Constructive Discharge Cases

Lisa Trinh vs. Gentle Communications, LLC, & another. No. 07-P-441. Middlesex. December 11, 2007. March 10, 2008. Present: Cowin, Brown, & Kafker, JJ. Practice, Civil, Judgment notwithstanding verdict. Employment, Sexual harassment, Discrimination, Constructive discharge. Anti-Discrimination Law, Sex, Employment, Damages. Damages, Under anti-discrimination law, Punitive. In an action brought by a plaintiff against her former employer and her former supervisor, alleging sexual harassment in employment, the trial court judge did not err in denying the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of compensatory damages against both defendants arising from the supervisor’s conduct, where the evidence at trial demonstrated that the supervisor’s remarks and actions were sufficiently severe and pervasive to support the jury’s findings of harassment and of vicarious liability on the part of the employer [373-374]; further, the award of punitive damages against the supervisor was both warranted and not excessive [375-376]. In a civil action brought by a plaintiff alleging sexual harassment in employment, the trial court judge did not err in granting the defendants’ motion for judgment notwithstanding the verdict on the issue of the award of damages for lost income, where the plaintiff failed to present sufficient evidence to establish a constructive discharge. [374-375] In an action brought by a plaintiff against her former employer, alleging that the employer was liable for failing to take adequate remedial action after the plaintiff complained of sexual harassment by her supervisor, the trial court judge properly granted the employer’s motion for judgment notwithstanding the verdict, and correctly ruled that the jury lacked a factual predicate for assessing punitive damages against the employer directly, where the evidence presented at trial was insufficient to warrant a finding that the employer inadequately or inappropriately investigated the plaintiff’s claims of sexual harassment. [376-378] Civil action commenced in the Superior Court Department on October 30, 2000. The case was tried before Mitchell J. Sikora, Jr., J., and motions for judgment notwithstanding the verdict were heard by him. Joseph H. Reinhardt (James F. Champa with him) for the plaintiff. Heidi Goldstein Shepherd for the defendants. Samuel Tencer. Kafker, J. Lisa Trinh, a junior employee of Gentle Communications, LLC, doing business as Gentle Dental (Gentle), complained that the dentist in charge of its Brookline office, Samuel Tencer, sexually harassed her. The matter went to a jury, which found, on special questions, that (1) Tencer sexually harassed Trinh; (2) such harassment proximately caused damages of $20,000 for emotional injury and $20,000 in lost income or back pay; (3) Tencer was individually liable for a punitive award of $65,000; (4) Gentle was separately liable for Tencer’s sexual harassment because it knew of Tencer’s harassment and failed to take adequate remedial measures; (5) Trinh’s damages proximately related to Gentle’s separate tort were $20,000 in lost income and $20,000 in emotional injury; (6) Gentle was separately liable for a $1 million punitive award. The jury also determined that (1) neither Tencer nor Gentle retaliated against Trinh for presenting her complaint; (2) Tencer did not intentionally inflict emotional distress on Trinh; and (3) Tencer did not interfere with an advantageous business or employee relationship between Trinh and Gentle. Tencer and Gentle filed motions pursuant to Mass.R.Civ.P. 50(b), as amended, 428 Mass. 402 (1998), for judgment notwithstanding the verdict (judgment n.o.v.) or, in the alternative, for a new trial or a remittitur. The trial judge allowed the motions for judgment n.o.v. in part, concluding that (1) there was no evidence that Trinh suffered lost income proximately caused by either Tencer or Gentle; (2) no evidence supported a finding of separate liability against Gentle; and (3) no evidence supported a punitive award against Gentle, which award was in any case grossly excessive. The judge denied the motion for judgment n.o.v. on the sexual harassment award and on the separate punitive damage award against Tencer. In accord with those rulings, the judge entered a judgment that awarded Trinh (1) $20,000 in compensatory damages jointly and severally against both Tencer and Gentle; (2) $65,000 in punitive damages against Tencer only; and (3) $30,592 as Trinh’s reasonable attorney’s fees against both Tencer and Gentle. The defendants appeal, and Trinh cross-appeals. We affirm. Factual background. We summarize the facts the jury could have found as follows. Gentle owns a number of dentists’ offices in the greater Boston area. In October of 1997, Trinh was hired by Gentle and was assigned to work in its Brookline office as a “care coordinator,” as part of what Gentle designated as a “pilot program.” The care coordinator’s role was to explain treatments recommended by the dentists to the patients, to determine how patients would pay, and to schedule the treatments. When Trinh began her employment, Gentle presented Trinh with a copy of Gentle’s written sexual harassment policy and had her sign it. The policy indicated that complaints about sexual harassment should be directed to Barry Bomfriend, Gentle’s chief operating officer, or Donna Simonds, its director of human resources. Trinh testified that she was not given time to adequately review the policy prior to signing it, nor was she given a copy. After her training, Trinh began work in the Brookline office at the beginning of December. Tencer had previously expressed skepticism with the idea of care coordinators, but agreed to participate in the pilot program. During the few months in which Trinh worked at the Brookline office, Tencer engaged in behavior that made her feel uncomfortable. Trinh testified that Tencer, on several occasions, made inappropriate sexual remarks to her. Tencer had, at one point, walked in on a conversation at the front desk where Trinh revealed to other coworkers that she was considering breast augmentation surgery. Tencer later brought up the surgery with her individually and asked her if he could see what her breasts looked like before the surgery. He commented on her clothes and body at work, and at one point walked into the lunchroom, looked at the plaintiff, and said, “I like to eat that too,” referring to Trinh. He also whistled at Trinh in the workplace, looked at her in a way that made her feel uncomfortable, and when he passed her in the hallways during work, he would brush against her. Finally, at one point Tencer leaned over Trinh while she worked at the front counter, and she testified that she could feel his penis against her back. Over the course of her employment in the Brookline office, Trinh mentioned her discomfort to three people: a care coordinator in Gentle’s Natick office, who had gone through training with the plaintiff; the Gentle employee who trained and supervised the care coordinator program; and a dentist at another Gentle location (a part owner who did not act as an officer of the company) whom she dated over the span of approximately two months while she worked in the Brookline office. Near the end of February, 1998, Trinh was notified that she was to be transferred to Gentle’s Cambridge office. On her second-to-last day in the Brookline office, Thursday, February 26, Trinh notified Kathy Circeo, the Brookline office administrator, of her complaints. The next day, Circeo called Simonds about the complaint. Simonds then conferred with Bomfriend and decided to investigate the allegations, although Trinh had not contacted either of them directly to relate the substance of her complaints. The following Monday, March 2, Simonds contacted Trinh, who was at her first day of work in the Cambridge office, and made an appointment to speak to her on Wednesday, March 4. On March 3, Simonds and Bomfriend went to the Brookline office and interviewed five employees there, including Tencer and Circeo. When interviewed, Tencer denied the harassing behavior and said that Trinh had dressed inappropriately for the office, although she had never been told during her employment at Gentle that her dress was inappropriate. When conducting the interviews, Simonds took handwritten notes and typed them afterwards. There were differences between the handwritten notes and the typed copies made afterwards; the typed versions lacked some details and contained other additional details not included in the handwritten notes. Each set of typed interview notes contained a signature line for the interviewee to attest that the notes were a truthful representation of the interview, but most of them were unsigned. On March 3, Trinh sent a letter to Bomfriend, saying that she was too “stressed out” to meet with Bomfriend and Simonds the next day. Bomfriend and Simonds then made an appointment to speak with Trinh at some point in the next week. In the meantime, Bomfriend and Simonds interviewed several employees at different Gentle offices, including, on March 5, the care coordinator in Natick to whom Trinh had detailed her complaints. Trinh testified that her conversation with her colleague in Natick convinced her that the investigation was biased against her. From that conversation, she got the impression that the investigation was focusing on her behavior at the office, rather than Tencer’s, and therefore that the investigation was aimed at trying to discredit her rather than to resolve her complaints fairly. On March 9, she wrote another letter to Bomfriend, stating that it was “impossible” for her to continue working at Gentle because “everyone in the company knows about your investigation and you have accused me of lying about the sexual harassment and of being immoral and illegal. The entire environment has become hostile towards me.” She then went on to state that she was terminating her employment with Gentle as of March 14, 1998. Simonds and Bomfriend went to the Cambridge office to speak with Trinh in person, but she ended the interview after a short period of time because, as she testified, she had to see a patient. At the end of the week, Trinh left her job at Gentle. Thus, Simonds and Bomfriend’s investigation concluded with none of their interview subjects having corroborated Trinh’s complaints and with Trinh herself having refused to participate in the internal investigation because of her belief that the investigation was biased against her. As they had found no information confirming Trinh’s complaints against Tencer during their interviews, and Trinh had declined the opportunities given to her to participate in the investigation, Simonds and Bomfriend concluded their investigation, and Tencer was not disciplined. Discussion. 1. Standard of review. In reviewing a trial judge’s decision on a motion for judgment n.o.v., “[w]e do not defer to the judge’s view of the evidence but examine the case anew, following the same standard the judge is obliged to apply.” MacCormack v. Boston Edison Co., 423 Mass. 652, 659 (1996). That standard has been often articulated and provides that “the question before us is the same: that is, ‘whether “anywhere in the evidence, from whatever source derived, any combination of circumstances could be found from which a reasonable inference could be drawn in favor of the plaintiff.” ’ Raunela v. Hertz Corp., 361 Mass. 341, 343 (1972), quoting from Kelly v. Railway Exp. Agency, Inc., 315 Mass. 301, 302 (1943).” Doe v. Senechal, 66 Mass. App. Ct. 68, 76 (2006). Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. 596, 603 (2006). See Smith v. Bell Atl., 63 Mass. App. Ct. 702, 711 (2005). We consider the claims against each of the defendants in turn. 2. Claims against Tencer. a. Compensatory damages. On appeal Tencer argues that the trial judge should have granted his motion for judgment n.o.v. or a new trial on the award for compensatory damages because Trinh failed to introduce sufficient evidence to sustain a sexual harassment claim against Tencer individually and, in addition, failed to meet the heightened burden for assessing punitive damages. Trinh’s case was based on the theory that Tencer’s harassment created a hostile work environment. The relevant portion of the statute defines sexual harassment as “verbal or physical conduct of a sexual nature when . . . such . . . conduct ha[s] the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.” G. L. c. 151B, § 1(18), as amended by St. 1987, c. 473, § 2. In order to prevail on this theory, Trinh had to show that the ‘.‘conduct alleged was sufficiently severe and pervasive to interfere with a reasonable person’s work performance.” Muzzy v. Cahillane Motors, Inc., 434 Mass. 409, 411 (2001). Conduct of a sexual nature may be considered sexual harassment under the statute, even absent sexual advances or requests for sexual favors. See Melnychenko v. 84 Lumber Co., 424 Mass. 285, 290 (1997). There was sufficient evidence at trial to support the jury’s verdict that Tencer sexually harassed Trinh. She testified that Tencer asked to see her breasts after the conversation concerning her breast augmentation surgery. Trinh testified that Tencer made other sexually suggestive comments, and that he rubbed against her in a way in which she could feel his penis against her. Tencer’s statements and actions were objectively offensive, and Trinh testified to her discomfort about the comments and physical contact. Tencer’s remarks and actions were sufficiently severe and pervasive to support the finding of harassment and the emotional distress damages that ensued therefrom. We find nothing in the record that compels us to disturb the trial judge’s decision to allow the jury’s verdict to stand in this regard. It was also appropriate to hold the employer vicariously liable for its manager’s sexual harassment and for the compensatory damages owed because of this harassment. See College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. 156, 166-167 (1987). b. Damages for lost income. The plaintiff complains that the judge should not have granted the defendants’ motion for judgment n.o.v. on the award of damages to her for lost income. The judge did not err in his ruling. Trinh was not fired from Gentle, but rather resigned. In these circumstances, she was required to show that she was constructively discharged from Gentle in order to recover lost income. A plaintiff establishes a constructive discharge by showing that “based on an objective assessment of the conditions under which the employee has asserted [s]he was expected to work, it could be found they were so difficult as to be intolerable.” GTE Prod. Corp. v. Stewart, 421 Mass. 22, 34 (1995). See Salvi v. Suffolk County Sheriff’s Dept., 67 Mass. App. Ct. at 606-607. In this case, Trinh was transferred out of the Brookline office, where the complained of harassment took place, and away from the one manager who had harassed her. She had worked in the Cambridge office for less than two weeks when she submitted her letter of resignation. Her pay had not been reduced, and her responsibilities at Cambridge were substantially the same as they had been in Brookline. There was no evidence that her managers in Cambridge took any adverse action toward her. Trinh’s testimony and her resignation letter do not establish a work environment in Cambridge so hostile that it would support a finding of constructive discharge. While participation in the company’s investigation of her sexual harassment complaint could be expected to be difficult, it would not constitute intolerable working conditions. Moreover, Trinh did not participate in the process after making the complaint. The trial judge properly ruled that Trinh had not presented sufficient evidence to establish a constructive discharge, and therefore she was not entitled to damages for lost income. c. Punitive damages. To assess punitive damages under G. L. c. 15IB, § 9, the plaintiff must show that the complained-of behavior is “not merely intentional and offensive.” Beaupre v. Cliff Smith & Assocs., 50 Mass. App. Ct. 480, 498 (2000). Rather, the conduct must be “outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” Dartt v. Browning-Ferris Indus., Inc. (Mass.), All Mass. 1, 17a (1998), quoting from Restatement (Second) of Torts § 908(2) (1979). The conduct must warrant “condemnation and deterrence.” Bain v. Springfield, 424 Mass. 758, 767 (1997). We conclude that Tencer’s conduct could have been found outrageous given his sexual harassment of a junior employee, including asking to see her breasts and rubbing up against her so that she could feel his penis, and his position of responsibility as the dentist in charge of the local office. The punitive damages assessed against Tencer also were not excessive. We use a three-part test to analyze the reasonableness of a punitive damages award, scrutinizing “ ‘the degree of reprehensibility of the defendant’s conduct,’ the ratio of the punitive damage award to the ‘actual harm inflicted on the plaintiff,’ [and] a comparison of the ‘punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct.’ ” Labonte v. Hutchins & Wheeler, 424 Mass. 813, 826-827 (1997), quoting from BMW of N. Am. v. Gore, 517 U.S. 559, 575, 580, 583 (1996). Tencer’s conduct described above could have been found reprehensible. The ratio of less than four-to-one was within standards deemed appropriate. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003) (“Single digit multipliers are more likely to comport with due process”); Ciccarelli v. School Dept. of Lowell, 70 Mass. App. Ct. 787, 798 (2007) (five-to-one ratio affirmed). And the amount, under $100,000, has been found acceptable in similar contexts. See, e.g., Bain v. Springfield, 424 Mass. at 768; Beaupre v. Cliff Smith & Assocs., supra at 497-498. 3. Claims against Gentle, a. Compensatory damages. An employer may be found directly liable for discrimination under G. L. c. 15IB, § 4, if it is notified of sexual harassment in its workplace and fails to take adequate remedial action. College-Town, Div. of Interco, Inc. v. Massachusetts Commn. Against Discrimination, 400 Mass. at 167. On appeal, Trinh argues that the jury verdict assessing direct liability, both compensatory and punitive, against Gentle was adequately supported, and therefore the judge’s grant of Gentle’s motion for judgment n.o.v. and, in the alternative, a new trial should be reversed. The trial judge, in his ruling on Gentle’s motion for judgment n.o.v., accurately delineated the factual basis for his decision to vacate the jury’s finding of direct liability against Gentle. Even drawing all reasonable inferences in Trinh’s favor, the evidence presented at trial was insufficient to warrant a finding that Gentle inadequately or inappropriately investigated the claims. Trinh did not complain to the officials identified in the sexual harassment policy. Once Donna Simonds, the director of human resources and one of the officials responsible for investigating sexual harassment, became aware of the complaints, she followed up immediately along with Barry Bomfriend, the chief operating officer of the company, and the other official responsible for sexual harassment investigations. Simonds and Bomfriend also responded appropriately, including questioning Trinh’s behavior. At least some inquiry into the plaintiff’s workplace behavior was relevant to the investigation, as determining whether the conduct at issue was unwelcome is a key component of a claim under the sexual harassment statute. See Ramsdell v. Western Mass. Bu

Frank R. DiPietro vs. Sipex Corporation. No. 06-P-758. Middlesex. December 12, 2006. May 14, 2007. Present: Lenk, Armstrong, & Mills, JJ. Contract, Performance and breach, Employment. Employment, Termination. Negotiable Instruments, Note. Fraud. Evidence, Fraud. Estoppel. A Superior Court judge erred in granting summary judgment to the defendant employer with respect to the plaintiff’s breach of contract claim based on his written employment agreement, where there was a dispute of material fact whether the defendant terminated his employment without cause [36-37]; however, the plaintiff failed to establish that a material breach of the written employment agreement by the defendant justified the plaintiff’s resignation [37-38], In a civil action in which the defendant raised as a counterclaim the enforcement of a promissory note, the defense of fraud was not available to the plaintiff, who failed to plead fraud either with sufficient particularity, or as an affirmative defense. [38-39] This court declined to address whether the defense of estoppel was available as a defense to an action for the enforcement of a promissory note in the circumstances of this case on the limited record and cursory briefing by the parties. [39-40] Civil action commenced in the Superior Court Department on April 23, 2003. The case was heard by Kenneth J. Fishman, J., on a motion for summary'judgment. Michael L. Rosen (Sheila O’Leary with him) for the plaintiff. Bret A. Cohen (Jessica C. Sergi with him) for the defendant. Mills, J. Frank R. DiPietro filed a complaint in Superior Court against his former employer, Sipex Corporation (Sipex), claiming that it had breached a written employment agreement because he was terminated “without cause” as defined therein or, alternatively, that he had resigned for “good reason” as defined, because Sipex had materially breached the agreement and materially reduced his title or reporting responsibilities. He sought damages and other benefits, including forgiveness of a $250,000 loan. Sipex denied the allegations and counterclaimed for the balance of the loan. On Sipex’s motion for summary judgment, the judge held that the undisputed facts established that, as matter of law, DiPietro’s employment was not terminated by Sipex nor did DiPietro resign for good reason, and that he was obliged to repay the loan balance. We affirm in part and reverse in part. 1. Standard of review. Summary judgment is appropriately entered when there is no genuine issue as to any material fact and the moving party is entitled to judgment as matter of law. Mass.R.Civ.P. 56(c), as amended, 436 Mass. 1404 (2002). Arcidi v. National Assn. of Govt. Employees, Inc., 447 Mass. 616, 619 (2006). “The moving party has the burden of demonstrating affirmatively the absence of a genuine issue of material fact on every relevant issue, regardless of who would have the burden on that issue at trial.” Ibid. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39 (2005). On an appeal from a summary judgment, we recount the facts in the summary judgment materials in the light most favorable to the nonmovant, drawing all permissible inferences and resolving any disputes or conflicts in his favor. Jupin v. Kask, 447 Mass. 141, 143 (2006). See Carey v. New Eng. Organ Bank, 446 Mass. 270, 273 (2006). Viewed in this manner, the evidence in the summary judgment record is as follows. 2. Factual background, a. DiPietro’s employment with Sipex. DiPietro served as Sipex’s chief financial officer (CFO) for nineteen years. Throughout his tenure, including the period after Sipex became a public company in 1996, he was the second in command of the company, reporting only to the chief executive officer (CEO) and the board of directors (board). As the CFO he was responsible for managing internal financial reporting to the CEO and the board, and he was also responsible for managing a significant portion of the company’s operations, including facilities, purchasing, and information technology. He regularly interacted with members of the board. In addition to preparing financial reports and presenting financial information at all or nearly all of the quarterly board meetings, DiPietro also answered the board’s questions and responded to its requests for information. These interactions were a significant component of his job responsibilities and were the primary way he imparted business judgments regarding the company’s finances and contemplated business actions. His effectiveness as the CFO depended on the continued confidence and trust of the board in his ability to provide sound financial data and accurate financial reports. b. DiPietro’s employment agreement. The employment agreement (agreement) at issue was executed on May 27, 1999, and guaranteed DiPietro certain severance payments and benefits if Sipex terminated his employment “without cause” or if he terminated his employment for “good reason.” Section 3(B)(3) of the agreement states, in relevant part: “In the event that the Company exercises its right to terminate the Employee without Cause or the Employee terminates his employment for Good Reason and the Employee signs a comprehensive release in the form, and of a scope, acceptable to the Company, the Company agrees to: “(i) pay the Employee a lump sum payment equal to eighteen (18) months’ base salary at the Employee’s then current Base Rate; “(ii) pay the Employee [certain bonus money]; “(in) allow the Employee to participate [in certain insurance and other benefits] ...” (emphasis original). Section 3(B)(1) of the agreement concerning an employee’s departure for “Good Reason” states: “The Employee may terminate his employment for Good Reason (as defined in Subsection (2) of this Section 3(B)) after giving the Company a written notice of intent to terminate at least thirty (30) days prior to the effective date of such termination.” In turn, Section 3(B)(2) defines “Good Reason” as follows: “For purposes of this Agreement, termination by the Employee for ‘Good. Reason’ shall mean the termination of employment by the Employee: (i) as a result of a material breach of this Agreement by the Company; (ii) as a result of a material reduction in the Employee’s title or reporting responsibilities as they exist on the date hereof without the Employee’s written consent; . . . provided, however, that an event described in this Section shall not constitute Good Reason unless it is communicated by the Employee to the Company in writing and is not corrected by the Company to the Employee’s reasonable satisfaction within 30 days of the date of the Employee’s delivery of such written notice to the Company.” (emphasis original). c. Sipex’s 2002 internal reorganization. In 2002, during a matter of months, Sipex underwent a major management reorganization. In June, 2002, Jim Donegan, who had served as CEO for nearly 16 years and to whom DiPietro had reported for all of that time, departed over a disagreement with the board. Other executives, including the company’s president and chief technology officer, also departed. In August, 2002, the board hired Walid Maghribi to serve as the new CEO. Shortly after his arrival, Maghribi informed DiPietro that members of the board had told Maghribi during the interview process that the board blamed the management team, including DiPietro, for the company’s poor financial situation, and that the board wanted to replace all of the company’s high-level executives. As instructed by the board, Maghribi hired a number of individuals from outside Sipex for positions at or above vice-president level. None of the executives Maghribi hired were given employment agreements with severance provisions as generous as those in DiPietro’s agreement. Instead, the new hires were provided contracts with severance provisions comparable to the provision in Maghribi’s own agreement, which provided for six months of severance, as opposed to the eighteen months of severance in DiPietro’s agreement, if the company terminated the employee. Within a few weeks after he commenced employment at Sipex, Maghribi reviewed the agreements for Sipex’s incumbent executives and determined that the contracts provided for the payment of hundreds of thousands of dollars in the event of job termination. Maghribi discussed with the board chairman the fact that Sipex had contractually committed to significant severance obligations for a number of executives. d. DiPietro and Maghribi discuss stock options. In September, 2002, Sipex commenced a stock repricing program that allowed employees whose stock options were “under water” (i.e., options for which the stock price the holder must pay to exercise the option is higher than the value of the stock), with the sole exception of DiPietro, to obtain newly-priced options. At that time, all of DiPietro’s options were priced at approximately twenty dollars per share, while the stock price was two to three dollars per share. Because DiPietro was prohibited from participating in the option exchange, he asked Maghribi about obtaining additional options at a more attractive price. Maghribi initially responded positively, but ultimately informed DiPietro that he could not receive additional options unless he agreed to “give up” his favorable employment agreement. DiPietro elected not to do so, and he therefore did not obtain additional options. e. Maghribi informs DiPietro that the board does not trust his numbers and wants him to leave Sipex. On November 14, 2002, less than one month after DiPietro refused to give up his agreement, Maghribi had another conversation with DiPietro about stock options, in which Maghribi repeated that DiPietro would only be eligible to receive repriced options if he gave up his existing severance entitlements. When DiPietro questioned why Sipex would require him to cancel his agreement unless it wanted to terminate him, Maghribi informed DiPietro that the board would prefer that he leave Sipex. At that time, Maghribi knew that DiPietro already thought the board did not like him and wanted to replace him. During this conversation, Maghribi informed DiPietro that the board did not trust the numbers he reported and believed that he was withholding information. In the same conversation, Maghribi informed DiPietro that, while he (Maghribi) personally wanted DiPietro to stay, the board would prefer that he leave. DiPietro explained to Maghribi that he could not do his job if the board did not trust him. Because DiPietro’s ability to perform his job depended on the board’s continued confidence and trust in his abilities, his performance, and the accuracy of his financial reporting, DiPietro understood Maghribi’s statements to mean that he was no longer able to effectively serve as the company’s CFO. DiPietro thereafter notified Maghribi in writing, on November 22, 2002, that he was forced to leave the company because it had breached the agreement and had taken away his ability to perform his job responsibilities. In this letter, DiPietro restated what Maghribi had told him on November 14, 2002, including that the board would prefer that he leave Sipex. DiPietro further explained that it was obvious to him that the board no longer valued his services and had pushed him out of his job. The letter indicated that he was giving Sipex thirty days’ notice of his departure, as required by the agreement. Three days later, Magh-ribi asked DiPietro to reconsider, but DiPietro resubmitted his notice of departure. f. The company’s response. After DiPietro presented his notice of departure for “good reason,” neither the board itself nor any of its individual members communicated in any way a desire for him to remain. Maghribi never stated that anything in DiPietro’s letter was untrue or inaccurate, nor informed DiPietro that the board would prefer that he remain with Sipex. Indeed, after DiPietro presented his notice of departure on Friday, Maghribi did not speak with anyone on the board about the matter for four days. Rather, shortly after DiPietro presented his notice, Sipex attempted to negotiate the terms of the separation and sought to pay him less than provided for in the agreement. On November 26, 2002, Maghribi called a special board meeting to discuss DiPietro. Nearly a week later, Maghribi made a proposal to DiPietro concerning the terms of his transition, “in case you decide to leave the Company.” On December 2, 2002, DiPietro informed Maghribi that the company’s proposal was unsatisfactory because it had breached the agreement and was unwilling to pay the guaranteed severance benefits. Within an hour of receiving DiPietro’s response, and without consulting him, Sipex issued a press release announcing his resignation. DiPietro was escorted out of Sipex’s facility on that same day, and he was paid only through that day. g. The $250,000 promissory note. In 1998, Sipex paid DiPietro a $250,000 bonus. Donegan, then the CEO, told DiPietro that the payment would be structured as a loan to defer the compensation over a period of time so that it did not appear that Sipex was paying one employee more than others. Donegan assured DiPietro that he would not have to repay the loan, for which no collateral was required. On December 14, 1998, DiPietro executed an original promissory note which provided that DiPietro promised to pay to Sipex the principal sum of $250,000, together with interest at the rate of eight percent, and further provided that it “shall be paid on the first anniversary of the date hereof.” Sipex did not seek to collect on that note after one year, but requested, two years later, a virtually identical promissory note relating to the $250,000 payment. DiPietro was never given a repayment schedule and he was never asked to repay the money. He signed the promissory notes in reliance on Donegan’s assurance that the money would not have to be repaid, and Donegan explained that the notes were necessary because the attorneys wanted the payment to appear as an arm’s-length transaction. In May, 2001, Donegan informed DiPietro that the loan had been forgiven and that the board structured it as a four-year forgiveness, with forgiveness beginning May 17, 2001, so that DiPietro would not be burdened with substantial income taxes associated with the forgiveness during any one year. When Donegan told DiPietro in May, 2001, that the payment would be forgiven over four years, DiPietro understood that he would be able to work for the company during those four years, and that he would never be asked to repay the money, because that is what he was first told when he received the bonus payment. In December, 2001, DiPietro executed another promissory note. That note did not mention the board’s May, 2001, forgiveness. DiPietro’s employment with Sipex ended in December, 2002, before the forgiveness was fully effected, yet Sipex made no demand for repayment until asserting its counterclaim in this action. 3. The proceedings. DiPietro complained in Superior Court that Sipex had breached the agreement relating to termination of DiPietro’s employment, seeking damages related to (a) severance pay and benefits as provided by the agreement; and (b) relief as to the $250,000 promissory note. Sipex answered asserting no contractual breach, and by counterclaim sought payment on the balance of the note. Following discovery, Sipex moved for summary judgment on DiPietro’s contract claim and its counterclaim. A judge held that the undisputed material facts established that Sipex had not violated the employment agreement, i.e., that DiPietro was neither terminated without cause, nor did he resign for good reason, and that he was obliged to pay the balance on the note. We conclude that the judge erred with respect to the contract claim asserting termination without cause because there are disputes of material fact whether Sipex terminated his employment without cause. As to the promissory note, a summary judgment is not supported on this record. 4. Discussion, a. DiPietro’s claim for breach of contract. Where, as here, the party opposing summary judgment will have the burden of proof at trial, the moving party can prevail upon demonstration “that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case.” Tetrault v. Mahoney, Hawkes & Goldings, 425 Mass. 456, 459 (1997), quoting from Symmons v. O’Keeffe, 419 Mass. 288, 293 (1995). The central question here is whether DiPietro has demonstrated a “toehold” on his breach of contract claims sufficient to withstand summary judgment. See Scotti v. Arrow Electronics Inc., 37 Mass. App. Ct. 954, 955 (1994). Having examined the evidence in the light most favorable to DiPietro, we conclude that as to the claim that he was terminated without cause, he has so demonstrated. We must accept as true that the CEO told DiPietro that the board did not believe his financial reporting, and that the board blamed him and the other management team players (in the process of being replaced) for the company’s recent business declines. The CEO also informed DiPietro that the board would prefer that he leave the company. Those statements, made in the context of an ongoing reorganization of the company, the departure of many other high-level executives, and the repeated attempts to alter DiPietro’s severance agreement, could reasonably be construed by a fact finder as a request by the board that DiPietro submit his resignation. See Flesner v. Technical Communications Corp., 410 Mass. 805, 808, 812 (1991) (treating employee’s resignation after request by employer that he resign as discharge); Gates v. Flood, 57 Mass. App. Ct. 739, 743 n.10 (2003) (treating demand that employee retire or that he would be involuntarily retired as discharge). See also GTE Prods. Corp. v Stewart, 421 Mass. 22, 33-34 (1995) (constructive discharge occurs when employer’s conduct effectively forces employee to resign). DiPietro’s letter to the board after the CEO made the “prefer that you leave” statement can be read as an acknowledgment that DiPietro would abide by the board’s decision that he leave. DiPietro has established that there is, at minimum, a factual question whether his employment with Sipex was terminated without cause, entitling him to the severance benefits outlined in the agreement. We do not agree, however, that DiPietro has established at least a “toehold” on his alternative claim that he terminated his employment with Sipex for “good reason” as defined in the agreement. DiPietro argues that Sipex’s material breach of the agreement constitutes a “good reason” for his termination of his employment with Sipex. A breach of contract is material when the breach is “of an essential and inducing feature of the contractu.” Lease-It, Inc. v. Massachusetts Port Authy., 33 Mass. App. Ct. 391, 396 (1992), quoting from Bucholz v. Green Bros., 272 Mass. 49, 52 (1930). Whether a material breach has occurred is a question of fact, see Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. 599, 609-610 (2003), ordinarily to be decided by a jury. Lease-It, Inc. v. Massachusetts Port Authy., supra. DiPietro does not identify any specific provision of the agreement that has been breached, but rather argues, fundamentally, that an essential and inducing feature of his employment agreement was his desire to be employed by the company and the company’s desire that he be employed. Maghribi’s statements, indicating the board’s displeasure and desire that he leave the company, therefore breached this fundamental feature of his employment agreement. DiPietro’s argument ignores the severance provision of the agreement, which clearly contemplates Sipex’s right to terminate DiPietro’s employment at any time without cause, albeit with the requirement that severance payments be made. Accordingly, as matter of law, DiPietro has not established that a material breach of the agreement by Sipex justified

Iris Bray vs. Community Newspaper Company, Inc., & others. No. 05-P-854. Essex. March 15, 2006. August 3, 2006. Present: Greenberg, Duffly, & Katzmann, JJ. Anti-Discrimination Law, Age, Employment, Prima facie case, Burden of proof. Employment, Discrimination. Unlawful Interference. Malice. Practice, Civil, Summary judgment. A Superior Court judge erred in granting summary judgment in favor of the defendant in an action alleging employment discrimination and intentional interference with contractual relations, where the materials submitted by the plaintiff raised genuine issues of material fact as to both counts of the complaint. [43-48] Civil action commenced in the Superior Court Department on February 14, 2003. The case was heard by David A. Lowy, J., on a motion for summary judgment. Jeffrey R. Mazer for the plaintiff. Judith A. Miller for the defendants. Robert Tisi, Ellin Carroll, and Michael Moses. Greenberg, J. At age sixty, after ten years of continuous at-will employment with the defendant Community Newspaper Company, Inc. (company), the plaintiff resigned her position as an advertising sales person. In her complaint in the Superior Court, she alleged that the defendants, starting in September, 1999, took at least seven distinct adverse actions against her because of her age, in violation of G. L. c. 151B, § 4(1B), which caused her to resign from the job on February 16, 2000 (Count I). She also alleged that the individual defendants intentionally interfered with her employment with the company (Count Ü). The defendants filed a motion for summary judgment pursuant to Mass.R.Civ.P. 56, 365 Mass. 824 (1974). A judge of the Superior Court allowed the defendants’ motion, and the plaintiff filed this appeal. In an appeal from summary judgment, “[o]ur reading of the summary judgment materials is in a light most favorable to the nonmoving party, here the plaintiff.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996), citing Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 438 (1995). Based upon the submitted materials and with inferences favorable to the plaintiff, Hub Assocs., Inc. v. Goode, 357 Mass. 449, 451 (1970), we conclude that the plaintiff raises genuine issues of material fact as to both counts of the complaint. Where, as here, “intent is at the core of a controversy, summary judgment seldom lies.” Madden v. Estin, 28 Mass. App. Ct. 392, 395 (1990). See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005). We therefore reverse the judgment. In analyzing discrimination claims brought under G. L. c. 151B, we look to the familiar three-stage analytical framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973) (McDonnell Douglas). See Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 134-137 & n.5 (1976). For recent articulations of the standard by the Supreme Judicial Court, see Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 128 (1997); Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116-118 (2000); Knight v. Avon Prod., Inc., 438 Mass. 413, 420 n.4 (2003); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 39-41. See also Dartt v. Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 6 & n.8 (1998). “In stage one, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. In stage two, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for its actions. Finally, in stage three, the burden shifts back to the plaintiff to show that the employer’s articulated reason is not the true reason, but rather a pretext.” Powers v. H.B. Smith Co., 42 Mass. App. Ct. 657, 660-661 (1997) (citations omitted). “[I]f successful in stage three, ‘the plaintiff is entitled to recover for illegal discrimination under G. L. c. 151B.’ ” Id. at 661, quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 444-445 (footnote omitted). 1. Prima facie case. The defendants argue that the plaintiff failed to establish a prima facie case because she suffered no adverse employment action or real, objective harm. See MacCormack v. Boston Edison Co., 423 Mass. 652, 663 (1996) (“subjective feelings of disappointment and disillusionment” do not constitute an adverse employment action). The cases upon which the defendants rely for this proposition involve instances where courts have recognized that an employer’s need for wide latitude in setting the conditions of employment supersedes the affected employee’s sensibilities concerning a particular decision. For example, in Knight v. Avon Prod., Inc., 438 Mass. at 421-422, an older employee was given the sales district in which she wanted to work, and thus, putting a younger person in her prior sales district did not amount to an adverse employment action. See also Lewis v. Gillette, 22 F.3d 22 (1st Cir. 1994) (holding that no adverse employment action was established merely because the affected employee reported being watched and stared at by fellow employees in the workplace). Standing on a different footing, however, are the allegations in the plaintiff’s complaint and deposition testimony. The plaintiff’s deposition testimony was to the effect that the general atmosphere at work did not favor older workers. She claims to have suffered through a number of events, beginning in September, 1999, and continuing through February, 2000, that could constitute an “adverse employment action” based upon her age. Besides changing her sales territory with such frequency that it made it difficult for her to generate sales, the defendant Robert Tisi, the company’s sales manager, would delay the issuance of credits to advertisers the plaintiff solicited who were legitimately entitled to them. In addition to criticizing the plaintiff for her lack of professionalism in handling a telephone complaint from a vexatious customer, Tisi issued to the plaintiff a written warning that she alleges contained unfounded allegations that she had mismanaged her Melrose territory, none of which had appeared in any of her prior performance evaluations. Moreover, it appears from the summary judgment materials that the criticism regarding mismanagement of the Melrose territory was unfounded, because at the time Tisi wrote a memorandum on the subject, the plaintiff had been working there for a period of only three months and the sales figures for that period indicated that she had achieved 133 percent of her sales target for that territory, an increase from that achieved by her predecessor in the same territory. Despite these positive results, in January, 2000, she was removed from the Melrose territory and assigned elsewhere. The Melrose territory was assigned to another salesperson who was significantly younger than the defendant and who also received a $3,000 pay increase. It serves no purpose to outline other alleged adverse actions which subsequently led to the plaintiffs resignation, except to say that, if believed, a trier of fact could conclude that these events were to her “material disadvantage,” and not merely “subjective feelings of disappointment and disillusionment.” MacCormack v. Boston Edison Co., 423 Mass. at 662-663. The burden is also on the plaintiff at stage one of the McDonnell Douglas formulation to establish a discriminatory animus. See, e.g., Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct. 954, 955 (1994); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 40-41. In opposition to the defendants’ motion for summary judgment, the plaintiff furnished the motion judge with an affidavit of Douglas Booth, one of her supervisors at the Danvers office. Booth states that there was an “unspoken policy” at the company for managers to cut costs as much as possible, and that one of the ways to accomplish this was to “eliminate older workers who were generally more experienced and who commanded higher salaries.” He corroborated the plaintiff s deposition testimony concerning this practice and Tisi’s preference to work with younger, attractive women. He stated that one way of accomplishing the cost cutting “was to set artificially high sales goals for older workers and if they were then unable to meet those goals, they could be, and in some cases were[,] terminated and younger workers brought in at lower salaries.” Combined with the defendant’s deposition testimony of other disparate treatment of similarly situated younger employees, see Scotti v. Arrow Electronics, Inc., 37 Mass. App. Ct. at 955 (noting that although much of the evidence presented by the plaintiff was insufficient to survive summary judgment, there was at least a “toehold” which warranted further proceedings), a discriminatory animus can be readily inferred. There was also other evidence that persons similarly situated were treated differently. The assignment of a younger salesperson with less experience than the plaintiff to the Melrose territory, together with a salary increase, and a corresponding decrease in the defendant’s salary are illustrative. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129. In contrast to other employees during this same period, the plaintiff was required to provide a doctor’s note when too sick to work. She received a reprimand for alleged inappropriate dress while others similarly clad were not so reprimanded. Last, there was a telephone call made by Tisi himself to the plaintiff who was sick at home, in which he said, “You’re not sick, you’re just upset.” Although the defendants proffer various neutral explanations for these events, there exists a genuine issue of material fact warranting a tidal on these issues. The plaintiff does not dispute that the defendants have articulated some neutral nondiscriminatory explanations for the adverse actions that led to her resignation. We need not embark on an exegesis of the specific rationales contained in the defendants’ summary judgment materials, except to say that the defendants did meet their burden under stage two of the McDonnell Douglas test. However, our reading of the summary judgment materials in a light most favorable to the plaintiff indicates that there exists a genuine issue of material fact whether the proffered reasons were a pretext. The Booth affidavit satisfies the plaintiff’s burden. That submission, of course, does not mean that a trier of fact would be required to find for the plaintiff, only that for summary judgment purposes, it suffices. Abramian v. President & Fellows of Harvard College, 432 Mass. at 117. In addition to the prima facie evidence to which we have referred, which “remains as evidence in the case,” Brownlie v. Kanzaki Specialty Papers, Inc., 44 Mass. App. Ct. 408, 413 (1998), to demonstrate pretext the plaintiff offered evidence that she was satisfactorily performing her position throughout the ten years of her employment as evidenced by her performance reviews and a 1999 performance award. Although the defendants’ summary judgment materials showed that the plaintiff received a disciplinary warning in December, 1999, the defendants did not submit any evidence that her performance in managing her territory was worse than the performance of other employees and did not assert that employees other than Tisi had registered complaints about her professional conduct. 2. Intentional interference with contractual relations. The motion judge granted summary judgment on this claim because of his ruling that the plaintiff had “no reasonable expectation of establishing a prima facie case of discrimination.” This meant that “her proffered showing of intentional interference by way of improper motive or means also fails.” He also ruled that the evidence did not “support an inference that the individual defendants acted with actual malice.” However, under our analysis, the plaintiff did establish a prima facie case of discrimination, and the Booth affidavit points to improper motive or means. All of the defendants knew that the plaintiff had a reasonable expectancy of continued employment and, so far as appears from her materials, interfered with her employment relationship by subjecting her to a pattern of discrimination based on her age. Their actions constitute improper motive and are not privileged. “[A] defendant may escape liability if the interference [is] privileged as part of his employment responsibilities.” Williams v. B & K Med. Sys., Inc., 49 Mass. App. Ct. 563, 574 (2000), quoting from Steranko v. Inforex, Inc., 5 Mass. App. Ct. 253, 273 (1977). Supervisors do not, however, “have blanket authority to interfere with the contractual relations of their employees.” Draghetti v. Chmielewski, 416 Mass. 808, 817 (1994). When the conduct is based on improper motive, no privilege exists. Ibid. Discrimination constitutes an improper means or motive for purposes of an interference claim, and constitutes actual malice that, if proved, would defeat the defendants’ conditional privilege. Weber v. Community Teamwork, Inc., 434 Mass. 761, 781 (2001). The plaintiff has therefore also presented sufficient evidence to survive summary judgment on this claim. Judgment reversed. On February 14, 2003, the plaintiff filed a complaint with the Massachusetts Commission Against Discrimination (MCAD), alleging age and gender discrimination. After an investigation, the MCAD found probable cause to credit her allegations of age discrimination and lack of probable cause to support her claims of gender discrimination and constructive discharge.