Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

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SJC-11901
KAMEE VERDRAGER vs. MINTZ, LEVIN, COHN, FERRIS, GLOVSKY &
POPEO, P.C., & others.1
Suffolk. November 5, 2015. - May 31, 2016.
Present: Botsford, Duffly, Lenk, & Hines, JJ.
Anti-Discrimination Law, Employment, Sex, Termination of
employment. Employment, Discrimination, Sexual harassment,
Demotion, Retaliation, Termination. Unlawful Interference.
Practice, Civil, Summary judgment, Discovery.
Civil action commenced in the Superior Court Department on
November 3, 2009.
The case was heard by Peter M. Lauriat, J., on motions for
summary judgment.
The Supreme Judicial Court granted an application for
direct appellate review.
Kamee Verdrager, pro se.
Joan A. Lukey (Justin J. Wolosz with her) for the
defendants.
Ellen J. Messing, for Massachusetts Employment Lawyers
Association, amicus curiae, submitted a brief.
Ben Robbins & Martin J. Newhouse, for New England Legal
Foundation & another, amici curiae, submitted a brief.
1
Robert Gault, David Barmak, Bret Cohen, R. Robert Popeo,
and Donald Schroeder.
2
LENK, J. General Laws c. 151B, § 4, prohibits employers
from discriminating against employees on the basis of gender.
It also prohibits them from retaliating against employees for
engaging in "protected activity," i.e., activity undertaken "to
protest or oppose statutorily prohibited discrimination"
(citation omitted). See Thirkield v. Neary & Hunter OB/GYN,
LLC, 76 F. Supp. 3d 339, 350 (D. Mass. 2015) (interpreting G. L.
c. 151B). Here, we are asked to determine whether summary
judgment should have entered for the employer on an employee's
claims for gender discrimination and retaliation. In addressing
the retaliation claim, we confront the novel question whether it
is "protected activity" for an employee to search for, copy, and
share with the employee's attorney confidential documents that
the employee is authorized to access in the course of employment
and that may help prove a discrimination claim.
The plaintiff is an attorney who worked for a Boston law
firm, defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo,
P.C. (firm). During the course of her employment with that
firm, from June, 2004, to November, 2008, she complained to her
superiors and, ultimately, to the Massachusetts Commission
Against Discrimination (MCAD), that she was being subjected to
discriminatory treatment on the basis of her gender -- treatment
that, she believed, led to her demotion in February, 2007. In
3
the wake of this demotion, and on the advice of her attorney,
the plaintiff searched the firm's document management system for
items that might prove her assertions of discrimination. In
November, 2008, after these searches were made known to the
firm's chairman, the plaintiff's employment was terminated "for
cause."
In November, 2009, the plaintiff filed the present action
in the Superior Court, which, as amended, named as defendants
the firm, certain firm "members"2 with whom she worked, and the
firm's chairman, R. Robert Popeo. The complaint alleged that
both the plaintiff's demotion and her termination were the
result of discrimination on the basis of gender, and that both
also constituted retaliation for her having opposed such
discrimination. The complaint specified five counts pursuant to
G. L. c. 151B, § 4: gender discrimination (against all
defendants except Bret Cohen); pregnancy discrimination3 (against
the firm); aiding and abetting discrimination (against all
except the firm and Cohen); failure to investigate and remedy
discrimination (against the firm); and retaliation (against all
2
"Members" are the equivalent of "partners" at other law
firms.
3
Pregnancy discrimination is a form of gender
discrimination. See Massachusetts Elec. Co. v. Massachusetts
Comm'n Against Discrimination, 375 Mass. 160, 167 (1978) ("any
classification which relies on pregnancy as the determinative
criterion is a distinction based on sex").
4
except Cohen). A sixth count, tortious interference with
contractual relations, was filed only against Cohen, who was not
named in any of the other counts. The defendants then
counterclaimed on various grounds.4 Following cross motions for
summary judgment, only three of the defendants' counterclaims
survived,5 and all of the plaintiff's claims were dismissed. The
plaintiff appealed from the dismissal of her claims,6 and we
allowed her petition for direct appellate review.
We conclude, first, that the plaintiff has presented
evidence from which a reasonable jury could infer that both her
demotion and her termination were the result of unlawful
discrimination, as well as evidence allowing an inference that
both were the result of retaliation.7 Therefore, summary
4
The counterclaims alleged breach of fiduciary duty,
conversion, fraud, breach of contract, breach of the implied
covenant of good faith and fair dealing, and violations of two
Federal computer fraud statutes (18 U.S.C. §§ 2701, 2707, and
18 U.S.C. § 1030A). There was also a claim for replevin of the
documents taken by the plaintiff.
5
The surviving claims were breach of fiduciary duty, breach
of contract, and breach of the implied covenant of good faith
and fair dealing. The motion judge also granted the defendants'
motion to enter separate and final judgment on all the counts as
to which summary judgment had entered.
6
The defendants did not cross-appeal from the dismissal of
their claims. Neither the dismissed counterclaims nor the
surviving ones are before us.
7
As discussed in note 23, infra, the other claims -- for
pregnancy discrimination, aiding and abetting, and failure to
5
judgment for the defendants on those counts was inappropriate.
Second, we hold that an employee's accessing, copying, and
forwarding of documents may, in certain limited circumstances,
constitute "protected activity," but only where her actions are
reasonable in the totality of the circumstances.8 Finally, we
conclude that judgment was entered properly on the claim against
Cohen for tortious interference with contractual relations.
1. Background. We summarize the facts, which are
generally undisputed, "drawing inferences in favor of the
plaintiff where they may reasonably be drawn from the facts."
Young v. Boston Univ., 64 Mass. App. Ct. 586, 587 (2005), cert.
denied, 549 U.S. 832 (2006). To the extent that facts are
disputed, we resolve them in favor of the plaintiff. See Miller
v. Cotter, 448 Mass. 671, 676 (2007). We reserve certain
details for later discussion.
After graduating from law school in 1999, the plaintiff
practiced employment and labor law in New York. In June, 2004,
she began work as a fifth-year associate at the firm's Boston
office, in its employment, labor, and benefits (ELB) section.
Throughout the course of the plaintiff's employment, the
firm had in place an "Electronic Information System [EIS]
investigate and remedy -- are supported by the same evidence
that supports the discrimination claims.
8
Because it is unnecessary for our decision, however, we do
not apply this rule to the plaintiff's actions in this case.
6
Acceptable Use Policy" (EIS policy). On June 16, 2004, the
plaintiff signed a copy of that policy and agreed to be governed
by its provisions. The plaintiff was trained in the use of
Desksite, a document management system used by the firm, at the
beginning of her employment. She was told that she "was
supposed to save almost all documents which she authored to the
public section of DeskSite" and "was expected to search the
system regularly in connection with her work." Any documents in
the "public" section of that system "were available to everyone
in the firm who could access DeskSite." Such documents could be
accessed directly or could be found through a general word
search of the system's contents. Users also could choose,
however, to save documents in a "private" section of the system,
accessible only to themselves or to individuals that they
specified. The EIS policy provided that the "EIS should be
used, with limited exceptions, only for job-related
communications. Although personal use is permitted, employees
should do so with the full understanding that nothing is
private" (emphasis in original). Associates frequently used
Desksite for personal or nonbusiness reasons, including to check
the time records of other associates to see "who was getting the
most work."
The firm also had in place a confidentiality policy, which
stated that "[a]ll documents, correspondence, forms and other
7
work product created or produced by the firm in connection with
the delivery of legal services to the firm's clients are the
sole property of [the firm] and its clients. Such material
should not be removed from the office or used for any reason
other than for or in connection with the delivery of services on
behalf of the firm."
Shortly after joining the firm, in late June and early
July, 2004, the plaintiff was assigned to work with Cohen, a
member in the ELB section, to draft a brief on behalf of one of
the firm's clients. In an electronic mail message dated July
19, 2004, Cohen stated that the client "has really liked our
pleadings to date. Let's keep up the good work!" Another firm
member, who also worked on the brief, later wrote in an
evaluation that the plaintiff
"not only has a sound command of legal principles but she
appears to have great intuition and reaction to legal
issues that will make her an excellent advisor to clients
and an attorney who has much to contribute to strategic
issues in matters. On numerous matters in [this] case she
has dropped by my office to discuss an issue and her
intuitive response to the issue has been on point and well-
considered . . . . I have not witnessed [her] interaction
with clients, but I do know that she has had extensive
contact with opposing counsel and the client in [this]
matter. My impression is that [the client] has appreciated
[the plaintiff's] counsel and that [she] is well-respected
and had 'run with the ball' in connection with opposing
counsel in the matter . . . . I would certainly like to
work with her again on any matters that involve ELB
litigation[.]"
8
The plaintiff maintains that, while Cohen and the plaintiff
were working on this brief, he made a number of inappropriate,
sexually-charged comments to her.9 At some point in July, 2004,
the plaintiff complained of these incidents to the firm's human
resources office. In mid-August, 2004, the plaintiff spoke
with, among others, the firm's managing director, Peter
Biagetti, and with the attorney managing the ELB section,
defendant Robert Gault, about the incidents. Gault and Biagetti
met with Cohen in August, 2004, to discuss the plaintiff's
assertions. Gault and Biagetti concluded that her complaints
were "management style complaints" rather than "complaints
related to gender differences," and decided to hire an executive
coach to work with Cohen. At some point during that summer,
firm chairman Popeo was informed of the plaintiff's complaints.
Popeo spoke with Biagetti and was told that Biagetti had looked
into the complaints and had found no evidence of gender-based
discrimination.10
9
In particular, the plaintiff states that Cohen spoke to
her about "having a 7-year itch [and] wanting to cheat on his
wife." He also called the plaintiff on the telephone to tell
her "in a very provocative tone" that "I was dreaming about you
last night." Cohen denies having made such comments.
10
Throughout the course of the plaintiff's employment,
various meetings were held to discuss both the plaintiff's
claims of discrimination and, more generally, the issue of
gender discrimination at the firm. The meetings involved, at
different points and among others, Gault, the ELB section
manager; Barmak, who would replace Gault as section manager;
9
In October, 2004, after a client complained to Cohen about
the plaintiff's performance, Cohen asked the client to submit
the complaint in writing, which Cohen then forwarded to Gault,
the ELB section manager, and Starr, the director of human
resources.11
Also in October, 2004, various individuals, both members
and associates, told the plaintiff that Cohen was making
negative remarks about her. In evaluating the plaintiff's
performance in the fall of 2004, Cohen rated it as "usually
below expectations." He wrote that the plaintiff
"needs a great deal of help on her writing. She is smart
and seems to have a great deal of institutional knowledge
but, at least when I dealt with her, was unable to
translate her knowledge into a cohesive thought. . . .
Orally, I find that she does not speak with confidence.
For example, she says 'um' a lot."
The concerns regarding the plaintiff's writing were
echoed in the comments of her other evaluators. Defendant
Donald Schroeder, then a senior associate in the ELB section,
who would later be promoted to membership, rated the plaintiff's
performance as "always meets expectations." In his written
firm chairman Popeo; Schroeder, a member of the ELB section;
Rosemary Allen, a member who oversaw personnel matters; and
Wendy Starr, director of human resources.
11
Cohen stated in his deposition that he had never
previously solicited a written complaint against an associate
and that he did so here "because in my entire time being a
partner at any law firm . . . I had never once had a client say,
I don't want to work with this attorney. She was rude, and it
upset either me or somebody else."
10
comments, however, he added that the plaintiff "needs to develop
her analytical writing skills and organize her thoughts more
clearly on paper." Gault rated her work as "usually meets
expectations" and noted that "I do not have much exposure" to
her work but "I've seen a few things [in her writing] that
suggest a need for more attention to detail."
In January, 2005, Cohen increased the scope of a research
project he had assigned to the plaintiff. This project did not
count toward her quota of hours billable to clients. Based on
conversations she had at the time with her colleagues, the
plaintiff maintains that the scope of the nonbillable work
assigned to her was greater than that assigned by Cohen to other
associates, a point that Cohen disputes.
On February 2, 2005, the United States Court of Appeals for
the Fourth Circuit upheld a jury verdict in favor of a female
employee in the firm's Virginia office. See Gallina vs. Mintz,
Levin, Cohn, Ferris, Glovsky and Popeo, U.S. Ct. App., Nos. 03-
1883 & 03-1947, slip op. at 12 (4th Cir. Feb 2, 2005) (Gallina).
The jury found that, in violation of Federal antidiscrimination
laws, the firm had retaliated against the employee for
complaining of what she believed to be discriminatory treatment
on the basis of her gender. Id. at 8. On February 11, 2005,
Cherie Kiser, a member in the firm's Washington, D.C., office
who chaired the firm's diversity committee, left a voicemail
11
message for Popeo expressing her concern that the firm in
general, and section manager Gault, in particular, did not take
seriously employees' complaints of gender discrimination. Popeo
later spoke with Kiser, stating his commitment to combatting
discrimination based on gender, but suggesting that Kiser was
"overreacting" to what "she was hearing from Gault."
In March, 2005, the plaintiff underwent her annual
performance review. Among her evaluators were Schroeder and
Gault. She received an over-all rating of "always meets
expectations" in five competencies, and an over-all rating of
"usually meets expectations" in another six competencies. Each
evaluator also provided written comments. Gault wrote that the
plaintiff "seems very smart but [I] think the writing issues may
mask some of her inherent intellectual ability." Schroeder
wrote that "her writing style is too informal" and that "[s]he
needs to proofread her work and pay more attention to detail."
Some of the other comments were positive, including a comment
from Gault that the plaintiff "[s]eems to have a pretty good
substantive knowledge of a lot of general employment law
areas" and from Schroeder that she "is very good with clients."
In the fiscal year ending that month, the plaintiff had amassed
12
thirty-three more billable hours per month than the average
associate.12
Also in March, 2005, Starr, the human resources director,
and Rosemary Allen, a firm member who oversaw the firm's
personnel matters, received complaints from six women that Cohen
had made inappropriate comments to them. After investigating,
Starr and Allen concluded that no gender-based discrimination
had taken place.
On July 20, 2005, Eastern Point Consulting Group, Inc.
(Eastern Point), a consulting company hired in the wake of the
Gallina case to investigate allegations of discrimination,
presented the findings from its investigation to the firm.
Among other things, Eastern Point reported that many female
attorneys, both members and associates, "believe it is more
difficult for women than men at [the firm]." Starr was
interviewed in the course of this investigation, and stated that
there is a "tolerance for poor behavior" at the firm.
In September, 2005, after returning from her honeymoon, the
plaintiff informed Gault that she was pregnant with her first
child. Gault responded, "Well, I suppose these things happen.
I guess we have your honeymoon to blame for this?"13 He then
12
This number was "annualized" to take into account that
the plaintiff started working at the firm in the middle of the
fiscal year.
13
Gault later denied making this remark.
13
discussed the possibility of the plaintiff reducing her schedule
to part time, although the plaintiff had not sought a reduction
in hours or raised the possibility of such a reduction.
Subsequently, the plaintiff experienced medical difficulties
related to her pregnancy and was placed on short term
disability. Gault and Schroeder exchanged electronic mail
messages in January, 2006, and March, 2006, in which each
expressed that he was "frustrated" with the plaintiff's absences
and lack of availability. Gault also spoke to the plaintiff's
neighbors and discovered that she was performing work around her
house that he did not believe was consistent with the medical
conditions she reported.14
In March, 2006, the plaintiff underwent her second annual
performance review. Gault was one of her evaluators. She
received over-all ratings of "usually exceeds expectations" in
four competencies, "always meets expectations" in six other
competencies, and a rating of "usually meets expectations" in
the eleventh area, business development. In a written comment,
Gault stated that, "I noted some areas of substantive knowledge
and writing in my last review that needed improvement," but that
he "has seen what seems to be an improvement in her work since
her last evaluation." His main criticism was that "I have not
14
The record contains the names of these neighbors, but
does not state how Gault came to be in touch with them or the
type of chores they had observed.
14
seen any evidence of production potential/entrepreneurial
instincts." Another member wrote "that she spent excessive time
on the work" he had assigned her and that her "drafting is not
particularly precise." On the other hand, a firm member from
outside ELB wrote positively that "the work [the plaintiff] did
was for a very demanding client who set pretty unrealistic
expectations, but [she] was able to meet them."
In a separate evaluation dated May 1, 2006, Schroeder
wrote, among other things, that the plaintiff's "writing needs
to improve" and that she "did not always communicate [her
reduced] schedule to everyone in ELB and I had to handle a
number of matters on an emergency basis."15
On May 3, 2006, the plaintiff gave birth to her first
child. She began a planned six-month maternity leave. In June,
2006, defendant David Barmak replaced Gault as section manager
of the ELB section. While the plaintiff was on leave, she was
informed that, based on the performance reviews she had received
in March, 2006, prior to her leave, she would be subject to
another, interim performance review. This review would be based
15
It is not clear from the record why Schroeder, then a
senior associate, authored a separate evaluation.
15
on her performance during the first ninety days after her return
from leave.16
The plaintiff returned to work on November 1, 2006.
Thereafter, she registered a relatively low number of billable
hours compared to other associates in the ELB section. By early
February, 2007, the plaintiff had received two negative reviews
of her work. One review criticized her for putting into a
contract "poorly drafted language that needed to be redrafted in
more conventional form." The other review, from Schroeder,
noted, among other things, that she took "too much time to
complete [a writing] task" he had assigned her and that "I had
to perform more editing than I normally need to do for memos
done by more junior associates." He also noted that "[d]espite
a full-time schedule, she is coming in at 9[:]30 or so and
leaving no later than 5[:]30 . . . I cannot understand why she
has not attempted to step up to the plate." The plaintiff also
received positive comments from a client who "was very
complimentary of [the plaintiff] and [her] work."
In or around February, 2007, Allen, the member overseeing
personnel matters, told Popeo, the firm chairman, that the
16
The parties dispute whether other associates were
subjected to a similar review. The defendants contend that
other associates of the plaintiff's seniority were evaluated at
around the same time to determine their potential for membership
in the firm. The plaintiff contends, on the other hand, that
she was not reviewed as part of the aforementioned process.
16
senior attorneys in the ELB section had requested that the
plaintiff "be separated from the firm." Popeo, in his
deposition, recalled that he proposed demoting the plaintiff, or
"set[ting] her back," rather than firing her. He stated that,
"I participated in the decision to step her back rather than
terminate her. Indeed, I asked the Employment and Labor Section
to consider an alternative to termination."
On February 23, 2007, Barmak and a member of the human
resources department met with the plaintiff to inform her that
she would be "stepped back" two years in seniority, which would
lower her salary, but also would allow more time before any
decision would be made on her eligibility for membership.
According to that human resources officer, this decision was
based on the plaintiff's having received "mixed reviews, [on the
fact that there are] partners who won't work with her, [on] low
utilization, [and on a] high billing rate." Barmak later
commented, regarding this decision, that the plaintiff
"is someone who is playing the system. She is out a lot,
[and therefore] there is just a sense that she is not
someone who is committed to practicing law, that she really
doesn't want to be here, but as she often says, she is the
'breadwinner' . . . [and] she doesn't want to move on
because of the money."
On February 26, 2007, the plaintiff retained an employment
attorney in contemplation of filing a discrimination complaint
against the firm. At around that time, she filed an internal
17
complaint alleging that the step-back was the result of gender
discrimination. An internal body known as the Rapid Workforce
Response Team, which included Biagetti, investigated this claim.
The investigators concluded that no discriminatory conduct had
taken place.
In April, 2007, the plaintiff's annual performance
evaluation was completed. She received two evaluations, both
strongly positive. One evaluator wrote that the plaintiff's
"great work alone should help to drive more employment business
to the firm."
At some point before May, 2007, while the plaintiff was
working on an assignment for a client using the Desksite system,
she came across an internal memorandum related to the Gallina
case that discussed issues of gender discrimination at the firm.
On approximately six occasions between May 8, 2007, and November
14, 2008, on instructions from her attorney, the plaintiff
conducted targeted searches seeking other documents that might
be related to her case or to other issues of gender
discrimination. In the course of these searches, the plaintiff
accessed and forwarded dozens of documents to her personal
electronic mail address.17 She shared two of those documents
with her attorney.18
17
The documents consisted of time records of various
attorneys, whose workload and assignments, when compared with
18
In October, 2007, the plaintiff received three more
evaluations, including one from Schroeder.19 All were strongly
positive, with comments ranging from an observation that "[h]er
interactions with [a specific client] have led to significantly
more employment work for us," to comments from Schroeder that
"[s]he has shown some very positive signs in her development
over the past year and I truly look forward to working with
her." In a section for "areas for improvement," one evaluator
wrote, "Nothing I can identify," a second wrote, "None that I am
aware of," and Schroeder wrote, "I would like [the plaintiff] to
get involved in bar association/trade association activities."
her own, she believed relevant to her claims; records from the
study by Eastern Point; a portion of the firm's annual diversity
report; documents from the Gallina case; a letter regarding
another employee's claim against Cohen; a memorandum from the
firm's "work allocation subcommittee"; a letter "showing that
the firm was paying [a] public relations [firm] concerning [her]
case"; a "talking points" memorandum regarding her case; other
items concerning her case that had either been designated for
public dissemination or already sent to her in final form; and a
transcription of voicemail messages left for Popeo over the
period from February, 2005, through December, 2005. Though the
plaintiff's electronic searches turned up additional apparently-
confidential documents, she did not forward these additional
documents to herself or to her attorney, nor did she "review"
them.
18
The two documents the plaintiff shared with her attorney
were the letter regarding the claim of another employee against
Cohen and the transcription of Popeo's voicemail messages.
Later, she "provided all the documents to her counsel only in
response to a request for production of documents made by the
firm in the course of discovery" in her subsequent civil suit.
19
It is not clear from the record what occasioned these
evaluations.
19
Also in October, 2007, the firm solicited "upward feedback"
from associates, in which they would provide anonymous comments
evaluating members with whom they had worked. Cohen and
Biagetti each received feedback stating that associates were
concerned about their behavior towards women.
On December 11, 2007, the plaintiff filed a complaint with
the MCAD alleging that her step-back was as a result of gender
discrimination. She named the firm, Barmak, Gault, and
Schroeder as respondents.
In February, 2008, the plaintiff took a second maternity
leave, returning to work on September 3, 2008.
On November 13, 2008, the plaintiff conducted another
search of the public section of Desksite seeking documents
related to gender discrimination at the firm. She found the
transcript of voicemails left for Popeo over the period from
February, 2005, through December, 2005, which she immediately
copied and later forwarded in its entirety to her attorney.20
The transcript had been prepared by Popeo's administrative
assistant and, pursuant to his usual practice, saved to the
public section of Desksite. Among the messages was the one
described above, in which firm member Kiser criticized the
behavior of Gault during a meeting about gender discrimination.
20
The record does not reflect when the plaintiff forwarded
the transcript to her attorney.
20
Many of the other messages were from Popeo's clients or
potential clients and concerned sensitive matters protected by
rules of attorney-client confidentiality and privilege.
Also in November, 2008, in the wake of the national
economic slowdown, the firm prepared to lay off employees. The
plaintiff, among other associates, was selected for layoff.
According to the firm, this was because of her low rate of
billable hours, adjusted for the time that she had been on
maternity leave. The plaintiff asserts that the low number of
billable hours was the result of the "discriminatory and
retaliatory conduct of" defendants who either did not assign
work to her or discouraged others from doing so. On
November 20, 2008, counsel for the firm contacted the plaintiff
and offered to settle her discrimination case if she would
accept the layoff. The plaintiff rejected this offer on
November 21, 2008, and she was not then laid off. On the same
day that the plaintiff rejected this offer, she visited the
office of another firm member and showed the member a portion of
the voicemail transcript containing messages left for Popeo.
The member contacted Popeo. Thereafter, the firm's information
technology department reviewed its records and learned that the
plaintiff had conducted a number of searches of Desksite that
appeared to be related to her litigation against the firm. On
November 25, 2008, after consulting with Allen and Starr, Popeo
21
directed that the plaintiff's employment be terminated for
cause. On December 5, 2008, Popeo filed a complaint with the
Board of Bar Overseers (board), claiming that the plaintiff's
searches of Desksite in order to advance her litigation against
the firm was a violation of her ethical duties as an attorney.21
On September 2, 2009, the plaintiff filed a second
complaint with the MCAD, alleging that the firm, in terminating
her employment, had discriminated against her on the basis of
her gender and that it had retaliated against her for having
filed her first MCAD complaint. On November 3, 2009, the
plaintiff brought the present action in the Superior Court,
naming the firm, Gault, Barmak, and Schroeder as defendants. In
January, 2010, she filed an amended complaint naming Popeo and
Cohen as defendants. In February, 2010, the defendants filed an
answer and counterclaims. In November, 2011, the defendants
moved to dismiss on the basis of the plaintiff's asserted
misconduct, i.e., her acquisition of documents by searching
Desksite. That motion was denied in July, 2012.
21
On November 20, 2011, a hearing committee of the Board of
Bar Overseers (board) issued a report concluding that the
plaintiff had violated her ethical duties and recommending that
her license to practice law be suspended for thirty days. The
board reviewed the hearing committee's conclusion and determined
that the plaintiff had not violated any rule of professional
conduct. On August 6, 2012, a single justice of the county
court adopted the board's recommendation.
22
In January, 2013, the parties filed cross motions for
summary judgment. The motion judge granted the defendants'
motion and dismissed all of the plaintiffs' claims. Regarding
the plaintiff's claim that the step-back was discriminatory, he
concluded that she could not establish at trial that the firm's
"reason for offering [her] a step-back rather than membership
consideration . . . [was] pretextual; there is no evidence that
it was designed to hide a discriminatory motive." Similarly,
the judge concluded that the plaintiff could not show that her
termination was discriminatory because "there is no evidence
that Mr. Popeo's decision to terminate [her] employment . . .
was truly motivated by a desire to terminate her due to her
gender or her pregnancies."
With respect to the claim that the step-back was
retaliatory, the judge concluded that
"[t]here is no evidence that the step-back option was
designed to retaliate against [the plaintiff] for her
complaints over a year earlier with regard to Mr. Cohen.
Similarly, given that [the firm's] and Mr. Popeo's stated
reason for [the plaintiff's] termination was her
inappropriate conduct during her employment, [she] cannot
overcome her burden to demonstrating that the reason for
her termination was a pretext, and that the real reason was
to retaliate against her protected activity under G. L.
c. 151B."
23
He also concluded that the claims against Gault, Schroeder, and
Cohen were time barred because their allegedly discriminatory
acts took place outside the relevant limitations periods.22
2. Discussion. The plaintiff maintains that the judge
erred in granting the defendants' motion for summary judgment on
her claims of gender discrimination under G. L. c. 151B, § 4;
her claims of retaliation under G. L. c. 151B, § 4; and her
common-law claim of tortious interference with contractual
relations.23
22
In particular, with regard to the statutory claims
against Gault and Schroeder, the judge concluded that the
allegedly discriminatory acts took place more than 300 days
before the plaintiff filed her first complaint with the
Massachusetts Commission Against Discrimination. See G. L.
c. 151B, § 5. With regard to the common-law claim against
Cohen, the judge concluded that the relevant acts had taken
place more than three years before the plaintiff filed her civil
suit. See G. L. c. 260, § 2A.
23
As noted, the complaint also included an allegation of
pregnancy discrimination. We do not address this count
separately because the evidence discussed infra regarding gender
discrimination includes evidence of pregnancy discrimination,
and because pregnancy discrimination is itself a form of gender
discrimination. See Massachusetts Elec. Co. v. Massachusetts
Comm'n Against Discrimination, 375 Mass. 160, 167 (1978).
Moreover, the plaintiff presented claims for "aiding and
abetting discrimination" (against all of the individual
defendants except Cohen) and for "failure to investigate and
remedy discrimination" (against the firm). These claims are
"entirely derivative of the discrimination claim[s]" (citation
omitted). See Lopez v. Commonwealth, 463 Mass. 696, 713 (2012).
Therefore, to the extent that judgment should not have entered
on the discrimination claims, it should not have entered on
these derivative claims.
24
We review a motion for summary judgment de novo. "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. The defendants, as the moving
parties, have the burden of establishing that there is no
genuine issue as to any material fact and that they are entitled
to judgment as a matter of law." Drakopoulos v. U.S. Bank Nat'l
Ass'n, 465 Mass. 775, 777 (2013).
a. Discrimination claims. The plaintiff claims that both
her demotion and her termination constituted discrimination on
the basis of gender.
General Laws c. 151B, § 4 (1), provides that "[i]t shall be
an unlawful practice: [f]or an employer, by himself or his
agent, because of the . . . sex . . . of any individual . . . to
discharge from employment such individual or to discriminate
against such individual . . . in terms, conditions or privileges
of employment." This provision applies by its terms only to an
"employer." G. L. c. 151B, § 4 (1). Nonetheless, individuals,
whether supervisors, fellow employees, or third parties, also
may be held liable by provisions that forbid "any person . . .
to . . . interfere with another person in the exercise or
enjoyment of any right granted or protected by this chapter,"
G. L. c. 151B, § 4 (4A), and that prohibit "any person, whether
an employer or an employee or not, to aid [or] abet . . . the
25
doing of any of the acts forbidden under this chapter." G. L.
c. 151B, § 4 (5). See Lopez v. Commonwealth, 463 Mass. 696, 706
(2012).
To survive summary judgment on claims brought under these
provisions, an employee-plaintiff must produce evidence from
which a reasonable jury may infer "four elements: membership in
a protected class, harm, discriminatory animus, and causation."
Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001) (Lipchitz).
The "question here is whether the plaintiff provided evidence
from which a reasonable jury could infer the presence of the
latter two elements, i.e., that the defendants bore
discriminatory animus and that the animus was the reason the
defendants [took adverse action with respect to] the plaintiff's
employment." See Bulwer v. Mount Auburn Hosp., 473 Mass. 672,
680 (2016) (Bulwer).
Because employees rarely can produce direct evidence of
discriminatory animus and causation, see Sullivan v. Liberty
Mut. Ins. Co., 444 Mass. 34, 38 (2005), they may survive a
motion for summary judgment by producing "indirect or
circumstantial evidence [of these elements] using the familiar
three-stage, burden-shifting paradigm first set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–805 (1973) (McDonnell
Douglas)." Sullivan v. Liberty Mut. Ins. Co., supra at 39-40.
"In the first stage, the plaintiff" must produce evidence of "a
26
prima facie case of discrimination," which would allow a jury to
infer that "(1) [s]he is a member of a class protected by G. L.
c. 151B; (2) [s]he performed [her] job at an acceptable level;
[and] (3) [s]he was terminated" or otherwise subjected to an
adverse employment action. Blare v. Husky Injection Molding
Sys. Boston, Inc., 419 Mass. 437, 441 (1995) (Blare). In the
second stage, the burden of production shifts to the employer to
"articulat[e] a legitimate, nondiscriminatory reason for its
hiring decision." Id. At the final stage, the burden of
production shifts back to the employee to produce evidence that
"the employer's articulated justification [for the adverse
action] is not true but a pretext."24 Id. at 443.
Because "Massachusetts is a pretext only jurisdiction,"
id., an employee may survive summary judgment by producing
evidence "that the respondent's facially proper reasons given
for its action against him [or her] were not the real reasons
24
The employee's burden at this third stage is not, as it
has sometimes been described, "to demonstrate that there is a
genuine issue of material fact whether the defendant's proffered
reason . . . lack[s] reasonable support in evidence or is . . .
wholly disbelievable" (quotation and citation omitted). Bulwer
v. Mount Auburn Hosp., 86 Mass. App. Ct. 316, 347 (2014)
(Sikora, J., dissenting), S.C., 473 Mass. 672 (2016). This
language comes originally from Wheelock College v. Massachusetts
Comm'n Against Discrimination, 371 Mass. 130, 138 (1976), and
refers to the employer's burden at the second stage of the
burden-shifting paradigm. Id. (employer does not satisfy burden
at second stage if it "gives an explanation for a hiring
decision which has no reasonable support in the evidence or is
wholly disbelieved").
27
for that action," Wheelock College v. Massachusetts Comm'n
Against Discrimination, 371 Mass. 130, 139 (1976), even if that
evidence does not show directly that the true reasons were, in
fact, discriminatory. See Bulwer, supra at 681-682; Lipchitz,
supra at 500-501. Such indirect evidence is sufficient at the
summary judgment stage because, "[c]ombined with establishment
of a prima facie case . . . a showing of pretext eliminates any
legitimate explanation for the adverse hiring decision and
warrants," but does not require, "a determination that the
plaintiff was the victim of unlawful discrimination." Blare,
supra at 446. Under this familiar three-part test,
"[w]hile the plaintiff does bear 'the burden of producing
evidence' that the employer's reasons are pretextual, . . .
the burden of persuasion at summary judgment remains with
the defendants, who, 'as the moving part[ies], "ha[ve] the
burden of affirmatively demonstrating the absence of a
genuine issue of material fact on every relevant issue,
even if [they] would not have the burden on an issue if the
case were to go to trial"'" (citations omitted).
Bulwer, supra at 683.
i. Genuine issues of material fact. Here, the plaintiff
has offered indirect evidence that the "step-back" and the
termination of her employment were discriminatory, and we
therefore use this three-stage burden-shifting paradigm to
determine whether there is sufficient evidence of discriminatory
intent for the plaintiff to survive a motion for summary
judgment. The defendants concede, with regard to the first
28
stage of this paradigm, that the plaintiff has made out a prima
facie case of discrimination.25 With regard to the second stage,
the defendants maintain that the plaintiff's "step-back" was
based on her having received "mixed reviews, [on the fact that
there were] partners who [would not] work with her, [on] low
utilization, [and on a] high billing rate." The defendants
contend further that the subsequent decision to terminate the
plaintiff's employment was based on the "good faith" belief that
she had "violated [f]irm policies and [her own] ethical duties."
This satisfies the defendants' burden to articulate
nondiscriminatory reasons for their decisions. We arrive,
therefore, at the third stage, where we "consider whether the
plaintiff has provided evidence sufficient to allow a reasonable
jury to infer that 'the employer's articulated justification is
not true but a pretext'" (citation omitted). See Bulwer, supra
at 683.
(1) Evidence regarding step-back demotion. We begin by
considering evidence that relates to the plaintiff's step-back.
There are at least four categories of evidence from which a
reasonable jury might infer that the reasons offered by the
defendants for the adverse employment decision were pretextual.
25
This concession is "for purposes of summary judgment
only."
29
First, the plaintiff points to specific instances in which
"similarly situated [male] employees were treated differently"
from the way she was. See Matthews v. Ocean Spray Cranberries,
Inc., 426 Mass. 122, 129 (1997) (Matthews) (such evidence is
"most probative means of establishing that the plaintiff's
termination was a pretext"). For instance, defendant
Schroeder's May, 2006, evaluations criticized the plaintiff for
not being available for certain emergency assignments, and his
March, 2006, electronic mail message noted that "[t]his is not a
job where you can come and go as you please." Yet, the
plaintiff maintains in an affidavit there were "many occasions
when [she] would be looking for Mr. Schroeder during business
hours and would learn that he and [a particular junior male
associate] were at the gym." Similarly, when the plaintiff was
nursing her first child, Schroeder evaluated her negatively for
"leaving [the office] no later than 5[:]30," even as Schroeder
"was sending [the aforementioned male associate] home" earlier
than the plaintiff because he had "a wife and kid at home."
Second, there is evidence that Cohen attempted to undermine
the plaintiff after she complained about his behavior, which may
allow an inference that the plaintiff's perceived performance
deficiencies resulted in part from Cohen's animus rather than
from innate inadequacy. See generally Casarez v. Burlington
N./Santa Fe Co., 193 F.3d 334, 338 (5th Cir. 1999), rehearing
30
denied, 201 F.3d 383 (5th Cir. 2000) (evidence of pretext where
supervisor undermined employee's performance); 1 Larson,
Employment Discrimination § 8.04 at 8-85 (2d ed. 2015)
("employer's proffered justification for its action may also be
shown to be pretextual if the respect in which the employee is
allegedly deficient is of the employer's own making"). While
Cohen initially complimented the plaintiff's work,26 this changed
following her August, 2004, complaints, when she was told by
various individuals that Cohen was "bad-mouthing" her. In
October, 2004, Cohen asked a client to submit a written
complaint against the plaintiff, which he then forwarded to
Gault, the ELB section manager, and Starr, the human resources
director. Cohen stated in his deposition that he had never
previously solicited a written complaint against an associate.
In January, 2005, Cohen gave the plaintiff a lengthy assignment
that did not count toward her quota of billable hours, which the
plaintiff maintained in her deposition was more extensive than
26
In his deposition, Cohen said that the plaintiff's work
in July, 2004, involving the drafting of a brief for a client,
was deficient, both in its quality and because she did not work
over the Fourth of July weekend to address those deficiencies.
Cohen states also that he "can't say that" he conveyed these
criticisms to the plaintiff at the time. Whether to accept
Cohen's assertion that he believed the plaintiff's work to be
deficient therefore requires a credibility assessment best left
to the finder of fact.
31
parallel assignments given to other associates.27 In the wake of
these incidents, a number of firm members, including Gault, told
human resources staff during a meeting in February, 2005, that
the plaintiff and Cohen could not work together and that Starr
should seek to hire an attorney with qualifications similar to
the plaintiff's.
Third, "a reasonable jury could interpret a number of the
[criticisms made by] the plaintiff's evaluators and supervisors
as reflecting '[s]tereotypical thinking . . . categorizing
people on the basis of broad generalizations.'" Bulwer, supra
at 686, quoting Lipchitz, supra at 503 n.16. Such statements,
"when considered with [other] evidence of disparate or unfair
treatment, . . . may lend support to" the contention that the
adverse employment action was made on an impermissible basis.
Bulwer, supra at 686.
In particular, Barmak, who replaced Gault as manager of the
ELB section, described his "impression" that the plaintiff did
not have a high "level of commitment to her professional
development and interest in advancement and was more concerned
about somehow . . . potentially pursuing a [discrimination]
claim."28 When the plaintiff was pregnant for the first time,
27
Gault and Cohen dispute that the assignment was either
punitive or disproportionate to that given to other associates.
28
Schroeder also stated in his deposition that the
plaintiff was one of those "people who are caregivers who aren't
32
Gault sent a colleague an electronic mail message questioning
her commitment to her work, noting that she was "out a lot
[which she] says [is] attributable to her medical condition
tho[ugh] I just got an e-mail re[garding] her taking about
[four] days off . . . which I assume is vacation."29 Schroeder
wrote that he was "getting frustrated" because he "cannot give
work to someone [like the plaintiff] when I don't know if they
are going to here on any given day." While "[t]hese kinds of
comments can, of course, admit of different interpretations by a
jury," see Bulwer, supra at 687, they could be understood to
reflect a stereotypical view of women as not committed to their
work because of family responsibilities. See Massachusetts
Elec. Co. v. Massachusetts Comm'n Against Discrimination, 375
Mass. 160, 168 (1978) (noting "stereotype that women belong at
home raising a family rather than at a job as permanent members
of the work force").
Finally, there is evidence that women at the firm, and in
the ELB section in particular, were subject to discriminatory
treatment. See Matthews, supra at 130 n.4 ("evidence which may
being discriminated against but who wish to obtain some leverage
or benefit from their employers."
29
Similarly, after Gault found out that the plaintiff was
pregnant for the first time, he immediately suggested that she
consider "alternate work arrangements," apparently assuming that
she would not be able to continue full-time work while pregnant
or a new mother.
33
be relevant to the plaintiff's showing of pretext may include
the employer's general practice and policies concerning" other
members of protected class).
For example, the 2005 study by Eastern Point found that
"[m]any female [attorneys] . . . believe it is more
difficult for women than men at Mintz. In particular, they
indicated that they are not given the same assignments or
opportunities for exposure that men receive, there are
fewer women in management for them to look up to or receive
support from, and male partners make assumptions about the
ability and willingness of women to do certain work."
The report also indicated that "[m]any female and of color
respondents believe that white men in the firm have a support
network amongst themselves and that it is more comfortable and
familiar within the firm for them." Similarly, in a voicemail
message for defendant Popeo, firm member Kiser said that, "with
respect to these kinds of employment [discrimination]
complaints, . . [w]e . . . [cannot] stick our heads in the sand.
We have done that for too long and that is what the problem is."
Moreover, there is evidence that such disparate treatment
was practiced by some of the same members who wrote the
plaintiff's evaluations and investigated her discrimination
complaints. Cohen's 2007 "upward feedback" included comments
that "[h]e has engaged in harassing and inappropriate behavior
toward many women" and that "[h]e indicates a clear bias against
women in the workplace." Biagetti, the firm's managing member
to whom the plaintiff initially brought her concerns, received
34
"feedback" that he "has different standards for men and women"
and that he "judges women's work more harshly, and is less
appreciative of women's work."30 Kiser described Gault as
responding to gender discrimination complaints by being
"extremely defensive" and taking "the posture that somehow [the]
complaints were not legitimate." Kiser also stated that Gault
was not "capable" of "separating himself from his own personal
involvement and possibly his own personal feelings on such
matters."
According to the Eastern Point survey, many employees
believed that disparate treatment affected "negatively . . . the
firm's ability to retain women." Statistics in the record
support these assertions. When the plaintiff joined the firm,
there were five female associates and four male associates in
the Boston ELB section senior to her in terms of the year they
had graduated from law school. Of those, all of the men were
promoted to member, while none of the women were.31 "[T]o the
extent [these numbers] suggest that the highest ranks of [the]
30
Other feedback comments included that Biagetti "has been
known to . . . punish associates for . . . standing up to him
(especially women)" and that "when he asks a question and a male
associate hesitates before answering, he perceives that pause as
thoughtful," whereas "[w]hen a female associate does the same
thing, he perceives the pause as weakness and uncertainty."
31
The defendants counter that, in citing these numbers, the
plaintiff "fails . . . to acknowledge individual decisions [by
these women] to pursue other opportunities." The defendants'
interpretation might ultimately prevail, but the question is one
for the finder of fact.
35
employer's organization are closed to members of a protected
class, they may support an inference that the particular
decision[s]" in question here were "tainted by an unlawful
bias." Lipchitz, supra at 508-509 ("evidence indicat[ing]"
dearth of "women in the corporate ranks of the company" is
"relevant, and may be properly introduced in a disparate
treatment case").
(2) Evidence regarding termination. We turn to the
termination of the plaintiff's employment in November, 2008.
Given that the termination decision was made by Popeo soon after
he discovered that the plaintiff had copied confidential
documents, Popeo's explanation -- that he fired the plaintiff
for taking those documents -- is doubtless plausible.
Nonetheless, there is evidence that Popeo's decision was in
fact motivated by other considerations. For example, it is
clear that he was kept informed, throughout the plaintiff's
employment, of the plaintiff's discrimination claims and her
performance deficiencies. He was told in the summer of 2004 of
her discrimination complaints, apparently kept a file on her
case in his office, and was involved in the decision to require
her step-back. Even the decision to terminate her employment
was not made by Popeo individually, but in consultation with
Starr, the human resources director, and Allen, the member in
charge of personnel matters, who themselves consulted regularly
36
with ELB members regarding the plaintiff. Finally, the
plaintiff's employment was terminated only a few weeks after she
was selected for layoff, five days after the firm had offered to
settle her claims in exchange for her agreement to a lay-off,
four days after the plaintiff had rejected that offer, and one
day after Popeo had been informed of her decision in that
regard. All of this would allow -- although, of course, not
require -- a jury to infer that the incident with the documents
merely provided an excuse to fire an employee who had long been
viewed negatively by her supervisors, but who would not leave
the firm voluntarily and who could not otherwise be terminated
because of her pending discrimination claims.
ii. Defendants' contentions. The defendants contend that,
the above evidence notwithstanding, they are nonetheless
entitled to summary judgment for several reasons. First, they
note that the adverse employment decisions in question were made
by individuals who were acting independently from the
plaintiff's immediate supervisors and who were not accused of
harboring the discriminatory views alleged to have been held by
those supervisors. In particular, they point out that the
decision to "step-back" the plaintiff's seniority was made
formally by Allen, the member who oversaw personnel matters, and
Starr, the human resources director, neither of whom was accused
of harboring discriminatory views. Similarly, the termination
37
decision was made by the chairman of the firm, Popeo, who did
not author any of the allegedly discriminatory evaluations or
otherwise evaluate the plaintiff's work. In this regard, the
defendants note that a "third [party]'s independent decision to
take adverse action breaks the causal connection between [any]
retaliatory or discriminatory animus and the adverse action."
See Mole v. University of Mass., 442 Mass. 582, 598 (2004).
The defendants cannot be excluded from liability on this
basis. Because Allen and Starr did not supervise the
plaintiff's work, they based their decision to require a "step-
back" on the opinions of the plaintiff's supervisors and
evaluators. Similarly, Popeo decided to terminate the
plaintiff's employment only after consulting with Starr and
Allen, and after having been kept apprised, during the preceding
months and years, of the negative views of the plaintiff's
supervisors. "Where 'the decision makers relied on the
recommendations of supervisors [whose motives have been
impugned], the motives of the supervisors should be treated as
the motives for the decision. . . . An employer [may not]
insulate its decision by interposing an intermediate level of
persons in the hierarchy of decision, and asserting that the
ultimate decision makers acted only on [the] recommendation'" of
others. Bulwer, supra at 688, quoting Trustees of Forbes
Library v. Labor Relations Comm'n, 384 Mass. 559, 569-570
38
(1981). See Staub v. Proctor Hosp., 562 U.S. 411, 420 (2011)
(rejecting view that "the employer [is] effectively shielded
from discriminat[ion]" claims when it "isolates a personnel
official from an employee's supervisors, vests the decision to
take adverse employment actions in that official, and asks that
official to review the employee's personnel file before taking
the adverse action").
Second, the defendants contend that summary judgment was
appropriate because the plaintiff's case rests on "conclusory
allegations, improbable inferences, and unsupported
speculation." See Medina-Munoz v. R.J. Reynolds Tobacco Co.,
896 F.2d 5, 8 (1st Cir. 1990). As presented in the defendants'
brief, this contention, at bottom, is that, because the
plaintiff proffers no direct evidence of discriminatory motive,
her claims must fail. By definition, however, where a
discrimination claim is based on indirect evidence, "the process
of arriving at an ultimate finding of unlawful discrimination
will require an element of inference to tie the evidence of
unlawful discrimination to the employment decision." Johansen
v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 299 (1991). Where,
as here, the required inferences are reasonable, it "is not for
a court to decide on the basis of [briefs and transcripts]"
whether they are correct, "but is for the fact finder after
weighing the circumstantial evidence and assessing the
39
credibility of the witnesses." Lipchitz, supra at 499, quoting
Blare, supra at 445.
Finally, the defendants argue that the claims against Gault
and Schroeder are time barred because the underlying acts took
place more than 300 days before the plaintiff filed her first
MCAD complaint.32 See G. L. c. 151B, § 5 (complaint must be
"filed within 300 days after the alleged act of
discrimination"). This contention, too, is unavailing. An
employer may "be exposed to . . . liability for harms stemming
from discriminatory evaluations [even] some years after the
evaluations were conducted, if the evaluations first cause
tangible harm to the employee at that later point." Thomas v.
Eastman Kodak Co., 183 F.3d 38, 50-51 (1st Cir. 1999), cert.
32
The defendants contend, further, that the claims against
Gault and Schroeder must fail because both were involved in
hiring the plaintiff, making it unlikely that they harbored any
animus towards her on account of her gender. While this
inference may be plausible, for the court to draw it on summary
judgment would be inconsistent with the requirement that we
"draw all reasonable inferences in the light most favorable to
the" plaintiff. See Drakopoulos v. U.S. Bank Nat'l Ass'n, 465
Mass. 775, 777 (2013). We note as well that the plaintiff was
neither married nor a mother at the time she was hired. See
Tellepsen Pipeline Servs. Co. v. National Labor Relations Bd.,
320 F.3d 554, 569 (5th Cir. 2003) ("underlying assumption that
discriminatory intent would be manifest at the time of hiring
can be overcome where there is change in circumstances between
the time of hiring and firing"). See also Martin, Immunity for
Hire: How the Same-Actor Doctrine Sustains Discrimination in
the Contemporary Workplace, 40 Conn. L. Rev. 1117, 1117 (2008)
("same-actor inference" is "incongruen[t] with both cognitive
psychological research and the social dynamics of the
workplace").
40
denied, 528 U.S. 1161 (2000). Here, the plaintiff timely filed
her first MCAD complaint within 300 of her step-back, which was
the point "when [the negative] evaluation[s] [were first]
applied to deny the plaintiff particular benefits or positions"
(citation omitted), id. at 50, and therefore, the point when her
"claim[s] accrue[d]" (citation omitted). Id.
b. Retaliation. The plaintiff also claims that both the
step-back and the termination were retaliation for the
"protected activity" of complaining of gender discrimination.33
i. In general. A claim of retaliation is separate and
distinct from a claim of discrimination. Abramian v. President
& Fellows of Harvard College, 432 Mass. 107, 121 (2000). An
employee bringing a retaliation claim is not complaining of
discriminatory treatment as such, but rather of treatment that
"punish[es]" her for complaining of or otherwise opposing such
discriminatory treatment. Ruffino v. State St. Bank & Trust
33
While the plaintiff refers to this claim as one for
"retaliation," G. L. c. 151B "does not actually use the word
'retaliation'" in describing forbidden employment practices.
Psy-Ed Corp. v. Klein, 459 Mass. 697, 706 (2011). Rather, the
statute forbids "any person [or] employer . . . to discharge,
expel or otherwise discriminate against any person because he
has opposed any practices forbidden under this chapter," G. L.
c. 151B, § 4 (4), and also forbids "any person to coerce,
intimidate, threaten, or interfere with another person in the
exercise or enjoyment of any right granted or protected by this
chapter." G. L. c. 151B, § 4 (4A). The word "retaliation" is
merely "shorthand" that "[c]ourts commonly use . . . for the
more detailed wordings of antidiscrimination statutes such as"
G. L. c. 151B, § 4 (4A). Psy-Ed Corp. v. Klein, supra at 706
n.24.
41
Co., 908 F. Supp. 1019, 1040 (D. Mass. 1995). For this reason,
a "claim of retaliation may succeed even if the underlying claim
of discrimination fails, provided that in asserting her
discrimination claim, the claimant can 'prove that [she]
reasonably and in good faith believed that the [employer] was
engaged in wrongful discrimination'" (alterations original).
Psy-Ed Corp. v. Klein, 459 Mass. 697, 706-707 (2011) (Psy-Ed),
quoting Abramian v. President & Fellows of Harvard College,
supra at 121.
To survive summary judgment on a claim of retaliation, an
employee must produce evidence from which a jury could infer
four elements. First, there must be evidence that the employee
"reasonably and in good faith believed that the employer was
engaged in wrongful discrimination." Pardo v. General Hosp.
Corp., 446 Mass. 1, 21 (2006). Second, there must be evidence
that the employee "acted reasonably in response to that belief,"
id., through reasonable acts meant "to protest or oppose . . .
discrimination" (protected activity). See Fantini v. Salem
State College, 557 F.3d 22, 32 (1st Cir. 2009). Third, there
must be evidence that the employer took adverse action against
the employee. See Pardo v. General Hosp. Corp., supra.
Finally, there must be evidence that the adverse action was a
response to the employee's protected activity (forbidden
motive). See id.
42
Employees claiming retaliation do not often possess direct
evidence of the fourth element, a forbidden motive. See, e.g.,
Psy-Ed, supra at 707. Therefore, they may prove a forbidden
motive with indirect evidence, which courts evaluate using a
three-stage burden-shifting paradigm similar to the one
discussed in McDonnell Douglas, supra. See Psy-Ed, supra. At
the first stage, the employee has the burden of producing
evidence "that [s]he engaged in protected conduct, that [s]he
suffered some adverse action, and that 'a causal connection
existed between the protected conduct and the adverse action'"
(citation omitted). Mole v. University of Mass., 442 Mass. 582,
591-592 (2004) (Mole). At the second stage, the "employer must
then articulate a legitimate, nondiscriminatory reason for" the
adverse employment decision. Esler v. Sylvia-Reardon, 473 Mass.
775, 780 n.7 (2016). At the third stage, the employee must
produce evidence that the employer's "stated reason for [its
adverse action] was a pretext for retaliating against her on
account of her" protected activity. Id. The combination of a
"prima facie case" of retaliation with "a showing of pretext"
allows a jury to infer that there was no "legitimate explanation
for the adverse [employment] decision" and that the employer's
true motivation was retaliatory. See Blare, supra at 446.
ii. Step-back. We turn to the plaintiff's claim that her
step-back was retaliatory. It is undisputed that, for purposes
43
of summary judgment, the plaintiff has satisfied three of the
four elements of a retaliation claim. In particular, the
parties agree that the plaintiff reasonably and in good faith
believed that she suffered discrimination; that she engaged in
protected activity by complaining internally of that alleged
discrimination; and that, in the form of the step-back, she
suffered an adverse employment action.
The parties dispute, however, whether there is sufficient
evidence of the fourth element -- a forbidden motive -- which
requires proof that the plaintiff's protected actions were the
reason the firm imposed the step-back. The plaintiff's
contention in this regard, relying as it does on indirect
evidence, must be analyzed using the three-stage burden-shifting
paradigm discussed above. See Psy-Ed, supra. The defendants
argue that the plaintiff fails at both the first and third
stages of this paradigm.
As to the first stage, where the plaintiff must make out a
prima facie case of retaliation, the defendants contend that the
plaintiff has not presented evidence that "a causal connection
existed between [her] protected conduct" -- i.e., her internal
discrimination complaints -- and the step-back. See Mole, supra
at 592 (citation omitted). They note that the step-back took
place in February, 2007, approximately two and one-half years
after the plaintiff engaged in the protected activity of
44
complaining about the behavior of Cohen and Gault. See id. at
595 (no causal connection where "time span between . . .
protected activity and the later adverse actions is too long to
support [the] desired inference of causation").
This contention fails because the plaintiff is not seeking
to prove a "causal connection" through the temporal proximity of
her protected acts to the adverse action she suffered. Instead,
noting that "[t]emporal proximity is but one method of proving
retaliation," Chungchi Che v. Massachusetts Bay Transp. Auth.,
342 F.3d 31, 38 (1st Cir. 2003), the plaintiff presents
"[e]vidence of discriminatory or disparate treatment in the time
period between the protected activity and the adverse employment
action," which "can be sufficient to show a causal connection"
between the two (citations omitted). Mole, supra at 596,
quoting Chungchi Che v. Massachusetts Bay Transp. Auth., supra.
From such evidence, a jury may, though need not, infer that the
"pattern of retaliatory conduct [began] soon after [the
protected activity] and only culminate[d] later in actual"
adverse action. Mole, supra at 596, quoting Marx v. Schnuck
Mkts., Inc., 76 F.3d 324, 329 (10th Cir.), cert. denied, 518
U.S. 1019 (1996).
Here, the plaintiff first engaged in protected conduct in
the summer of 2004, when she complained of gender discrimination
to human resources officers and firm members. See Abril-Rivera
45
v. Johnson, 806 F.3d 599, 608 (1st Cir. 2015) (it is protected
activity to "complain about unlawfully discriminatory employment
practices"). Following that protected conduct, and before the
February, 2007, step-back, there is evidence, delineated supra,
that the plaintiff was treated differently from similarly-
situated male colleagues, that her evaluators may have judged
her through the lens of a stereotype, and that Cohen, her boss,
tried to undermine her. From this evidence, a jury could, but
need not, infer that a "pattern of retaliatory conduct [began]
soon after [the protected activity] and only culminate[d] later
in actual" adverse action (citation omitted). Mole, supra at
596.
Given that the plaintiff has made out a prima facie case of
retaliation, we move to the second stage, where the defendants
must provide a lawful explanation for their adverse action.
Here, they have done so, explaining that the step-back was based
on the plaintiff's having received "mixed reviews, [on the fact
that there are] partners who won't work with her, [on] low
utilization, [and on a] high billing rate."
We therefore move to the third stage, where the plaintiff
must present evidence that the defendants' lawful explanation is
pretextual. Although the defendants contend that the plaintiff
can point to no such evidence, that is incorrect. As described
supra, the plaintiff has presented evidence from which a jury
46
might infer that a "pattern of retaliatory conduct [began] soon
after" she complained of gender discrimination, "culminat[ing]
later in" her step-back. See Mole, supra at 596; Chungchi Che
v. Massachusetts Bay Transp. Auth., supra at 39 (inference of
pretext from evidence of disparate treatment in wake of
protected activity). From this, a jury may, but need not, infer
that the plaintiff's perceived performance deficiencies were
merely a cover, and that the step-back actually was motivated by
her protected actions. This suffices to defeat the defendants'
motion for summary judgment as it concerns the step-back.
iii. Termination. We turn now to the plaintiff's claim
that her termination was retaliatory. The plaintiff presents
two arguments in support of this contention. First, she
maintains that she was fired on the basis of a forbidden motive,
i.e., for having engaged in the protected activity of filing
discrimination complaints with the firm, before the MCAD, and in
the Superior Court.34 She argues that the defendants' proffered
explanation -- that they fired her for accessing, copying, and
forwarding confidential documents in pursuit of her
34
There is no dispute, for purposes of summary judgment,
that the plaintiff has satisfied the other components of a
retaliation claim. In particular, the parties agree that the
plaintiff reasonably and in good faith believed that she
suffered discrimination; that she engaged in protected activity
by complaining of that alleged discrimination by filing
complaints internally, at the MCAD, and in the Superior Court;
and that, in the form of the termination, she suffered an
adverse employment action.
47
discrimination claim (self-help discovery) -- is not the actual
reason for her termination, but rather a pretext. Second, she
contends that her acts of self-help discovery themselves
constituted protected activity, such that, even if the
defendants' proffered explanation were true, they would not be
absolved of liability.
(1) Pretext. As mentioned, the plaintiff argues that she
was fired for having engaged in the protected activity of filing
discrimination complaints, and that the reason the defendants
offered for her termination -- that she accessed, copied, and
forwarded documents in violation of company policy and ethical
rules -- was pretextual. Because the plaintiff does not claim
to possess direct evidence that the firm's proffered explanation
was false, we analyze her claim, as we do all claims involving
indirect evidence of forbidden motive, using the three-stage
burden-shifting paradigm described supra. The defendants
contend that the plaintiff fails at both the first and third
stages of the paradigm.
At the first stage, where the plaintiff must make out a
prima facie case of retaliation, the contested issue is whether
the plaintiff has produced sufficient evidence of a causal
connection between the adverse action taken by Popeo
(termination) and her protected activity (pursuing gender-
discrimination complaints internally, at the MCAD, and in a
48
court). In this regard, the plaintiff notes that Popeo fired
her on November 25, 2008, a few weeks after she had been
selected for lay-off, five days after the firm had offered to
settle her claims in exchange for her agreement to the lay-off,
four days after she had rejected that offer, and one day after
Popeo had been informed of her decision to reject the offer.
The temporal proximity between the firm's lay-off decision, the
plaintiff's decision not to settle her case, and the plaintiff's
termination is one form of "circumstantial evidence that . . .
can demonstrate" the required causal connection. See Mesnick v.
General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991), cert.
denied, 504 U.S. 985 (1992).
The plaintiff also points to more direct evidence of
Popeo's motivation. For instance, she notes Popeo's stated view
that "you don't stay employed by a firm for the purpose of
enhancing the value of your case as opposed to enhancing your
career." She further notes that Popeo consulted with Starr and
Allen, who held views that the plaintiff might have been
"falling back on claims of discrimination" and that she was
"looking for issues to sue us on," about the termination
decision. While this evidence is capable of different
interpretations, it would allow a jury to infer that Popeo fired
the plaintiff not because of her unethical activity as such, but
49
because of his view that the plaintiff should not remain at the
firm while continuing to pursue her discrimination claims.
This evidence also allows an inference, as required at the
third stage of the burden-shifting analysis, that the
defendants' stated reason for firing the plaintiff -- her acts
of self-help discovery -- was pretextual. In particular, it
would allow a jury to infer that Popeo fired the plaintiff
because she pursued her discrimination claims while refusing to
accept the firm's settlement offer, and that he cited her
perceived ethical violations merely as a cover for that unlawful
motive. See Psy-Ed, supra at 711-712 (pretext proved by
combination of temporal proximity and direct evidence). Summary
judgment on this claim was, therefore, inappropriate.
(2) Self-help discovery. As noted, the plaintiff contends
that, even if the defendants' proffered reason for firing her --
that she engaged in self-help discovery in support of her
discrimination claims -- ultimately is determined to be the real
reason, it is nonetheless unlawful, because her acts of self-
help discovery constituted protected activity under G. L.
c. 151B. We need not address this contention, as it is relevant
only to the plaintiff's claim that her termination was
retaliatory, and we have determined that the defendants are not
entitled to summary judgment on that issue. That being said,
because the issue may arise at trial, has been "fully
50
briefed . . . and concern[s] matters of important public policy
that are likely to recur," Matter of the Receivership of Harvard
Pilgrim Health Care, Inc., 434 Mass. 51, 56 (2001), we address
whether self-help discovery in this context may constitute
protected activity. We do not, however, make any determination
regarding the plaintiff's actions in this case, a matter that is
for the trial court judge to resolve as and when appropriate.
The question whether an employee's acts of self-help
discovery in aid of claims under G. L. c. 151B, § 4, may ever,
under any circumstances, constitute protected activity is one of
first impression for this court. Taking into consideration the
interests at stake and the views of other courts that have
addressed the matter, we conclude that such conduct may in
certain circumstances constitute protected activity under that
statute, but only if the employee's actions are reasonable in
the totality of the circumstances. See Niswander v. Cincinnati
Ins. Co., 529 F.3d 714, 725 (6th Cir. 2008) ("oppositional
activity must be reasonable in order to receive protection").
As the New Jersey Supreme Court recognized, it is best to take
"a flexible, totality of the circumstances approach that rests
on consideration of a wide variety of factors, all of which must
be balanced in order to achieve the essential goals embodied in"
our antidiscrimination laws. See Quinlan v. Curtiss-Wright
Corp., 204 N.J. 239, 269 (2010) (Quinlan).
51
Taking this approach requires a determination, based on the
facts of each case, whether the employee's actions were
"reasonable under the circumstances" and, as a result,
constituted protected conduct under G. L. c. 151B.35 See
Niswander v. Cincinnati Ins. Co., supra. In this way, we strike
a careful "balance . . . between the employer's recognized,
legitimate need to maintain an orderly workplace and to protect
confidential business and client information, and the equally
compelling need of employees to be properly safeguarded against
retaliatory actions." Id. at 722.
In reaching this conclusion, we do not ignore
"the concerns of employers that only a bright line rule
that prohibits any employee from ever disclosing a document
in pursuit of a discrimination claim and that equally
prohibits any attorney from reviewing or considering such
35
Such a determination is a question of law. See Leary v.
Daeschner, 228 F.3d 729, 737 (6th Cir. 2000) (discussing
retaliation for constitutionally protected conduct); Carter-
Obayuwana v. Howard Univ., 764 A.2d 779, 790 (D.D.C. 2001) (same
under antidiscrimination law). Summary judgment on this issue
is appropriate where the moving party establishes the absence of
genuine issues of material fact pertinent to this legal
determination. See Ng Bros. Constr., Inc. v. Cranney, 436 Mass.
638, 643-644 (2002). At trial, "disputes as to . . . subsidiary
facts are within the province of the jury; however,
responsibility for the ultimate determination" regarding what
constitutes protected activity "lies with the trial judge." See
Roberts v. Sears, Roebuck & Co., 723 F.2d 1324, 1335 (7th Cir.
1983) (discussing similar issue in context of patent law). Cf.
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 250-251 (2010)
(judge determined as matter of law that self-help discovery of
document unreasonable, but lawyer's use of document on
plaintiff's behalf reasonable; question of fact submitted to
jury whether termination motivated by plaintiff's taking
document or lawyer's using it).
52
documents provided by employees will fairly protect their
interests."
Quinlan, supra at 271-272. But, while the employers' "right
to . . . expect that they will have the loyalty of their
employees" must be part of the calculus, so, too, must the
"right [of employees] to be free of discrimination in their
employment and . . . to speak out when they are subjected to
treatment that they reasonably believe violates that right."
Id. at 271. "Balancing all of those considerations is a
difficult and important task."36 Id.
We emphasize two points in this regard. First, the
protections discussed here are limited, applying as they do only
36
To the extent that employers are concerned about
disclosure of privileged or highly sensitive information, not to
the plaintiff's attorney, but to the general public in the
course of litigation, "the trial courts can and should apply an
array of ad hoc measures from their equitable arsenal designed
to permit the . . . plaintiff to attempt to make the necessary
proof while protecting from disclosure" information that is
sensitive or subject to legal privilege. See General Dynamics
Corp. v. Superior Court, 7 Cal. 4th 1164, 1191 (1994). Such
measures may include, without limitation, the "use of sealing
and protective orders, limited admissibility of evidence, orders
restricting the use of testimony in successive proceedings, and,
where appropriate, in camera proceedings." Id. Other measures
may be appropriate where the plaintiff discloses the documents
to the general public before the start of litigation or in
violation of a judge's orders. See generally Sommer v. Maharaj,
451 Mass. 615, 620-621 (2008), cert. denied, 556 U.S. 1235
(2009). Because of the availability of such procedures, "[w]e
are confident that by taking an aggressive managerial role,
judges can minimize the dangers to the legitimate privilege
interests the trial of such cases may present." See General
Dynamics Corp. v. Superior Court, supra.
53
to employees pursuing claims under G. L. c. 151B. Second, even
as to plaintiffs pursuing such claims, protection is afforded
only to those acts determined to be reasonable under the
circumstances. This being so, employees pursuing discrimination
claims who access, copy, or disseminate confidential material
"even under the best of circumstances . . . run the significant
risk that the conduct in which they engage will not be
found . . . [ultimately] to fall within the protection[s]" of
the statute. See Quinlan, supra at 272.
We are not persuaded that where, as here, the plaintiff is
an attorney, such that some of the documents at issue may be
subject to the rules of attorney-client confidentiality and
privilege, the plaintiff's actions should thereby be stripped of
the protections afforded other employees by G. L. c. 151B.
While the status of a document under the confidentiality and
privilege rules is, to be sure, an important factor to be
considered in the over-all reasonableness analysis, it is not,
by itself, dispositive. Were this not so, an "attorney-litigant
who is contemplating a wrongful termination action against her
former employer [would not] be able to consult meaningfully with
counsel" about the merits of her discrimination case without
risking "dismissal" of the suit or "disciplinary action for
improper disclosure of confidences." See Chubb & Son v.
Superior Court, 228 Cal. App. 4th 1094, 1109 (2014) (attorney
54
may disclose client documents to her lawyer for purposes of
wrongful termination suit). "[T]he shield of confidentiality"
should not be turned "into a sword" to defeat discrimination
claims by employee-attorneys whose proof of discrimination may
be found in such privileged and confidential sources. See Fox
Searchlight Pictures, Inc. v. Paladino, 89 Cal. App. 4th 294,
314 (2001).
The totality of the circumstances analysis to be applied in
determining whether self-help discovery measures were reasonable
should begin with the question whether the materials obtained
would have been discoverable under the process set forth in
Mass. R. Civ. P. 26, as amended, 423 Mass. 1401 (1996). It
stands to reason that self-help discovery ordinarily should not
be expected to yield more than what a litigant would otherwise
be entitled to receive through formal discovery mechanisms.37
Even as to discoverable material, the reasonableness of the
self-help measures must then be evaluated in the totality of the
circumstances. Without limiting the considerations that
37
In instances where the employee's work involves
privileged or otherwise highly sensitive information that is
relevant to the employee's claims under G. L. c. 151B, the
employer's assertion of privilege as to such information does
not by itself render that information exempt from discovery.
See, e.g., Chubb & Son v. Superior Court, 228 Cal. App. 4th
1094, 1108 (2014) (in discrimination suit by attorney-employee,
court may order discovery of documents prepared by firm on
behalf of clients even if documents subject to attorney-client
and work-product privileges). See note 36, supra.
55
additionally may be relevant in individual cases, the seven
nuanced factors in Quinlan should be taken into account in any
such analysis.
The first factor asks "how the employee came to have
possession of, or access to, the document." Quinlan, supra
at 269. This factor favors "the employee who [does not] find[]
a document by rummaging through files or by snooping around in
offices of supervisors or other employees." Id.
A second factor seeks to "balance [the] relevance" of the
seized documents to the employee's legal action against the
disruption caused by the seizure "to the employer's ordinary
business." Id. at 270. In so doing, "the focus must be on
whether the use or disclosure of the document unduly disrupted
the employer's business, rather than on any effect it had on
individual company representatives." Id.
A third factor looks to "the strength of the employee's
expressed reason for copying the document rather than, for
example, simply describing it or identifying its existence to
counsel so that it might be requested in discovery." Id.
A fourth factor asks
"what the employee did with the document. If the employee
looked at it, copied it and shared it with an attorney for
the purpose of evaluating whether the employee had a viable
cause of action or of assisting in the prosecution of a
claim, the factor will favor the employee. On the other
hand, if the employee copied the document and disseminated
it to other employees not privileged to see it in the
56
ordinary course of their duties or to others outside of the
company, this factor will balance in the employer's favor."
Id. at 269.
A fifth factor takes into consideration "the nature and
content of the particular document in order to weigh the
strength of the employer's interest in keeping the document
confidential," id., while the sixth looks to "whether there is a
clearly identified company policy on privacy or confidentiality
that the employee's disclosure has violated." Id. at 270. As
the New Jersey Supreme Court noted, the "evaluation of this
[latter] factor should take into account considerations about
whether the employer has routinely enforced that policy." Id.
A seventh and final factor takes into account "the broad
remedial purposes the Legislature has advanced through our laws
against discrimination, including [G. L. c. 151B]." Id. at 271.
It also considers the decision's effect on "the balance of
legitimate rights of both employers and employees." Id. This
final factor is "a supplement" to the other factors, and plays a
decisive role only in the "close case" in which it would be
appropriate for these broader considerations to "tip the
balance." Id. at 270.
The application of this test in particular cases may well
result in determinations that certain acts of self-help
discovery by the same employee are reasonable, while others are
57
not. Indeed, where the nature of documents discovered by this
means may run the gamut from the plainly relevant and not
privileged to the not relevant and plainly privileged, that
result would not be unexpected.38 Were this to be the case, the
resolution of the claim of retaliation39 likely would entail a
determination whether the employee's unreasonable and
unprotected acts, "standing alone, would have induced [the
employer] to make the same [adverse employment] decision." See
Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 113 (2009),
38
By way of illustration, it is not inconceivable that
arguments might be made in this case that such documents as the
Eastern Point report and the attorney time records fall at one
end of the spectrum, while the transcription of the Popeo
voicemails, with the exception of the Kiser message, falls at
the other.
39
We leave for another day the question, not addressed by
the parties, whether defendants may be held liable if they are
found to have taken adverse action against an employee on the
basis of her reasonable acts of self-help discovery, but are
also found to have acted based on a good faith mistake of law
that her actions were unreasonable and unprotected. See Equal
Employment Opportunity Comm'n v. Board of Governors of State
Colleges & Univs., 957 F.2d 424, 428 (7th Cir.), cert. denied,
506 U.S. 906 (1992); Bachelder v. American W. Airlines, Inc.,
259 F.3d 1112, 1130 (9th Cir. 2001); Forman v. Small, 271 F.3d
285, 299 (D.D.C. Cir. 2001), cert. denied, 536 U.S. 958 (2002);
Avila v. Continental Airlines, Inc., 165 Cal. App. 4th 1237,
1259-1260 (2008), as modified on denial of rehearing (Aug. 28,
2008). But see Niswander v. Cincinnati Ins. Co., 529 F.3d 714,
728 (6th Cir. 2008) (regarding mistake of fact).
58
quoting Wynn & Wynn, P.C. v. Massachusetts Comm'n Against
Discrimination, 431 Mass. 655, 666 (2000).40
c. Tortious interference. The motion judge allowed
Cohen's motion for summary judgment on the plaintiff's tortious
interference claim because it was filed more than three years
after the relevant acts took place and was, therefore, time
barred. See G. L. c. 260, § 2A ("actions of tort . . . shall be
commenced only within three years next after the cause of action
accrues"). The plaintiff asserts that summary judgment should
not have been granted because certain of Cohen's allegedly
discriminatory acts fall within the three-year limitations
period.
The plaintiff's contention is unavailing. The proper
vehicle for her claims against Cohen would have been "the
administrative procedure provided in" G. L. c. 151B. See G. L.
c. 151B, § 9. The plaintiff failed to name Cohen in her MCAD
complaints, and, according to her appellate brief, apparently
did so for strategic reasons. "Insofar as the plaintiff's
common law claim[] [is] merely [a] recast version[] of" a claim
40
In Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 113
(2009), we applied the rule, originally established in Wynn &
Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431
Mass. 655 (2000), that the employer "must show that its
legitimate reason, standing alone, would have induced it to make
the same decision." But see University of Texas Sw. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2533 (2013); Haddad v. Wal-Mart
Stores, Inc., supra at 113 n.27.
59
that could have been made "under [G. L.] c. 151B, [it is] barred
by that statute's exclusivity provision." Green v. Wyman-Gordon
Co., 422 Mass. 551, 558 (1996). See Charland v. Muzi Motors,
Inc., 417 Mass. 580, 583 (1994) ("An antidiscrimination statute
such as Chapter 151B reflects the legislature's balancing of
competing interests. Employees are protected against certain
types of discharge. Employers are protected from unnecessary
litigation by a relatively short statute of limitations . . .
and a mandatory conciliation process" [citation omitted]).
3. Conclusion. The judgment on the claim for tortious
interference is affirmed. The matter is remanded to the
Superior Court for further proceedings consistent with this
opinion with respect to the plaintiff's claims under G. L.
c. 151B, § 4.
So ordered.