Massachusetts Institute of Technology v. Research, Development & Technical Employees Union

Michael S. O’Brien vs. Massachusetts Institute of Technology & others. No. 11-P-45. September 25, 2012. Handicapped Persons. Anti-Discrimination Law, Handicap, Termination of employment. Employment, Discrimination, Termination, Retaliation. A Superior Court judge awarded summary judgment in favor of Michael S. O’Brien’s former employer, the Massachusetts Institute of Technology (MIT), on his handicap discrimination and retaliation claims. The judge ruled that O’Brien’s claims failed because he had no reasonable expectation of establishing essential elements of his case. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991). On count 1 (handicap discrimination), the judge ruled that O’Brien could not establish that he is a handicapped person within the meaning of G. L. c. 15 IB (the statute), and that even if he could establish his handicapped status, he would not be able to meet his burden of showing that the reasons given for his discharge were a pretext. On count 2 (retaliation), the judge found that O’Brien could not establish that he experienced adverse employment actions prior to his discharge, and that the discharge itself was too remote from the protected activity (a complaint to the United States Department of Labor) to establish a causal connection. Jack R. Stark and Donald J. O’Mara. O’Brien appeals, claiming that he presented sufficient evidence to send his case to a jury. With respect to O’Brien’s discrimination and retaliation claims against MIT, and viewing the record in the light most favorable to O’Brien, see Lyons v. Nutt, 436 Mass. 244, 245 (2002), we agree. This is not to say that MIT in fact discriminated or retaliated against O’Brien. That is a question for the jury on which we express no opinion. We hold only that the evidence is sufficient to raise genuine issues of material fact that preclude the award of summary judgment on counts 1 and 2. 1. Background. O’Brien worked at MIT’s central utility plant (CUP) as a second-class engineer for approximately ten years, starting in 1997. Given the nature of the GUP’s operations, engineers are expected to work overtime. Throughout his employment, O’Brien suffered from pain in his back and legs. He underwent two surgeries: in 2003, he had surgery on both legs, and in November, 2004, he had spinal surgery. Neither surgery was successful, and O’Brien continued to experience pain. In February, 2005, after his second surgery, O’Brien provided MIT with a letter from his surgeon explaining that because of continued pain, O’Brien’s ability to work overtime was limited. O’Brien subsequently tried repeatedly to obtain sick leave under the Family and Medical Leave Act (FMLA) and an accommodation that would excuse him from working overtime. These requests were accompanied by doctors’ notes stating, inter alla, that O’Brien had chronic leg pain “that disrupts his sleep”; that he “likely [would] miss work 1-2 days per month”; that he had a neurological condition made worse by working long hours and that it was “important for his long term health that he not be required to work overtime”; and that he had lower extremity neuropathic pain, spinal stenosis, and lumbar radiculopathy, with “[bjuming pain [in] both lower legs that worsens after prolonged standing hence limiting time on feet.” MIT rejected each request, generally stating that the medical documentation submitted “did not describe circumstances that would entitle [him] to leave under FMLA,” and requesting that he submit additional forms and documentation. In September, 2006, while O’Brien’s request that he not work overtime was pending, one of his supervisors, Jack Stark, commented to another manager that he could not wait until the day he could fire O’Brien. In November, 2006, after O’Brien’s request for an accommodation was formally denied, he filed a complaint with the United States Department of Labor (department). On April 11, 2007, as a result of negotiations with the department, MIT provisionally approved FMLA leave “due to a serious medical condition.” In December, 2006, while O’Brien’s complaint with the department was pending, another supervisor, Donald O’Mara, sent an internal electronic mail message (e-mail) strongly opposing an accommodation for O’Brien on the ground that it would set a precedent. The e-mail stated, “I have no interest whatever in accommodating [O’Brien] at all.” As we have noted, O’Brien first informed MIT that his medical condition affected his ability to work overtime in the beginning of 2005. Prior to that time, during his first eight years of employment, the only disciplinary action involving O’Brien was a single warning he received in January, 2002, for improperly closing a damper. However, following his first request to be excused from working overtime until his employment was terminated in September, 2007, O’Brien received a number of verbal and written warnings and was suspended for a variety of infractions, including insubordination, failing to complete assignments, leaving his post without proper coverage, and abuse of MIT’s sick leave policy. A fellow worker, John Spinosa, submitted an affidavit stating that O’Mara and Stark “appeared to have two different sets of standards for performance in the CUP. One set of standards for . . . O’Brien and the other set of standards ... for the rest of the workforce,” and that he had “personally observed much of this discriminatory treatment.” As to the termination of O’Brien’s employment, there is no dispute as to the following. On September 8, 2007, O’Brien was assigned to work a twelve-hour shift, from 6:00 a.m. to 6:00 p.m. At some point in the early afternoon, he was asked to start CUP chiller number one. During the “slow-roll” start-up process, O’Brien left the CUP to retrieve his truck in a nearby lot, bringing it back to the parking lot next to the CUP. He then washed the truck and a kayak attached to the truck’s roof, drove the truck to a parking garage, and returned to the CUP. At the end of his shift, O’Brien left for a scheduled two-week vacation. Upon his return, O’Brien was informed by letter that his employment was terminated for “unacceptable” conduct in connection with having abandoned his post and for other disciplinary concerns. Spinosa’s affidavit stated that it was common practice to leave the chiller during the slow-roll process because the equipment did not need constant monitoring at that point, and that he was not aware of any discipline imposed on any other engineer for that behavior during his twenty-five years at CUP. 2. Discussion. a. Count 1 — handicap discrimination, i. Handicap status. To establish that he is handicapped within the meaning of G. L. c. 15IB, O’Brien must show that (1) his “condition, actual or perceived, constitutes a mental or physical ‘impairment’[;]... [2] the life activity curtailed constitutes a ‘major’ life activity as defined in G. L. c. 151B, § 1(20), and its accompanying regulations^] . . . and [3] ‘the impairment substantially limit[s] the major life activity’ ” (citations omitted). New Bedford v. Massachusetts Commn. Against Discrimination, 440 Mass. 450, 463 (2003). There is sufficient evidence on each prong to preclude summary judgment. First, there clearly is evidence that O’Brien’s chronic pain constitutes a physical impairment. Second, there is evidence in the record demonstrating that this impairment limits at least two major life activities, sleep and work. Third, a jury could conclude that these major life activities are substantially limited by O’Brien’s impairment. The question whether an impairment substantially limits an individual’s ability to sleep as compared to the ability of the average person in the general population “requires an individual, case-by-case assessment.” Shedlock v. Department of Correction, 442 Mass. 844, 852 (2004). In his deposition, O’Brien testified that there were weeks when he would sleep only “one or two hours a night, three or four hours a night for a week or two . . . depending] on how many days in a row [he] had to work, what shifts [he] had to work.” He would sometimes go for days with only four hours of broken sleep. Also, O’Brien’s doctor noted that O’Brien “continues to have leg pain that disrupts his sleep” and he “will likely have exacerbations that require missing work intermittently.” If the jury were to credit this evidence, they could conclude that O’Brien’s ability to sleep is substantially limited in comparison to the average person. See ibid. A limitation on work is “substantially limiting]” for purposes of G. L. c. 151B when the impairment “prevents or significantly restricts the individual from performing a class of jobs or a broad range of jobs in various classes.” Ocean Spray Cranberries, Inc. v. Massachusetts Commn. Against Discrimination, 441 Mass. 632, 639 (2004). Given the evidence in the record, and the broad range of jobs in the Commonwealth that require overtime, the question whether O’Brien is substantially limited in his ability to work is, again, one for the jury.»» ii. Pretext. Next, we consider whether MIT has proffered legitimate nondiscriminatory reasons for terminating O’Brien, and, if so, whether O’Brien could meet his burden of establishing that the reasons given were a pretext. See Labonte v. Hutchins & Wheeler, 424 Mass. 813, 821 (1997). It may, in fact, be true that O’Brien was terminated for leaving his post during the slow roll of chiller number one. Here, however, there is direct evidence of serious resistance by MIT to O’Brien’s request to be excused from working overtime due to his medical condition, and to his applications for leave under the FMLA and for reasonable accommodation. O’Mara’s internal e-mail and Stark’s comment about wanting to fire O’Brien raise a jury question whether MIT’s proffered reason is in fact why O’Brien was terminated or whether, instead, it is a pretext, and O’Brien was terminated either because of his handicap or in retaliation for engaging in protected conduct, namely, filing a complaint with the department. Seth Stoffregen for the plaintiff. Scott A. Roberts for the defendants. Evidence in the summary judgment record would also support a finding that, beginning about the time he first sought accommodation due to his medical condition, O’Brien was singled out for disciplinary action. In addition to O’Brien’s deposition testimony, the Spinosa affidavit avers that there was one set of rules for O’Brien and another set of rules for everyone else. b. Count 2 — retaliation. This claim is premised on the treatment O’Brien received after he filed his complaint with the department. He alleges that harassment by his supervisors, resulting in numerous verbal and written warnings, as well as his termination in September, 2007, were “adverse action[s]” entitling him to recovery. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004), quoting from Mesnick v. General Elec. Co., 950 F.2d 816, 827 (1st Cir. 1991), cert. denied, 504 U.S. 985 (1992) (retaliation claim requires plaintiff to show that “he engaged in protected conduct, that he suffered some adverse action, and that ‘a causal connection existed between the protected conduct and the adverse action’ ”). There is no question that O’Brien’s filing of the department complaint constituted protected conduct. Because a reasonable juror could conclude that the verbal and written warnings, as well as O’Brien’s termination, were all “adverse actions” that, if shown to have been retaliatory, would entitle him to recover under the statute, MIT is not entitled to summary judgment. Under the retaliation provision of the statute, “adverse actions consist of a defendant’s action ‘to discharge, expel or otherwise discriminate against’ the plaintiff.” Mole v. University of Mass., supra at 592 n.14. Any such action that “materially disadvantage^] ” a plaintiff is an adverse employment action for purposes of a retaliation claim. See Psy-Ed Corp. v. Klein, 459 Mass. 697, 707-708 (2011). Here, the less serious infractions ultimately were included among the reasons for imposition of the sanction of termination (see note 4, supra) and, therefore, could be construed as having materially disadvantaged O’Brien. See Nye v. Roberts, 145 Fed. Appx. 1, 6 (4th Cir. 2005). 3. Conclusion. The judgment is reversed as to counts one and two against MIT. In all other respects, the judgment is affirmed. So ordered. We affirm the grant of summary judgment on O’Brien’s additional claim of tortious interference against Stark and O’Mara. As the motion judge found, this claim fails because they were supervisory employees whose actions were governed by a collective bargaining agreement (CBA), and the claim is therefore preempted by the Federal Labor Management Relations Act. See 29 U.S.C. §§ 141 et seq. (1994); Magerer v. John Sexton & Co., 912 F.2d 525, 530-531 (1st Cir. 1990). To the extent O’Brien argues that the claim is not preempted because his allegations of improper motive and means (discriminatory and retaliatory animus) involve actions outside the CBA, the argument is not sufficiently developed, and we do not reach it. The frequency of reprimands escalated in August, 2007, when O’Mara reprimanded O’Brien three times in as many weeks, for infractions ranging from failing to wear his fire retardant suit to leaving the CUP without informing O’Mara. The letter of termination set forth a history of prior disciplinary actions and noted that O’Brien had been “counseled” on three occasions during the preceding month of August for improper conduct. (See note 3, supra.) O’Brien’s union pursued a grievance challenging the termination under the CBA. The matter proceeded to arbitration, and the arbitrator upheld O’Brien’s termination. We review an order granting summary judgment de nova to determine “whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.” Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). MIT did not argue, and the motion judge did not reach the question, whether O’Brien could make out the second element of his prima facie case, establishing that he is a qualified handicapped person. See, e.g., Labonte v. Hutchins & Wheeler, 424 Mass. 813, 822 & n.11 (1997). We do not address the question. We observe that some Federal courts have found that, as a matter of law, inability to work more than a forty-hour week is not a “substantial limitation” on the ability to work for purposes of the Americans with Disabilities Act (ADA). See Boitnott v. Corning, Inc., 669 F.3d 172 (4th Cir. 2012). However, these cases were decided under a construction of the ADA’s “substantial limitation” language that was subsequently rejected by Congress in the ADA Amendments Act of 2008, Pub. L. No. 110-325, 122 Stat. 3553 (2008). In any event, G. L. c. 151B, not the ADA, applies in this case. See, e.g., Dahill v. Police Dept. of Boston, 434 Mass. 233, 240-243 (2001). With respect to the major life activities of thinking and concentrating, O’Brien stated in his affidavit, “I’ve endured numerous days and countless nights of private torture and tears and my ability to concentrate is often impacted.” In light of our conclusions about sleep and work, we need not decide if this is sufficient to raise a genuine issue of material fact whether these major life activities are substantially impaired. Should the evidence at trial be sufficient to support such a conclusion, the judge will be free to instruct the jury on the point.

Chi-Sang Poon vs. Massachusetts Institute of Technology & another. No. 06-P-1993. Middlesex. March 11, 2008. May 6, 2009. Present: Duffly, Vuono, & Sikora, JJ. Anti-Discrimination Law, Employment, Race. Employment, Discrimination, Retaliation. Practice, Civil, Summary judgment. Discussion of the standard of review applicable to the allowance of a motion for summary judgment in a civil action alleging employment discrimination. [194-195] In a civil action alleging racial discrimination in employment, the employee failed to show any reasonable prospect of proof at trial that the reasons given for the employer’s decision not to promote him were a pretext, and failed to generate a genuine issue of material fact of pretext [195-199]; further, the employee had no reasonable expectation of proof that any of the identified incidents after he filed a letter of complaint qualified as retaliation [199-201], Civil action commenced in the Superior Court Department on July 9, 2004. The case was heard by Nonnie S. Bumes, J., on a motion for summary judgment. Jonathan Shapiro for the plaintiff. Jeffrey Swope (Robert G. Young with him) for the defendants. Martha L. Gray. Sikora, J. This appeal requires review of a summary judgment disposition of claims of employment discrimination and retaliation brought under G. L. c. 15IB, § 4. The plaintiff employee Chi-Sang Poon, Ph.D. (Dr. Poon), is a scientist concentrating in the field of bioengineering. The defendant Massachusetts Institute of Technology (MIT) has been his employer for almost twenty years and the defendant Martha L. Gray, Ph.D. (Professor Gray), a member of the university faculty, has been a supervisor of Dr. Poon’s work for the past twelve years. Background. 1. Procedural history. In November, 2001, Dr. Poon lodged his original charges with the Massachusetts Commission Against Discrimination (MCAD). He alleged that MIT and Professor Gray had effectively denied him promotion from the position of principal research scientist (PRS) to the position of senior research scientist (SRS) in 1993, 1997, and 2001, by reason of his race (Asian) and national origin (Chinese), and that the defendants had subsequently retaliated against him for his complaints of discriminatory treatment in May and November, 2001. After investigation, the MCAD in May, 2004, found the claim of discriminatory nonpromotion in 1993 to be untimely and the claims of similar treatment in 1997 and 2001 and of retaliation after May, 2001, to lack the support of probable cause. It dismissed them. In July, 2004, Dr. Poon brought the present action in the Superior Court upon the same claims of discrimination (count one) and retaliation (count two) in violation of G. L. c. 15IB, § 4. Extensive discovery results and verified information had accumulated in the MCAD and continued to accrue in the Superior Court in the form of answers to interrogatories, the production of documents, deposition testimony, and affidavit statements and exhibits. At the conclusion of discovery, MIT and Professor Gray moved for full summary judgment. They supported the motion with an itemized statement of undisputed facts and legal elements in accordance with Superior Court Rule 9A(b)(5). Pursuant to that rule, Dr. Poon responded to the defendants’ statements of facts and legal elements. After consideration of the voluminous record, memoranda of law, and oral argument, in September of 2006, a judge of the Superior Court concluded in a thirty-four page memorandum of decision that the claim of discrimination in 1993 had become time barred and that the factual materials relating to the claims of discrimination in 1997 and 2001, and to the claim of retaliation after May, 2001, did not permit any reasonable expectation of proof at trial. She entered full summary judgment. Dr. Poon has appealed from the portion of the judgment disposing of the claims rooted in the events of 1997 onward. 2. Facts. The following information emerges from the summary judgment record as undisputed. Dr. Poon was bom and raised in Hong Kong. He earned a bachelor’s and a master’s degree in electrical sciences from universities in that city and then a Ph.D. in systems science and bioengineering from the University of California, Los Angeles. From 1981 until 1988, he held junior faculty positions at North Dakota State University and began research in bioengineering subjects, particularly cardiovascular and respiratory functions. In 1988, he came to MIT as a visiting scientist in the Harvard-MIT Division of Health Sciences and Technology (HST). HST is a multidisciplinary division, and not an academic department, of those universities. It engages in bioengineering research strengthened by the human and technological resources available from the schools of general science, engineering, and medicine at each institution. Two codirectors serve as its chief officers. It enjoys access to approximately 200 faculty professors. HST maintains a staff of ten nonfaculty, nontenure track, MIT-employed research scientists. Those individuals fall into three ranks arranged in ascending order and title as research scientist (RS), principal research scientist (PRS), and senior research scientist (SRS). These ranks appear available across a number of MIT departments, divisions, and units, and not merely in the HST. In 1989, Dr. Poon received appointment as a PRS. Under MIT’s published policies and procedures, both SRS and PRS appointees enjoy indefinite duration but remain subject to quadrennial review and to periodic review by an appropriate supervisor (one of the two codirectors of HST) for determination of the continuance of the appointment in light of the quality of the individual’s work and the need for his or her services. At all relevant times, the published qualifications for the rank of PRS have been the demonstrated ability “to generate and develop concepts independently and to conduct independent research” and the capacity for “unique scholarly or other technical contributions to research projects.” The published qualifications for the higher rank of SRS have included the following. “Individuals holding [an SRS] appointment conduct independent investigations, with the ability to direct the work of others. They possess a demonstrated research competence equal to that of a tenured faculty member. Appointment or promotion to this rank is evidence of wide external and internal recognition of independent contribution to research in the individual’s field. Such contributions may be illustrated by traditional scholarly recognition, excellence in the leadership of technical projects, or other significant research impact.” In effect, MIT policies and procedures require from the SRS both the ability for independent research and the capacity for direction and leadership of other scientists. a. Events of 1997. In February of 1997, Professor Gray, as codirector of HST, received a document entitled “Guidelines for the Review of Principal Research Scientists and Research Scientists” (guidelines) from the MIT vice-president and dean of research. The guidelines became effective on March 1, 1997, and required a four-year review of the performance of each PRS individual by a committee of three (two faculty and one researcher) appointed by an HST director. The committee was to evaluate the quality, funding, and future of the PRS’s research and educational contributions, and to submit a report to the HST codirectors. It was to solicit at least seven letters of assessment from recognized experts in the individual’s field at MIT; and six or more letters from comparable experts outside MIT. The HST head would, in turn, generate a recommendation about the PRS upward to the vice-president of research, and would provide the PRS with a formal written assessment of standing and of the probability for advancement. During the period of January 31 into April, 1997, Professor Gray drafted documents in preparation for an assessment of Dr. Poon’s performance, including a request that he furnish a statement of career goals, a list of individuals within and beyond MIT capable of evaluation of him, and copies of five of his most recent and significant papers. On April 8, she forwarded a memorandum to the members of the HST personnel committee placing the subject of Dr. Poon’s four-year evaluation under the new guidelines on the agenda of an April 11 meeting. At that meeting the members addressed the subject of evaluation of Dr. Poon and a second HST member. The record of the agenda indicates without elaboration that they did not vote to go forward with the evaluation of Dr. Poon. By deposition Professor Gray testified that the personnel committee discontinued the evaluation because the members anticipated negative assessment letters potentially harmful to Dr. Poon’s long-term career prospects. By answers to interrogatories, Professor Gray reported that such “letters likely would not have reflected well upon his interpersonal abilities and therefore could have undermined his future academic career.” She did not inform him of the aborted evaluation. Professor Gray regarded the 1997 process as an exercise of personnel review. None of the documents from Professor Gray to Dr. Poon used the word promotion. Dr. Poon viewed it as an application for promotion to SRS rank. By deposition he testified that, several months after the submission of his papers, Professor Gray had told him that she had been too busy to complete the process. b. Events of 2001. In May of 2001, Dr. Poon wrote to Professor Gray to request prompt consideration of his promotion to SRS. On July 12, 2001, Professor Gray informed him by letter that an internal review by the HST personnel committee in 1997 “did not result in a sufficient mandate to warrant proceeding with consideration of your promotion,” but that the committee would now be willing to entertain his candidacy for promotion. Dr. Poon submitted updated materials of his performance. At a meeting on November 27, 2001, the committee adopted a policy statement of qualifications for SRS rank, including the following language. “With regard to the individual’s role in the Division [the HST unit], a candidate should be well-integrated into the fabric of the Division and should play a vital, leadership role in the overall program. In fact, the Institute policy states that the individual should have ‘the ability to direct the work of others.’ It was the sense of the meeting that HST Senior Research Scientist appointments should be awarded only to individuals who bring major programmatic leadership that advances the collegial, interdisciplinary goals of the Division. Again, it was pointed out that the numeric limitation by the Institute is meant to recognize world-class scientific stature as well as leadership; i.e., such appointments are to be given only to stellar individuals whom the Division would like to keep.” The committee then considered the application of Dr. Poon as “measured against [the] policy,” received the recommendations of the two HST codirectors against promotion, and after further discussion “unanimously supported the position that there is not compelling basis to move the appointment forward.” The committee did not place a record of this action in Dr. Poon’s personnel file or inform him of it at that time. c. Events related to the claim of retaliation. In the course of his letter of May 9, 2001, to Professor Gray requesting promotion to SRS rank, Dr. Poon suggested that his “Asian descent” was causing, or contributing to the cause of, his lack of promotion. Professor Gray rejected the suggestion in her letter of July 12, 2001. Dr. Poon attributes four subsequent events to retaliation against his allegations of discrimination. On July 13, 2001, Professor Gray informed him of a plan to move his office to an alternate building with a resulting loss of space and a reassignment of his secretary. When Dr. Poon objected and suggested the action to be retaliatory, Professor Gray responded that the plan had formed before his complaint and had sought to satisfy his desire for office space closer to his laboratory space. She withdrew the changes. In August, 2001, Dr. Poon requested MIT to appeal from the denial by the National Science Foundation (NSF) of a grant application submitted by him earlier that year. He prepared a letter of appeal to a superior officer at NSF and requested HST’s endorsement of it. After discussion of the NSF process, Dr. Poon closed with the following paragraph. “We cannot speculate on the motive behind the program director’s [the NSF official originally denying the grant] mishandling, which could stem from anything such as a possible conflict of interest or racial discrimination. Neither should we be held responsible for his highly improper behavior, or the reporting of it to the NSF administration — which would have to be the last resort by us for fear of reprisal. Indeed, denial of our appeal would only make us a victim once again.” The HST codirector (acting in Professor Gray’s place during vacation) emphatically denied approval of it. “As you may know, an appeal to the NSF Deputy Director .. . must be approved up the chain of command at MIT all the way to the president’s office. In my opinion the letter you have written is inflammatory and confrontational, and is not in the best interests of you, HST, or the Institute. It should not be sent further.” Shortly afterward, both the vice-president and dean of research and the university provost denied approval. The provost called upon Dr. Poon to present to him “any evidence to support such a serious charge” as “racial discrimination” at NSF. No such evidence appears in the record. In November, 2001, Dr. Poon was investigating a possible appointment at Harvard University and Massachusetts General Hospital. He requested that, in the event of the appointment, he retain his office and laboratory space at MIT. He reported his belief that another HST scientist (who was not Asian) had a primary appointment at Harvard and office and laboratory space at MIT. After consultation with another researcher about space, the codirector of HST (not Professor Gray) concluded that space constraints at MIT could not permit Dr. Poon’s continued allocation if he were to move his primary appointment elsewhere. The offer of a new appointment never materialized. Finally, in December of 2004, the same HST codirector met with Dr. Poon as part of a performance review for that year. The evaluation centered upon two subjects. He rated Dr. Poon’s achievement of funding for research projects as “good” and as a source of satisfaction of HST. At the same time the codirector characterized the required supervision and mentoring of graduate students in his laboratory as “disappointing” and “sub-par.” The review cited conflicts with two such students and a resulting confrontation with an HST colleague. It concluded that this supervisory performance and “the pattern of contentious interpersonal interactions with your professional peers and colleagues” prevented “a fully favorable performance review.” The codirector recommended Dr. Poon for a three percent merit-based salary increase rather than a maximum four percent. d. Interpersonal relations. In support of its motion for summary judgment and in accordance with Superior Court Rule 9A(b)(5), MIT submitted multiple allegations, with supporting record references, of interpersonal conflicts between Dr. Poon and colleagues, administrators, and students. It characterized the alleged facts as material because they supported legitimate grounds for actions which Dr. Poon characterized as discriminatory refusal of promotion or retaliation. In the following particulars, Dr. Poon’s rule 9A(b)(5) responses left intact or admitted certain information of personal friction or conflict. He acknowledged that during his career at HST he had experienced multiple disagreements with faculty and staff at MIT inside and outside HST. Several scientists and at least one graduate student had left his laboratory as a result of disputes with him. In 2001, a research scientist resigned from HST as the result of a dispute with him. Dr. Poon accused Professor Gray and the HST personnel department with discrimination and harassment toward him and the personnel administrator with “sabotage” by reason of their support of the research scientist. Dr. Poon had engaged in certain verbally abusive and hostile conflicts with HST administrators. In 1997, HST designated Dr. Poon as the principal investigator of two funding proposals intended to create a neuro-engineering initiative. The proposals did not progress. In 1999, HST had then designated an MIT faculty member as an alternate principal investigator to undertake a new grant application for the neuroengineering initiative. Finally, the voluminous summary judgment record contains no specific derogation of Dr. Poon’s individual research skills as a PRS. Nor does it contain any deprecation of his Asian identity by any member of the HST or MIT community. Discussion. 1. Standard of review. From the same record as the motion judge, the reviewing court examines the allowance of summary judgment de novo. Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 123 n.1 (1997) (the record is open to independent consideration on appeal; the appellate court may make its own compilation from the record to decide the ultimate questions of the correctness of summary judgment). We assess the factual information in the light most favorable to the nonmoving or opposing party (Dr. Poon) and then determine whether the record resolves the material questions of fact and the issues of law in favor of the movant. Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Correllas v. Viveiros, 410 Mass. 314, 316-317 (1991). Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 35 (2005). The “most favorable” light does not exclude adverse facts. It illuminates both positive and negative information. See Sullivan v. Liberty Mut. Ins. Co., supra at 35-37 (taking account of concerns about the employee’s “responsiveness to clients,” “collegiality,” and “human relations skills”). In a typical posture presented here, the defendant moving parties, MIT and Professor Gray, shoulder the burden of demonstrating the absence of genuine issues of discrimination and retaliation even though they would not bear that burden at trial. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991); Matthews v. Ocean Spray Cranberries, Inc., supra at 127. They may do so by showing that Dr. Poon has no reasonable expectation of proving an essential element of his prima facie claims at trial. Ibid. Earlier Massachusetts employment discrimination decisions cautioned against disposition by summary judgment because those disputes hinge on questions of mentality and credibility traditionally committed to the first-hand observation of witnesses by a trier of fact. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-440 (1995), and cases cited. See Matthews v. Ocean Spray Cranberries, Inc., supra; Sullivan v. Liberty Mut. Ins. Co., supra at 39. However, a substantial exception has evolved for the category of cases in which a defendant employer demonstrates that the employee’s “evidence of intent, motive, or state of mind is insufficient to support a judgment in the plaintiff’s favor.” Blare v. Husky Injection Molding Sys. Boston, Inc., supra at 440, and cases cited. See Matthews v. Ocean Spray Cranberries, Inc., supra at 127 (affirming summary judgment against the allegation of discriminatory motive); Sullivan v. Liberty Mut. Ins. Co., supra (same); Romero v. UHS of Westwood Pembroke, Inc., 72 Mass. App. Ct. 539, 545-548 (2008) (same); and Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447-450 (1996) (same). In appropriate circumstances summary judgment can filter out groundless accusations by disgruntled or ter

Ling Zhang & another vs. Massachusetts Institute of Technology. No. 96-P-1588. Middlesex. May 12, 1998. - April 5, 1999. Present: Armstrong, Perretta, & Spina, JJ. Practice, Civil, Summary judgment. Anti-Discrimination Law, Burden of proof, Prima facie case, Termination of employment, Sex, Race. Employment, Discrimination, Termination. Contract, Misrepresentation. Husband and Wife, Consortium. In a claim alleging employment discrimination based on disparate treatment on account of gender, the plaintiff presented sufficient evidence on the defendant’s motion for summary judgment to show a prima facie case of discrimination because of her pregnancy and the existence of disputed questions of fact as to whether her employer’s proffered reasons advanced to support its termination of the plaintiff were pretexts. [601-604] In a claim alleging discrimination in employment based on race, the plaintiff’s proffer on the defendant’s motion for summary judgment was insufficient to show a prima facie case of race discrimination, and the judge correctly ordered summary judgment in favor of the defendant. [604-605] A Superior Court judge correctly granted summary judgment in favor of the defendant on a claim for misrepresentation [605-606], and a claim for loss of consortium [606-607], where the plaintiffs had no reasonable expectation of proving an essential element of those claims. Civil action commenced in the Superior Court Department on May 22, 1995. The case was heard by Hiller B. Zobel, J., on a motion for summary judgment. Celina Gerbic for the plaintiffs. Elizabeth P. Seaman for the defendant. James Cen. Perretta, J. This appeal is from a grant of summary judgment in favor of the defendant, Massachusetts Institute of Technology (MIT), on a complaint brought by the plaintiff, Ling Zhang, alleging employment discrimination (gender and race) and misrepresentation; and by her spouse, James Cen, claiming a loss of consortium. Based upon the materials submitted pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974), a Superior Court judge ruled that Zhang’s allegations of discrimination were based on no more than speculation that the termination of her employment was the result of her pregnancy and that the term “tar baby” had been made in reference to her situation and not her race. He granted MIT summary judgment on her claim that MIT had misrepresented the duration of her employment on the basis that the materials showed that Zhang knew that she had received a term-appointment which was subject to nonrenewal. The judge did not address Cen’s claim for loss of consortium, apparently reasoning that dismissal of Zhang’s claims necessarily disposed of his ancillary action. We think that the materials submitted on the motion show genuine disputes of material fact on Zhang’s claim of gender discrimination and reverse the judgment with regard to that claim only. 1. The facts. This litigation arises out of Zhang’s employment position with the Atmospheric Sciences Group (ASG) at the Haystack Observatory (haystack), a MIT research laboratory. We relate the facts as they appear in the plaintiffs’ affidavits, deposition transcripts, and exhibits. Although MIT disputes many of the facts asserted by the plaintiffs, “[o]ur review of the grant of summary judgment in favor of the defendant requires us to assume the truth of all the facts set forth in all the materials the plaintiff[s] properly presented to the Superior Court judge, as well as to give [them] the benefit of any favorable inferences that may be drawn from those materials.” Harrison v. Boston Financial Data Servs., Inc., 37 Mass. App. Ct. 133, 136 (1994). See Judson v. Essex Agrie. & Technical Inst., 418 Mass. 159, 162 (1994). In 1992, John C. Foster was an associate director at Haystack, and Zhang was a Ph.D. candidate in physics at Boston College. In May of that year, while attending an American Geophysical Union meeting, Zhang introduced herself to Foster and asked if he was still doing research in the area of plasma convection in the ionosphere, which was the topic of her thesis. Foster informed her that he had an opening at Haystack for someone with a background in that field. As of that time, Zhang had sent out many resumes in search of a tenure-track teaching position, and she had received one offer from a college in Atlanta, Georgia, at an annual salary of $28,000. Cen was then living and working in Atlanta. Soon after the conference, Foster invited Zhang to visit Haystack to discuss postdoctoral opportunities. Zhang accepted the invitation and went to Haystack for an interview with Foster. During that interview, she asked him whether the position was a “permanent” or “long-term” one. Foster told Zhang that no one at Haystack had a permanent position, that “we are all under soft money and everybody gets renewed every year depending on funding,” and that, in the past, funding had been good. Zhang understood the term “soft money” to mean “money which would come from some government source and it may not always be there.” It was also her understanding that a “postdoctoral staff position” was a position for someone with, or soon to obtain, a doctoral degree. As put by her, “It’s a category to differentiate someone who is staff without a doctorate degree and someone who is staff with a doctorate degree.” Foster also informed Zhang that the annual salary for the position was $35,000. At the conclusion of the interview, he told Zhang that she would be receiving an offer from MIT very shortly. The offer came in the form of two letters. In the first letter, dated December 16, 1992, the offered position was described as a “temporary, Sponsored Research Staff — Postdoctoral appointment,” effective January 1, 1993, through December 31, 1993. The letter further stated that the position was a “temporary full-time position.” The second letter, dated December 24, reiterated the effective dates of the appointment (January- December, 1993), referred to the position as a “Sponsored Research Staff — Postdoctoral,” and made no reference to “temporary.” Although Zhang did not like the use of the word “temporary” in the first letter, she did not seek clarification from anyone at MIT for several reasons: the first letter was signed by MIT’s personnel officer whereas the second letter, in which the word “temporary” was not used, was signed by MIT’s vice-president and dean for research, and Foster had told her that because continued employment was dependent upon funding, no one at Haystack had a permanent position and that everyone was on a year-to-year appointment. Zhang began working at Haystack in January of 1993. On October 29, 1993, she was advised that her “current temporary appointment” had been extended through December 31, 1994. In January of 1994, she received a small, one percent salary increase. Zhang testified at her deposition that although she was not pleased about the amount of the increase, she accepted Foster’s explanation in which he praised her work and stated that the budget was very tight. He also told her that because money might also be very tight the following year, her appointment might not be renewed. Zhang stated that she was surprised to learn about the budget situation because Foster had told her during her interview that Haystack’s funding history was good. In late June, 1994, Foster left for a three-month sabbatical in Japan. When he returned to Haystack at the beginning of October, he passed Zhang in the hallways. At this time she was six months pregnant, and her condition was apparent. Foster called a meeting for ASG members for October 6. Zhang stated that the purpose of the October 6 meeting was to address funding issues. Foster announced that funding for 1995 would be level with 1994 and that two new people would be joining ASG. Although Foster named the two individuals, one of whom was a Monica Coakley, and gave a brief statement about where they were coming from, he gave no indication that they were to be replacements for anyone. Zhang knew, however, that two people had left Haystack during 1994. After the meeting, Zhang approached Foster and told him that her baby was due in January. He congratulated her and asked about her plans. When Zhang stated that she intended to return to work in mid-January, Foster told her that he would have to check his budget for that year, that it was very tight. Zhang responded that if the budget was tight, she would consider an appointment for a term less than one year. In late November, Zhang had another conversation with Foster in which he asked Zhang whether she would consider a short, three-month extension of her appointment. Although surprised, Zhang stated that if that was all the budget could allow, she would take it, that she had recently enrolled in MIT’s health insurance plan, and that she most likely could find another position at the end of that short-term extension. On or about December 12, 1994, Zhang was notified that, because of a lack of funding, her appointment would not be extended beyond December 31, 1994. Her position was filled by Coakley. Cen testified at his deposition that Zhang’s employment situation caused stress in their lives and that they would have disagreements over trifling matters two or three times a week. 2. The discrimination claim. In examining Zhang’s discrimination claims based upon disparate treatment, we follow an established three-step analysis. See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138 (1976), citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973); Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441-442, 446 (1995); Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997). Zhang must first make a prima facie case of gender and racial discrimination. Based upon that evidence, discrimination will be presumed, and the burden then shifts to MIT to give a legitimate, nondiscriminatory reason for its hiring decision and to produce evidence to show that the reasons given for that decision were the real reasons. Once that burden is met, the presumption of discrimination dissolves, and the burden again shifts to Zhang who must now show, by a preponderance of the evidence, that the nondiscriminatory reasons given by MIT were not the real reasons for its decision and thus were pretexts. Blare, supra at 443. To make a prima facie case of sex discrimination, a plaintiff must show membership in a protected class, satisfactory job performance, termination, and the hiring of a replacement who possesses similar skills. See Beal v. Selectmen of Hingham, 419 Mass. 535, 544 (1995). The materials presented on summary judgment show that Zhang has a reasonable expectation of proving each of the four elements of a prima facie case of gender discrimination. “Asserting a claim based on sex discrimination as a pregnant woman, [Zhang] is a member of a protected group.” White v. University of Mass, at Boston, 410 Mass. 553, 557 (1991). She stated at her deposition that Foster praised her work. During his deposition, Foster testified that while some members of his research staff had higher performance evaluations than Zhang, her work was good. When Zhang’s appointment was not renewed, her position was given to a woman possessing similar skills. To satisfy its burden of production, MIT presented materials to show that Foster had determined not to renew Zhang’s appointment before she even became pregnant and that his determination was based upon her low evaluations and reductions in funding. According to an affidavit from Foster, funding was very erratic in 1993 and 1994. In mid-1993, the Air Force Office of Scientific Research (AFOSR) cut back its funding by $20,000. That reduction “directly affected the viability of a post-doc position continuing.” In the fall of 1993, Foster met with Haystack’s director, Joseph Salah, to review the performance and salary of each ASG employee. At that meeting, Foster told Salah that Zhang had not been as productive as he had hoped and that he did not expect her to complete any significant research project. Foster and Salah met again in January, 1994, and discussed the effect of the funding cutbacks on the post-doctoral positions. Foster and Salah decided that although there was sufficient funding to cover the second year of Zhang’s appointment, she would not be offered a third year at Haystack after 1994. Foster stated that that decision was based upon both the funding situation and his “low evaluation” of Zhang’s accomplishments. He then informed Zhang that, because of funding, her employment would end on December 31, 1994. In the meantime, according to Foster’s affidavit, the National Science Foundation renewed its funding support in June of 1994. That money would allow ASG to fill the position that would be open upon the termination of Zhang’s employment. Because he was due to leave for Japan on sabbatical, Foster asked members of ASG to look for someone in the research area of optical ionospheric research. There is an affidavit from an ASG research scientist in which he states that, in late June, he told Monica Coakley about an upcoming postdoctoral position, that she visited Haystack over the Labor Day weekend, and that she told the affiant that she would need a prompt response from MIT. Again reading Foster’s affidavit, we are informed that one of the first things he did upon his return to Haystack was, on October 5, 1994, offer a postdoctoral position to Coakley and announce her employment, commencing in 1995, at the ASG meeting the next day. We conclude that the facts set out in MIT’s proffer are sufficient to satisfy its burden of production to show that its decision to terminate Zhang was based on nondiscriminatory reasons. Its proffer was, therefore, sufficient to rebut Zhang’s prima facie case. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass, at 128. That being so, the question now is whether the materials submitted on the motion for summary judgment are sufficient to show that the reasons advanced by MIT were a pretext. Although Foster states that he informed Zhang in January of 1994 that her employment would end on December 31, 1994, because of a lack of funding, Zhang states that, at that time, Foster praised her work and told her only that funding was tight. While Foster set out in his affidavit that he had given Zhang’s work a “low evaluation,” he testified at his deposition that her work performance was, like that of eight other research staff members, good. Because there were other research staff members who had received higher evaluations, Zhang’s was “low.” Further, Foster knew of the renewed funding from the National Science Foundation before he left on sabbatical and before he knew of Monica Coakley. Upon his return from sabbatical, he saw that Zhang was pregnant; he offered a postdoctoral position to a candidate who had been found and recommended by someone within the ASG group and whom, from all that appears, he had not even met; he announced level funding for 1995; and he thereafter informed Zhang that funding was tight but that he would look into whether she could be given a short-term, three-month extension of her employment without also telling her that Coakley had been appointed to her (Zhang’s) postdoctoral position. Zhang was not offered a short-term appointment because, as shown on copies of electronic mail messages, Salah’s assistant, Alan Blackburn, took the position that Zhang knew from the outset that her appointment was limited to two years and that a short-term extension would open the door for Zhang to claim generous health care benefits and maternity leave from MIT. Putting aside, as we must, issues of credibility and the weight of the evidence, see Attorney Gen. v. Brown, 400 Mass. 826, 832 (1987), and bearing in mind that summary judgment is disfavored in disputes involving a party’s state of mind, motive, or intent, see Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass, at 439, we conclude that Zhang’s proffer shows a prima facie case of discrimination on account of her pregnancy and presents disputed questions of fact whether the reasons advanced by MIT, the “low” evaluation of her work performance viewed in light of reduced funding, were pretexts. We do not, however, reach a similar conclusion on her claim of race discrimination. A claim of race discrimination brought under G. L. c. 151B, § 4(1), follows the same analysis as that applied to a gender-based claim. See Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761, 765-766 (1986). That is, to make her prima facie case, Zhang must show membership in a racial minority, acceptable job performance, termination of her employment, and replacement with a similarly qualified individual. See McKenzie v. Brigham & Women’s Hosp., 405 Mass. 432, 434-435 (1989). Evidence of the employer’s general practice and policies concerning the employment of racial minorities, the treatment of employees of different race, and the specific treatment of the plaintiff while employed are all relevant to show racial discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S. at 804-805; Lewis v. Area II Homecare for Senior Citizens, Inc., 397 Mass, at 767; McKenzie v. Brigham & Women’s Hosp., 405 Mass, at 437. Zhang’s claim of race discrimination rests entirely upon the electronic mail messages sent by Blackburn to Foster and the personnel director in which he twice used the term “tar baby,” words generally understood to be either a derogatory reference to black Americans or a difficult or sticky problem. See IV Oxford English Dictionary Supplement (1986). For purposes of this decision, we acknowledge that the term “tar baby” is extremely offensive to African-Americans. Nonetheless, in view of the undisputed facts that Zhang is not a member of the minority who rightfully take offense from that term, that Blackburn viewed Zhang’s request for a short-term extension of her employment as an unfair and calculated attempt to obtain MIT’s generous health insurance and maternity leave benefits, and that MIT has a history of employing minorities, including Asians, we agree with the Superior Court judge’s conclusion that Zhang’s proffer was insufficient to show a prima facie case of race discrimination. See Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) (isolated or ambiguous remark, standing alone, is insufficient to prove discriminatory intent). See also Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 450 (1996). 3. The misrepresentation claim. This claim is based upon Foster’s statements to Zhang during her meeting with him at Haystack in May, 1992. Zhang testified at her deposition that Foster, in response to her inquiries concerning the nature and tenure of her possible position at Haystack, told her that the position was a regular staff and not a postdoctoral position, that no one at Haystack had a permanent position, that employment depended upon funding, that everybody gets renewed every year depending upon funding, and that, in the past, funding had been good. Zhang argues that, because these statements contradict MIT’s subsequent representations that her appointment was to a postdoctoral position of limited duration (two years), she has shown the requisite falsity, materiality, and purpose (inducement) of Foster’s statements in May of 1992 as well as her detrimental reliance upon them. See Zimmerman v. Kent, 31 Mass. App. Ct. 72, 77 (1991). As earlier noted, MIT does not dispute, for purposes of this appeal, Zhang’s version of her 1992 interview with Foster. See note 3, supra. Construing Foster’s statements in a fight most favorable to Zhang, we think that they could be construed reasonably as a representation by Foster that her appointment would be renewed from year to year so long as funds were available. “Massachusetts law clearly states that statements of present inte