Discrimination Cases

PEÑA v INGHAM COUNTY ROAD COMMISSION Docket No. 231482. Submitted January 8, 2003, at Lansing. Decided February 11, 2003, at 9:00 A.M. Leave to appeal sought. Joseph G. Peña brought an action in the Ingham Circuit Court against the Ingham County Road Commission, his employer, alleging that workplace harassment based on his race or national, origin resulted in a hostile work environment and that he was subjected to adverse employment action as retaliation for filing a complaint under the Civil Rights Act, MCL 37.2101 et seq., about the harassment. The court, Carolyn Stell, J., denied the defendant’s motion for summary disposition and, following a jury trial, entered judgment on a jury verdict and award of present and future damages for the plaintiff. The defendant appealed. The Court of Appeals held: 1. The trial court did not abuse its discretion in precluding the defendant from introducing any evidence of abusive or vulgar language used by the plaintiff or any evidence of his confrontations with coworkers and with one member of the public. Evidence of use of vulgar and profane language in the workplace by a plaintiff claiming a hostile work environment can be relevant to determining the existence of a hostile work environment, depending on the type of language, its frequency, and the context in which it is stated. Here, however, the trial court correctly determined that it would be more prejudicial than probative to allow the defendant to present evidence of the plaintiff’s minimal use of profanities and two instances of heated interactions with coworkers and one member of the public because such evidence could have caused the jury to conclude that it was permissible to engage in illegal workplace harassment or discrimination. 2. The trial court erred in denying the defendant’s motion for summary disposition of the retaliation claim. A prima facie case of retaliation can be established with evidence that the plaintiff was engaged in protected activity, that this was known by the defendant, that the defendant took an employment action adverse to the plaintiff, and that there was a causal connection between the protected activity and the adverse employment action. An adverse employment action typically takes the form of an ultimate employment decision, such as termination of employment or demotion. Here, the plaintiffs allegations that he was investigated by the defendant for worker’s compensation fraud, that he was isolated at work, and that a supervisor ridiculed him for filing his lawsuit do not establish that the defendant took an adverse employment action in retaliation for the plaintiffs lawsuit. 3. The defendant, by not moving for remittitur or a new trial and by failing to object to the plaintiffs request for jury instructions on future damages, has failed to preserve for appellate review the claim that the award of future damages was excessive. There was sufficient evidence in the record to support the award of future damages. Affirmed in part, reversed in part, and remanded for entry of an order dismissing the retaliation claim. 1. Civil Rights — Civil Rights Act — Employment Discrimination — Harassment — Evidence. Evidence of harassing conduct by a plaintiff claiming a violation of his civil rights because of a hostile work environment, if such conduct is not similar to that complained of by the plaintiff, is irrelevant and not admissible in the plaintiffs action (MCL 37.2101 et seq.~). 2. Civil Rights — Civil Rights Act — Employment Discrimination — Retaliation. A prima facie case of employer retaliation against an employee’s filing of a complaint under the Civil Rights Act is established with proof that the employee was engaged in protected activity, that this was known by the employer, that the employer took an employment action adverse to the employee, and that there was a causal connection between the protected activity and the adverse employment action (MCL 37.2701[a]). 3. Civil Rights — Civil Rights Act — Employment Discrimination — Retaliation — Adverse Employment Action. An adverse employment action taken by an employer in retaliation for an employee’s filing of a complaint under the Civil Rights Act typically takes the form of termination of employment or demotion (MCL 37.2701 [a]). Fett & Linderman, P.C. (by James K. Fett and Marla A. Linderman), for the plaintiff. Michael R. Kluck & Associates (by Michael R. Kluck) for the defendant. Before: Murray, P.J., and Sawyer and Fitzgerald, JJ. Murray, P.J. Defendant appeals of right from the final judgment entered in favor of plaintiff on his discrimination and retaliation claims brought under the Civil Rights Act (cra), MCL 37.2101 et seq. We affirm in part, reverse in part, and remand. I. material facts and proceedings Because of the limited nature of the issues properly presented on appeal, we provide the reader with only a brief summary of the material facts and proceedings that led to the jury verdict. Plaintiff commenced his employment with defendant in October 1987. Plaintiff continues to be employed by defendant and is currently a class-four highway worker. The amended complaint filed by plaintiff asserts that he was subjected to a hostile work environment on the basis of his race or national origin, to disparate treatment, and to retaliation. Specifically, plaintiff claimed that from the inception of his employment he has been on the receiving end of numerous derogatory and discriminatory remarks directed at his national origin, and that when he opposed this alleged harassment (including by the filing of this lawsuit), defendant took adverse employment action against him. Defendant sought pretrial dismissal of plaintiffs claims on the basis that a hostile work environment did not exist, and plaintiff had not suffered an adverse employment action. Defendant’s motion for summary disposition was denied by the trial court. At trial, plaintiff presented testimony regarding the repeated national-origin slurs that had been directed at him over the course' of his thirteen years of employment. Specifically, plaintiff and other employees testified that plaintiff was called a “wetback,” “spic,” “beaner,” “f — ing Mexican” and “pickle plucker” by coworkers and supervisors alike on an almost daily basis throughout the course of his employment. Defendant did not deny that these words were at times utilized by its workers. However, defendant presented testimony that this was simply good natured “shop talk,” that plaintiff had good working relations with the supervisors and coworkers he now complains of, and that at some point the slurs ended. The jury apparently accepted plaintiffs version of the facts, because it returned a verdict finding defendant liable for both a hostile work environment and for retaliating against plaintiff. The jury awarded $650,000 in “damages to date” while awarding him an additional $650,000 for “future damages.” The verdict form did not differentiate between the amount awarded for the harassment claim and the amount awarded for the retaliation claim. On appeal, defendant argues that the trial court committed three errors that require reversal, namely: (1) that it was denied a fair trial by the trial court’s decision to exclude from evidence plaintiff’s own workplace conduct; (2) that plaintiff’s retaliation claim should have been summarily dismissed because plaintiff had not suffered an adverse employment action; and (3) that the trial court should have set aside the future damages award because it was excessive in light of the evidence and was punitive in nature. For the forthcoming reasons, we agree with defendant that plaintiffs retaliation claim should have been summarily dismissed. Defendant’s remaining arguments, however, do not gamer our support. H. ANALYSIS A. THE TRIAL COURT’S EVIDENTIARY DECISION “A trial court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.” Barrett v Kirtland Community College, 245 Mich App 306, 325; 628 NW2d 63 (2001). Establishing an abuse of discretion is, however, quite difficult, for an abuse will only be found “when the decision is ‘so palpably and grossly violative of fact and logic that it evidences not the exercise of will but perversity of will, not the exercise of judgment but defiance thereof, not the exercise of reason but rather of passion or bias.’ ” Dacon v Transue, 441 Mich 315, 329; 490 NW2d 369 (1992), quoting Spalding v Spalding, 355 Mich 382, 384-385; 94 NW2d 810 (1959). Because such an abuse will usually occur only in extreme cases, Barrett, supra at 325, it is only stating the obvious to say that an abuse of discretion will normally not be found when addressing a close evidentiary question. Hilgendorf v Saint John Hosp & Medical Ctr, 245 Mich App 670, 707 n 49; 630 NW2d 356 (2001), quoting People v Bahoda, 448 Mich 261, 289; 531 NW2d 659 (1995), quoting People v Golochowicz, 413 Mich 298, 322; 319 NW2d 518 (1982) (“ ‘ “The decision upon a close evidentiary question by definition ordinarily cannot be an abuse of discretion.” ’ ”). Before the originally scheduled trial date, plaintiff filed a motion in limine. By way of that motion, plaintiff sought to exclude evidence that he was short-tempered, and that he had conflicts with members of the public and with his coworkers. During oral argument on the motion, plaintiff indicated that through his motion in limine he was not seeking to preclude evidence that he utilized ethnic or racial slurs in the workplace. Instead, plaintiff argued that any evidence of coworker confrontations, or abusive and vulgar (but not discriminatory) language should be excluded. After hearing arguments, the trial court entered an order allowing defendant to introduce any evidence that plaintiff utilized racial or ethnic slurs, but precluding defendant from introducing any evidence of abusive or vulgar language utilized by plaintiff or any evidence of his coworker or citizen confrontations, unless plaintiff asserted at trial that he was unlawfully denied a promotion. Citing both state and federal law, defendant argues that the trial court should not have prevented it from showing to the jury that plaintiff utilized foul language and made threats of harm to coworkers and to one member of the public. In particular, defendant claims support for this proposition in Radtke v Everett, 442 Mich 368; 501 NW2d 155 (1993), Henson v Dundee, 682 F2d 897 (CA 11, 1982), Scusa v Nestle USA Co Inc, 181 F3d 958 (CA 8, 1999), and Morgan v Hertz Corp, 542 F Supp 123 (WD Term, 1981). None of these cases, however, supports the specific argument made by defendant. Rather, they support the trial court’s decision. In Radtke, our Supreme Court held that in determining whether a work environment is illegally hostile, it must be gauged by a reasonable person’s standard viewing the “totality of circumstances.” Radtke, supra at 394. This does not mean, as defendant would have us hold, that everything affecting plaintiff’s employment is relevant and admissible in a harassment case. Rather, we have previously held that what is relevant is evidence that plaintiff himself engaged in the type of conduct similar to that at issue in the case. In Grow v W A Thomas Co, 236 Mich App 696, 706; 601 NW2d 426 (1999), we held in a sexual harassment case that evidence of the plaintiff’s own sexual conduct at work was relevant in determining whether the conduct complained of (also sexual in nature) was “unwelcome” or “hostile”: Defendants presented evidence in support of their claim that plaintiff often engaged in sexual conduct herself. Plaintiff’s own conduct was therefore relevant to the question whether Arguette’s alleged acts were “unwelcome." See, e.g., Balletti v Sun-Sentinel Co, 909 F Supp 1539, 1547 (SD Fla, 1995) (“Where a plaintiff’s action in the work place shows that she was a willing and frequent participant in the conduct at issue, courts are less likely to find that the conduct was ‘unwelcome’ or ‘hostile.’ ”) [.] However, plaintiffs participation in sexual behavior or comments, standing alone, does not necessarily defeat a claim of hostile work environment. To the contrary, it is merely a factor to consider when determining whether the conduct or comments at issue were “unwelcome.” Accordingly, in a hostile work environment claim, a plaintiff’s engaging in conduct similar to that complained of is relevant to a proper determination whether the plaintiff was subjected to an unlawfully hostile work environment. Grow, supra. This same conclusion has been reached by the federal courts that have considered this issue under Title VII of the Civil Rights Act of 1964, 42 USC 2000e et seq. See, e.g., Gross v Burggraf Constr Co, 53 F3d 1531, 1537-1538 (CA 10, 1995); Hocevar v Purdue Frederick Co, 223 F3d 721, 729-730 (CA 8, 2000); Burns v McGregor Electronic Industries, Inc, 989 F2d 959, 962-963 (CA 8, 1993); Barta v Honolulu, 169 FRD 132 (D Hawaii, 1996); Herchenroeder v Johns Hopkins Univ Applied Physics Laboratory, 171 FRD 179, 182 (D Md, 1997). The rationale of these cases is a logical one: if the plaintiff himself sees fit to utilize discriminatory language or commit discriminating acts in the workplace, the jury should be apprised of that fact to determine how that plaintiff would reasonably perceive his work environment when he is the recipient of the same or similar conduct. See Meritor Savings Bank, FSB v Vinson, 477 US 57, 69; 106 S Ct 2399; 91 L Ed 2d 49 (1986) (“While ‘voluntariness’ in the sense of consent is not a defense to such a claim, it does not follow that a complainant’s sexually provocative speech or dress is irrelevant as a matter of law in determining whether he or she found particular sexual advances unwelcome. To the contrary, such evidence is obviously relevant.”). The trial court adhered to this rule in deciding plaintiff’s motion in limine. As noted, the trial court ruled that defendant could present evidence that plaintiff engaged in the type of behavior at issue in this case. Thus, defendant was free to inform the jury that plaintiff utilized such terms as “wetback” and “Mexican” when referring to others in the workplace. Defendant asserts, however, that the trial court should have also allowed evidence of plaintiff calling one of his supervisors a “fat f — ,” and that plaintiff, on several occasions, exhibited an aggressive attitude with his coworkers and the public. We conclude that the trial court did not abuse its discretion in excluding such evidence as being more prejudicial than probative. MRE 403. Although it is true that the events in the workplace are to be reviewed under the “totality of the circumstances,” Radtke, supra, defendant has offered no case that holds that a jury must be allowed to consider a plaintiff’s aggressive demeanor or use of foul language at work when that aggressiveness does not include conduct similar to that at issue in the case, i.e., it does not include any indication that plaintiff, while at work, engaged in discriminatory conduct himself. In the cases dealing with vulgar and rude language utilized by a plaintiff bringing a hostile work environment action — most of which seem to fall in the category of sexual harassment — courts have concluded that the weight or admissibility of the statements depends on the circumstances of each particular case. Judge Posner, writing for the court in Galloway v Gen Motors Source Parts Operations, 78 F3d 1164, 1167 (CA 7, 1996), abrogated on other grounds, Nat'l Railroad Passenger Corp v Morgan, 536 US 101; 122 S Ct 2061; 153 L Ed 2d 106 (2002), held that the use of foul language by a plaintiff and its effect on the work environment at issue in the case depends in large measure on how and when the language is used. As a result, and depending on the circumstances of each case, sometimes the plaintiff’s use of foul language, when coupled with rather nonoffensive language used by the defendant, causes there to be no dispute about the lack of a hostile work environment, see Gleason v Messirow Financial Inc, 118 F3d 1134, 1146 (CA 7, 1997) (affirming summary judgment), and Hocevar v Purdue Fredrick Co, 223 F3d 721, 736-737 (CA 8, 2000) (also upholding summary judgment), while in other cases the evidence is of such a character that it should be submitted to the jury for resolution. Horney v Westfield Gage Co, 211 F Supp 2d 291, 308-310 (D Mass, 2002). What must be focused on, however, is a plaintiffs conduct at work, not conduct outside work. Burns v McGregor Electronic Industries, Inc, 989 F2d 959, 963 (CA 8, 1993). We agree with the foregoing decisions and conclude that evidence of a plaintiff’s use of vulgar and profane language (as opposed to discriminatory language dealt with earlier) in the workplace can be relevant to determining the existence of a hostile work environment if the circumstances so warrant, i.e., it would depend on the type of language, its frequency, and the context in which it is stated. Turning to the case at hand, although evidence that plaintiff called his supervisor a “fat f — ” presents a close question because his supervisor responded by calling plaintiff a derogatory and discriminatory name, we believe that under the facts of this particular case, the trial court set reasonable guidelines with regard to what was more prejudicial than probative, MRE 403. The trial court’s ruling allowed the jury to know plaintiff had used national-origin slurs in the workplace so it could determine if similar language was “unwelcome” or created a “hostile” discriminatory atmosphere, yet kept defendant from bringing forward a few incidents that perhaps showed that plaintiff occasionally used profanities. Evidence of plaintiff’s minimal use of profanities, and that he had a couple of heated interactions with coworkers and one with the public over thirteen years of employment, could have caused the jury to conclude that it was permissible to constantly utilize language prohibited by law in the workplace (discriminatory statements), as was shown to have occurred in this case, simply because plaintiff occasionally utilized profanities that, though inappropriate, are not necessarily illegal. The trial court decided such evidence was more prejudicial than probative, and although we may have ruled differently in the first instance, we cannot conclude that such a decision was an abuse of discretion. Hilgendorf, supra. B. PLAINTIFF’S RETALIATION CLAIM Defendant also asserts that the trial court should have dismissed plaintiffs retaliation claim because plaintiff failed to create a genuine issue of material fact with regard to whether he was subjected to an adverse employment action by the time the motion was heard by the trial court. On this point, we agree with defendant. In Kelly-Stehney & Assoc, Inc v MacDonald's Industrial Products, Inc, 254 Mich App 608, 611-612; 658 NW2d 494 (2003), we set forth the standard of review for our Court to apply when considering the propriety of the grant or denial of a motion for summary disposition under MCR 2.116(C)(10): A motion for summary disposition under MCR 2.116(C)(10) tests the factual sufficiency of the complaint. Veenstra v Washtenaw Country Club, 466 Mich 155, 163; 645 NW2d 643 (2002). A motion for summary disposition should be granted when, except in regard to the amount of damages, there is no genuine issue in regard to any material fact and the moving party is entitled to judgment or partial judgment as a matter of law. MCR 2.116 (C)(10), (G)(4); Veenstra, supra at 164. hi deciding a motion brought under this subsection, the trial court must consider affidavits, pleadings, depositions, admissions, and other evidence submitted by the parties, MCR 2.116(G)(5), in a light most favorable to the nonmoving party. Veenstra, supra at 164. The moving party has the initial burden of supporting its position with documentary evidence, but once the moving party meets its burden, the burden shifts to the nonmoving party to establ

Mary Shea Knight vs. Avon Products, Inc. Berkshire. November 4, 2002. January 10, 2003. Present: Marshall, C.J., Greaney, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Age, Termination of employment, Prima facie case, Burden of proof. Employment, Discrimination, Termination. This court concluded that, for purposes of establishing a triable claim of age discrimination under G. L. c. 151B based on unlawful termination of employment, a plaintiff must demonstrate that he or she was replaced by someone who is substantially younger or otherwise present some evidence that supports a reasonable inference that age was a determinative factor in the employer’s decision. [414] Statement that a disparity of less than five years between the age of a terminated employee and the age of the employee’s replacement, by itself, is too insignificant to support a prima facie case of age discrimination, but that a plaintiff may still present a triable claim if there is other evidence that the termination occurred in circumstances that would raise a reasonable inference of unlawful discrimination and that would permit a jury to find that age was a determinative cause in the termination. [422-426] At the trial of an age discrimination in employment case in which the evidence warranted a finding that the plaintiff, who was over forty years of age, had been replaced by a person who was also over forty years of age but twenty-eight months younger than the plaintiff, the employer was entitled to judgment as matter of law, where there was no additional evidence presented that would permit an inference that a discriminatory animus as to age existed on the part of the employer and motivated the plaintiff’s termination. [426-427] Civil action commenced in the Superior Court Department on August 4, 1997. The case was tried before Daniel A. Ford, J. The Supreme Judicial Court granted an application for direct appellate review. Cornelius J. Moriarty, II (Charles K. Stephenson with him) for the plaintiff. James F. Kavanaugh, Jr. {Stephen S. Churchill with him) for the defendant. Christine Hughes, for New England Legal Foundation & another, amici curiae, submitted a brief. Steven S. Locke, for Massachusetts Commission Against Discrimination, amicus curiae, submitted a brief. The plaintiff’s husband, Daniel Knight, whose claim for loss of consortium was decided in favor of the defendant, Avon Products, Inc. (Avon), on a motion for summary judgment has not been appealed, and he is not a party to this appeal. Greaney, J. We granted an application for direct appellate review filed by the defendant, Avon Products, Inc. (Avon), to decide whether a plaintiff in an indirect evidence case of age discrimination may satisfy the elements of her prima facie case in the absence of a showing that she was replaced by a substantially younger person. A jury in the Superior Court determined that the plaintiff’s termination from her position as a district sales manager for Avon violated G. L. c. 151B, § 4 (IB), and awarded her a total of $795,000 in damages. The trial judge thereafter denied Avon’s motions for judgment notwithstanding the verdict and for a new trial, but reduced various amounts of the damages award. The plaintiff accepted the order of remittitur, and an amended judgment ultimately was entered awarding damages in the amount of $633,000. The judge also denied the plaintiff’s request for multiple damages pursuant to G. L. c. 15IB, § 9. Both parties have appealed. We conclude that, for purposes of establishing a triable claim of age discrimination under G. L. c. 15 IB based on unlawful termination, a plaintiff must demonstrate that he or she was replaced by someone who is substantially younger or otherwise present some evidence that supports a reasonable inference that age was a determinative factor in the employer’s decision. For reasons we shall describe, the plaintiff’s evidence was insufficient for the issue of age discrimination to be decided by the jury, and Avon’s motion for judgment notwithstanding the verdict should have been allowed. Accordingly, we reverse the judgment, set aside the jury verdict, and direct the entry of a judgment for Avon. The evidence most favorable to the plaintiff, see Fontaine v. Ebtec Corp., 415 Mass. 309, 312 (1993), warranted the jury in finding the following facts. The plaintiff is married with four children. At the time she applied for a position with Avon, the plaintiff’s husband had been seriously injured in an accident; her eldest child, who lived at home, was losing her eyesight due to a degenerative eye condition; and her two youngest children, twins, were under six years of age. The plaintiff owned and operated two stores, one in Pittsfield and the other in Lenox, at which she sold cosmetics, skin care and bath products, fragrances, and fashion accessories and also provided customer services such as on-site fashion and cosmetic consultations. In October, 1993, the plaintiff began working for Avon as a district sales manager in District 2267 (the Northampton district). Because the plaintiff lived in Pittsfield, her employment in the Northampton district required her to commute a great distance each day. The plaintiff was forty-four years of age when hired by Avon. Before being hired, the plaintiff disclosed the existence of her two stores to her direct supervisor, Helen O’Connell, the division sales manager for Avon’s Patriot division (encompassing all of Massachusetts except for Boston and Cape Cod), as well as to Barbara Foster, Avon’s regional human services manager. It was agreed that, if hired by Avon, the plaintiff would close her Lenox store and turn the operation of her Pittsfield store over to her daughter. Neither O’Connell nor Foster expressed any objection to this plan. In December, 1993, O’Connell was replaced by Carole Valvo, who also was aware from the outset of the plaintiff’s continued ownership of the Pittsfield store. On one occasion, the plaintiff gave Valvo a perfume atomizer, which she identified as an item sold in the store at retail. Valvo promised to visit the store sometime in the future and expressed no reservations about the plaintiff’s continued ownership of the store. Avon had twenty district sales managers, including the plaintiff, operating within the Patriot Division. As a district sales manager, the plaintiff was responsible for recruiting, training, and motivating independent Avon sales representatives throughout her district. The plaintiff’s performance evaluations were all positive. In 1994, after only one year as a district sales manager, she was admitted to Avon’s “Circle of Excellence” in recognition of her role in placing her district among the top ten per cent in the region for sales increases. Valvo told the plaintiff, “If you keep doing what you’re doing . . . you have a great future.” In October, 1994, while driving home from work, the plaintiff experienced a bout of acute chest pain. Later that evening, she sought medical treatment and was told that her pain was most likely due to muscle strain. A follow-up physical examination, however, revealed a previously undiagnosed thyroid condition. Although the plaintiff was placed on drug therapy, her condition improved only somewhat. On April 25, 1995, at a meeting for the purpose of evaluating the plaintiff’s job performance, the plaintiff informed Valvo that her treating physician had arranged for a thyroid scan to rule out the possibility of thyroid cancer. The plaintiff later reported to Valvo that the scan indicated noncancerous nodes on her thyroid that would require monitoring, but that she intended to seek a second physician’s opinion and a biopsy. Shortly after the April meeting, Valvo informed the plaintiff that “there was going to be an opening” in the district sales manager position for District 2271 (the Pittsfield district). Valvo asked the plaintiff if she would be interested in the Pittsfield position. Valvo stated, however, that “she would like” the plaintiff to run the Pittsfield and the Northampton districts, temporarily, for extra pay. Valvo told the plaintiff that this situation was to remain “top secret” for a few weeks. In response to the plaintiff’s questions, Valvo informed the plaintiff that the district sales manager currently running the Pittsfield district had not “been doing her job,” and that one of the top sales representatives in the Pittsfield district, Sandra Houghtlin, “was not qualified and no one in that district was qualified to take over.” The plaintiff specifically had asked Valvo about Houghtlin because the plaintiff felt that Houghtlin would be in line for the job. The plaintiff agreed to run both districts and, on May 10, 1995, the plaintiff was designated interim assisting district sales manager for the Pittsfield district. On May 22, 1995, at a President’s Club meeting and dinner held in honor of top Avon representatives, Valvo introduced the plaintiff to Mar-E Bean, a twenty-four year old recent college graduate. Valvo informed the plaintiff that Bean had been hired to be a district sales manager and, furthermore, that the plaintiff was to train her. When the plaintiff asked to which geographical district Bean was assigned, Valvo told the plaintiff that Bean was to be a “floater.” The plaintiff had never heard of the term “floater” before. To the best of her knowledge, all Avon district sales managers were assigned to particular geographical districts. Thereafter, the plaintiff diligently trained Bean and simultaneously managed the Northampton and the Pittsfield districts. According to the plaintiff, “I . . . met [Bean] on a daily basis and took [Bean] on rounds with me, showed [Bean] all the ropes, I taught [Bean] everything to do.” On June 16, 1995, Avon sent a letter notifying its sales representatives in the Northampton district that the plaintiff had been reassigned as sales manager of the Pittsfield district and that Bean was to be the new district sales manager in the Northampton district. The plaintiff testified that she did not recall a similar letter being sent to Avon sales representatives in the Pittsfield district, notifying them that she was taking over as the sales manager for that district. However, the evidence indicated that on the same date (June 16, 1995), representatives in the Pittsfield district were advised that the plaintiff was the new sales manager for the district. Further, the plaintiff admitted that she wanted to be the manager of the Pittsfield district (which was closer to her home than the Northampton district), that Valvo told her that Bean was “flexible to go either way, to Northampton or to Pittsfield,” and that sometime prior to June, the plaintiff chose to accept the Pittsfield district. On August 3, 1995, Valvo met the plaintiff in Pittsfield and informed her that she was terminated. Valvo explained that an unidentified person had written a letter to Avon’s chief executive officer, complaining that the plaintiff “had a store and sold Mary Kay[] cosmetics in it.” The plaintiff expressed shock, stating to Valvo that “everyone in Avon knows that I have a store. . . . You know that and everyone at Avon has always known that.” Valvo flatly denied to the plaintiff any prior knowledge on her part of the store’s existence. Over the next few days, the plaintiff, Valvo, and Foster participated in three-way telephone calls directed toward saving the plaintiff’s job. During these conversations, a number of conditions were suggested, including that the plaintiff remove her name from the store’s sign and business forms and terminate any connection, financial or advisory, with the store. The plaintiff left Foster a voice mail message in which she offered to use the store location as a training center for Avon and a meeting place for Avon sales representatives. Foster never responded to that offer. Finally, negotiations stalled. Foster reconfirmed the plaintiff’s termination, refused to discuss the matter further, and called the plaintiff “naive.” Houghtlin, the sales representative whom Valvo previously had dismissed as “unqualified,” and whom Valvo had indicated to the plaintiff would not get the Pittsfield position, was then designated interim district sales manager of the Pittsfield district. In January, 1996, that appointment was made permanent. The plaintiff was forty-six years of age when she was terminated by Avon. Houghtlin was forty-three years old at the time, twenty-eight months younger than the plaintiff. After the plaintiff’s termination, Bean remained as sales manager of the Northampton district. Avon contended at trial that the plaintiff’s termination was a legitimate, nondiscriminatory decision, predicated on Avon’s discovery that the plaintiff was operating a business in violation of a company policy prohibiting its employees from having a financial interest in a competing business. In support of its assertion, Avon introduced evidence that the store: bore the plaintiff’s name; carried a line of retail cosmetic and skin care products and fashion accessories that directly competed with the Avon fine of products; contained a rack posting flyers advertising Nu-Skin, a competing fine of direct-marketed merchandise; and carried a limited inventory of Nu-Skin hair products. Avon’s evidence indicated that the plaintiff was actively involved in the store’s operation even though she was aware, or should have been aware, that Avon’s corporate policies forbade such involvement. Valvo testified that she was unaware of the store’s existence until the anonymous letter was brought to her attention. Foster testified that she was unaware of the extent of the plaintiff’s involvement with the store after she was hired, and, when confronted with evidence of her apparent conflict of interest, the plaintiff appeared insensitive to the matter and sought compensation for any loss associated with closing the store. Foster specifically denied any age-based animus against the plaintiff and denied that her age played any role in the determination to fire her. Foster testified that enforcing compliance with Avon’s nondiscrimination policy was among her specific duties as human resources manager for Avon. In response, the plaintiff introduced evidence suggesting that Avon’s assertion that the plaintiff’s ownership in her store was the basis for her termination was untrue and that the reason for her termination was Avon’s concern for her poor health (about which there was extensive testimony). The plaintiff’s evidence indicated that, when she was hired by Avon, its representatives were aware of, and acquiesced in, her operation of the store. The plaintiff’s evidence also relied on the requests by Avon that she run two districts and that she promptly train Bean, as well as the statement by Valvo that Houghtlin would not be selected to manage the Pittsfield district. In view of this evidence, counsel for the plaintiff argued that discriminatory animus and causation should be inferred, because the plaintiff had offered to close her store to save her job, and: “[Tjhey fired her anyway. Age is a factor here. It’s not unusual, you use your common sense, that people who have health problems when they get older sometimes don’t recover as quickly. And we had this problem here. And isn’t it a coincidence that when she started to have these health problems, that she was asked to train a [twenty-four] year old who then took over the very district that she was running and earning awards in. I tell you . . . [age] certainly played a part here. Is it a coincidence that when she begged and pleaded for her job, they told her, ‘you’re naive?’ So, that brings us, I would suggest to you . . . that this was a pretext for age discrimination.” Avon moved for a directed verdict at the end of the plaintiff’s case, and again after the close of evidence, based on the twofold argument that (1) the plaintiff had failed to show that she was replaced by someone who was substantially younger, and (2) the plaintiff’s own evidence demonstrated that Avon’s reason for terminating her was concern over her health, there was no logical nexus between health and age, and, as a result, the plaintiff had failed to establish a basis for the jury to conclude that age discrimination had occurred. Avon’s motions were denied. The judge charged the jury that the ultimate factual issue was whether the plaintiff was terminated because of her age. He then explained the familiar three-stage order of proof set forth by the Supreme Court of the United States in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and adopted by this court as an aid to the resolution of claims of employment discrimination under G. L. c. 15IB. See Wheelock College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130, 134-137 (1976). He instructed the jury of the elements of a prima facie case of age discrimination, as set forth by the Appeals Court, see Mitchell v. TAC Tech. Servs., Inc., 50 Mass. App. Ct. 90, 92 (2000); Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 447 n.4 (1996), requiring the plaintiff to demonstrate that she (1) was a member of the class protected by G. L. c. 15IB (that is, over forty years of age); (2) had performed her job at an acceptable level; (3) was terminated; and (4) was replaced by a similarly or less qualified younger person. He denied Avon’s request that the jury be instructed that the plaintiff was required to demonstrate that her replacement was “substantially younger” than she. The judge instructed the jury that “the person who takes the plaintiff’s place need not be substantially younger, simply younger is sufficient.” Avon properly preserved an objection to the instruction given by the judge and the judge’s failure to instruct in accordance with its request. In response to special questions, the jury determined that the plaintiff had established a prima facie case of age discrimination; that Avon’s justification for the plaintiff’s termination was untrue and constituted a pretext for age discrimination; and that the plaintiff had suffered both economic loss and emotional distress as a consequence of her termination. On appeal, Avon claims that it is entitled to judgment as matter of law for two reasons: (1) the plaintiff was required to show as part of her prima facie case that her replacement was “substantially younger” and the plaintiff’s evidence was insufficient to support a jury’s finding that her replacement was Bean (who was substantially younger); and (2) regardless of the proper standard for a prima facie case, the judge should have granted Avon’s motion for judgment notwithstanding the verdict because, while the plaintiff’s evidence may have persuaded the jury that Avon’s stated reason for termination (the plaintiff’s alleged competitive business) was a pretext, the evidence pointed only to another reason for her termination (the plaintiff’s poor health), which, in the context of an age discrimination claim, is still nondiscriminatory. 1. The evidence most favorable to the plaintiff established that, by the plaintiff’s own choice, Bean was appointed manager of the Northampton district, and the plaintiff was given what she wanted, the manager’s position in the Pittsfield district closer to home. Thus, the evidence would not warrant a finding that Bean was the plaintiff’s “replacement.” Rather, the only finding warranted by the evidence was that Houghtlin replaced the plaintiff, and, as has been indicated, the plaintiff and Houghtlin were both over forty years old and only twenty-eight months apart in age. We now discuss the significance of these facts. Because direct evidence of discriminatory animus and causation rarely exists, we allow plaintiffs to establish one or both of those elements by indirect circumstantial evidence, following the so-called three-stage order of proof method. See Wheelock College v. Massachusetts Comm’n Against Discrimination, supra

John A. Dziamba vs. Warner & Stackpole LLP & others. No. 00-P-1870. Middlesex. July 17, 2002. - November 8, 2002. Present: Cypher, Kass, & Cowin, JJ. Rules of the Superior Court. Practice, Civil, Summary judgment. Anti-Discrimination Law, Termination of employment, Handicap, Age, Sex. Employment, Retaliation. Contract, Interference with contractual relations. A Superior Court judge, in reviewing materials submitted under Superior Court Rule 9A(b)(5) (1998) by a plaintiff responding to a defense motion for summary judgment, properly determined that the plaintiff failed to adhere to the requirements of that rule and properly took as admitted facts to which the plaintiff had not made a response that complied with the rule. [398-401] A Superior Court judge correctly allowed a defense motion for summary judgment on a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, where the plaintiff failed to demonstrate that he was capable of performing the essential functions of the position involved, that file law firm failed to make a reasonable accommodation to his disability, or that his discharge was based on age or gender [404-407]; similarly, the judge properly granted summary judgment in favor of the defendant on the plaintiff’s claims of breach of contract, breach of the covenant of good faith and fair dealing, wrongful termination, and intentional and negligent infliction of emotional distress, all of which were based on, or subsumed by, the discrimination claims [407, 409]. On a complaint claiming that the termination of the plaintiff’s employment as a lawyer by the defendant law firm was the product of handicap, age, and gender discrimination, a Superior Court judge properly determined that the record lacked evidentiary support for a claim of retaliatory conduct by the employer [407], or for a claim that the employer tortiously interfered with advantageous business relations between the plaintiff and a client [407-409]. Civil action commenced in the Superior Court Department on January 23, 1997. The case was heard by Judith Fabricant, J., on a motion for summary judgment, and motions for postjudgment relief were heard by her. James C. Sturdevant, of California, for the plaintiff. Alan D. Rose for the defendants. Earned partners of Warner & Stackpole, and a successor firm, Kirkpatrick & Lockhart LLR Kass, J. On the basis of substantial evidentiary submissions, a judge of the Superior Court allowed a defense motion for summary judgment. That resulted in dismissal of John A. Dziam-ba’s complaint that the termination of his employment as a lawyer by Warner & Stackpole LLP (W&S), a law firm, was the product of handicap, gender, and age discrimination. The amended complaint also presented claims of tortious interference with prospective business advantage and unlawful retaliation against Dziamba because he asserted his rights. The amended complaint contained other counts, e.g., libel and breach of fiduciary duty, that Dziamba does not press on appeal. We affirm. 1. Judge’s comments and ruling on plaintiff’s submission under Superior Court Rule 9A(b)(5). We have the assistance of a careful, thoughtful, and detailed memorandum of decision from the Superior Court judge who considered the materials and arguments on the motion for summary judgment. She made comments and rulings concerning the plaintiff’s (as the party opposing summary judgment) statement pursuant to Superior Court Rule 9A(b)(5) (1998) that raise a threshold issue about the consequences of failure to comply with that rule. Rule 9A(b)(5) requires that a motion for summary judgment “be accompanied by a concise statement, in consecutive numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried, with page or paragraph references to supporting pleadings, depositions, answers to interrogatories, admissions and affidavits and a statement of the legal elements, with citations to supporting law, of each claim upon which summary judgment is sought. . . . “Each opposition to [the motion] shall include a response, using the same paragraph numbers, to the moving party’s statement of facts as to which the moving party claims there is no genuine issue to be tried, in consecutive numbered paragraphs, a concise statement of any additional material facts as to which the opposing party contends there is a genuine issue to be tried, with page or paragraph references to supporting pleadings . . . .” Rule 9A(b)(5) is an “anti-ferreting” rule designed to assist a trial judge in the all-too typical situation in which the parties throw a foot-high mass of undifferentiated material at the judge. See, e.g., AM. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d 469, 471 n.2 (1st Cir. 2000). In accordance with the rule, the defendant, the party moving for summary judgment, filed an eighteen-page statement consisting of seventy-nine short numbered paragraphs, each setting forth as undisputed a single subsidiary fact or a bundle of closely related subsidiary facts, with citation to evidence in the record supporting that assertion. For example: “1. Plaintiff John A. Dziamba (‘Dziamba’) a litigation attorney, worked at W&S from July 1986 until July 7, 1995. (Affidavit of Henry T. Goldman (‘Goldman Afif.’], f 3.” The defendant added a six-page compilation of concise statements of principles of law, with citation of authority, as to each of the thirteen counts in the amended complaint. Dziamba’s responsive statement under rule 9A(b)(5) runs seventy-nine pages, the first sixty-nine of which deal with facts that the plaintiff purports to dispute. The motion judge observed that the plaintiff’s statement ignored the requirements of rule 9A(b)(5) and defeated its anti-ferreting purpose. The judge was put to the burden of ferreting through the plaintiff’s rule 9A(b)(5) statement to identify what facts asserted by the defendant were in fact controverted. For example, to the simple fact of defendant’s first statement, that Dziamba worked as a litigation attorney for W&S from July, 1986, to July 7, 1995, the plaintiff’s response was: “Disputed.” There follow three and one-half pages that set out what a successful, capable, imaginative, and productive lawyer Dziamba was at W&S. That was not an atypical response. That Dziamba was a litigation lawyer there for nine years was never controverted; i.e., it was not disputed. The very next statement by the moving party, consisting of five lines, was met with a response of eight and one-half pages which, in the end, did not controvert the facts stated by the moving party. The third paragraph of rule 9A(b)(5) provides: “For purposes of the motion for summary judgment, facts contained in a statement described in the first paragraph hereof shall be deemed to have been admitted unless controverted in the manner set forth in the second paragraph hereof.” Such was the failure of the plaintiff’s responsive statement to adhere to the requirements of rule 9A(b)(5), the motion judge ruled, that she took as admitted all seventy-nine paragraphs of W&S’s statements of fact save one: paragraph number thirty-five. Paragraph thirty-five stated that Dziamba worked at Davis, Malm & D’Agostine from July, 1995, until March, 1996, when he was terminated by that firm. Here the plaintiff’s response was crisp and on target. It said: “Dziamba was not terminated by Davis, Malm. . . . Moreover, the terms of plaintiff’s separation from any subsequent employer are irrelevant.” While possibly relevant, the circumstances of the plaintiff’s leave taking from Davis, Malm were certainly not material to the questions before the judge on summary judgment, as she noted. On the basis of our review of the record, there were other instances in which the plaintiff’s response placed assertions of fact in dispute, but those facts were not material ones. It would unreasonably lengthen this opinion were we to proceed paragraph by paragraph through the parties’ rule 9A(b)(5) statements to illustrate the plaintiff’s compliance or noncompliance with the rule. We think the judge fairly characterized the plaintiff’s response when she observed that factual assertions were buried deeply in argument and that the way factual asser-tians were woven into argument made it unnecessarily and unreasonably difficult to identify which facts were genuinely in dispute. The plaintiff challenges the rule-making authority of the Superior Court to require submissions other than those required by Mass.R.Civ.P. 56, 365 Mass. 824 (1974), and more particularly to take as admitted facts to which the plaintiff has not made a response that complies with the rule. Decisions based on analogous local anti-ferreting rules in United States District Courts support the action taken by the motion judge. Adoption of an anti-ferreting rule is an appropriate exercise by a trial court of case management discretion. It is a pragmatic and reasonable response to the propensity of lawyers to file literally mounds of affidavits, depositions, interrogatories, and depositions in support of, or in opposition to, summary judgment. Both formulation of such rules and administering them in a fashion so that they have bite find support in the cases. See Stepanischen v. Merchants Despatch Transp. Corp., 722 F.2d 922, 931-932 (1st Cir. 1983); Rivas v. Federacion de Asociaciones Pecuarias de P.R., 929 F.2d 814, 816 n.2 (1st Cir. 1991); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 95 (1st Cir. 1996); A.M. Capen’s Co. v. American Trading & Prod. Corp., 202 F.3d at 472; Ruiz Rivera v. Riley, 209 F.3d 24, 27-28 (1st Cir. 2000). The judge acted within her discretion in taking as admitted those facts asserted by the moving party (W&S) that were not disputed by the party opposing the motion for summary judgment (Dziamba), in accordance with the rule. Although the action that the judge took under rule 9A(b)(5) was fully warranted, she added suspenders to that belt by independently “review[ing] the evidentiary materials submitted by the plaintiff, and . . . considering], in the light most favorable to the plaintiff [i.e., the nonmoving party], those additional facts that [the court] deems material, and that are supported by admissible evidence . . . .” 2. Facts. We have also combed the record and now set forth the material facts that, without weighing the evidence, are not disputed. Dziamba was first admitted to the bar in Connecticut in 1969. He joined W&S in the status of “counsel” in July, 1986. At that time, lawyers at W&S were divided into four categories: associate, counsel, nonequity partner, and partner. Dziamba’s area of professional concentration was litigation. Effective January 1, 1990, Dziamba became a nonequity partner. This meant that W&S held him out to the world as a partner, although internally he was not required to maintain a capital account, could not attend partnership meetings except by invitation, did not share in the partnership’s profits and losses (a nonequity partner’s compensation was set by the firm’s executive committee), and did not have the benefit of the partnership agreement procedures involving the involuntary withdrawal of partners. On January 10, 1991, W&S’s executive director recommended to the firm’s executive committee that, to cut costs, they should discharge certain lawyers. Dziamba was among those identified as expendable. In November, 1991, Dziamba applied for full partnership status but, after meeting with the executive committee, withdrew his application. He did not receive a compensation increase for 1992, W&S’s executive committee having decided his performance did not warrant it. During this period, the administrative partner of W&S was Henry Goldman, and the administrator of the litigation department was Joseph Leghorn. Those two met with Dziamba on March 5, 1992, in Dziamba’s office. They informed him of the decision not to increase his compensation and of the executive committee’s general concerns about his progress at W&S. There was a perception, they told Dziamba, that he had not progressed well in originating clients and that other lawyers in the litigation department were reluctant to assign matters to him because they thought he was wont to spend more time on cases than could be billed. Goldman and Leghorn told Dziamba that he needed to market himself inside and outside of the firm. In six months, they informed him, the executive committee would review the situation. At that March 5 meeting, Dziamba said that he had not been feeling well and had not been sleeping well. From what Goldman and Leghorn had said to him, Dziamba felt as if he had been fired. After the meeting, Dziamba left the office. He was suffering from what in the weeks following was diagnosed as major recurrent depression. Treatment for that illness requires medication and, from time to time, change in the medication. Dziamba told Goldman about his illness in a telephone call on March 26, 1992, and in more detail when he returned to work on a part-time basis in April, 1992. When Goldman learned about Dziamba’s clinical problem he told him to take care of himself and to take the time needed to get better. The firm would see that his cases were covered. Until Dziamba’s call of March 26, 1992, partners at W&S had not known that Dziamba was suffering from an illness that was periodically disabling. The necessary altering and experimenting with his medications, from time to time, made Dziamba, as he described it to Goldman several years later in 1994, feel he “was in molasses.” After Dziamba came back to work in April, 1992, there were periodic meetings between Goldman and Dziamba at which Goldman said, among other things, that it was not merely a matter of hours — Dziamba should not work more than was medically appropriate — but that the underlying problem was still the perception that he lacked the ability to handle cases efficiently and to inspire the confidence of clients. In the spring of 1993, Dziamba again applied for equity partnership. The executive committee did not so recommend and took like negative action with two other candidates. In view of Dziamba’s gender discrimination claim, it bears mentioning that those other two lawyers not then elevated to equity partner status were women. Three other candidates were elected as full partners, of whom one was a woman working in the environmental law field. Each of the new equity partners had developed a strong constituency for his or her services. In February, 1994, the executive committee of W&S concluded that Dziamba was the least valuable of their commercial litigators, and Goldman gave Dziamba the bad news. He was to leave May 31, 1994. Dziamba sought the advice of counsel. The firm decided to postpone the departure date, but effective July 1, 1994, it cut Dziamba’s annual compensation to $66,000. On July 12, 1994, Dziamba filed a charge with the Massachusetts Commission Against Discrimination against W&S and its equity partners that alleged W&S had discriminated against him because of his handicap, his age, and his sex, and that the firm had retaliated against his request for a reasonable accommodation to his handicap by reducing his salary. On June 28, 1995, there was a special partnership meeting, at which Dziamba was permitted to make his case for continuing at W&S. The partners voted twenty-one to one against him. Dziamba left W&S in July, 1995. We shall mention other undisputed facts, when relevant, in connection with our discussion of Dziamba’s various claims. In reviewing the claims asserted by Dziamba, we view the facts contained in the summary judgment materials in the light most favorable to the nonmoving party, here, the plaintiff. Tar-danico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996). 3. The discrimination claims, (a) Based on handicap. Dziamba’s primary claim is that W&S dismissed him because of a handicap he suffered, namely, major recurrent depression. See G. L. c. 151B, § 4(16), as appearing in St. 1983, c. 533, § 6. To maintain that claim, Dziamba must demonstrate that he is a “qualified handicapped person, capable of performing the essential functions of the position involved with reasonable accommodation.” Ibid. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443, 449-450 (2002). Dziamba has failed to make that fundamental showing. Dziamba was a lawyer in W&S’s commercial litigation department. An essential function of a nonequity partner at W&S included handling litigation in a manner that was cost-efficient and that won the confidence of the client. As described in letters, memoranda, and depositions, the job of a senior litigator at W&S also included generating a market for his services through the origination of new clients (being a “finder”) or generating a market for his service internally with lawyers at W&S (being a “minder” and “binder” of clients of the firm). In neither aspect of those essential functions had Dziamba enjoyed success, as shown by internal manifestations of dissatisfaction with his performance in 1991, and the discussion of the firm’s concern about that performance with Dziamba starting with the meeting on March 5, 1992. The work of a lawyer is often highly demanding of physical and psychic energy. It requires responses to often simultaneous external pressures from courts, opposing counsel, and clients. There is no evidence that W&S held other lawyers in the firm to less demanding essential functions. All the same, Dziamba contends that the firm failed to make reasonable accommodation to his disability. The evidence is that the firm allowed him, indeed encouraged him, to work less than full time in hope that his condition would stabilize. On his own motion, Dziamba suggested lower quotas of billable hours per month: 100 hours per month for May through September, 1992; 135 hours per month for October through December, 1992; and 130 hours per month for January through March, 1993. There follow in the record a series of memoranda by Dziamba in 1993 and 1994 to the executive committee that report fatiguing effects from changes in medication and request reasonable accommodation. Dziamba’s billable hours in 1994 were 687. What reasonable accommodation W&S was to make, Dziam-ba’s memoranda do not say. To fulfill their obligation of a reasonable accommodation to a handicap, employers need not make substantial changes in the standards of a job. Beal v. Selectmen of Hingham, 419 Mass. 535, 542 (1995). Wynne v. Tufts Univ. Sch. of Medicine, 932 F.2d 19, 25 (1st Cir. 1991), on remand, 976 F.2d 791, 795 (1992), cert. denied, 507 U.S. 1030 (1993). So if, hypothetically, the norm of billable and collectible hours expected of a senior litigator in a law firm were 1800 per year, then a lawyer who could do no more than 1200 billable and collectible hours would not be performing the essential function of the position involved. There is some reference in the record to a request by Dziamba that he be appointed director of training for the firm. No such position existed at W&S. An employer is not required to create a new position as a reasonable accommodation to the handicapped employee. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. at 454. Reidy v. Travelers Ins. Co., 928 F. Supp. 98, 109 (D. Mass. 1996), aff’d, 107 F.3d 1 (1st Cir.), cert. denied, 522 U.S. 809 (1997). Nor does reasonable accommodation require an employer to wait an indefinite period for the recovery of an employee who has a medical condition that bears on job performance. Russell v. Cooley Dickinson Hosp., Inc., supra at 455. Watkins v. J&S Oil Co., 164 F.3d 55, 61-62 (1st Cir. 1998). Dziamba attributes his productivity decline to partners at W&S shunning him after they learned he was suffering from depression. As the Superior Court judge remarked, that assertion runs into the awkward, und