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

By Erica E. Flores - Skoler, Abbott & Presser, P.C.

August 29, 2022

Getting an employment case dismissed before trial has always been pretty elusive in Massachusetts state courts, but if a recent ruling by a divided panel of the Appeals Court stands as written, it just became even more difficult.

The majority opinion reversed a decision by a Trial Court judge who granted summary judgment for the employer, dismissing the case before trial, in an age discrimination case filed by an employee whose job was eliminated as part of a reduction-in-force (RIF).  The judges reasoned that there was sufficient evidence in the record for a reasonable jury to conclude that the RIF was intended to further a corporate plan to replace aging workers.  In a blistering dissent, however, two of the justices accused the majority of misunderstanding the appropriate legal standard, disregarding undisputed evidence of the employer’s legitimate reasons for the decision, improperly crediting flawed opinions offered by an expert witness, changing established law regarding “stray remarks” in the workplace, and other errors.

It is rare to see the judges of the Appeals Court disagree so vigorously.  Here’s what happened.

Long-serving electrical engineer’s position is eliminated as part of a RIF

From 2007 until January 2017, Mark Adams was employed by Schneider Electric USA (“Schneider”) as an electrical engineer in the research and development division at Schneider’s Boston campus.  For several years, his work involved improving the quality of batteries, but in 2016, Adams was moved to a different project.  Less than a year later, Schneider eliminated his position as part of its third RIF in a period of just 10 months.  That RIF cut eight employees, all of whom were over the age of 50.  The three RIFs together cut 24 employees, all but two of whom were over the age of 50.

In October 2017, Adams brought suit against Schneider in Middlesex County Superior Court.  He claimed that Schneider terminated him on the basis of his age in violation of Massachusetts law, among other claims.  Before trial, Schneider asked the Court to dismiss the case on the grounds that there was no genuine dispute of material fact to be decided by a jury because Adams could not point to any evidence that Schneider’s non-discriminatory reasons for eliminating his position – specifically, his lack of interest in his new project and the comparably lower impact his loss would have on the research and development team – were not its real reasons.  The trial court judge agreed, and dismissed the case before trial, but a divided panel of the Appeals Court reversed that decision, concluding that Adams had pointed to enough evidence of age discrimination to require a jury to decide the case.

Evidence of high-level bias can make RIF unlawful even if decisionmaker was neutral

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

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

The Appeals Court acknowledged these facts, but did not find them to be sufficient grounds to dismiss the case.  The judges reasoned that remarks made after an adverse employment action is taken “can still be relevant to the employer’s contemporaneous thinking” and that any statements “made by those who have power to make employment decisions” are relevant to the employer’s motives, and cannot be dismissed as mere “stray remarks.”  So even if Adams was terminated on the basis of neutral criteria before allegedly discriminatory remarks were made by higher-level managers, a jury could still find that the RIF was unlawful because “the motives of the corporate managers” – not just the decision-maker – “should be treated as the motives for the decision,” and the statements of powerful managers, even after the RIFs were implemented, could convince a reasonable jury that Colby was merely “the innocent pawn of an undisclosed corporate strategy tainted by unlawful discriminatory animus.”  The fact that Schneider had yet to fill any of the “space” it made for younger workers was irrelevant – “it if cleared out the older workers to set the foundation for its plan, that would be sufficient discriminatory animus to permit a finding of liability.”

Viewing the evidence most favorably to the employee   

The Court also identified a second reason to disagree with the Trial Court – its conclusion that, when the evidence was viewed in the light most favorable to Adams, there was adequate evidence for a rational jury to conclude that Colby in fact did know about Schneider’s supposed strategy to eliminate older workers and that he selected employees for inclusion in the third RIF in accordance with that strategy.

In support of this conclusion, the judges pointed to evidence that Colby had meetings with the higher-level managers who were the supposed “architects” of Schneider’s plan to clear out older employees while he was still deciding whose jobs to cut, and reasoned that a jury could infer that their discriminatory wishes were expressed to Colby during those meetings, “particularly where every person Colby selected for the RIF was over fifty.”

The Court also pointed to evidence that Colby discouraged the head of the battery project from trying to rehire Adams as well as the opinion of Adams’ expert witness that the RIF disproportionately affected workers who were 50+.  Schneider had argued that the expert’s analysis was flawed because he did not account for the non-discriminatory reasons it says motivated Colby’s decisions, but the Court dismissed that argument, reasoning that it was for the jury to interpret and weigh statistical evidence.

Finally, and perhaps most importantly, the Court completely disregarded unrebutted testimony that Colby was the sole decision-maker, that his selection criteria and motives were neutral, that he and Adams were actually long-time friends and that he took steps to try to save Adams’ job.  The majority ruled that it was required to disregard this evidence because it was favorable to Schneider, relying on federal precedent and its conclusion that a jury would not be required to believe these facts if the case went to trial.

The case is called Adams v. Schneider Electric USA.  The Appeals Court’s decision can be found here.

Takeaways

As noted above, the Adams decision was the subject of a vehement dissenting opinion joined by two members of the five-judge panel who accused the majority of several legal errors.  Among other things, the dissent argued that the majority had departed from the long-standing legal rule that “stray remarks” are insufficient to prove discriminatory bias by holding that the rule can never apply to a manager who has the power to make employment decisions.  The dissent also took issue with the legal standard the Court applied and its apparent intolerance for modern succession planning in industries dominated by aging white males, among other things.

For now, though, the majority opinion remains the law and it will certainly be relied upon by attorneys trying to avoid dismissal in employment cases.  What does this mean for employers?  For one, it means that management-level employees who have the authority to hire, discipline, promote, terminate or make other employment decisions must be even more careful about comments they make in the workplace.  Comments that may have previously been brushed aside by courts as nothing more than “stray remarks” may now be considered evidence of a high-level corporate strategy to discriminate against employees in all manner of employment decisions, not just RIFs.  Employers should also be aware that e-mails and other records that post-date an employment decision can be considered evidence of an employer’s motives for making that past decision.  And finally, employers who are thinking about succession planning need to be extra careful about the rhetoric they use to describe their concerns, needs, wants and strategies, especially if their plans involve eliminating jobs.  Partnering with employment counsel at an early stage can help reduce legal risk and shield sensitive conversations from being used in any ensuing litigation.