Ocean Spray Cranberries, Inc. v. Massachusetts Commission Against Discrimination

Ocean Spray Cranberries, Inc. vs. Massachusetts Commission Against Discrimination & another. Suffolk. January 8, 2004. May 12, 2004. Present: Marshall, C.J., Greaney, Ireland, Spina, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Handicap, Damages. Employment, Discrimination. Handicapped Persons. Damages, Under anti-discrimination law. Limitations, Statute of. Massachusetts Commission Against Discrimination. This court concluded that the Massachusetts Commission Against Discrimination, in deciding that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4, correctly ruled that sufficient evidence existed to prove that the employee’s vision impairment after implant surgery substantially limited a major life activity, that is, his ability to work, where the employee’s increased difficulty seeing small parts of machinery restricted his ability to perform a class of jobs, namely, equipment maintenance in manufacturing plants. [636-641] In the context of an action alleging that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4, this court concluded that when an employer responds to a request for such an accommodation with equivocal action or inaction, the limitations period in G. L. c. 151B, § 5, begins to run at the point thereafter when the employee knew or reasonably should have been aware that the employer was unlikely to afford him or her a reasonable accommodation [641-646]; therefore, where there was no basis in the record in a proceeding before the Massachusetts Commission Against Discrimination to support the conclusion that a handicapped employee did not know or should not reasonably have been aware that his employer was not going to accommodate a reasonable request that the employee had made prior to taking medical leave from work, a claim based on that failure to accommodate was time barred, but evidence of the employer’s responses or inaction to that request was relevant as background evidence in relation to a later claim that was not time barred [646-647]. In a civil action arising from a decision of the Massachusetts Commission Against Discrimination (commission) that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4, sufficient evidence existed to support a hearing commissioner’s findings that, under the circumstances, the employee was entitled to request a reasonable accommodation; that the employer did not engage in the required interactive process to determine an appropriate accommodation; and that the employee made a timely request for accommodation [648-650]; however, because the plaintiff could not recover damages for time-barred events, this court remanded the case to the commission for further proceedings with regard to the assessment of damages [650-651], Civil action commenced in the Superior Court Department on November 2, 2001. The case was heard by Judith Fabricant, J., on a motion for judgment on the pleadings. The Supreme Judicial Court granted an application for direct appellate review. Kay H. Hodge for the plaintiff. Michael M. Kramer for Richard Rapoza. Steven S. Locke (Wendy A. Cassidy with him) for Massachusetts Commission Against Discrimination. Richard Rapoza. Cordy, J. This case requires us to decide whether and how the “continuing violation” doctrine applies to an action alleging that an employer failed to provide a reasonable accommodation to a handicapped employee in violation of G. L. c. 151B, § 4. 1. Procedural history. On September 15, 1995, Richard Rapoza filed charges of discrimination against his former employer, Ocean Spray Cranberries, Inc. (Ocean Spray), with the Massachusetts Commission Against Discrimination (MCAD or commission). The charges included an allegation that Ocean Spray failed to accommodate Rapoza’s impaired vision despite his requests for accommodation beginning in May, 1993. The commission found probable cause to credit some of Rapoza’s allegations and certified the case for a public hearing. A commissioner conducted the hearing over four days in April and June, 1997, after which he issued a written decision including detailed findings of fact and conclusions of law. He concluded that Rapoza’s impaired vision qualified him as a “handicapped person” under G. L. c. 151B, §§ 1 and 4, and that Ocean Spray had failed to accommodate his handicap, “completely disregard[ing his] requests for help.” The commissioner awarded Rapoza $50,000 for emotional distress incurred from the time he first requested accommodation in May, 1993, until his termination from Ocean Spray in June, 1995. The commissioner also ordered Ocean Spray to design an antidiscrimination policy and implementation plan, and to retain a commission-approved antidiscrimination trainer. Ocean Spray appealed from the commissioner’s decision to the commission, arguing that Rapoza’s complaint was not filed timely and that he was not a “handicapped person.” The commission affirmed the commissioner’s order, concluding that Rapoza’s complaint was timely under the “continuing violation doctrine,” and that Rapoza’s visual impairment substantially limited both his ability to see and his ability to work, thus qualifying him as a “handicapped person.” Pursuant to G. L. c. 30A, § 14, Ocean Spray appealed from the commission’s decision to the Superior Court, where it was affirmed in all respects except with regard to its remedial order. The Superior Court judge concluded that the order requiring Ocean Spray to develop an antidiscrimination policy and to hire a trainer was not reasonably tailored to the violations found and therefore constituted an abuse of discretion. After the judge modified the order accordingly, Ocean Spray appealed, and we granted its petition for direct appellate review. We remand the case to the commission for a recalculation of damages incurred by Rapoza within the six-month period preceding the filing of his charge of discrimination with the commission. 2. Background. The hearing commissioner found the following facts. Ocean Spray employed Rapoza from 1987 until 1995. For most of that time, Rapoza worked as a maintenance mechanic in the “brik pak” department,* * performing repairs on very small parts inside certain machinery in poorly lit areas of the plant. For most of his lifetime, Rapoza had no vision in his left eye as the result of a childhood accident. In March, 1992, Rapoza underwent lens implant surgery, which restored vision in his left eye somewhat, but left him with a depth perception problem that caused him to have difficulties seeing small objects. This vision problem made it difficult for Rapoza to work with small machine parts and affected his performance at work. Rapoza discussed his vision problem and its impact on his performance with his direct supervisor, Dan Kanaley, on several occasions beginning in May, 1993. During one such discussion, Rapoza specifically requested more lighting in the brik pak area, but no additional lighting materialized. Kanaley asked Rapoza to provide written documentation of his vision problem, and Rapoza complied by submitting a letter from his eye doctor to Ocean Spray’s human resources manager, Barbara Denker, on June 17, 1993. The letter stated that Rapoza “has difficulties with depth perception” that may cause “difficulties with fine tolerance measurements and close work”; additionally the letter requested “[a]ny help you are able to provide for him in modifying his workplace . . . .” In subsequent conversations with Kanaley and Denker, Rapoza suggested that he might work in a different area of the plant, where the parts were larger and therefore easier for him to see. Nothing came of this suggestion. In November, 1994, one and one-half years after first seeking some accommodation for his impaired vision, Rapoza left work to undergo heart surgery. Both during his recovery period and after returning to work in April, 1995, Rapoza provided Denker with letters from doctors referring to his vision problems. The first, a letter from Rapoza’s psychologist dated March 29, 1995, explained that Rapoza would not be able to return to work before April 17 and described Rapoza as “exhibiting physical and psychological characteristics of an Adjustment Disorder with Anxiety and Depressed Mood” as a result of the “pressures, demands and requirements of his job where the performance and effectiveness expected of him exceed the physical capabilities placed on him as a result of his limited vision in his left eye.” The psychologist’s letter also included a copy of the June 17, 1993, letter from Rapoza’s eye doctor. Rapoza’s cardiologist supplied a second letter, dated April-14, 1995. That letter indicated that Rapoza’s vision problem was causing “considerable stress which could aggravate his cardiac status” and recommended “that he function in an environment where this physical limitation would be minimally aggravating.” Finally, in response to another Ocean Spray request for an update on his vision problem, Rapoza submitted a letter from his eye doctor dated May 17, 1995, stating that he “has limited depth perception and difficulties with close work” and again requesting “[a]ny help which you could provide him in modifying his work place . . . .” Ocean Spray took no action in response to any of these letters, and subsequently terminated Rapoza’s employment on June 22, 1995, for falsifying his time card. 3. Discussion. We will “affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law.” Ramsdell v. Western Mass. Bus Lines, Inc., 415 Mass. 673, 676 (1993). We first discuss whether Rapoza’s physical impairment qualified him as a handicapped person, then assess whether the “continuing violation” doctrine brought Rapoza’s action within the statute of limitations, and finally, address whether Ocean Spray met its obligation of reasonable accommodation. a. “Handicap.” General Laws c. 15IB, § 4(16), prohibits discrimination against “a qualified handicapped person.” The statute defines a “handicapped person” as “any person who has a handicap,” G. L. c. 151B, § 1 (19), and in turn defines a “handicap” as: “(a) a physical or mental impairment which substantially limits one or more major life activities of a person; (b) a record of having such impairment; or (c) being regarded as having such impairment” (emphasis added). G. L. c. 151B, § 1 (17). “[M]ajar life activities” are “functions, including, but not limited to, . . . seeing . . . and working.” G. L. c. 151B, § 1 (20). “The statute draws a distinction between persons who have a physical or mental impairment, and those whose impairment ‘substantially limits’ a ‘major life’ activity. . . . Only the latter are protected by the Massachusetts statute.” Dahill v. Police Dep’t of Boston, 434 Mass. 233, 237 (2001). Ocean Spray contends that the commissioner and the commission erred when they determined that Rapoza’s vision impairment substantially limited a major life activity. “Our review is limited to determining whether the commissioner’s findings and conclusions were supported by substantial evidence, and whether there was an error of law.” College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 170 (1987), citing G. L. c. 151B, § 6, and G. L. c. 30A, § 14 (7). General Laws c. 151B anticipates that determining whether a person is a “handicapped person” will be an individualized inquiry. See G. L. c. 151B, § 1 (17) (defining “handicap” as “physical or mental impairment which substantially limits one or more major life activities of a person” [emphasis added]). Accord Sutton v. United Air Lines, Inc., 527 U.S. 471, 483 (1999) (“whether a person has a disability under the [Americans with Disabilities Act] is an individualized inquiry”); Massachusetts Commission Against Discrimination Guidelines: Employment Discrimination on the Basis of Handicap Chapter 151B, § B.A.6 (1998) (MCAD Guidelines) (“determination of whether an impairment substantially limits a major life activity depends on the nature and severity of the impairment, the duration or expected duration of the impairment, and the permanent or long-term impact of the impairment”). As such, per se rules are to be avoided. In this case, Rapoza has asserted that he is handicapped because problems with his vision substantially limit two major life activities: working and seeing. See G. L. c. 15IB, § 1 (20). Notwithstanding that Rapoza himself, the commission, and the judge in the Superior Court who affirmed the commission’s decision all combined and conflated the “working” and the “seeing” claims, each claim is separate and distinct, and must be assessed independently of the other. See New Bedford v. Massachusetts Comm’n Against Discrimination, 440 Mass. 450, 464, 466 (2003) (examining “working” separately from major life activity of “thinking”). See also, e.g., Fraser v. Goodale, 342 F.3d 1032, 1041 (9th Cir. 2003), cert. denied sub nom. United States Bancorp v. Fraser, 124 S. Ct. 1663 (2004) (addressing each life activity “in turn” for claim under the Americans with Disabilities Act); Steele v. Thiokol Corp., 241 F.3d 1248, 1253 (10th Cir. 2001) (same). We turn first to the more narrow claim of “working.” Rapoza has suffered a visual impairment since his early teens, when he was shot in the left eye with a BB gun. The accident left him with no functional vision in that eye. The fact that he had monocular vision, however, did not form the basis of his claim to be “handicapped.” That charge stems from the effects of intraocular lens implant surgery that Rapoza underwent in 1992, when he was fifty-two years old. At that time he had been working at Ocean Spray for five years. While the operation restored partial vision to Rapoza’s left eye, it left him with a problem of depth perception. The entire thrust of Rapoza’s sole surviving claim is that the 1992 eye surgery triggered his legal handicap. To prevail on his claim that his postsurgery visual impairment became a legal handicap due to its impact on his ability to work, it was Rapoza’s burden to establish that his daily activity of working was substantially limited after his surgery. See, e.g., Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 737-738 (2003) (plaintiff left with permanent arm impairment after accident not “handicapped” within meaning of G. L. c. 151B, § 1 [17]). Both the MCAD and Equal Employment Opportunity Commission agree that an impairment substantially limits an individual’s ability to work “if it prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.” MCAD Guidelines, supra at § H.A.6. 29 C.F.R. § 1630.2(j)(3)(i) (2003). We recently clarified this standard in New Bedford v. Massachusetts Comm’n Against Discrimination, supra at 466, where we ruled that, consistent with the MCAD Guidelines and with Federal precedent, the fact that an individual is unable to perform “only a particular aspect” of a “single, particular job” is not sufficient to satisfy the “substantial limitation” requirement of our antidiscrimination statute. Id. Under this standard, we conclude that the commission was correct to rule that the evidence was sufficient to prove that Rapoza’s vision impairment after the implant surgery substantially limited his ability to work. At the time he was terminated, Rapoza had worked as an equipment maintenance operator at Ocean Spray and at his previous employer for a total of more than thirty years. During his first few years at Ocean Spray, Rapoza was assigned to general equipment maintenance, which meant he performed maintenance on machinery throughout the plant. At his request he was then assigned exclusively to maintaining machinery in the brik pak department, where he remained for the next three years. Rapoza testified that, while working in that department, he began to experience problems, especially in working on the “filler” machine where he “struggled” with its “real fine and close work.” Certainly, Rapoza’s testimony that he “couldn’t focus properly” and “couldn’t see what [he] was doing” when working on the filler machine is evidence that he was substantially limited at least in his ability to perform the particular job of an equipment maintenance mechanic in the brik pak department. But, as we explained in New Bedford v. Massachusetts Comm’n Against Discrimination, supra, Rapoza’s inability to perform a “single, particular job” does not suffice to establish that he is substantially limited in the major life activity of working. The evidence must show instead that he is substantially limited in a “class of jobs,” such as equipment maintenance in manufacturing plants. This is the “class of jobs” for which he is trained and experienced in performing. As to that, there is evidence to the effect that all of Ocean Spray’s equipment maintenance mechanics were required to do some fine detail work. Two Ocean Spray managers testified that equipment maintenance throughout the plant involved small parts and fine tolerance work because the plant’s machinery was becoming increasingly electronic and computerized. Moreover, the evidence of the plant’s increasing technological sophistication strongly suggests that Rapoza would have had substantial difficulty working as an equipment maintenance mechanic for Ocean Spray in any other part of its plant. There is nothing in the record to suggest that the deterioration in depth perception that attended Rapoza’s implant surgery is temporary. And there is every reason to conclude that Ocean Spray fully recognized that, if Rapoza could not perform equipment maintenance work in the brik pak department, he would have no better success as an equipment maintenance worker anywhere else in its plant. Rapoza testified that his supervisor told him, “[Y]ou’re either going to make it here or you’re not going to make it anywhere.” Last, it is unlikely that the job demands on a machine maintenance mechanic created by the “computerization” of Ocean Spray’s plant machinery is atypical of the job demands on such employees in comparable manufacturing plants. The commission concluded that Rapoza’s visual impairment substantially limited his ability to perform “any line of work that would require him to see and use small parts.” The commission’s finding is supported by the record, and Rapoza’s increased difficulty seeing small parts of machinery would substantially restrict his ability to perform a class of jobs, namely equipment maintenance in manufacturing plants. Contrast New Bedford v. Massachusetts Comm’n Against Discrimination, supra (police officer not reinstated to SWAT teams after leave of absence was not substantially limited in major life activity of working). b. Limitations period. At the time Rapoza filed his charge of discrimination, G. L. c. 151B, § 5, as amended through St. 1989, c. 722, § 29, provided: “Any complaint filed pursuant to this section must be so filed within six months after the alleged act of discrimination.”* Ocean Spray contends that any alleged acts of discrimination occurring prior to March 15, 1995 (six months prior to the filing of the complaint with the commission) are barred by this statute, and that the alleged acts of discrimination occurring after that date do not constitute a failure to provide reasonable accommodation. By the plain language of the statute, the limitations period begins to run at the time of the “act of discrimination.” In some instances, the precise moment of the “act of discrimination” is easy to calculate: plainly, if an employee is denied a promotion on an improper basis, the date of the “act of discrimination” is the date of that denial. See, e.g., Dubose v. Massachusetts Bay Transp. Auth., 25 Mass. Disc

Carleton Matthews vs. Ocean Spray Cranberries, Inc. Plymouth. October 14, 1997. - November 12, 1997. Present: Wilkins, C.J., Abrams, Lynch, Grbaney, Marshall, & Ireland, JJ. Employment, Discrimination, Termination. Anti-Discrimination Law, Burden of proof, Employment, Prima facie case, Race, Termination of employment. Practice, Civil, Summary judgment. Massachusetts Commission Against Discrimination. Discussion of the burden of proof in an employment discrimination claim in the context of cross motions for summary judgment. [127-128] The record of an employment discrimination case on cross motions for summary judgment showed that the defendant introduced credible evidence of a legitimate, nondiscriminatory reason for terminating the plaintiff for having removed company product from company premises without authorization in violation of the company’s widely publicized rules [128-129]; further, the record showed that the defendant demonstrated that the plaintiff would be unable to prove at trial that the stated reason for terminating him was a pretext for racial discrimination [129-134], A finding of probable cause by the Massachusetts Commission Against Discrimination in an employment discrimination case did not preclude a court of competent jurisdiction from entering summary judgment for the defendant employer on the record of cross motions for summary judgment in a civil action arising out of the same circumstances. [134-135] Civil action commenced in the Superior Court Department on September 9, 1993. The case was heard by Raymond J. Brassard, J., on motions for summary judgment. The Supreme Judicial Court granted an application for direct appellate review. Edward J. McCormick, III (Elizabeth Maitland with him) for the plaintiff. Kay H. Hodge (Andrew L. Matz with her) for the defendant. Greaney, J. The plaintiff, Carleton Matthews, an African-American male, was terminated from his position as a forklift operator in the shipping department of the defendant’s, Ocean Spray Cranberries, Inc.’s, Middleborough manufacturing facility on April 23, 1992, after he admitted to removing product (cranberry sauce) from the facility’s premises without authorization. The plaintiff grieved his termination to arbitration pursuant to his collective bargaining agreement, and the arbitrator concluded, in a written decision which was not appealed, that the plaintiff had been terminated for just cause. The plaintiff filed complaints with the United States Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP), and with the Massachusetts Commission Against Discrimination (MCAD) alleging employment discrimination. The OFCCP issued a notice of violation (which it subsequently rescinded), and the MCAD entered a finding of probable cause. The plaintiff next withdrew his charge before the MCAD and filed a complaint in the Superior Court, alleging that the defendant had terminated him because of his race in violation of G. L. c. 151B, § 4 (1). Both parties filed motions for summary judgment, and the judge granted the defendant’s motion. Thereafter, the judge denied the plaintiff’s motion to strike an affidavit submitted by the defendant’s human resources manager. The plaintiff has appealed, and we granted his application for direct appellate review. We affirm the summary judgment for the defendant. 1. The following facts are relevant for the purpose of summary judgment. The defendant maintains at its Middleborough facility a set of “plant rules” which are divided into “major” and “minor” violations. Included as a major violation, which “may result in discharge or a disciplinary suspension,” is “stealing,” which “involves the stealing of [cjompany or other employee’s property, stealing [cjompany time such as sleeping on the job, deliberate time card falsification, punching another’s time card, claiming pay not due, etc.” On March 20, 1989, a memorandum was issued in which the plant manager highlighted “stealing,” and three other major violations, as transgressions that the company would “not tolerate.” The memorandum “clarif[ied] that [stealing] also [applies to] individuals who are removing product from production lines without authorization, removing product from any designated production or storage area, bringing product or company property outside of the area in which it normally resides without authorization. It includes product or company property that is in an individual’s possession or under [the individual’s] control[,] such as in a bag or locker or is removed from the control or domain of the company whether it is on the premises or off.” The memorandum further stated: “all major violations as noted in the plant rules including stealing . . . will be dealt with in the most extreme manner possible. These plant rules when abused will be looked at as a threat to the well-being of our employees and as such, any individual found to have engaged in any of these activities [will] be terminated.” Neither the definition of stealing in the clarifying memorandum, nor in the plant rules, distinguishes between the unauthorized removal of damaged or undamaged product. On September 20,1991, the plant manager issued a memorandum entitled “REMOVAL OF COMPANY PROPERTY FROM OCEAN SPRAY COMPOUND.” The memorandum stated: “May this note serve to remind all employees that [c]ompany property removed from this facility requires pre-approval by a Manager or Supervisor. Prior approval to remove items may be granted by Managers and Supervisors under circumstances deemed appropriate according to policy and practice at the facility.” The plant rules, and both memoranda, were distributed to employees at the time of their issuance, and are posted on the employee bulletin board next to postings of employee schedules and assignments. At the time of the incident at issue, numerous employees had utilized the authorization form procedure to remove various objects discarded in the facility’s dumpsters. The facility also maintains a store where employees may purchase damaged product for three dollars per case. Despite the rules, deposition testimony indicated that the unauthorized removal of damaged product is commonplace at the facility. Nonetheless, the plant’s rules regarding the unauthorized removal of company product are well known and understood among the facility’s nearly 400 employees. The defendant has terminated all employees it has discovered taking company product without authority since the clarification memorandum was issued. The Middleborough facility does not manufacture cranberry sauce, although the facility stores and distributes sauce manufactured at the company’s Bordentown, New Jersey facility. The defendant tracks inventory received by the Middleborough facility, and cranberry sauce arrives at the facility in palletized lots for distribution to retailers. The company claims that it maintains records regarding damaged product, although some damaged product is discarded without having been recorded. The plaintiff began his employment with the defendant on October 12, 1987, and by all accounts, he was a good employee and was qualified for his position. In 1988, he received a written warning and a suspension for a major violation of the company’s rules (fighting). The warning stated that “your involvement in any major violation in the future will place your job in jeopardy.” On Friday, April 17, 1992, at approximately noontime, James Hurley, a production supervisor at the facility, observed the plaintiff in the cafeteria of the plant carrying a cardboard case containing eight-ounce cans of cranberry sauce under his left arm. The case appeared to Hurley to be unopened. A dark colored jacket was placed on top of the case. The plaintiff then left the cafeteria. Shortly thereafter, Barbara Denkner, the human resources manager at the facility, learned that the plaintiff had left the facility with company product. She immediately began an investigation into the incident in the course of which she interviewed the plaintiff and other facility employees. Denkner first spoke with the facility’s shipping and employee sales departments to ask whether the plaintiff had purchased or had been given any company product. When she was informed that he had not been authorized to remove product from the facility, Denkner then met with the plaintiff and his supervisor, Mustapha Finni. On informing him that he was seen taking a case of company product, the plaintiff readily admitted that he had taken the product. He explained that he had removed a damaged cardboard case containing dented cans of cranberry sauce from a dumpster in the lot outside the shipping area of the facility. He stated that he believed that he could take the product without authorization because it had been discarded and was in the dumpster. In response to Denkner’s suggestion that he return the product, the plaintiff stated that he had given it to his wife after he left the building. Following this meeting, Denkner advised Linda Hogan, the acting plant manager, “that an employee had admitted to stealing product.” At Hogan’s direction, Denkner again met with the plaintiff. James Luckraft, a supervisor at the facility, was present at this meeting. The plaintiff again admitted to taking company product without authorization, and acknowledged that he had received a copy of the plant rules at his orientation and that he was aware of the September 20, 1991, memorandum requiring employees to submit an authorization form, signed by their supervisor, prior to the removal of company property. He maintained that the rules were unclear and that he had misunderstood the authorization policy in that he believed that discarded product found in a dumpster was no longer company product subject to the authorization form requirement. Denkner did not find the plaintiff’s explanation credible because the September 20, 1989 “clarification” memorandum had been distributed to all employees when it was issued and had continued to be posted throughout the facility. In addition, the authorization form policy was posted throughout the plant and was being followed by other employees. At the conclusion of the meeting, Denkner informed the plaintiff that he was suspended pending further investigation of the incident. Later that afternoon, after he was advised that return of the product would assist the investigation, the plaintiff returned to Denkner’s office with seven uniformly dented, clean, and otherwise unblemished cans of cranberry sauce in a “Shaw’s Supermarket” paper bag, which he told Denkner were the cans he had taken from the dumpster. Following the plaintiff’s suspension, Denkner reviewed company records which indicated that the cans the plaintiff returned were included in a shipment of cranberry sauce received by the Middleborough facility on April 16, 1992, and that part of the shipment had been transported to various retailers in palletized quantities on the same day. The records did not indicate that the cans the plaintiff returned had been damaged, reworked or destroyed during the week and one half, prior to, and including, April 17, 1992. Furthermore, because the dumpster from which the plaintiff alleged he retrieved the cans is emptied daily, Denkner concluded that the plaintiff could not have found the cans in the dumpster. Denkner also concluded that the plaintiff had been untruthful about the quantity of product taken, since he had been observed carrying a case of product. After reviewing both the investigation report prepared by Denkner and the plaintiff’s personnel file, and after speaking with Denkner, Luckcraft, Finni, and Hurley, Hogan decided to terminate the plaintiff. Hogan asserted in a deposition that, because the plaintiff had removed product from the facility despite the rule against removing company property without authority, and because the authorization form policy for removing property was widely promulgated, and well-utilized by other employees, she did not consider suspending the plaintiff. The plaintiff’s disciplinary record did not “weighQ heavily” on her decision because “[u]nder the circumstances with [the plaintiff] having stolen company property, it would have stood alone ... in terms of requiring a termination.” On April 23, 1992, Hogan met with the plaintiff to advise him that he was discharged. Hogan maintained that prior to that meeting, she had “never connected [the plaintiff’s] face and [his] name.” 2. The party moving for summary judgment has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if the party would not have the burden on an issue if the case were to go to trial. Pederson v. Time, Inc., 404 Mass. 14, 17 (1989). The moving party may satisfy its burden by demonstrating that the opposing party has no reasonable expectation of proving an essential element of the case at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Here, we concentrate on the defendant’s motion for summary judgment which is the one granted by the judge, and is at the heart of the appeal. Summary judgment is admittedly a disfavored remedy in discrimination cases based on disparate treatment. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995), and cases cited. Nonetheless, summary judgment is not always inappropriate in these cases. We have upheld summary judgment in favor of defendants where their motions demonstrate that the plaintiff is unable to offer admissible evidence of the defendant’s discriminatory intent, motive, or state of mind sufficient to carry the plaintiff’s burdens and support a judgment in the plaintiff’s favor. See id. at 440, and cases cited. In employment discrimination cases alleging disparate treatment, we allocate the burden of producing evidence according to the framework set forth by the United States Supreme Court under the Federal antidiscrimination provisions of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (1994). See id. at 440-441 (1995); Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 138 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of racial discrimination. Blare, supra at 441. See McDonnell Douglas Corp., supra at 802; Wheelock College, supra at 138. Once the plaintiff meets this burden, unlawful discrimination is presumed. The burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its hiring decision, Blare at 441-442, citing Wheelock College, supra at 136, and McDonnell Douglas Corp., supra, and to “produce credible evidence to show that the reason or reasons advanced were the real reasons.” Blare, supra at 442, quoting Wheelock College, supra at 138. The defendant’s “burden of production is not onerous.” Blare, supra at 442. “The reasons given for a decision may be unsound or even absurd,” and the action may appear “arbitrary or unwise,” nonetheless the defendant has fulfilled its obligation. Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 766-768 (1986). The defendant is not required to persuade the fact finder that it was correct in its belief. Tate v. Department of Mental Health, 419 Mass. 356, 362 (1995). Once the defendant meets its burden, the presumption of discrimination vanishes, and the burden returns to the plaintiff to persuade the court, by a fair preponderance of the evidence, that the defendant’s proffered reason for its employment decision was not the real reason, but is a pretext for discrimination. Blare, supra at 444-445. The plaintiff bears the burden of persuasion on the ultimate issue of discrimination, id. at 445, and therefore must “produce evidence sufficient to support a jury verdict that it was more likely than not that the articulated reason was pretext for actual discrimination.” Id. at 447. If the defendant’s reasons are not discriminatory, and if the plaintiff does not prove that they are pretexts, the plaintiff cannot prevail. Lewis, supra at 766. 3. Because the defendant does not argue that the plaintiff has failed to establish a prima facie case for summary judgment purposes, we assume, without deciding, that a prima facie case has been demonstrated. The plaintiff contends that the judge erred in denying his cross motion for summary judgment because the defendant failed to produce sufficient evidence to rebut the prima facie case. We disagree. The record shows that the defendant introduced credible evidence to demonstrate that it terminated the plaintiff because he had taken company product without authorization in violation of the company’s widely publicized rules. The defendant immediately initiated a thorough investigation into the incident, and did not accept the plaintiff’s explanation because, if indeed he was not aware, he should have been aware of the rules against removal of product without authority. It was reasonable in these circumstances for the defendant to conclude that the plaintiff was aware of the clarification memorandum and authorization form policy, but deliberately failed to adhere to them. In addition, the defendant reasonably could have suspected that the plaintiff lied about the circumstances surrounding his removal of the product. Accordingly, the defendant has satisfied its burden of advancing a legitimate, nondiscriminatory reason for terminating the plaintiff, and supporting that reason with credible evidence. We then turn to the issue whether the summary judgment record demonstrates that the defendant has shown that the plaintiff will be unable to prove at trial that the stated reason for terminating him was a pretext. The most probative means of establishing that the plaintiff’s termination was a pretext for racial discrimination is to demonstrate that similarly situated white employees were treated differently. Smith College v. Massachusetts Comm’n Against Discrimination, 376 Mass. 221, 228 (1978) (fact of discriminatory motive “can be inferred from differences in the treatment of [employees of different races]”). We have not previously considered what.evidence a plaintiff must produce to show that two individuals are similarly situated for purposes of proving differential treatment, and thus discrimination, in violation of G. L. c. 15IB. We adopt the approach taken by Federal courts under Title VII that in order to establish that the defendant’s stated reasons for terminating him were a pretext, the plaintiff must “identify and relate specific instances where persons similarly situated ‘in all relevant aspects’ were treated differently.” Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989), quoting Smith v. Monsanto Chem. Co., 770 F.2d 719, 723 (8th Cir. 1985), cert. denied, 475 U.S. 1050 (1986). The plaintiff must identify other employees to whom he is similarly situated “in terms of performance, qualifications and conduct, ‘without such differentiating or mitigating circumstances that would distinguish’ their situations.” Smith v. Stratus Computer, Inc., 40 F.3d 11, 17 (1st Cir. 1994), cert. denied, 514 U.S. 1108 (1995), quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 583 (6th Cir. 1992). Although the offenses of two employees need not be identical, the offenses must be of comparable seriousness. McDonnell Douglas Corp., supra at 804. Employees are not similarly situated where one is disciplined pursuant to one policy and then seeks to be compared to coworkers who were not subject to that policy or were subject to a previous policy. See Hooker v. Tufts Univ., 581 F. Supp. 104, 114 (D. Mass. 1983). The plaintiff submitted evidence that other individuals employed at the Middleborough facility, all of whom were white and were comparable to him in terms of positions and pay, committed violations of the compa