Opinion
No. 98-5978
Dated: July 5, 2001
MEMORANDUM OF DECISION AND ORDER ONAGAR SUPPLY COMPANY'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Timothy Coakley brings this action against his former employer, defendant Agar Supply Company, Inc., pursuant to G. L. c. 151B, § 4, alleging that Agar terminated his employment in retaliation for activity protected under that statute. Agar now moves for summary judgment on the ground that Coakley cannot show any causal connection between his protected activity and his termination. For the reasons that will be explained, Agar's motion will be allowed.
BACKGROUND
The summary judgment record, considered in the light most favorable to Coakley, presents the following factual background. Agar is in the business of distributing food products. Coakley, an African American male, was employed by Agar as a truck driver from July 1987 until his termination on October 11, 1996. In that capacity, he made deliveries of goods to Agar's customers on his assigned routes throughout New England. Coakley's supervisor was Agar's general manager, Michael Fine.
Coakley's response to Agar's statement of undisputed facts pursuant to Rule 9A(b)(5), and his memorandum in opposition to Agar's motion, contain numerous assertions that lack any foundation in the evidence offered, or that misrepresent or seriously distort the evidence. The Court disregards those assertions, and draws the facts recited from the evidentiary record, accepting as true for the purposes of the present motion those facts, favorable to Coakley's position, that are supported by evidence.
During all times relevant to this action, Agar's Employee Benefits, Policy Rules and Guidelines provided, in pertinent part:
Employment with the company comes with a responsibility to be aware of the importance of ethical conduct. . . .
. . .
Exactly what constitutes . . . an unethical business practice is both a moral and legal question. The company recognizes and respects an individual employee's right to engage in activities outside his or her employment which are private in nature and do not in any way involve or reflect poorly on the company. Management reserves the right however to determine when an employee's activities represent a conflict with the company interests and to take whatever action is necessary to resolve the situation — including terminating the employee.
In April of 1995, Coakley filed a charge against Agar with the Massachusetts Commission Against Discrimination, alleging that Agar had retaliated against him for his opposition to an incident of racial harassment directed against him by Agar's customer, Ferraro's Foodland of New England ("Foodland"). The retaliation alleged was that in response to a request from Foodland that Coakley no longer make its deliveries after Coakley had complained of the harassment, Fine had reassigned Coakley to a less profitable route. In August of 1995, Coakley removed that charge from the MCAD and filed suit against Agar in this Court, Civil Action No. 95-4481. On September 27 of 1996, Coakley's counsel mailed to Agar's counsel a motion to amend the complaint in that case to add Foodland and its principals as defendants. Fine was involved in the defense of that case, signing answers to interrogatories and giving a deposition, but the record does not indicate whether or when he or any other Agar personnel learned of the amendment. Trial of that action began in August of 1999; the parties reached a settlement before completion of the trial.
The Court's docket in that case reflects that the motion to amend was filed on November 1, 1996, and allowed on November 6, 1996. No return of service on the Foodland defendants appears on the docket, but the docket reflects that the Foodland defendants filed their answer on March 24, 1997.
Counsel informed the Court at argument on the present motion that the releases exchanged in connection with that settlement expressly excluded the claim presented in this case.
Coakley remained in Agar's employ without incident for approximately a year and half after he filed his MCAD charge on the Foodland matter, and fourteen months after he filed suit on that charge. Agar terminated him, however, after the following events. On or about October 2, 1996, Coakley made a routine delivery to Phillips Exeter Academy, a private boarding high school in Exeter, New Hampshire. While Exeter employees were offloading goods from Coakley's truck parked at the loading dock, Coakley began speaking with a 15 year old Exeter sophomore, Courtney Bass. Bass described the incident as follows at her deposition:
Coakley was 31 years old at the time, according to his deposition testimony.
I was exiting my dorm one late morning to go to buy a book from a bookstore and I was approached by a man whom acted as if he knew me. So thinking that I must have met him at some point, I talked with him, and he later asked me my name, in which I gave him a fake name. He then asked where I was going, and I told him that I was going to the bookstore to buy a book, and he walked with me as I walked. He asked me questions along the way about what I was doing there, you know, where I was from. And when we got to the bookstore, I picked up the book and I went to go purchase the book, and he offered to pay for the book for me. I was not comfortable with him paying for the book and I didn't want to have to owe him anything at any point, so I told him that I would pay for the book myself using my ID card. I made up a story that I could purchase books — you could purchase books with the ID card, but I made up the story that it was part of my financial aid package so, therefore I had to purchase the book with my ID card, which was not true. So I gave the saleslady my ID card and she rung up the book. And I was afraid at that point that he would see my real name because a receipt gets printed out with your name off the ID card. And I was afraid that he'd see it and I had given him a fake name. But it didn't seem that he had seen it, so I took my ID card and my purchase and we left. At that point, he asked if I was seeing someone, and I told him that I was, and he seemed disappointed. And we continued back to where I had originally seen him, which was right outside my dorm, and I said that I had to go. And he offered if at any point I wanted to go get away from campus or to see him, he gave me his name and his number and he wrote it down on a piece of paper and he gave it to me and wished me farewell.
Asked for further details of the conversation, Bass elaborated that the man "asked me if I had a boyfriend. He asked me what it was like to be an African American in New Hampshire, and he asked me if I'd like to visit him in his house somewhere, he said, in the Boston area."
Coakley's account of the incident, as presented in his deposition testimony, confirms the occurrence of the encounter, but differs in certain respects from Bass's version. According to Coakley, Bass approached him as he unloaded his truck. She said something that he did not understand, so he moved toward her in order to hear. The two "struck up a conversation," and she asked him to accompany her to the book store. He helped her find the book she needed, and offered to pay for it. Asked why, he responded that he was "just being nice." He gave her his telephone numbers, both his cell phone and his work number, after she told him something to the effect that she could not receive incoming calls. In an affidavit in support of his opposition to the present motion, Coakley adds that he did not know that Exeter was a high school, and "assumed based on its physical layout, including dormitories, that it was a college." He also did not know that Bass was 15 years old; she "looked to be in her twenties or early thirties." Coakley asserts that "I did nothing to frighten the woman in question. She appeared very friendly throughout the conversation and I gave her my phone number. I did nothing to stalk her, persist in seeing her again, or in any way made her uncomfortable."
Upon reentering her dormitory, Bass called her mother and reported the event because, she testified, "I was not sure whether or not he had seen my name, my real name when I had bought the book. And I was worried that if he had and I didn't call him he would perhaps try to get in contact with me or use my name and somehow find where I was. He had already seen me coming out of my dorm and I thought maybe he had put two and two together and realized that was my place of residence. So I did not want him coming back and desiring anything of me, so I called my mother to ask her what I should do in hopes that would not happen." Bass elaborated, "I was concerned that he might come back and desire something of me that I didn't want to give, which was anything from talking to him to whatever."
Bass's mother instructed her daughter to report the matter to dorm advisor Susan Keeble. Bass attempted to do so at that time, but Keeble was out, and Bass spoke with her later that day. Bass "pretty much retold what had happened and I told her that I had spoken with my mother and asked her what should be done." Keeble replied that "she would go and speak with someone in the dean's office and that the situation would be taken care of." Later, according to Bass, Keeble "came to me and told me that she had discussed things with the dean's office and the situation was taken care of." Keeble, according her own deposition testimony, "immediately" reported the matter to Dean of Students Kathleen Brownbeck, who "agreed that this was an incident that needed to be followed up on, and she said she would take care of it."
Although Bass referred to "later that night," Keeble placed the conversation as in the afternoon, and Agar personnel testified to having been informed within the same day.
Brownbeck, according to her deposition testimony, called the dining hall and left a message that she needed to speak with the person in charge "immediately." She received a return call from Assistant Food Service Director Arthur Rigor DaEva. According to Brownbeck's deposition testimony, Rigor DaEva reported back to her that "he had spoken with the company and that they had taken it seriously, and he was satisfied that they were — that it would not happen again." Brownbeck spoke with both of Bass's parents, who, according to her deposition "were quite concerned that this would happen to their daughter and wanted to be reassured that it would not happen again." Rigor DaEva, according to his testimony, reported the matter to his supervisor, and soon thereafter learned from Agar's sales representative that "this driver would not be working for them."
On the same day as the event, Agar sales person Earl Roland, according to his affidavit, "received [a] telephone call from a representative of Phillips Exeter Academy regarding the behavior of Agar's driver during a delivery to the school." Specifically, according to Roland, the caller "complained that Agar's driver had behaved inappropriately during the delivery." Roland, according to his affidavit, "immediately informed Agar's General Manager, Michael Fine of this complaint."
The deposition testimony leaves some uncertainty as to precisely who at Exeter made the call to Roland. When asked at his deposition whether he spoke to anyone else about the incident, after learning of it from Brownbeck, Rigor DaEva responded that "I told my direct superior." Asked whether he ever contacted anyone at Agar, Rigor DaEva responded "No, not to my recollection," although he did recall Agar's sales representative informing him later that "this individual would no longer be making deliveries at Phillips Exeter Academy." The record does not include any testimony of the person Rigor DaEva referred to as his superior. Fine testified at his deposition that it was his understanding that Roland had received the call from the dean of students, and that Roland gave Fine Brownbeck's name and telephone number. Despite these discrepancies, however, the record leaves no room for doubt, and establishes no genuine dispute, that some representative of the school called Agar to complain of the incident.
According to Fine's deposition testimony, Roland conveyed to him the following information, obtained from the caller from Exeter:
The complaint was that Tim Coakley had encountered . . . a girl, walked with the girl to the book store and offered to buy the girl the book, basically asked her out on a date, the girl turned him down and when she did this Tim became upset and took his work gloves and threw them down on the ground and volunteered to give her, did give her his phone number and Agar's 800 telephone number if she changed her mind and wanted a date with him over the weekend. And the girl was upset and scared and went to the Dean of students and relayed the situation.
Fine, according to his deposition testimony, investigated the complaint "by talking to the Dean of Students and the Assistant Food Service Director at the school as well as talking to Mr. Coakley." The dean, according to Fine, refused to identify Bass, indicating that the student "was very upset and worried and didn't want anything else to have to do with the situation." Fine testified that in his conversation with the dean "I was asked to not put Mr. Coakley on that stop, not have him deliver to that stop any more."
Brownbeck testified at her deposition that she did not specifically remember this conversation, but that "it's possible that someone would have called for more information and I would have repeated the concern that we had."
Fine met with Coakley on October 8, 1996. According to Fine's deposition testimony, Coakley acknowledged that he left the truck for a period of time, that he walked a girl to the bookstore, and that he offered to pay for a book, explaining that she did not appear to have a wallet. Coakley initially denied having asked her out, but later admitted that he had done so, although he denied having thrown his gloves down at her refusal. He admitted giving her Agar's 800 number as well as his own telephone number. When told that Exeter was a high school, according to Fine's deposition testimony, Coakley "said he didn't know that."
Three days later, after consulting other Agar personnel, Fine decided to discharge Coakley. He made that decision because, according to Fine's testimony, "it was not appropriate behavior — not in the interests of the company." Asked at his deposition to identify the particular aspects of Coakley's conduct that warranted discharge, Fine responded that "he has no business walking a girl to the bookstore," "offering to buy a book," "asking a girl out," and "giving the girl Agar's 1-800 telephone number in case she changes her mind and wants to go out with him." Fine further explained that "it was totally inappropriate behavior regardless of the age of the person, but what did make it even more severe is the fact that it was a student and the student felt concerned and worried . . . it was the fact that as a result, a complaint was made to the company about inappropriate behavior."
Fine met with Coakley again on October 11, 1996, and delivered his termination letter. The letter informed Coakley that "your employment is being terminated because your conduct during a delivery on October 2, 1996 . . . constitutes a serious violation of the Company's Policy Rules and Guidelines. It has also jeopardized the Company's relationship with Phillips Exeter, a valued customer." The letter went on to recount the complaint as received from the school, concluding that "[u]nder these circumstances and based on the fact that you admit to much of what has been reported to us by the Dean, we have no choice but to terminate your employment."
In the years prior to Coakley's discharge, according to Fine's deposition testimony, Agar had received customer complaints two or three times a year; as he explained, "a lot of the complaints dealt with deliveries, time of deliveries which may have been beyond the driver's control." Only one prior customer complaint during Fine's time with the company involved conduct of a driver, and on that occasion Fine discharged the driver involved.
The misconduct alleged against that driver, according to Fine's deposition testimony, was that while on a customer's premises "he saw several fire code violations and that — and suggested that he was going to call the Fire Chief in the town and that got relayed to the store manager and the store manager called and complained."
On November 20, 1996, Coakley filed a charge with the MCAD alleging that his discharge was in retaliation for his previous charge and suit, and noting that the discharge occurred two weeks after his amendment to his previous complaint. Coakley filed this suit on November 24, 1998.
As the chronology noted supra reflects, this assertion was not precisely accurate.
DISCUSSION
This Court grants summary judgment where there are no genuine issues of material fact and where the record entitles the moving party to judgment as a matter of law. See Mass.R.Civ.P. 56 (c); Cassesso v. Commissioner of Correction , 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of establishing that there is no issue of material fact on every relevant issue. See Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). Once the moving party has established the absence of a triable issue, the opposing party must identify admissible evidence establishing a genuine issue of material fact. See Pederson, 404 Mass. at 17. Mere contradictions of factual allegations, without evidentiary support, are insufficient to raise questions of material fact sufficient to defeat a summary judgment motion. Madsen v. Erwin, 395 Mass. 715, 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3rd Cir. 1972) (noting that conclusory statements, denials, and allegations are insufficient to raise material issues of fact).
In deciding motions for summary judgment, the Court may consider pleadings, depositions, answers to interrogatories, admissions on file and affidavits. The Court reviews the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility or find facts. See Dawes, 369 Mass. at 553; Mass.R.Civ.P. 56(c); Colley v. Benson, Young Downs Insurance Agency, Inc., 42 Mass. App. Ct. 527, 528; see also Kelley v. Rossi, 395 Mass. 659, 663 (1985). In cases "where notice, intent, or state of mind questions are at issue" summary judgment is often, but not always, inappropriate. See Brunner v. Stone Webster Engineering Corp., 413 Mass. 698, 705 (1992) (further citations omitted).
To maintain a cause of action for retaliation pursuant to G.L. c. 151B, § 4, a plaintiff must show that: (1) he engaged in conduct protected under the statute; (2) he was subjected to an adverse employment action after he engaged in the protected conduct; and (3) there is a causal link between the protected conduct and the adverse employment action. See Connell v. Bank of Boston, 924 F.2d 1169, 1179 (1st Cir. 1991), cert. denied 501 U.S. 1218 (1991); see also Brunner v. Stone Webster Engineering Corp., 413 Mass. at 700, 703; MacCormack v. Boston Edison Co., 423 Mass. 652, 662 (1996). To establish the required causal connection the plaintiff must present evidence supporting a finding of some retaliatory motive, and show that "but for the filing and pursuing of his original discrimination claim the adverse reaction would not have been taken by the defendant. . . ." MacCormack, 423 Mass. at 662 (quoting trial Judge's jury instruction with approval).
In the absence of direct evidence of retaliatory motive, a plaintiff may prove causation by evidence that the employer's proffered reason for the adverse action is a pretext for retaliation. See Abramian v. President Fellows of Harvard College, 432 Mass. 107, 116-117 (2000); Melnychenko v. 84 Lumber Co., 424 Mass. 285, 293 (1997); Tate v. Department of Mental Health, 419 Mass. 356, 362 (1995) ; McMillan v. Massachusetts Society for the Prevention of Cruelty to Animals, 140 F.3d 288, 309-310 (1st Cir. 1998), cert. denied 525 U.S. 1104 (1999) ; Lewis v. Gillette Company, 22 F.3d 22, 24 (1st Cir. 1994). To show pretext, it is not sufficient for the plaintiff to show that the defendant's proffered rationale is "unsound or even absurd," or that its action was "arbitrary or unwise." Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997), quoting Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766-768 (1986). Rather, the plaintiff must present evidence sufficient to support a finding that the proffered reason was not the real reason. If the plaintiff makes that showing, the fact finder may infer that the reason offered is a pretext for retaliation. See Abramian, 432 Mass. at 117-118.
The evidence offered here establishes the first two elements of the plaintiff's claim. It is undisputed that Coakley engaged in protected activity prior to his discharge, by the filing of his first MCAD charge and his suit on that claim. It is equally clear that Agar took adverse action against Coakley, by discharging him from employment, after his protected activity. As to the third element, however, the record presented, considered in the light most favorable to the plaintiff, compels the contrary conclusion; the plaintiff has failed to offer any evidence from which a reasonable fact finder could conclude that retaliation motivated the plaintiff's discharge.
The record before the Court establishes as undisputed that Agar discharged Coakley upon receiving a customer complaint regarding his personal conduct while on the customer's premises in the course of his employment. The complaint was a particularly serious one; there is no room for doubt, and no genuine dispute, that Coakley had conducted himself in a manner that generated a high level of fear and discomfort in a minor whose safety and welfare were the responsibility of his employer's customer. Further, there is no genuine dispute that the customer, Phillips Exeter Academy, considered the matter so serious that it complained immediately and requested Coakley's removal from its deliveries. No reasonable fact finder could doubt that Exeter's complaint constituted a legitimate, non-retaliatory reason for Agar's action in discharging the plaintiff.
Coakley's assertion in his response to defendant's statement under Rule 9A(b)(5) that Bass "was not frightened at all" is an example of the misrepresentations and distortions referred to in note 1, supra . While Coakley's affidavit may reflect his honest belief that he did nothing to frighten Bass, the only competent evidence of whether she was in fact frightened or not is her own testimony and her actions, both of which establish that she was.
Coakley's effort to characterize this fact as disputed also distorts the record. Brownbeck's lack of memory does not contradict Fine's sworn testimony that he spoke directly with Brownbeck, after receiving Roland's report of a communication from the school, nor does Roland's information, as related in his affidavit or as described by Fine, fit Coakley's characterization as "mere rumor."
Agar had the option of choosing a more lenient response, such as removing Coakley from Exeter's route with a warning against repetition of such conduct. Some employers might have responded in that way, particularly in light of Coakley's professed lack of ill intention, and his erroneous assumptions about Bass's age and the nature of the setting in which he encountered her. But the law did not oblige Agar to follow such a course. As Coakley's employer, Agar was free to exercise its own judgment in disciplining employees in response to customer complaints, as long as it did not act in retaliation for protected activity.
Indeed, some employers might have felt constrained to respond leniently in the context of pending litigation, even if not otherwise inclined to do so, for fear of a claim of retaliation. The law does not, however, require such leniency merely because of protected activity. See Petitti v. Commonwealth of Mass. Department of Mental Health , 859 F. Supp. 33, 41 (D.Mass. 1993) ("It is well established that engaging in a protected activity does not provide immunity for subsequent unsatisfactory performance and misconduct").
The record provides no direct evidence of retaliation; there is no indication of any hostile comments, expressions of resentment regarding Coakley's pending claim, other acts of retaliation, or any conduct of the employer indicating a retaliatory animus. Compare Abramian, 432 Mass. at 110-113 (evidence of repeated incidents of supervisors' expression of ethnic bias supported reasonable inference of pretext); Haynesworth v. Interface Group-Massachusetts, Inc. 1993 WL 818812 at *1 (Super.Ct. Dec. 9, 1993) (denying motion for summary judgment where employee was terminated two months after lodging complaint, supervisor made direct comments "deriding" the complaint, and explanation offered was "disputed and somewhat suspect").
Nor does anything in the evidence offered provide any hint of pretext. There is no evidence of disparate treatment. To the contrary, the evidence is that Agar had discharged the only other driver whose personal conduct had elicited a customer complaint. See Matthews, 426 Mass. at 129 ("most probative means" of establishing pretext for racial discrimination "is to demonstrate that similarly situated white employees were treated differently"). Nor is the reason offered in itself implausible, so as to suggest pretext; indeed the customer's complaint, as presented to Agar, provided ample ground for termination. See Tate v. Department of Mental Health, 419 Mass. 356, 365 (1995) (affirming summary judgment where undisputed facts established plaintiff's insubordinate conduct, and plaintiff offered no evidence that such conduct was not actual reason for termination); compare, Haynesworth v. Interface Group-Massachusetts, Inc. 1993 WL 818812, supra (explanation offered was "disputed and somewhat suspect").
Here again, Coakley distorts the record in asserting that "no other driver was ever discharged as a result of a customer complaint . . . notwithstanding that Agar received 2-3 customer complaints a year relative to its drivers."
Ultimately, Coakley's effort to show causation rests on the mere fact of his pending litigation. That circumstance alone cannot support the weight he seeks to place on it. The litigation had been pending, in either the MCAD or the Superior Court, for a year and a half when Agar discharged him, yet nothing in the record suggests any retaliatory conduct, or any adverse action at all, during that entire time. See Lewis, 22 F.3d. at 25, quoting Mesnick v. General Electric Co., 950 F.2d 816, 820 (1st Cir. 1991), cert. denied 504 U.S. 985 (1992) (affirming grant of summary judgment where alleged retaliation occurred over two years after protected activity). Coakley places heavy emphasis on his then pending motion to amend his previous complaint to add Foodland and its principals. The evidence, however, is devoid of anything to indicate that Fine, who made the decision to discharge Coakley, even knew of the pending motion, let alone that it in any way affected his attitude toward the litigation, of which he was already well aware. "The mere fact that one event followed another is not sufficient to make out a casual link." MacCormack, 423 Mass. at 662 n. 11, citing Prader v. Leading Edge Products, Inc., 39 Mass. App. Ct. 616, 617 (1996); compare Eregie v. Boston Co., 1994 WL 879865 at *5 (Mass. Super Apr. 12, 1994) (finding sufficient "toehold" for retaliation claim where protected activity preceded the adverse action by two years, but supervisor who initiated disciplinary proceeding appointed only three months before and specifically referenced protected activity during disciplinary proceedings).
The evidence does not indicate, for example, that Foodland or its principals had contacted Fine to complain of being joined in the suit. To the contrary, it appears unlikely that Foodland and its principals would have learned of their proposed joinder until they received service of the summons and complaint, which would have occurred sometime after the Court's allowance of the motion to amend on November 6, 1996, some three weeks after Coakley's discharge.
ORDER
For the foregoing reasons, Agar Supply Company's Motion for Summary Judgment is hereby ALLOWED. __________________________ Judith Fabricant Justice of the Superior Court
July, 2001