Massachusetts: Split Court of Appeals Makes Summary Judgment Even Less Likely for Employers


Written by: Erica E. Flores – Skoler, Abbott & Presser, PC

Getting an employment case thrown out before trial has always been pretty elusive in Massachusetts state courts, but if a recent decision by a split panel of the Court of Appeals is as written, it has become even more difficult.

The majority opinion overturned a decision of a trial court judge who issued an interim judgment to the employer, dismissing the case before trial, in an age discrimination case brought by a employee whose job had been terminated as part of a workforce reduction (RIF) . The judges ruled that there was enough evidence on the record for a reasonable jury to conclude that the GIR was intended to advance a business plan to replace aging workers. In searing dissent, however, two of the justices accused the majority of misunderstanding the proper legal standard, disregarding undisputed evidence of the employer’s legitimate grounds for the decision, wrongly crediting erroneous opinions of an expert witness, to change the established law regarding “spurious remarks”. ” in the workplace, and other errors.

It is rare to see the judges of the Court of Appeal disagree so strongly. Here is what happened.

Long-serving electrical engineer position axed as part of RIF

From 2007 to January 2017, Mark Adams was employed by Schneider Electric USA (“Schneider”) as an electrical engineer in the research and development division at Schneider’s Boston campus. For several years his job was to improve the quality of drums, but in 2016 Adams was moved to another project. Less than a year later, Schneider cut her job as part of her third RIF in just 10 months. This RIF eliminated eight employees, all of whom were over 50 years old. The three RIFs together cut 24 employees, all but two of whom were over 50.

In October 2017, Adams filed suit against Schneider in Middlesex County Superior Court. He claimed that Schneider fired him because of his age in violation of Massachusetts law, among other allegations. Prior to trial, Schneider asked the Court to dismiss the case on the grounds that there was no genuine dispute over material fact to be decided by a jury because Adams could point to no evidence that the reasons not Schneider’s discriminatory moves to eliminate his position—in particular, his lack of interest in his new project and the comparatively smaller impact his loss would have on the research and development team—were not his real reasons. The trial court judge agreed and dismissed the case before trial, but a split Court of Appeals panel reversed that decision, finding Adams had pointed to sufficient evidence of age discrimination to compel a jury to decide the case.

Evidence of high-level bias may render the RIF illegal even if the decision maker was neutral

The majority opinion, joined by three of the five judges who decided the case, concluded that the trial court should not have dismissed the case against Schneider for two reasons.

First, the Court found that there was evidence of a high profile plan to replace aging employees with “early career” talent and recent college graduates, “from which a jury could conclude that the RIF itself was tainted even though the person who selected the employees for the RIF [did so] neutral. Among that evidence was an October 2015 email from an IT vice president telling a human resources professional that the Boston campus needed “age diversity” and “young talent.” However, all other evidence relied on by the Court – including numerous references to “creating space” for “junior-level talent” and a potential early retirement scheme – came from after the RIFs were implemented and did not reflect age bias on the part of the person who actually made the decision to include Adams in the third RIF – Kenneth Colby, who was the Director of Engineering recently promoted to Adams’ department.

The Court of Appeal recognized these facts, but did not consider them to be sufficient grounds to dismiss the case. The judges held that remarks made after an adverse employment action has been taken “may still be relevant to the contemporary thinking of the employer” and that any statement “made by those with the power to take employment decisions” is relevant to the motivations of the employer and cannot be dismissed as mere “spurious remarks”. So even if Adams was fired based on neutral criteria before allegedly discriminatory remarks were made by senior executives, a jury could still conclude that the GIR was unlawful because “the motivations of the company’s executives” – not just the decision maker – “should be treated as the motives of the decision”, and statements by powerful executives, even after the implementation of the GIRs, could convince a reasonable jury that Colby was merely “an innocent pawn in an undisclosed corporate strategy tainted with illegally discriminatory animosity” . The fact that Schneider had yet to fill the “space” he created for younger workers was irrelevant – “if we eliminated older workers to lay the groundwork for his plan, that would constitute discriminatory animosity. sufficient to permit a finding of liability.”

Consider the evidence in the manner most favorable to the employee

The Court also identified a second reason to disagree with the trial court – its conclusion that when the evidence was viewed in the light most favorable to Adams, there was sufficient evidence that ‘a rational jury concludes that Colby actually did know of Schneider’s supposed strategy of weeding out older workers and that he selected employees for inclusion in the third RIF in accordance with that strategy.

In support of this conclusion, the judges pointed to evidence that Colby had meetings with senior executives who were the supposed “architects” of Schneider’s plan to eliminate older employees while he was still in the process. to decide which jobs to cut, and felt that a jury could infer that their discriminatory wishes were expressed to Colby at these meetings, “particularly when every person Colby selected for the GIR was over fifty years old” .

The Court also pointed to evidence that Colby had discouraged the battery project leader from trying to rehire Adams as well as the opinion of Adams’ expert witness that the GIR disproportionately affected workers over the age of 50. Schneider had argued that the expert’s analysis was flawed because he failed to take into account the non-discriminatory reasons he believed drove Colby’s decisions, but the Court rejected that argument, finding that it was up to the jury to interpret and evaluate the statistical evidence.

Finally, and perhaps most importantly, the Court completely ignored unrebutted testimony that Colby was the sole decision maker, that his selection criteria and motives were neutral, that he and Adams were in fact lifelong friends. and that he had taken steps to try to save Adam’s work. The majority ruled that it was bound to disregard this evidence because it favored Schneider, relying on federal precedent and its conclusion that a jury would not be required to believe these facts if the case was decided.

The case is called Adams vs. Schneider Electric USA. The decision of the Court of Appeal can be consulted here.

Take away food

As indicated above, the Adam decision was the subject of a vehement dissenting opinion, joined by two members of the panel of five judges who accused the majority of several errors of law. Among other things, the dissent argued that the majority departed from the long-standing legal rule that “spurious remarks” are not enough to prove discriminatory bias by holding that the rule can never apply. to a manager who has the authority to make employment decisions. The dissent also challenged the legal standard applied by the Court and its apparent intolerance for modern estate planning in industries dominated by aging white men, among others.

For now, however, the majority opinion remains the law and it will certainly be invoked by lawyers trying to avoid dismissal in employment cases. What does this mean for employers? On the one hand, this means that employees at the managerial level who have the power to hire, sanction, promote, fire, or make other employment decisions must be even more careful about comments they make in the workplace. Comments that may have been dismissed by the courts as mere “spurious remarks” can now be seen as evidence of a high-level corporate strategy to discriminate against employees in all manner of employment decisions, and not just in the RIFs. Employers should also be aware that emails and other documents subsequent to an employment decision may be considered evidence of the employer’s motives for making that prior decision. And finally, employers considering succession planning need to be very careful about the rhetoric they use to describe their concerns, needs, wants and strategies, especially if their plans involve layoffs. Partnering with a labor attorney at an early stage can help reduce legal risk and prevent sensitive conversations from being used in any ensuing litigation.

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