MARIE E. COLEMAN & Another v. CAMBRIDGE SAVINGS BANK. ( 2023 )


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  • 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-695
    MARIE E. COLEMAN & another 1
    vs.
    CAMBRIDGE SAVINGS BANK.
    MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
    The plaintiffs, Marie Coleman and Alda Soares, appeal from
    a summary judgment in favor of the defendant, Cambridge Savings
    Bank (CSB), on their employment discrimination claims brought
    pursuant to the antidiscrimination statute, G. L. c. 151B, and
    their promissory estoppel claims.           The case arose from CSB's
    termination of the plaintiffs' employment after they violated
    CSB's bank vault security policy.           We affirm the summary
    judgment.
    Background.    We briefly summarize the facts from the
    summary judgment record in the light most favorable to the
    plaintiffs, reserving certain facts for later discussion.                See
    1   Alda V. Soares.
    Milliken & Co. v. Duro Textiles, LLC, 
    451 Mass. 547
    , 550 n.6
    (2008).
    CSB hired Coleman as assistant vice-president, branch sales
    and service manager in 2013.    She was an at-will employee, part
    of the management team, and "generally was responsible for the
    operations of [the Inman Square] branch" of CSB in Cambridge.
    Coleman is an African-American woman who was over the age of
    forty at all times relevant to the instant case.
    CSB hired Soares in 1995, promoted her to retail operations
    manager in 1998, and promoted her again to assistant branch
    manager of its Inman Square branch (hereafter "Branch") in 1999.
    She was part of the management team at CSB and was always an at-
    will employee.   Soares was over the age of forty at all times
    relevant to the instant case.
    CSB had a security policy that set out requirements for
    bank vault access.   The plaintiffs, "as part of their respective
    roles in Branch management," were responsible for ensuring
    compliance with the security policy, which included a "[d]ual
    [c]ontrol procedure" requiring two people to be present each
    time the bank vault was opened at CSB.   Under the dual control
    procedure, CSB split the combination to the vault into an "A"
    combination and "B" combination, and CSB prohibited any single
    person from having access to the entire vault combination.
    Coleman, Soares, and the head teller, Nilsa Brita-Barbosa, held
    2
    the A combination and the tellers at the Branch held the B
    combination to the vault.    CSB also required the Branch to
    "maintain a log on which each person present when the vault was
    opened was to sign the log to attest that at least two people
    were present when the vault was opened."    If the Branch needed
    to open the vault but individuals with the A or B combination
    were not present, staff "were required to call [CSB]'s
    Operations Department so that [it] could provide the missing
    portion of the vault combination and then reset the entire vault
    combination."   Both plaintiffs knew of this requirement, and, in
    fact, had invoked the procedure and contacted CSB's Operations
    Department in January of 2016.
    On February 10, 2016, Coleman was present at the Branch
    when the vault was to be opened, but no person with the B
    combination was present.    In an effort to open the Branch for
    business, Coleman contacted the employee with the B combination
    who was out sick that day and CSB's Operation's Department, but
    neither responded.   Coleman then retrieved a copy of the B
    combination that she and Soares, who was not present at the
    Branch at the time, previously decided to store in Soares's
    office desk.    The B combination was stored in Soares's desk for
    approximately one week.    An employee with the B combination had
    placed the B combination inside of a sealed envelope that Soares
    3
    never opened.   Coleman and Soares knew that storing the B
    combination in that location and manner violated CSB policy.
    Aware that she was being filmed by the Branch's security
    system, Coleman used the stored B combination to open the vault
    in the presence of head teller Brita-Barbosa.   All cash and
    negotiable instruments were secured in separate money vaults
    with different combinations that Coleman did not possess.    Both
    Coleman and Brita-Barbosa signed the vault log to indicate their
    presence when the vault was opened, but Coleman did not contact
    the Operations Department to reset the vault's combination.     CSB
    learned of the policy violation from Brita-Barbosa.
    On February 18, 2016, Carol Sexton and Christine Mauras of
    CSB's Operations Department met with Coleman to discuss the
    February 10 incident.    Coleman was less than forthcoming and at
    one point provided a false explanation regarding some of the
    events at issue.   Coleman later claimed that she had fallen down
    the stairs at home the day before the meeting and felt dizzy
    during the meeting.
    On February 22, 2016, Mauras and David Walker, also of
    CSB's Operations Department, met with Soares to discuss the
    events of February 10.   In that meeting, Soares admitted to
    storing the B combination to the vault in her desk and signing
    the vault log for the opening on February 10, even though she
    was not present for the vault opening that day.   Soares knew
    4
    that she was required to sign the vault log when the vault was
    opened, and not at some later time.
    On March 3, 2016, CSB terminated Coleman's employment for
    violating the security policy, in particular the dual control
    procedure.   That same day, CSB also terminated Soares's
    employment for violating the security policy, in particular the
    dual control procedure, and for "falsifying the [v]ault [l]og."
    There was no evidence that any other CSB employee had violated
    the dual control procedure in any of CSB's branches.
    Coleman and Soares contend that CSB's decision to terminate
    their employment was an act of age discrimination.   Coleman
    further claims that CSB's decision to terminate her employment
    was an act of race discrimination. 2
    Discussion.   Summary judgment is appropriate where "there
    is no genuine issue as to any material fact and . . . the moving
    party is entitled to a judgment as a matter of law."   Mass. R.
    Civ. P. 56 (c), as amended, 
    436 Mass. 1404
     (2002).   In reviewing
    a grant of summary judgment, we assess the record de novo and
    2 In their brief, the plaintiffs assert that they "were subjected
    to a hostile work environment." We note that count five of the
    plaintiffs' complaint, in which Coleman alleged a "failure to
    supervise" that subjected her "to a hostile work environment,"
    was previously dismissed upon CSB's motion to dismiss. In any
    event, as discussed infra, the evidence the plaintiffs cite in
    support of their age and race discrimination claims is
    speculative, conclusory, supported by citations to the record
    that do not stand for the propositions cited, and thus
    insufficient as a matter of law.
    5
    take the facts, together with all reasonable inferences to be
    drawn from them, in the light most favorable to the nonmoving
    party.    See Godfrey v. Globe Newspaper Co., 
    457 Mass. 113
    , 119
    (2010).    "[T]he court does not 'pass upon the credibility of
    witnesses or the weight of the evidence [or] make [its] own
    decision of facts.'"    Shawmut Worcester County Bank, N.A. v.
    Miller, 
    398 Mass. 273
    , 281 (1986), quoting Attorney Gen. v.
    Bailey, 
    386 Mass. 367
    , 370, cert. denied, 
    459 U.S. 970
     (1982).
    1.   Employment discrimination.   An employee bringing a
    complaint under G. L. c. 151B, § 4, must demonstrate that:      (1)
    the employee is a member of a protected class; (2) the employee
    was subject to an adverse employment action; (3) the employer
    bore discriminatory animus in taking that action; and (4) animus
    was the actual reason for that action (i.e., causation).     See
    Bulwer v. Mount Auburn Hosp., 
    473 Mass. 672
    , 680 (2016).     As to
    both the race and age discrimination claims, there is no dispute
    that both plaintiffs are members of a protected class and were
    subject to an adverse employment action.    Thus, this case turns
    on discriminatory animus.    "Because . . . direct evidence [of
    the elements of discriminatory animus and causation] rarely
    exists, . . . an employee plaintiff [asserting discrimination]
    may also survive [a summary judgment motion] by . . .
    using . . . [a] three-stage, burden-shifting paradigm"
    (quotations and citations omitted).    
    Id. at 680-681
    .   At the
    6
    first stage of this paradigm, plaintiffs bear the burden to
    demonstrate a prima facie case of discrimination by providing
    "evidence that:    (1) [they are] a member of a class protected by
    G. L. c. 151B; (2) [they] performed [their] job at an acceptable
    level; [and] (3) [they were] terminated."    
    Id. at 681
    , quoting
    Blare v. Husky Injection Molding Sys. Boston, Inc., 
    419 Mass. 437
    , 441 (1995).   At the second stage, an employer "can rebut
    the presumption created by the prima facie case by articulating
    a legitimate, nondiscriminatory reason for its [employment]
    decision."   Blare, 
    supra.
       At the third stage, "the burden of
    production shifts back to the plaintiff employee, requiring the
    employee to provide evidence that 'the employer's articulated
    justification [for the termination] is not true but a pretext.'"
    Bulwer, 
    supra at 681
    , quoting Blare, 
    supra at 443
    .
    The present case hinges on whether in the face of the
    legitimate, nondiscriminatory reason for the adverse employment
    action -- here, the violation of the dual control policy and
    Soares's falsification of the vault log -- the plaintiffs
    provided evidence that the employer's articulated justification
    "is not true but a pretext."    Bulwer, 
    473 Mass. at 681
    .
    As to Coleman's race discrimination claim, she contends,
    inter alia, that the evidence of pretext included the following:
    during the course of her employment at CSB, there were "no
    individuals in upper management who were Black"; CSB's "lack of
    7
    commitment to a diverse workforce and workplace culture made
    [her] very uncomfortable"; one of CSB's operations managers
    "would make racist comments concerning the dress of Black
    employees" but "would not make such comments concerning
    Caucasian employees"; "Coleman's termination, without warning,
    stands in stark contrast to the treatment of white male managers
    under similar circumstances"; and CSB replaced Coleman with a
    white male without considering any African-American candidates.
    As to the plaintiffs' age discrimination claims, Coleman and
    Soares contend, inter alia, that it was standard policy for CSB
    "to prefer younger employees for hiring and promotion to
    management positions"; that "older employees were encouraged to
    accept lower positions"; that CSB replaced them with younger
    employees; and that Soares was "subjected to ageist belittling."
    The plaintiffs' arguments suffer from a lack of evidentiary
    support.   At the outset, we note that the plaintiffs claim that
    CSB refused to respond to discovery requests seeking to
    "identify each [CSB] employee aged [forty] or older that [CSB]
    discharged or laid off in the last ten years," the persons
    filling those positions, and "each African-American hired to a
    management position within the last ten (10) years."   The
    plaintiffs make repeated refences to this alleged discovery
    violation and contend that it is "telling," and constitutes
    "unrefuted evidence" supporting their claims of age and race
    8
    discrimination.   We disagree.   There are myriad reasons for a
    party to object to discovery requests.    The Massachusetts Rules
    of Civil Procedure provide mechanisms, including motions to
    compel, to resolve discovery disputes.    See Mass. R. Civ. P. 26,
    as amended, 
    474 Mass. 1401
     (2016); Mass. R. Civ. P. 37, as
    amended, 
    423 Mass. 1406
     (1996).    Here, as plaintiffs
    acknowledged at oral argument, they did not file any motion to
    compel or otherwise avail themselves of any mechanism in the
    Superior Court to require production of such information.
    Having failed to do so, they cannot claim that the unprovided
    discovery constitutes "evidence."     Indeed, they neither cite to
    any authority for this proposition nor are we aware of any. 3
    Consequently, the record does not contain comparator or
    statistical evidence to support the plaintiffs' claims.
    Contrast Adams v. Schneider Elec. USA, Mass., No. SJC-13352,
    slip op. at 21 (June 21, 2023) (statistical data indicated
    "layoffs had a disproportionate effect on employees over
    fifty").
    3 The record before us does not reveal the propriety of CSB's
    objections or refusal to comply with all discovery requests and
    we do not speculate or opine as to the wisdom or fairness of
    CSB's actions. We merely note that to the extent that the
    plaintiffs believed that CSB withheld available relevant
    discovery, the plaintiffs had an obligation to act in the
    Superior Court to try to obtain such information and did not do
    so.
    9
    Of course, statistical data is not available in all cases
    and, in any event, is not required to prove pretext in a
    discrimination claim.   See Blare, 
    419 Mass. at 439
    (discriminatory intent "rarely is established by other than
    circumstantial evidence").    This brings us, however, to another
    shortcoming in the plaintiffs' claim:   the lack of actual
    admissible evidence in the summary judgment record to support
    the plaintiffs' assertions.
    As evidence of pretext in their age discrimination claim,
    the plaintiffs contend that by 2015, CSB's standard policy was
    to prefer younger employees for hiring and promotion to
    management positions.   As evidence of that claim, the plaintiffs
    cite to Soares's deposition transcript wherein she testified
    that "even the setup of [CSB] was" designed to "attract more
    younger people, the students from Harvard and MIT, things like
    that"; that "it feels like -- to me, it's like they were trying
    to put more of an age group that is more -- more that -- more
    comparable to what the new -- the people they're trying to
    serve"; that "it feels like [CSB did not] want . . . older
    people, like, to be a head of the department or a head of the
    branch."   She further testified that "it was more like all these
    young crowds . . . they come at the lower pay than us, probably,
    I'm assuming.   I -- that, I don't know for sure."    Finally, she
    testified that she felt that her age was a factor.    Far from
    10
    demonstrating a standard policy, this testimony is speculative
    and does not rise the level of evidence of pretext.   A
    plaintiff's feeling, suspicion, or unsupported statement does
    not constitute admissible evidence at summary judgment.    See,
    e.g., White v. University of Massachusetts at Boston, 
    410 Mass. 553
    , 558 (1991); Brooks v. Peabody & Arnold, LLP, 
    71 Mass. App. Ct. 46
    , 56 (2008), quoting Medina-Munoz v. R.J. Reynolds Tobacco
    Co., 
    896 F.2d 5
    , 8 (1st Cir. 1990) ("Even in cases where elusive
    concepts such as motive or intent are at issue, summary judgment
    may be appropriate if the nonmoving party rests merely upon
    conclusory allegations, improbable inferences, and unsupported
    speculation").   Contrast Adams, No. SJC-13352, slip op. at 20-23
    (plaintiff established genuine issue of material fact whether
    employer had policy to remove older staff for younger hires
    where evidence showed that, inter alia, layoffs had a
    disproportionate effect on older employees and corporate
    executives repeatedly "expressed concern about the age of their
    workforce," "stressed the need to make room for . . . younger
    talent," and suggested strategies to change the "demographics
    mix" through terminating older workers to hire younger college
    graduates).
    The plaintiffs also argue, citing the deposition of a
    former CSB employee, Nikolay Hristov, that CSB "made it a
    practice to hire white males under age [forty] to fill [CSB]
    11
    management positions."    Asked "[w]hat facts [he was] relying on
    to make that assertion," Hristov testified that Coleman and
    Soares were let go in favor of younger managers.    He further
    testified that "there was a tendency [to] just promote white
    males, as far as I remember in [the] Newtonville branch, that's
    what I recall, it was younger guy got promoted, and I just don't
    remember the rest of it, but it was kind of obvious."    In other
    words, as evidence of their claim that CSB's actions were
    pretextual, the plaintiffs cite to Hristov's testimony (1)
    repeating that the plaintiffs themselves were terminated in
    favor of younger managers, and (2) his uncertain recollection,
    unsupported by specific facts, of CSB's "tendency."    Moreover,
    Hristov acknowledged that when he was under the age of forty,
    his manager at CSB had discouraged him from applying for
    promotions, yet, after he was over the age of forty, CSB
    promoted him. 4   Asked again, in light of his promotion after he
    turned forty, to explain the basis for his claim that "it was
    the standard policy and procedure" of CSB to prefer white males
    under the age of forty, Hristov responded, "I mean, it looked
    that way."   Here again, we note that mere statements of belief
    or bare allegations unsupported by actual evidence, are
    4 Hristov further testified that he thought his promotion was not
    "about the age, it was about the experience," but when asked if
    he believed CSB makes promotion decisions based on candidates'
    experience, he responded that he did not "know what [CSB] does."
    12
    insufficient to defeat a moving party's motion for summary
    judgment.    See White, 
    410 Mass. at 558
    ; Brooks, 71 Mass. App.
    Ct. at 56.    In any event, not only does Hristov's conclusory
    testimony fail to support the claim of CSB's alleged "standard
    policy"; it contradicts the claim as well.
    Another means of establishing that an employer's proffered
    reason for termination is a pretext for discrimination is to
    demonstrate that "similarly situated" employees "in terms of
    performance, qualifications and conduct" were treated
    differently.    See Matthews v. Ocean Spray Cranberries, Inc., 
    426 Mass. 122
    , 129 (1997), quoting Smith v. Stratus Computer, Inc.,
    
    40 F.3d 11
    , 17 (1st Cir. 1994).    Here, to support the claim that
    Coleman's termination was in "stark contrast to the treatment of
    white male managers under similar circumstances," the plaintiffs
    cite only to Coleman's deposition testimony stating that a white
    male manager "gave out money without a withdrawal slip" in 2014
    or 2015 and was promoted rather than terminated.    Coleman's
    knowledge of this incident was based on hearsay statements told
    to her by others, and she could not recall any further details.
    This argument is thus unavailing.
    We note that the plaintiffs do not contend that Brita-
    Barbosa was a similarly situated individual who was treated
    13
    differently. 5   That notwithstanding and viewing the evidence in
    the light most favorable to the nonmoving party, even assuming
    arguendo that the plaintiffs implicitly contend that Brita-
    Barbosa is a similarly situated individual such that CSB's
    failure to discipline her demonstrates that the plaintiffs'
    termination was pretextual, the argument is unavailing.    Putting
    aside that the record is silent as to Brita-Barbosa's age or
    race, her being "present" when Coleman opened the vault and
    signing the vault log to document her presence is not "of
    comparable seriousness" to the plaintiffs' conduct.    Matthews,
    
    426 Mass. at 130
    .    That Brita-Barbosa is the person who reported
    the incident to CSB further demonstrates that there are
    "differentiating or mitigating circumstances that would
    distinguish their situations" (quotation and citation omitted). 6
    5 The plaintiffs state in their brief, without any further
    elaboration or legal argument, that "[a]lthough Ms. Brita-
    Barbosa also signed the vault log and was present when the vault
    was opened she was not disciplined by [CSB]." Furthermore, not
    only did the plaintiffs not argue that Brita-Barbosa was a
    similarly situated individual for purposes of showing pretext;
    the plaintiffs disputed the inclusion of Brita-Barbosa's
    statements in the summary judgment record on the ground that
    they were inadmissible hearsay, and moved to strike them as
    well.
    6 While the plaintiffs disputed the inclusion of Brita-Barbosa's
    statements in Sexton's and Mauras's affidavits in the summary
    judgment record on the ground that they were inadmissible
    hearsay, they did not dispute the fact that Brita-Barbosa
    informed CSB of the incident.
    14
    
    Id.
       Furthermore, the plaintiffs' assertion that CSB did not
    discipline Brita-Barbosa is unsupported by the record. 7
    As further evidence of alleged pretext to support her race
    discrimination claim, Coleman argued that one of CSB's
    operations mangers "would make racist comments concerning the
    dress of Black employees."   Asked at her deposition to identify
    such comments, Coleman clarified that she was referencing one
    comment made by Sexton about the "undergarments" worn by a Black
    customer service employee who worked in the Harvard Square
    branch of CSB. 8
    Coleman also contends that CSB replaced her with a white
    male without considering any African-American candidates, and
    that this action also constituted evidence of pretext.     Even
    assuming an admissible basis exists for this conclusory claim,
    the record reflects that Coleman and Soares were terminated on
    the same day, and CSB hired an individual who "identifies as
    Black or African American" to replace Soares.
    Finally, asked to list each act of race discrimination,
    Coleman testified that there "was a lack of individuals who were
    7 As evidence that Brita-Barbosa was not disciplined by CSB, the
    plaintiffs cite only to Sexton's deposition testimony that she
    could not recall whether Brita-Barbosa was disciplined.
    8 Although Coleman's testimony is somewhat unclear, taken in the
    light most favorable to the plaintiffs, Sexton commented that
    the customer service employee's "skirt was so short you could
    see her panties."
    15
    culturally diverse"; that another African-American woman was
    hired on the same day that Coleman was hired; and that there
    were no individuals in upper management who were Black.       These
    allegations suffer from the same problem as the above-referenced
    claims.   The plaintiffs raise broad allegations of age and race
    discrimination, but the cited record references underlying each
    assertion reveal conclusory, speculative, unsupported, and even
    contradictory evidence. 9    Thus, even apart from the absence of
    comparator or statistical evidence, the plaintiffs offer
    insufficient anecdotal or other evidence to support their
    discrimination claims as a matter of law.      "Against the
    preponderant information of the record, a finding of pretext
    would require a speculative leap well beyond the length of a
    reasonable inference."      Chi Sang Poon v. Massachusetts Inst. of
    Tech., 
    74 Mass. App. Ct. 185
    , 199 (2009).
    2.   Promissory estoppel.    The plaintiffs also assert that a
    rational jury could find that the plaintiffs reasonably relied
    on CSB's promise to adhere to the progressive discipline policy
    in their employee handbook.     We disagree.
    "An essential element under the promissory estoppel theory
    is that there be an unambiguous promise and that the party to
    9 We note that the excerpts from depositions included in the
    record are, as the motion judge highlighted below, "highly
    fragmented" and "appear to be purposefully missing pages that
    would have afforded more context."
    16
    whom the promise was made reasonably relied on the
    representation."   Rhode Island Hosp. Trust Nat'l Bank v.
    Varadian, 
    419 Mass. 841
    , 848 (1995), quoting Pappas Indus.
    Parks, Inc. v. Psarros, 
    24 Mass. App. Ct. 596
    , 599 (1987).
    Here, the progressive discipline policy states, inter alia, that
    "[p]rogressive discipline is a standard method of upgrading the
    performance and/or conduct of employees having difficulty
    meeting [CSB's] expectations"; that the policy is "not intended
    in any way to alter the employment at will relationship between
    [CSB] and its employees"; and that CSB "at all times retains the
    discretion to modify or eliminate any or all of the following
    procedures according to the circumstances of the disciplinary
    matter."   Both plaintiffs testified during their depositions
    that they understood that the policy did not alter their at-will
    employment relationship. 10   Accordingly, the plaintiffs'
    promissory estoppel claim is insufficient as a matter of law
    where they can neither show that CSB made an unambiguous promise
    to adhere to the progressive discipline policy prior to
    10Coleman understood that with respect to its progressive
    discipline policy, CSB was "not committing to following any
    particular steps." Similarly, when asked about the portion of
    the policy that states that "[t]he following progressive
    discipline procedures are not intended in any way to alter the
    employment-at-will relationship between [CSB] and its
    employees," Soares acknowledged that "you can still be terminate
    -- you know, that it's -- are not intended to -- that [the
    policy] is not like a contract."
    17
    termination, nor that they reasonably relied on it.     See
    Varadian, 
    supra at 848-850
    . 11
    Judgment affirmed.
    By the Court (Wolohojian,
    Neyman & Smyth, JJ. 12),
    Clerk
    Entered:   August 17, 2023.
    11 To the extent that we have not specifically addressed
    subsidiary arguments in the parties' briefs, they have been
    considered, and do not warrant further discussion. See
    Commonwealth v. Domanski, 
    332 Mass. 66
    , 78 (1954).
    12 The panelists are listed in order of seniority.
    18