Retaliation Cases

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

Richard Fowler vs. Labor Relations Commission; Boston Water and Sewer Commission, intervener. No. 00-P-451. Suffolk. February 19, 2002. - September 26, 2002. Present: Mason, Cohen, & Mills, JJ. Administrative Law, Judicial review, Substantial evidence. Labor Relations Commission. Labor, Judicial review, Unfair labor practice, Discharge for union activity. On appeal from a decision of the Labor Relations Commission (LRC) dismissing a complaint by a principal organizer of a campaign to unionize mid-level managers at a city’s water and sewer commission (BWSC) contending that the BWSC’s actions in demoting and subsequently firing him were taken in retaliation for his involvement in protected activity in violation of G. L. c. 150E, § 10(a)(1), (2) and (3), this court concluded that the LRC’s decision was based on an erroneous view of the law and remanded the case for consideration under the proper legal framework, where there was direct proof that BWSC’s management had been told by an informant that employees were engaged in union activity, and where the LRC could consider circumstantial proof on the issue of the BWSC’s knowledge of the fired employee’s activities, including evidence that the BWSC’s asserted reasons for its adverse actions were a pretext. [97-103] Appeal from a decision of the Labor Relations Commission. Harold L. Lichten for the plaintiff. John B. Cochran for the defendant. Robert E. Holland, John Foskett, & Catherine S. Reidy, for the intervener, submitted a brief. The Boston Water & Sewer Commission was the responding party before the Labor Relations Commission. It appears in these appellate proceedings as intervener and has filed a brief in support of the decision of the Labor Relations Commission. Cohen, J. Soon after becoming one of the principal organizers of a campaign to unionize mid-level managers at the Boston Water and Sewer Commission (BWSC), Richard Fowler, a BWSC employee for nearly twenty years, was demoted and subsequently fired. He filed a charge with the Labor Relations Commission (commission) contending that the BWSC’s actions were taken in retaliation for his involvement in protected activity, in violation of G. L. c. 150E, § 10(a)(1), (2) and (3). The commission investigated, issued a complaint of prohibited practice, and referred the matter to a hearing officer. After a five-day hearing, the hearing officer issued recommended findings of fact that were favorable to Fowler; however, even though the commission largely adopted the hearing officer’s findings, it ultimately determined that Fowler had failed to prove an essential element of his case: that BWSC senior staff knew that Fowler was engaged in union activity. The commission therefore dismissed the complaint. Fowler appeals from the commission’s decision, contending that the commission misapplied the law by requiring him to prove employer knowledge by “direct evidence” and by failing to consider circumstantial proof on this issue, including evidence that the BWSC’s asserted reasons for its adverse actions were a pretext. He also argues that the hearing officer’s recommended findings of fact included a finding of employer knowledge and that the commission failed to explain its rejection of that finding as required by the State administrative procedure act. See G. L. c. 30A, § 11(8). We agree that the commission’s decision was based on an erroneous view of the law and remand the case for consideration under the proper legal framework. Although appellate review of the commission’s findings is limited to an examination of the record to ascertain if the findings are supported by substantial evidence, we review the legal standards employed by the commission for error of law without deference to its decision. See, e.g., Boston Police Superior Officers Fedn. v. Labor Relations Commn., 410 Mass. 890, 892 (1991); School Comm. of Boston v. Labor Relations Commn., 40 Mass. App. Ct. 327, 328-329 (1996). We begin by reiterating the elements of a prima facie case of discrimination based on protected activities before addressing the specific issues presented here. In a protected activities case, the charging party must produce evidence to support the conclusion that (1) the employee engaged in concerted activity as defined by G. L. c. 150E, § 2; (2) the employer knew of this activity; (3) the employer took adverse action against the employee; and (4) the adverse action was motivated by the employer’s desire to penalize or discourage the protected activity. School Comm. of Boston v. Labor Relations Commn., supra at 329 & n.5. In this case, it was not disputed that Fowler’s union organizing activities, which began in January, 1996, constituted protected concerted activity; nor was it disputed that thereafter the BWSC took adverse action against Fowler by demoting him from deputy superintendent of sewer operations to safety manager in July, 1996, and terminating his employment in October, 1996. The only issues in contention were employer knowledge and motivation. With respect to employer knowledge, Fowler took the position that his organizing activities were conducted publicly and must have been known to the BWSC’s executive director, Vincent Mannering, if not from Mannering’s own observations or his discussions with other members of the senior staff, then through information received from Mannering’s longtime personal friend, Joseph Crossen. Crossen was a BWSC safety engineer who, in mid-1996, became a deputy superintendent of water and sewer with direct oversight over Fowler after his demotion to safety manager. As elaborated in the margin, the commission made findings to the effect that Crossen served as a conduit of information to Mannering, that Crossen and others close to Mannering, such as chief of staff Jay Porter, knew that union activities were afoot, that Crossen closely supervised Fowler, and that Fowler’s union activities were open and well-known in the workplace. The commission also concluded, as had the hearing officer, that Mannering and Crossen were not credible when they denied knowing of Fowler’s role in the campaign. Nevertheless, the commission declined to infer that Manner-ing and Crossen knew of Fowler’s union organizing, observing that there was no direct evidence that Crossen knew of Fowler’s involvement in the organizing drive, and that no inference of employer knowledge could arise merely from disbelief of Man-nering’s and Crossen’s testimony. The commission explained that “[i]f Crossen’s knowledge of Fowler’s activity was proven by direct evidence, we could infer that he shared his knowledge of Fowler’s role in the organizing drive by the fact that he told Porter that the employees were organizing a union.” However, absent such direct evidence, the commission assumed that it could not infer that Crossen possessed knowledge of Fowler’s role. This assumption led the commission to conclude that it would be “mere suspicion or speculation” to find employer knowledge on the record before it. It therefore dismissed the complaint on that basis, without considering the remaining element of Fowler’s prima facie case — employer motivation. Fowler does not disagree that, without more, disbelief of Mannering and Crossen did not establish the opposite of their testimony. See, e.g., Prescott v. Board of Appeal on Motor Vehicle Liab. Policies & Bonds, 42 Mass. App. Ct. 36, 38 & n.4 (1997); Hopping v. Whirlaway, Inc., 37 Mass. App. Ct. 121, 126 (1994); Atkinson v. Rosenthal, 33 Mass. App. Ct. 219, 224 (1992). His quarrel is with the commission’s assumption that he needed to introduce direct evidence that Crossen knew of his union activity as a legal predicate to a finding of employer knowledge. We agree with Fowler that the commission was mistaken on this point. In cases arising under G. L. c. 150E, we may look for guidance, as did the commission, to Federal decisions applying the parallel provisions of the National Labor Relations Act (NLRA), 29 U.S.C. §§ 151 et seq. (1994). See Service Employees Intl. Union, Local 509 v. Labor Relations Commn., 431 Mass. 710, 713-714 (2000); Burlington v. Labor Relations Commn., 17 Mass. App. Ct. 402, 405 (1984). Cases decided under the NLRA establish, as a general principle, that employer knowledge of employee union activities may be found from circumstantial evidence from which a reasonable inference of knowledge may be drawn. See, e.g., FPC Holdings, Inc. v. NLRB., 64 F.3d 935, 943 (4th Cir. 1995); Montgomery Ward & Co., 316 N.L.R.B. 1248, 1253 (1995), enforced, 97 F.3d 1448 (4th Cir. 1996); Regional Home Care, Inc., 329 N.L.R.B. 85, 85-86 (1999). An inference of knowledge may be “based on such circumstantial evidence as the timing of the alleged discriminatory actions; the [employer’s] general knowledge of its employees’ union activities; the [employer’s] animus against the Union; and the pretextual reasons given for the adverse personnel actions.” Regional Home Care, Inc., supra at 85-86. Each case is fact specific. Thus, for example, the National Labor Relations Board (NLRB) has inferred that an employer knew of a discharged employee’s union activities from a totality of circumstances that included evidence of the employer’s general knowledge of union organizing and the employee’s overt participation in union- activities. Montgomery Ward & Co., supra at 1253. Notwithstanding this authority, the commission declined to infer employer knowledge in reliance upon The American League, 189 N.L.R.B. 541 (1971) — a case that the commission understood as requiring direct proof to establish an informant’s knowledge that the complaining employee had engaged in union activity. The American League case arose from the termination, toward the end of the 1968 baseball season, of two American League umpires who were attempting to organize their cohorts to join an association previously established by National League umpires. Before their termination, the fired umpires had discussed this idea with other American League umpires and had met with a lawyer and with the National League association. Although these discussions were not entirely clandestine, the two organizers had attempted to keep knowledge of their efforts from League officials, and there was no evidence that any of those contacted had told management that organizing activity was taking place, much less that the fired umpires were behind it. Indeed, none of the numerous American League umpires who appeared as witnesses in the case testified that they had mentioned the organizing activities to League officials. On these facts, the hearing officer and the NLRB declined to infer employer knowledge. Viewed in its factual context, The American League at most illustrates that employer knowledge need not be inferred when there is no direct evidence that anyone has reported union activity to the employer. Id. at 549. However, it does not stand for the extended proposition that direct proof must always be introduced to establish an informant’s knowledge that the complaining employee was engaged in union activity. In the case at hand, the facts as found by the commission were considerably stronger on the issue of employer knowledge than the facts in The American League. The commission adopted the hearing officer’s finding, based on Crossen’s own testimony, that Crossen received union organizing information in June, 1996, and immediately shared it with Porter, who, in turn, relayed it to Mannering. Thus, there was direct proof that management had been told by an informant that employees were engaging in union activity. As to whether Crossen knew of Fowler’s involvement with the organizing campaign and shared that information with senior staff, direct evidence was not required, and the commission was free to draw that inference from other findings, adopted from those of the hearing officer, establishing Crossen’s close supervision of Fowler, Fowler’s openness in conducting the organizing drive, and Crossen’s role as a conduit of information to Porter and Mannering. Drawing an inference from these facts would rest upon affirmative evidence and would not be predicated solely on disbelief of Mannering and Crossen. See NLRB v. Joseph Antell, Inc., 358 F.2d 880, 883 (1966). The commission also was entitled to consider whether the reasons advanced by the BWSC for demoting and terminating Fowler were a pretext and, if so, to take that into account as an additional factor in deciding whether to infer employer knowledge. Although, by itself, “the unconvincing character of the employer’s professed reasons for acting against an employee [does not] supply the otherwise missing proof of knowledge,” Tomateck, Inc., 333 N.L.R.B. No. 156, slip op. at 76-77 (May 8, 2001), it is well-established that pretext may be considered as part of the totality of circumstances from which employer knowledge may be inferred. See NLRB v. Joseph Antell, Inc., supra at 883; Montgomery Ward, supra at 1253; Regional Home Care, Inc., supra at 85-86. In view of our decision, we need not dwell on Fowler’s claim that the commission ran afoul of G. L. c. 30A, § 11(8), by failing to give an adequate explanation for rejecting the hearing officer’s statement that “Crossen knew of Fowler’s involvement” with the union. See Vinal v. Contributory Retirement Appeal Bd., 13 Mass. App. Ct. 85, 92 (1982); Noone v. Contributory Retirement Appeal Bd., 34 Mass. App. Ct. 756, 764 & n.13 (1993). Although the statement was made in passing, we agree with Fowler that this was an implicit, if not explicit, finding that went beyond simply discrediting Mannering and Crossen, and that the commission rejected the finding. Nevertheless, we detect no c. 30A violation, because the commission adequately explained itself by opining that, on its view of the law, the evidence supporting such a finding was insufficient. The problem was not that the commission failed to give an explanation; it was that the explanation was based on an incorrect view of the law. On remand, it will be open to the commission to reassess its rejection of the hearing officer’s finding in light of the correct legal standard. The commission’s decision is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. There was direct evidence, and the commission found, that Fowler’s role in the organizing campaign came to the attention of BWSC general counsel Henry Luthin; but because there was no proof (and no finding by the hearing officer) that Luthin met with Mannering between the time that Luthin obtained this information and the time that Fowler was terminated, the commission declined to infer employer knowledge from this evidence. Mannering had asked his friend Crossen to relay his observations about the operations department so that Mannering would not be relying upon “sanitized information.” Crossen was among those who were sent a letter from the International Brotherhood of Teamsters, Local 25 (teamsters), in June, 1996, soliciting their involvement in the union. He immediately shared the letter with Porter, who relayed it to Mannering. Others close to senior staff, including Mannering’s own administrative assistant, also received this letter. Fowler reported directly to Crossen. Crossen kept close track of Fowler’s performance and regularly met with Fowler to go over his work. Between January and April, 1996, Fowler and the other principal organizer in the campaign, Deacon Perrotta, met with numerous mid-level managers to inform them of the organizing drive and ascertain their level of interest in becoming unionized. In April or May, 1996, when the teamsters indicated an interest in representing the potential bargaining unit, Fowler and Perrotta began campaigning specifically for the teamsters by first meeting with managers individually and later by holding small group meetings. Fowler met with over fifty managers individually and had fifteen to twenty small group meetings. These overtures took place on BWSC property, including the building where Mannering had his office. Fowler and Perrotta also held a large meeting at the South Bay Hotel in Boston, which was attended by seventeen managers and six or seven teamsters officials. At that meeting, Fowler sat in the front of the room and fielded questions from the managers and the teamsters officials. Later, Fowler and Perrotta distributed union authorization cards to employees at work. They also compiled the list used by the teamsters to send a letter and authorization cards to sixty-seven managers in the potential bargaining unit, including Crossen and Mannering’s administrative assistants, although Fowler’s name did not appear in this correspondence. An inference of employer knowledge may also be drawn pursuant to the so-called “small plant doctrine,” where the size of the plant, as well as other considerations, make it likely that the employer observed the employee’s union activity. See United L-N Glass, 297 N.L.R.B. 329 (1989). Here, the commission determined that the facts did not support the application of the small plant doctrine. As Fowler does not challenge that determination on appeal, we do not consider whether it was supported by substantial evidence. The same is true of Synergy Gas Corp., 290 N.L.R.B. 1098, 1101 (1988), also relied upon by the commission. In that case, the discharged employee claimed that employer knowledge could be inferred because two members of management had sons who worked with the employee, and the sons may have reported his activities to their parents. The claim was rejected because there was no evidence, direct or circumstantial, to establish the likelihood that either of the sons would have made such a communication. Furthermore, the employee’s union activities were not “intensive” and were not likely to have been observed. The BWSC claimed that Fowler was demoted and discharged because of over-all poor performance and his responsibility for the failure of a pumping station during a severe rainstorm in September, 1996. However, the commission found that Fowler received positive evaluations for many years up until he began his union activities; that Fowler was not given any negative performance evaluations, warnings or other counseling about alleged deficiencies in his performance in 1996; and that the BWSC did not consider Fowler responsible for the pumping station mishap.

Sonja Sahli vs. Bull HN Information Systems, Inc. Middlesex. May 8, 2002. September 9, 2002. Present: Greaney, Ireland, Spina, Cowin, Sosman, & Cordy, JJ. Anti-Discrimination Law, Employment, Termination of employment, Age. Employment, Discrimination, Retaliation. Constitutional Law, Right to petition government. Practice, Civil, Costs. This court concluded that a lawsuit filed by a corporate employer against a former employee, seeking a declaration of its rights, duties, and obligations under a release and severance agreement entered into with the former employee, who had lodged a charge of age discrimination ¿gainst the employer, did not constitute an act of retaliation or interference in violation of the Commonwealth’s antidiscrimination laws, G. L. c. 151B, § 4 (4), or G. L. c. 15IB, § 4 (4A), where, although the interest in remedying discrimination was weighty, it was not so weighty as to justify what would amount to an absolute restriction on the employer’s right to petition the courts, and where the lawsuit had a legitimate basis in law and fact. [700-707] In a civil action, the judge properly allowed the prevailing defendant’s motion for costs. [707] Civil action commenced in the Superior Court Department on June 30, 1998. The case was heard by Nonnie S. Bumes, J., on motions for summary judgment. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Justine H. Brousseau (Nina Joan Kimball with her) for the plaintiff. David B. Chaffin {Kathleen A. Kelley with him) for the defendant. Thomas F. Reilly, Attorney General, Catherine C. Ziehl & Kathleen Z. Quill, Assistant Attorneys General, for the Attorney General, amicus curiae, submitted a brief. Cordy, J. In this case, we hold that a lawsuit filed by an employer against a former employee who has lodged a charge of discrimination is not an act of retaliation or interference in violation of the State’s antidiscrimination laws where the lawsuit had a legitimate basis in law and in fact. 1. Background. Sonja Sahli worked in the human resources department of Bull HN Information Systems, Inc. (Bull), for eight years. She was laid off in April, 1995, at age fifty-three. After she was notified about the impending layoff, Sahli applied for, but was not selected to fill, a vacant position in the human resources department. Before she left Bull, Sahli signed a release and severance agreement, in which she agreed to release Bull from any “current or prior claims arising out of [her] employment with or termination from Bull,” in exchange for eight weeks of her salary as severance payment. Several months after leaving Bull, Sahli learned that the person who was hired to fill the vacant position was a younger woman. Believing that she was not chosen to fill the position because of her age, Sahli filed a charge of discrimination with the Massachusetts Commission Against Discrimination (MCAD), asserting, inter alla, that: (1) “Bull’s policy and practice in the event of a lay-off is to place a laid-off employee in another vacant position within the company, where possible.” (2) “I was amply qualified for [a vacant position in the human resources department].” (3) “I heard that Bull had filled the [vacant position] with an outside applicant who was a number of years younger than I was. On information or belief, the person who was hired for the position was less qualified for it than I was.” (4) “I believe that Bull failed to follow its policy and practice in my case of relocating laid-off employees into vacant positions within the company and failed to hire me for the [vacant position] because of my age.” In response to Sahli’s MCAD charge, Bull filed a complaint for declaratory relief in the Superior Court alleging that Sahli’s discrimination charge was barred by the terms of the release that she had signed when she left Bull. Bull contended that the essence of Sahli’s discrimination claim was Bull’s failure to relocate her into a vacant position instead of laying her off, and as such, was a claim arising out of her termination. Therefore, Bull asked the court to “declar[e] the parties’ respective rights, duties, and obligations under the Release Agreement,” find that Sahli’s bringing of the discrimination charge violated its terms, and order the return of Sahli’s severance payment. One month after Bull filed its complaint, Sahli filed a second charge of discrimination with the MCAD alleging that Bull’s complaint constituted discriminatory retaliation in violation of G. L. c. 151B, § 4 (4) (retaliation claim), and threats, intimidation, coercion, and interference with her protected rights in violation of G. L. c. 151B, § 4 (4A) (interference claim). She also filed a motion to dismiss Bull’s complaint in the Superior Court, arguing that the release did not bar her MCAD charge because it involved a “failure to hire” claim that did not accrue until she discovered, several months after she had left Bull, that the person who filled the vacant position was a younger woman. Without deciding the merits of Bull’s claim, a Superior Court judge allowed Sahli’s motion to dismiss without prejudice. As permitted by G. L. c. 151B, § 9, Sahli removed both of her charges from the MCAD and filed a complaint in the Superior Court alleging age discrimination in violation of G. L. c. 151B, § 4 (IB) (Count I), retaliation in violation of G. L. c. 15IB, § 4 (4) (Count II), and interference with a protected right in violation of G. L. c. 151B, § 4 (4A) (Count HI). Following discovery, both parties moved for summary judgment and, on March 16, 2001, a judge allowed Bull’s motion on all counts. She ruled that the undisputed fact that the person who filled the vacant position was more qualified than Sahli defeated her discrimination claim. She also ruled that Sahli’s retaliation claim failed because Sahli could not show that she suffered any “adverse employment consequence” as a result of filing her MCAD charge, and that her interference claim failed because the filing of a lawsuit did not rise to the level of “threats, intimidation or coercion” necessary to violate § 4 (4A). Bull then filed a motion for costs, which was allowed. Sahli appealed the summary judgment rulings on her claims of retaliation (Count II), and interference (Count HI). She also appealed from the allowance of the motion for costs. We transferred the case here on our own motion. We conclude that Bull’s filing of a complaint in the Superior Court for declaratory relief did not constitute an act of retaliation or interference violative of G. L. c. 151B, § 4 (4), or G. L. c. 15IB, § 4 (4A), and therefore affirm the judge’s allowance of Bull’s motion for summary judgment, although on different grounds. GTE Prods. Corp. v. Stewart, 421 Mass. 22, 36 (1995). We also affirm the allowance of Bull’s motion for costs. 2. Discussion. Retaliation claims under G. L. c. 151B, § 4 (4), and interference claims under G. L. c. 151B, § 4 (4A), constitute separate and independent causes of action. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 121 (2000). Sahli contends that Bull violated both § 4 (4) and § 4 (4A), by filing the complaint for declaratory relief which forced her to defend herself in a separate litigation, incur additional attorney’s fees, and fear the loss of her severance pay. The threshold question we must decide is whether the filing of a lawsuit by a corporate employer seeking a declaration of its rights, duties, and obligations under a contract entered into with one of its employees can constitute an act violative of the retaliation and interference provisions of G. L. c. 151B. To resolve this question, we must balance the constitutional right to seek judicial resolution of disputes under the First Amendment to the United States Constitution and art. 11 of the Massachusetts Declaration of Rights* against the statutory right under G. L. c. 151B to seek redress for allegations of discrimination without fear of retaliation for or interference with the exercise of that right. We had occasion to balance similar interests in Bain v. Springfield, 424 Mass. 758 (1997) (Bain). In that case, a newspaper article described the plaintiff’s allegations of discriminatory hiring practices in city government. The same article also reported the mayor’s response to the allegations, which included his belief that the plaintiff’s complaints were “ ‘baseless,’ ‘meritless,’ and ‘an example of someone trying to manipulate the civil rights laws for personal gain.’ ” Id. at 760. The plaintiff filed suit, alleging that the mayor’s comments, among other things, constituted retaliation under G. L. c. 151B against her for having voiced concerns about the city’s hiring practices. Id. at 761, 765-766. Balancing the plaintiff’s interest in remedying discrimination with the mayor’s First Amendment right to free speech, we concluded: “[W]e most emphatically cannot countenance as an instance of retaliation . . . the mayor’s response in the local newspaper to the charges against him. The newspaper quoted Bain’s serious and damaging charges against the mayor, an elected official. He was entitled to respond in the same forum, to defend himself and to state what political judgments seemed appropriate so long as they were not defamatory — which these were not. . . . The interest in remedying discrimination is weighty but not so weighty as to justify what amounts to a restriction on core political speech.” Id. at 766-767. Consistent with this reasoning, we conclude in the instant case that, although the interest in remedying discrimination is weighty, it is not so weighty as to justify what amounts to an absolute restriction on an employer’s right to petition the courts. The United States Supreme Court has recognized the right to petition the government, including the courts, as one of “the most precious of the liberties safeguarded by the Bill of Rights,” United Mine Workers v. Illinois Bar Ass’n, 389 U.S. 217, 222 (1967), implied by the “very idea of a government, republican in form,” United States v. Cruikshank, 92 U.S. 542, 552 (1875). See Pinnick v. Cleary, 360 Mass. 1, 11-12 (1971) (art. 11 “is clearly directed toward the preservation of procedural rights and has been so construed”). The Court has protected the right to petition “whenever it is genuine, not simply when it triumphs.” BE & K Constr. Co. v. NLRB, 536 U.S. 516, 532 (2002) (BE & K). Thus, in the antitrust context, the Court has held that unless petitioning activity is both objectively and subjectively a “sham,” it is immune from antitrust liability. Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993). And in the labor context, the Court has held that the First Amendment protects “[t]he filing and prosecution of a well-founded lawsuit [from being] enjoined as an unfair labor practice, even if it would not have been commenced but for the plaintiff’s desire to retaliate against the defendant for exercising rights protected by the [National Labor Relations] Act.” Bill Johnson’s Restaurants, Inc. v. NLRB, 461 U.S. 731, 743 (1983). The right to petition is not, however, an absolute right. For example, “baseless” or “sham” litigation is not protected by the First Amendment. See Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 144 (1961) (Noerr). See also BE & K, supra at 531 (“our holdings [have] limited regulation to suits that were both objectively baseless and subjectively motivated by an unlawful purpose” [emphasis in original]). “Sham” litigation has been defined in the antitrust context as litigation that is “objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits,” and in which the litigant’s subjective motivation is “ ‘to interfere directly with the business relationships of a competitor’ . . . through the ‘use [of] the governmental process — as opposed to the outcome of that process — as an anticompetitive weapon’” (emphasis in original). Professional Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., supra at 60-61, quoting Noerr, supra at 144, and Columbia v. Omni Outdoor Advertising, Inc., 499 U.S. 365, 380 (1991). The United States Supreme Court recently granted certiorari to reexamine the scope of the right to petition when it considered whether the National Labor Relations Board (NLRB) could “impose liability on an employer for filing a losing retaliatory lawsuit, even if the employer could show the suit was not objectively baseless.” BE & K Constr. Co. v. NLRB, 534 U.S. 1074 (2002). The employer (BE & K) had filed a series of unsuccessful complaints in Federal court against several unions, alleging that they had attempted to delay a construction project because BE & K’s employees were not unionized. BE & K, supra at 520-522. The unions responded by lodging complaints against BE & K with the NLRB, alleging that BE & K had violated the antiretaliation provision of the National Labor Relations Act (NLRA). Id. at 522. The NLRB agreed, deciding that BE & K’s lawsuit was not meritorious and “had been unlawfully motivated because it was directed at protected conduct’ and ‘necessarily tended to discourage similar protected activity,’ and because petitioner admitted it had filed suit ‘to stop certain [u]nion conduct which it believed to be unprotected.’ ” Id. at 523. Based on these conclusions, the NLRB concluded that BE & K had violated the NLRA, and ordered BE & K “to cease and desist from prosecuting such suits and to post notice to its employees . . . promising not to pursue such litigation in the future.” Id. The United States Court of Appeals for the Sixth Circuit found substantial evidence to support the NLRB’s conclusions. Id. at 523-524. The Supreme Court reversed, concluding that “unsuccessful but reasonably based suits” fall within the scope of First Amendment protection. Id. at 536. In support of its decision, the Court rejected the NLRB’s view of a retaliatory lawsuit — “one ‘brought with a motive to interfere with the exercise of protected [NLRA] rights’ ” — because that definition “broadly covers a substantial amount of genuine petitioning.” Id. at 533. The Court decided that if an employer’s belief that certain conduct is illegal “is both subjectively genuine and objectively reasonable, then declaring the resulting suit illegal affects genuine petitioning.” Id. at 533-534. The Court concluded that “[a]s long as a plaintiff’s purpose is to stop conduct he reasonably believes is illegal, petitioning is genuine both objectively and subjectively” (emphasis in original). Id. at 534. Where the only evidence of retaliatory purpose was the bringing of a reasonably based but unsuccessful lawsuit, combined with testimony that the employer disliked the unions, the Court held that finding the lawsuit to be violative of Federal law barring employers from interfering with, restraining, or coercing employees in the exercise of their rights, unduly burdened the employer’s First Amendment right to petition. Applying these principles to G. L. c. 15IB, we decline to read § 4 (4) and § 4 (4A) as reaching all reasonably based but unsuccessful lawsuits brought in response to the filing of a discrimination claim. Cf. BE & K, supra at 536. When an employer files a complaint seeking a declaration of its rights, duties, and obligations under a contract that it entered into with an employee, and the lawsuit has a legitimate basis in law and fact, the employer does not violate the provisions of either § 4 (4) or § 4 (4A), absent evidence that the employer’s purpose is other than to stop conduct it reasonably believes violates the terms of the contract. Cf. BE & K, supra at 533-534. We now apply this holding to the case before us. We first consider whether Bull’s complaint for declaratory relief had a legitimate basis in law. General Laws c. 231 A, § 1, allows courts to “make binding declarations of right, duty, status and other legal relations sought thereby, either before or after a breach or violation thereof has occurred in any case in which an actual controversy has arisen and is specifically set forth in the pleadings.” The purpose of this statute is to provide a plaintiff relief from uncertainty and insecurity with respect to rights, duties, status, and other legal relations. See, e.g., Oxford v. Oxford Water Co., 391 Mass. 581, 584-585 (1984). The determination of contractual rights is a proper subject of a declaratory judgment proceeding. See, e.g., Pitman v. J.C. Pitman & Sons, 324 Mass. 371 (1949) (determining effect of general release signed in conjunction with sale of business). See also Billings v. Fowler, 361 Mass. 230, 234 (1972) (c. 231A “was intended to expand, at least in the discretion of the court, prior provisions for the interpretation of written instruments”); School Comm. of Cambridge v. Superintendent of Schs. of Cambridge, 320 Mass. 516, 518 (1946) (“One of the benefits of the declaratory procedure is that it does not require one to incur the risk of violating some term of a contract or of invading some right of the other, even if done in good faith, before he may have relief”). Thus, Bull’s complaint seeking declaratory relief had a legitimate basis in law. We next consider whether there was a legitimate basis in fact to support Bull’s complaint. Bull’s one-count complaint sought a declaration from the court regarding its rights under the terms of the release: “Sahli released and covenanted not to sue Bull for any current or prior claims arising out of her employment with Bull or her termination from Bull. At the time she signed the Release Agreement, she knew she was being terminated and so acknowledged in the Release Agreement. The essence of her claim is that she was terminated rather than being relocated into an open position pursuant to an alleged policy or practice of Bull HN.” Bull asserted that “[a] real, substantial, and justiciable controversy exists between Bull HN and Sahli concerning whether she has breached her Release Agreement with Bull HN and concerning the parties’ respective rights and obligations under the General Release and Severance Agreement.” Sahli contended that there should never have been any confusion about the basis of her “failure-to-hire” claim. We disagree. The correspondence between Sahli’s counsel and Bull preceding the filing of the MCAD charge, the description of the claim set out in the MCAD charge itself, and the affidavits attached to the charge demonstrate that as originally filed, Sahli’s MCAD charge included discrimination claims based both on Bull’s failure to relocate her into the vacant position instead of laying her off (a claim likely covered by the release), and on Bull’s failure to hire her into the vacant position after she had been laid off (a claim likely not covered by the release). Even if viewed in the light most favorable to Sahli, the basis for her original charge was unclear. To the extent that this lack of clarity could have reasonably led Bull to believe that part or all of Sahli’s MCAD charge was barred by the release, there was a legitimate basis in fact to support the filing of Bull’s complaint. Finally, there is no evidence that Bull’s purpose in bringing the lawsuit was anything other than to stop conduct it reasonably believed to be violative of the terms of the release. The only evidence of retaliatory purpose was the filing of the lawsuit itself. As the Supreme Court held in BE & K, supra, such evidence is inadequate, as a matter of law, to justify any burden on Bull’s constitutional right to petition the courts. The filing of Bull’s complaint did not violate § 4 (4) or § 4 (4A) of G. L. c. 15IB, and summary judgment was properly granted. 3. Award of costs. The Superior Court judge properly allowed Bull’s motion for costs. General Laws c. 261, § 1, states: “In civil actions the prevailing party shall recover his c