were pretextual, summary judgment for the defendants would still be appropriate in this case because I find that Panias has failed to show that the decision not to give her a COTA position in 1997 or 2000 was a product of racial or age bias. See Reeves, 530 U.S. at 144; St. Mary's Honor Center, 509 U.S. at 511; Zapata-Matos, 277 F.3d at 45; Lipschitz v. Raytheon Co., 434 Mass. 493, 505 (2001) ("under plain language of ch. 151B § 4, liability attaches when an adverse employment decision is made because of discrimination") (emphasis added, internal quotation omitted). In this respect, upon consideration of the "ultimate question" — whether Panias has raised a question of fact concerning whether "the defendant intentionally discriminated against [her] because of [her] race [or age]" — I conclude that she has not. St. Mary's Honor Center, 509 U.S. at 511 (internal quotations omitted); see Zapata-Matos, 277 F.3d at 45; LeBlanc, 6 F.3d at 842-43. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." St. Mary's Honor Center, 509 U.S. at 507 (internal quotations omitted). No reasonable fact finder could find that the plaintiff here has met that burden.
The record here clearly shows that other candidates for COTA positions since 1997 have first been referred to the Consortium from which they have taken placements as temporary COTAs in the Lynn Public Schools. While several of the successful COTA applicants were enrolled in the North Shore Community College occupational therapist program at the same time as Panias, these women all participated in the Consortium placement system prior to being hired by Lynn. Indeed, the fact that Panias was offered a position in the Consortium in May 2000, but declined the offer, belies the notion that she was in fact discriminated against on the basis of her age and race.
Panias's citation to Reeves v. Sanderson Plumbing Products for the proposition that the "mendacity" of the employer in avowing false justifications for its employment action may permit a finding of discrimination is unavailing. 530 U.S. at 147-48; see St. Mary's Honor Center, 509 U.S. at 311. First, Panias has not in fact established that the defendants' stated justifications were pretextual. See id. Thus the allegation that the defendants' "dishonesty" about a material fact should lead to an inference of intentional discrimination is without merit.
More fundamentally, in contrast to the circumstances raised in Reeves, the facts here, viewed against the entirety of the record, do not mandate the denial of summary judgment. 530 U.S. at 152-53 (noting that standard of review for judgment as a matter of law is equivalent to summary judgment standard); see Zapata-Matos, 277 F.3d at 45. In Reeves, the Court held that the record did suggest sufficient evidence of age discrimination, including specific remarks disparaging the plaintiff because of his age, to defeat judgment as a matter of law. 530 U.S. at 153. The Court concluded that in discounting these remarks and other credible evidence, the Court of Appeals had failed to draw all reasonable inferences in the plaintiff's favor as it must. See id.
Applying this standard of review to the facts presented here, I conclude that Panias's claims cannot survive summary judgment. The fact that Panias was not offered, or apparently informed, of the Consortium program and its role in providing candidates for full-time Lynn employment when she met with Driscoll in 1998 might raise the concern that her first application for a COTA position was not effectively handled. I am unable to conclude from this fact, however, in light of the other record evidence, that the failure to inform her about the program was discriminatory. Specifically, the defendants have produced uncontroverted evidence that the other applicants for COTA positions passed through the Consortium program, as Lynn's express and implied hiring policy required. Again, the fact that Panias rejected a Consortium position when it was offered to her in May, 2000 demonstrates that Panias was in control of her career choices and that such choices, not discrimination, were among the causes of the course her career took. See Lewis, 321 F.3d at 218 (fact that plaintiff took himself "out of contention" for position was relevant evidence that defendant's hiring decision not based on race).
III. CONCLUSION
For the reasons set forth above, the defendants' motion for summary judgment is GRANTED.