David R. Knightly v. Town of Amherst. ( 2023 )

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
22-P-686
DAVID R. KNIGHTLY
vs.
TOWN OF AMHERST.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, David R. Knightly, retired from the Amherst
police department (department) as a lieutenant, after having
been passed over for promotion to captain. He brought the
underlying Superior Court action against the defendant town of
Amherst (town), alleging that by failing to promote him to
captain, the town retaliated against him for having previously
brought discrimination claims against the town. A Superior
Court judge entered summary judgment in favor of the town, and
the plaintiff appeals. We affirm.
Background. We draw the facts from those in the summary
judgment record which the parties have agreed are undisputed,
considering them in the light most favorable to the plaintiff,
the party against whom summary judgment entered. See Flint v.
Boston, 94 Mass. App. Ct. 298, 299 (2018). In December 2017,
the plaintiff filed with the Massachusetts Commission Against
Discrimination (MCAD) a charge (2017 MCAD charge) alleging
discrimination against the town. After withdrawing the 2017
MCAD charge, in August 2018 the plaintiff filed a complaint
(2018 complaint) in Superior Court against both the town and the
department, alleging discrimination based on age, handicap, and
gender. The 2018 complaint also alleged that the town and the
department had retaliated against him in violation of G. L.
c. 151B, § 4, for bringing the age and gender discrimination
claims.
In 2019, the plaintiff was one of four lieutenants in the
department, all of whom applied for promotion to a single vacant
position of captain. The plaintiff had more seniority than the
other three candidates.1 Effective February 8, 2019, one of the
other lieutenant candidates was promoted to the position as
captain. On December 4, 2019, the plaintiff filed with the MCAD
a retaliation charge against the town.
In April 2020, on the 2018 complaint, a Superior Court
judge allowed summary judgment for the town on the plaintiff's
discrimination claims and his retaliation claim under G. L.
c. 151B, § 4 (4), but denied summary judgment on the plaintiff's
1 The department is not subject to the civil service statute,
G. L. c. 31. If it were, G. L. c. 31, § 8, may have provided
the plaintiff with an advantage in promotion based on "greatest
length of service" of the four candidates.
2
G. L. c. 151B, § 4 (4A), retaliation claim arising from
statements allegedly made by the police chief in September and
December 2017.2
In May 2021, the plaintiff filed against the town the
complaint at issue here (2021 complaint), alleging that the town
violated G. L. c. 151B, § 4, by denying his application for
promotion to captain in retaliation for his having previously
engaged in protected activity by filing the 2017 MCAD charge.3 A
Superior Court judge sua sponte consolidated the case involving
the 2021 complaint with the one involving the remaining count on
the 2018 complaint. In June 2022, the same judge allowed the
town's motion for summary judgment on the 2021 complaint, and
judgment entered for the town. The plaintiff filed timely
notice of appeal.4
2 The judge noted that Knightly clarified for the first time in
his post-hearing brief that his retaliation claim is brought
under both G. L. c. 151B, § § 4 (4) and 4 (4A), and he added a
further basis for his retaliation claim that he was not promoted
from lieutenant to captain in February 2019. The judge held
that the nonpromotion claim had not been brought to MCAD and was
not encompassed within the complaint.
3 The 2021 complaint did not specify a subsection of G. L.
c. 151B, § 4, nor did it allege facts to support a claim that
any person had "coerce[d], intimidate[d], threaten[ed], or
interfere[d] with" the plaintiff in the exercise or enjoyment of
his rights as an employee as prohibited by § 4 (4A).
4 As of oral argument, the remaining count of the 2018 complaint
was pending and scheduled for trial. The question has not been
raised as to whether the summary judgment on the 2021 complaint
is immediately appealable. See Trenz v. Family Dollar Stores of
3
Discussion. "Our review on summary judgment is de novo."
Yee v. Massachusetts State Police, 481 Mass. 290, 294 (2019).
"In considering a motion for summary judgment, we review the
evidence and draw all reasonable inferences in the light most
favorable to the nonmoving party," here, the plaintiff (citation
omitted). Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky &
Popeo, P.C., 474 Mass. 382, 395 (2016). The town, as the moving
party, has "the burden of establishing that there is no genuine
issue as to any material fact and that [it is] entitled to
judgment as a matter of law" (citation omitted). Id.A claim of retaliation is a separate and distinct claim
from one for discrimination, and a retaliation claim may succeed
even if the underlying discrimination claim fails. See Abramian
v. President & Fellows of Harvard College, 432 Mass. 107, 121-
122 (2000). Although the word "retaliation" is not used in
G. L. c. 151B, see Verdrager, 474 Mass. at 405 n.33, the concept
Massachusetts, Inc., 73 Mass. App. Ct. 610, 613 (2009) (where
summary judgment is ordered on one of two consolidated cases,
appellant must obtain Mass. R. Civ. P. 54 (b) certification
allowing immediate appeal). Under the particular circumstances
here, however, we are of the view that the judge's sua sponte
consolidation of the two cases did not result in this case
losing its separate status for purposes of the final judgment
requirement. While the better practice would have been to
obtain a Mass. R. Civ. P. 54 (b) certification, here we will
consider the appeal because "[d]ismissal of the appeal would
serve no purpose and might require the parties to return to
reargue issues already briefed and argued" (quotation and
citation omitted). Commercial Wharf E. Condominium Ass'n v.
Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 n.20 (2018).
4
is contained within the meaning of G. L. c. 151B, § 4 (4), which
provides that it is an unlawful practice for an employer "to
discharge, expel or otherwise discriminate against any person
because he has opposed any practices forbidden under this
chapter or because he has filed [an MCAD charge]." See Bain v.
Springfield, 424 Mass. 758, 765 (1997). A failure to promote
may constitute retaliation. Cf. Verdrager, supra at 406 ("step-
back" was retaliatory).
To survive summary judgment on his retaliation claim, the
plaintiff was required to produce evidence from which a jury
could infer (1) that he "reasonably and in good faith believed
that the [town] was engaged in wrongful discrimination";
(2) that he "acted reasonably in response to the belief" by
engaging in protected activity, here, by filing the 2017 MCAD
charge; (3) that the town "took adverse action against" him,
here, by failing to promote him in 2019; and (4) "that the
adverse action was a response to [his] protected activity"
(quotations and citations omitted). Verdrager, supra at 405-
406. For the purposes of summary judgment, the town concedes
the first three elements, but argues that the plaintiff did not
produce evidence as to causation.
Because employees claiming retaliation often cannot produce
direct evidence that an employer's "forbidden motive" caused the
adverse action, courts apply "a three-stage burden-shifting
5
paradigm." Verdrager, 474 Mass. at 406, citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973). As
applied in this case, the first stage required the plaintiff to
produce evidence that he "suffered some adverse action, and that
'a causal connection existed between the protected conduct and
the action.'" Verdrager, supra, quoting Mole v. University of
Mass., 442 Mass. 582, 591-592 (2004). At the second stage, the
town would be required to articulate "a legitimate,
nondiscriminatory reason" for not promoting the plaintiff.
Verdrager, supra, quoting Elser v. Sylvia-Reardon, 473 Mass.
775, 780 n.7 (2016). Finally, at the third stage, the plaintiff
would be required to produce evidence that the town's "stated
reason for [not promoting him] was a pretext for retaliating
against" him on account of his protected activity. Id.At the first stage, the mere occurrence of an adverse
employment action after the employer has learned of the
employee's protected activity does not necessarily show a causal
relationship. Mole, 442 Mass. at 592. "That an employer knows
of a discrimination claim and thereafter takes some adverse
action against the complaining employee does not, by itself,
establish causation. 'Were the rule otherwise, then a
disgruntled employee . . . could effectively inhibit a well-
deserved [lack of promotion] by merely filing . . . a
discrimination complaint.'" Id., quoting Mesnick v. General
6
Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991), cert. denied, 504
U.S. 985 (1992). "Ordinarily, one event following another is
not, by itself, sufficient evidence of causality to establish a
prima facie case of unlawful retaliation, particularly
where . . . the two events are separated by months, not days."
Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 741 n.3 (2003).
The judge concluded that the plaintiff's showing failed at
the first stage, because he had not shown a causal connection
between his bringing the 2017 MCAD charge and the town's failure
to promote him to captain in February 2019. The judge concluded
that the fourteen months that elapsed between those two events
was too long a period to give rise to an inference of causation,
particularly because the plaintiff pointed to no other evidence
of any discriminatory or disparate treatment during that time.
We agree. See Dube, 59 Mass. App. Ct. at 741 (evidence "too
tenuous" to support inference of retaliation, where nine months
lapsed after latest request for accommodations, and employee
suffered no other adverse job action during that period). See
also Mole, 442 Mass. at 595 ("as the elapsed time between those
two events becomes greater, the inference weakens and eventually
collapses"). Contrast Verdrager, 474 Mass. at 398-400, 407(causation shown, where during two and one-half years between
plaintiff's filing of MCAD gender discrimination charge and her
7
termination, employer subjected her to disparate treatment,
undermining, and criticisms based on stereotypes).
Because we agree with the judge that the plaintiff did not
present evidence to show causation that his being passed over in
February 2019 for promotion to captain was in retaliation for
his having brought the 2017 MCAD charge, we do not reach the
plaintiff's claims that the judge erred in applying the second
and third stages of the test.5 See Mole, 442 Mass. at 602.
Judgment affirmed.
By the Court (Englander,
Grant & Brennan, JJ.6),
Clerk
Entered: April 21, 2023.
5 Nor do we reach the plaintiff's claim that Adams v. Schneider
Elec. USA, 101 Mass. App. Ct. 516, 525 (2022), further appellate
review granted, 490 Mass. 1108 (2022), should control here.
6 The panelists are listed in order of seniority.
8