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SJC-13352
MARK A. ADAMS vs. SCHNEIDER ELECTRIC USA.
Middlesex. March 8, 2023. - June 21, 2023.
Present: Budd, C.J., Gaziano, Lowy, Cypher, Kafker, Wendlandt, & Georges, JJ.
Anti-Discrimination Law, Age, Termination of employment, Prima facie case, Burden of proof. Employment, Discrimination, Termination. Practice, Civil, Summary judgment, Burden of proof.
Civil action commenced in the Superior Court Department on October 11, 2017.
The case was heard by William M. White, Jr., J., on a motion for summary judgment.
After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.
Robert S. Mantell (Ilir Kavaja & Paul L. Nevins also present) for the plaintiff. Dawn Reddy Solowey (Christopher W. Kelleher also present) for the defendant. Monica R. Shah, Lucie Gulino, & Michaela C. May, for Massachusetts Employment Lawyers Association & others, amici curiae, submitted a brief. 2
KAFKER, J. Mark Adams sued his former employer, Schneider
Electric USA (Schneider Electric), for age discrimination after
he was laid off in a 2017 reduction in force. Schneider
Electric was granted summary judgment by the Superior Court, and
the Appeals Court, in a divided decision, reversed. We granted
further appellate review to clarify the summary judgment
standards in employment discrimination cases, including the
correct application of the "cat's paw" theory of liability and
the "stray remarks" doctrine.
Adams was fifty-four years old at the time of the layoff.
He had been an electrical engineer in the research and
development (R&D) group of the home and business networks (HBN)
division of the company in Andover since 2007, when Schneider
Electric acquired his previous employer.
Adams produced evidence that officials at Schneider
Electric wanted to increase "age diversity" in the company in
general, and the HBN R&D group in particular, by hiring recent
college graduates and reducing the number of older employees.
Consistent with this policy, Adams's R&D group in Andover was
targeted for reductions in force while a younger R&D group in
India was not. Human resources (HR) executives also stressed
the need for age diversity and referenced making budget
reductions to make room for such diversity. After Adams was
laid off, his name appeared on a list exemplifying this policy. 3
Finally, statistical evidence, albeit contested, demonstrated
that the layoffs had a disparate impact on those over fifty
years of age.
HBN R&D's director of engineering in Andover, Kenneth
Colby, who had selected employees for the reduction in force,
denied knowledge of any such personnel policy and claimed that
he did not use employees' ages to determine whom to lay off. He
explained that his primary criterion was who would have the
least impact on the group's work. Thus, he claimed, Adams was
selected because much of his time was spent working for other
Schneider Electric divisions.
The motion judge granted summary judgment to Schneider
Electric. The judge determined that Adams could not show that
Colby's stated justification for his termination was pretextual,
because Colby acted alone in selecting employees for the
reduction in force, and all comments suggesting age
discrimination came from other officials at Schneider Electric.
The Appeals Court reversed. Adams v. Schneider Elec. USA, 101
Mass. App. Ct. 516, 531 (2022). It determined that there were
two bases on which Adams could show pretext. First, he could
show that Colby was an "innocent pawn" of a discriminatory
corporate strategy, or second, he could show that Colby himself
acted with age-based animus and that his description of his
process was false. Id. at 528-529. The Appeals Court further 4
stated that Colby's claim that he did not consider age must be
disregarded at this stage, because "[o]n summary judgment, a
court 'must disregard all evidence favorable to the moving party
that the jury is not required to believe.'" Id. at 531, quoting
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151
(2000).
We conclude that the grant of summary judgment was
improper. It is possible, and consistent with liability under
the employment discrimination statute, for a mid-level manager
directed to lay off employees in his or her division to be found
to further a discriminatory corporate policy without knowingly
doing so. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 688
(2016). This is an example of the so-called cat's paw or
innocent pawn theory of liability. There was also sufficient
evidence, and not just stray comments by those outside of the
decision-making process, to create a genuine issue of material
fact whether Schneider Electric had such a corporate policy to
replace older employees with younger recent college graduates.
Multiple corporate executives, including those involved in the
layoffs, made remarks to this effect. In addition, there is
sufficient evidence in the summary judgment record to dispute
whether Colby did not in fact consider age. He met with
representatives from HR during the selection process who gave
him information on the ages of employees, and he was aware of 5
the desire to improve HBN R&D's age diversity, at least in the
period shortly after the layoffs. In fact, he participated in
college recruiting trips in 2017 and dissuaded a subordinate
manager from hiring more experienced engineers.
Finally, although we reach the same conclusion as the
Appeals Court, we nonetheless emphasize that the Appeals Court's
statement that on summary judgment courts are required to
disregard all testimony of a moving party that a jury is not
required to believe was an incorrect, or at least incomplete,
statement of summary judgment law. On summary judgment, courts
must determine whether the undisputed facts entitle the movant
to judgment as a matter of law. See Le Fort Enters., Inc. v.
Lantern 18, LLC, 491 Mass. 144, 148-149 (2023) (Le Fort). As
the dissent in the Appeals Court noted, "potential disbelief in
Colby's testimony" alone does not a dispute of fact make.
Adams, 101 Mass. App. Ct. at 535-536 (Meade, J., dissenting).
Rather, Adams must point to specific material in the record that
could lead a jury to doubt Colby's credibility -- a burden of
production that Adams has satisfied here.1
1 We acknowledge the amicus brief submitted by the Massachusetts Employment Lawyers Association, Fair Employment Project, Inc., and Lawyers for Civil Rights. 6
1. Background. We summarize the evidence in the summary
judgment record in the light most favorable to Adams, the
nonmoving party. See Le Fort, 491 Mass. at 149.
a. Corporate age diversity goals. Schneider Electric
appeared to have a corporate strategy of hiring younger
employees and reducing the number of older employees to improve
"age diversity" at the company. Significant evidence in this
regard is associated with Amanda Arria, the global vice-
president of HR with responsibility for HBN at the time of the
relevant events. As she described her job, "I am responsible
for partnering with the leadership team to ensure we have the
right people strategies in place for . . . business success."
In a 2015 e-mail message regarding a potential new hire,
the then-head of HBN R&D globally said to Arria: "Business
Power team [which contained the HBN R&D group] in Andover needs
age diversity. The embedded system team leader recognizes this
and has been stocking his team with young talent. I'd like to
encourage this more." Subsequently, the company appeared to do
just that.
Schneider Electric implemented a hiring freeze in 2016
(still in effect during the litigation). It conducted
reductions in force in April and May of 2016, in addition to the
one in 2017 in which Adams was terminated. In the April layoff,
six of the seven terminated employees were over forty, and five 7
were over fifty. In May, all nine were forty-eight or older,
and six of the nine were over fifty. In the January 2017
layoff, discussed more infra, all eight terminated employees
(including Adams) were over fifty. Despite the hiring freeze
and these layoffs, Schneider Electric continued its ongoing
recruiting program to hire recent college graduates. Arria
explained in a deposition that this was because recent graduates
"brought fresh skills," not because they were younger, but she
also said that the company was attempting to achieve a "diverse
workforce" through hiring, "whether that's age" or other
employee attributes.
In addition, in a 2016 HR presentation, Arria indicated
that one of HBN's goals was to improve "age/gender
demographics," and a recent achievement, perhaps relating to
that goal, was the April 2016 reduction in force. A recruitment
policy from 2016 stated: "The maximum employment age with
Schneider Electric is 58 or 60 years as per the respective legal
entity guidelines."2
b. Budget reductions. Around October 2016, leadership at
Schneider Electric determined that they needed to make further
budget reductions in the HBN division: there was, as Arria
termed it, a "cost take-out challenge globally." Arria
2 No such legal entity guidelines appear in the record. 8
explained that Pankaj Sharma, the senior vice-president of
engineering, made the decision to reduce costs and "gave cost
take-out targets to each of his leaders" in the groups he
oversaw.
In December 2016, Sharma told Colby that he would need to
cut his group's budget by twenty-two percent. Colby inferred
from this that he would need to reduce headcount, as labor costs
were the majority of the budget. Arria confirmed: "it was
understood that, yes, we had to make some cuts in personnel
costs." In contrast, the HBN R&D group in Bangalore, India, was
given a budget reduction target that did not require layoffs.
Their lower target could instead be met by eliminating "travel,
supplies and things like that." The employees in India were
younger than those in Andover: the majority were in their
thirties, whereas in Andover, the majority were over fifty.
Also in December 2016, Arria met with Michelle Gautreau, an
HR director working under her, to discuss the budget reductions.
Gautreau's handwritten notes from the meeting included the line
"deeper cuts for college grads." It is not clear whether that
meant that the college recruiting program would be curtailed as
part of the budget reductions (as Gautreau explained in her
deposition), or that the layoffs they were discussing were being
done to make room in the budget to hire recent college
graduates. 9
In any case, after Sharma gave him his marching orders,
Colby set out to determine whom to cut. He stated that based on
advice from his supervisor, Jim Munley, he selected employees
for the reduction in force by looking at (1) which employees
were working outside his division; (2) whose termination would
have the least impact on the division's goals; and (3) whether
management roles could be consolidated. Colby stated that age
was not a factor and that he was not aware that company
leadership was concerned with the age of employees or that there
was a policy of regularly laying off older employees to create
space for young talent.
According to Colby, he alone made the initial decisions
about whom to lay off, although he exchanged a few drafts of his
list with HR. Gautreau stated that she discussed the layoffs
with Colby, provided advice, and gave him a list of employee
details that included their ages, saying, "It's just one tool
that will help you make the decision." Colby cleared the final
list with a small group of executives and HR personnel,
including Sharma, Munley, Gautreau, and Arria. Sharma asked for
one employee, a recently widowed sixty-six year old, to be
excluded from the layoff. Ultimately, seven employees who
reported directly to Colby were laid off, all of whom were over
fifty, out of forty-three in the R&D group supervised by Colby
and seventy-four total in the HBN division in Andover. 10
Colby explained in his deposition that Adams was included
on the layoff list because he did not spend much time on the
division's projects: "the majority of his time was spent doing
work, very good work, but for another division, field quality
and global supply chain. . . . [B]y selecting Mark, along with
other individuals, it had less of an impact on the projects that
I was responsible for." Colby had worked with Adams since 1998,
and he considered Adams "extremely hard working," "a great
problem solver," and "a very good friend"; in Adams's
deposition, Adams stated that he did not believe that Colby bore
discriminatory animus toward him. Colby suggested transferring
Adams to the field quality division, but that team lacked the
budget. Adams was notified by telephone of his layoff on
January 27, 2017, sometime after the other employees were laid
off, as he had been traveling on company business.
Colby apparently did not suggest transferring Adams to
global supply chain, the other division for which he had been
working at Schneider Electric. Christopher Granato, the vice-
president of that division, was not informed in advance about
the layoff. About one month after Adams was laid off, Granato
asked Colby about potentially hiring Adams as a contractor.
Colby discouraged Granato from doing so, explaining that "HR may
not want that to happen for a couple reasons." Granato replaced 11
Adams with part-time work from a field quality division employee
and by hiring two new employees in the Philippines.
The parties introduced dueling statistical evidence
regarding whether the layoffs had a disparate impact on older
employees. The plaintiff's expert stated that "there was a
clear indication of age bias in the selection of those laid off
by Schneider [Electric]," determining that there was a disparate
impact on employees who were fifty and older. Schneider
Electric's expert identified several deficiencies in the
plaintiff's expert's analysis: the plaintiff's expert compared
the laid off employees to the entire division, rather than only
those who reported directly to Colby, and he did not control for
job function, which Colby testified had factored into the
selection criteria. The defendant's expert found that employees
over forty were not selected for terminations at higher-than-
expected rates. While he also found, like the plaintiff's
expert, that employees over fifty were terminated at higher
rates when not controlling for job function, he explained that
this finding was highly sensitive to minor tweaks to the data,
which "casts doubt on whether the data allows for reliable and
robust statistical findings." The defendant's expert also
pointed out that the average age of employees declined only
slightly after the reduction in force (from 48.9 to 47.1) and 12
that the five oldest employees were retained, casting doubt on
Adams's age discrimination theory.
c. Post-layoff evidence. Evidence from after Adams was
laid off also supported his claim that his layoff had been part
of a discriminatory policy. Jiri Cermak, Arria's boss and the
senior vice-president of HR, suggested in several presentations
that the company needed to hire "[m]ore early career talents,"
although they might "need to create the space" to do so through
"restructuring" or "[w]orkforce planning." In an e-mail message
to the head of HBN R&D globally, Arria suggested that to solve
the "age demographic challenges" the division faced in Andover,
"we could potentially encourage a few employees to retire and make some budget reductions/room to hire in some of the college talent we have been discussing. There are some legal cautions we would need to take to run a program like this, but if we are careful with our wording and execution we can pull this off effectively in a way that our employees would feel like it was a benefit to them, and benefit the R&D organization as well."
A jury could interpret "budget reductions" subject to "legal
cautions" to be a euphemism for required "layoffs," as Colby
did.
Arria reiterated this strategy in several e-mail messages
to Cermak later in 2017, including commenting that "[we] have a
few creative ideas we are fl[e]shing out around early retirement
packages to continue to make room for more early career talent."
In a subsequent e-mail message to Cermak in July 2017, she 13
wrote: "As you are aware most of our action[s] have already
occurred earlier this year and are noted here, but we do have
some ideas around offering an early retirement package which
would also help us make some room for some additional early
career hires"; the attached document contained a list of
"involuntary departures" that included Adams. A reasonable
interpretation of this communication is that Arria viewed
Adams's "involuntary departure" as one "action" from earlier in
the year that helped make "room for . . . early career hires."
Colby also was involved in "age diversity" strategies, at
least after the January 2017 reduction in force. He
participated in college recruiting trips in 2017 and told a
subordinate manager to "hold off" on "hiring people with
experience" until after a meeting about college recruiting.
Colby's updated 2017 goals from his superiors included
"[i]mprov[ing] [Andover] team talent demographics mix th[r]ough
early retirement program and university fresh talent
recruiting." In addition, in Colby's deposition, he indicated
that he was aware of the company's need for "a good succession
plan," that he had been told to focus his hiring on "recent
college graduates," and that he knew that diversity was one of
the HBN division's goals.
Other evidence indicated pejorative attitudes toward the
ability of older workers. A 2017 presentation listed weaknesses 14
of the HBN R&D Andover office, as opposed to HBN R&D's other
locations (including the India office), which included an
"[a]ging workforce" and "[l]ow energy level and speed." During
the same year, Cermak suggested in an e-mail message that
"people over 50y" should probably not be included in a talent
development program, as they "should be oriented rather on the
other side of [their] career stage."
d. Procedural history. Adams sued Schneider Electric in
the Superior Court for age discrimination, alleging disparate
treatment in violation of G. L. c. 151B, § 4 (1B).3 The trial
judge granted summary judgment, explaining that Adams conceded
that Colby "harbored no discriminatory animus toward him" and
produced no evidence to rebut Colby's testimony that he alone
made the decision to select Adams for the reduction in force.
A split panel of the Appeals Court reversed the grant of
summary judgment. Adams, 101 Mass. App. Ct. at 531. The
Appeals Court majority explained that, taking the evidence in
the light most favorable to Adams, there were two possible bases
on which a fact finder could find that Adams's layoff was
3 Adams also brought additional discrimination claims against Schneider Electric, including one that alleged disparate impact; claims against other Schneider Electric employees for aiding and abetting discrimination; and a claim that he was wrongfully terminated for reporting safety hazards. All of these claims either were voluntarily dismissed or have been waived on appeal. Adams, 101 Mass. App. Ct. at 517 n.2. 15
discriminatory. First, Adams could show that even if Colby
"implemented the [reduction in force] neutrally," it was
"tainted" -- that is, the decision to implement a layoff in the
first place was a deliberate corporate strategy to shed older
workers. Id. at 527. Second, Adams could show that,
notwithstanding Colby's deposition testimony, "Colby was aware
of management's age animus and therefore selected workers over
age fifty . . . in accordance with company policy." Id. at 529.
The Appeals Court further explained:
"Colby's testimony that he did not consider age in the layoff is not sufficient to defeat summary judgment. At this stage, we must disregard Colby's claim that he used only neutral criteria to select employees for the [reduction in force]. On summary judgment, a court 'must disregard all evidence favorable to the moving party that the jury is not required to believe.'"
Id. at 531, quoting Reeves, 530 U.S. at 151.
The dissent would have affirmed the grant of summary
judgment. Adams, 101 Mass. App. Ct. at 532 (Meade, J.,
dissenting). The dissent viewed evidence of an ageist corporate
policy as mere "stray remarks" from nondecision makers "culled
from over 9,000 pages of discovery materials." Id. at 535
(Meade, J., dissenting). In addition, the dissent rejected the
proposition that Colby's testimony should be disregarded on
summary judgment because a jury might not believe it. See id.
at 535-536 (Meade, J., dissenting) ("A potential disbelief in
Colby's testimony is not a 'specific fact' for purposes of Mass. 16
R. Civ. P. 56, 365 Mass. 824 [1974]"). Thus, there was no basis
on which to disregard Colby's testimony for the purposes of
summary judgment.
This court granted Schneider Electric's application for
further appellate review.
2. Discussion. a. Standard of review. Adams contests
the trial court's grant of summary judgment to Schneider
Electric. We review a decision to grant summary judgment de
novo. See Le Fort, 491 Mass. at 149. "'Summary judgment is
appropriate where there is no material issue of fact in dispute
and the moving party is entitled to judgment as a matter of
law.' . . . 'We review the evidence in the light most favorable
to the party against whom summary judgment entered,'" in this
case, Adams. Id. at 148-149, quoting HSBC Bank USA, N.A. v.
Morris, 490 Mass. 322, 326-327 (2022). Summary judgment is "a
disfavored remedy in the context of discrimination cases based
on disparate treatment . . . because the ultimate issue of
discriminatory intent is a factual question." Bulwer, 473 Mass.
at 689, quoting Blare v. Husky Injection Molding Sys. Boston,
Inc., 419 Mass. 437, 439 (1995).
b. McDonnell Douglas framework. General Laws c. 151B,
§ 4 (1B), bars age discrimination in employment: it is unlawful
"[f]or an employer in the private sector, by himself or his
agent, because of the age of any individual, . . . to discharge 17
from employment such individual." To prove a claim of
employment discrimination under the statute, a plaintiff must
show "that he or she is a member of a protected class; that he
or she was subject to an adverse employment action; that the
employer bore 'discriminatory animus' in taking that action; and
that that animus was the reason for the action (causation)."
Bulwer, 473 Mass. at 680, quoting Lipchitz v. Raytheon Co., 434
Mass. 493, 502 (2001). It is undisputed that Adams was a member
of a protected class, as he was over forty years old,4 and that
his layoff constituted an adverse action. Therefore, the
question is whether he can show animus and causation. See
Bulwer, supra.
Plaintiffs in employment discrimination cases often rely on
indirect or circumstantial evidence to prove these two elements.
See Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo,
P.C., 474 Mass. 382, 396 (2016), citing Sullivan v. Liberty Mut.
Ins. Co., 444 Mass. 34, 39-40 (2005). See also Desert Palace,
Inc. v. Costa, 539 U.S. 90, 99-100 (2003) (in discrimination
cases, "[c]ircumstantial evidence is not only sufficient, but
may also be more certain, satisfying and persuasive than direct
evidence" [citation omitted]). In determining whether a
4 In the antidiscrimination statute, "[t]he term 'age' unless a different meaning clearly appears from the context, includes any duration of time since an individual's birth of greater than forty years." G. L. c. 151B, § 1 (8). 18
plaintiff can survive summary judgment, we use "the familiar
three-stage, burden-shifting paradigm first set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973) (McDonnell
Douglas)." Verdrager, supra, quoting Sullivan, supra.
In the framework, first, the plaintiff must make out a
"prima facie case of discrimination"; second, "the employer can
rebut the presumption created by the prima facie case by
articulating a legitimate, nondiscriminatory reason for its
[employment] decision"; and third, the employee must provide
evidence that the articulated reason is pretextual. Bulwer, 473
Mass. at 681, quoting Blare, 419 Mass. at 441, 443. McDonnell
Douglas does not set out the elements of the claim or the burden
of proof: it is simply "a method of organizing evidence" "in
the context of summary judgment" (citation omitted).5 Lipchitz,
434 Mass. at 508. Although the plaintiff bears a burden of
production in steps one and three, "the burden of persuasion at
summary judgment remains with the defendants." Bulwer, supra at
683.
Here, Adams produced sufficient evidence to make out a
prima facie case. In a reduction-in-force case, the plaintiff
The McDonnell Douglas test is not used at trial. Instead, 5
"[w]e encourage trial judges to craft instructions that will focus the jury's attention on the ultimate issues of harm, discriminatory animus and causation." Lipchitz, 434 Mass. at 508. 19
"establishes a prima facie case of discrimination by producing
evidence that she is a member of a class protected by G. L.
c. 151B; she performed her job at an acceptable level; she was
terminated"; and "her layoff occurred in circumstances that
would raise a reasonable inference of unlawful discrimination."6
Sullivan, 444 Mass. at 41, 45. "[T]he plaintiff's initial
burden of establishing a prima facie case is not intended to be
onerous." Id. at 45. The first three of these elements are
uncontested: Adams was over forty, and Colby characterized him
as a "great problem solver" who did "very good work," despite
selecting him for the layoff. As to the fourth element, the
apparent desire of Schneider Electric's management to clear
space for younger workers, described supra, constitutes
circumstances that could raise an inference of discrimination.
Moreover, some statistical evidence suggests that employees over
fifty were terminated at higher-than-expected rates. See id. at
46 n.16 (statistical evidence may help prove prima facie case).
For the second prong of McDonnell Douglas, it is
uncontested that Schneider Electric articulated a "legitimate,
nondiscriminatory reason" for its decision to lay off Adams.
6 The fourth element is typically framed as whether the employer replaced the plaintiff with someone similarly qualified. Sullivan, 444 Mass. at 41. However, this would be "nonsensical in a reduction in force case," because "the very purpose of a workforce reorganization is generally to reduce the number of employees." Id. 20
Bulwer, 473 Mass. at 681. Colby explained that he had to
implement a reduction in force for budgetary reasons. Following
advice from his supervisor, he selected Adams because "the
majority of his time was spent doing work . . . for another
division." Adams's work outside of the R&D group had nothing to
do with his protected class.
The question therefore becomes whether Adams has produced
enough evidence to create a material dispute of fact regarding
whether Schneider Electric's stated nondiscriminatory reason was
pretextual. Adams presented two theories that the Appeals Court
determined satisfied this burden: first, under the so-called
"cat's paw" theory, Colby could have been an "innocent pawn" of
a discriminatory corporate strategy to shed older workers, or
second, Colby himself could have attempted to lay off older
workers in furtherance of a discriminatory policy. Adams, 101
Mass. App. Ct. at 528-529 & n.23. We take each theory in turn.
c. Discriminatory corporate strategy. There was
sufficient evidence in the summary judgment record to create a
genuine issue of material fact whether Schneider Electric had a
corporate policy to remove older staff to make room for younger
workers. On numerous occasions, corporate executives expressed
concern about the age of their workforce, particularly in the
division in which Adams worked. They also expressed a
preference for "more early career talents" and complimented a 21
manager in Adams's division who was "stocking his team with
young talent." They also stressed the need to make room for
this younger talent. Various strategies were discussed to
achieve this goal, including budget reductions and voluntary and
involuntary terminations of older workers. In a series of e-
mail messages, for example, Arria, the global vice-president of
HR, suggested "budget reductions" could make "room" for new
younger hires.
Consistent with this strategy, budget reduction
requirements were selectively enforced, with voluntary and
involuntary terminations appearing to target older workers. The
younger R&D office in India, for example, was given a budget
reduction target that did not require layoffs, while the older
Andover office was given one that did require layoffs. Despite
mandatory budget reductions and required layoffs, hiring younger
employees via college recruiting continued to be encouraged,
including in Adams's group. Finally, Adams's statistical
expert's findings were consistent with the theory of replacing
older workers with younger ones, as the data, in the light most
favorable to Adams, indicated that the layoffs had a
disproportionate effect on employees over fifty.
The dissent in the Appeals Court considered much of this
evidence, particularly the suggestive e-mail messages, to be
mere stray remarks by "nondecision makers" that do not support a 22
finding of a prohibited motive. See Adams, 101 Mass. App. Ct.
at 535 (Meade, J., dissenting). We disagree. Although "stray"
ageist remarks by those in the company not involved in the
relevant employment decision may not, at least alone, be
probative of discrimination against a particular plaintiff,
there was more than that here. See generally Price Waterhouse
v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring);
Diaz v. Jiten Hotel Mgt., Inc., 762 F. Supp. 2d 319, 333-338 (D.
Mass. 2011) (critically reviewing history and practice of stray
remarks doctrine).7
Multiple high ranking corporate executives, including
those, such as Arria, involved in the layoffs, sounded a
consistent theme. The corporate executives, including those in
HR responsible for educating the workforce on discrimination,
expressed a preference for younger workers, observed that there
were too many older workers, and suggested ways to change the
"demographics mix" through voluntary and involuntary termination
of older workers while hiring new and younger college graduates.
7 As suggested by the Appeals Court dissent, Adams, 101 Mass. App. Ct. at 535 n.7 (Meade, J., dissenting), we take this opportunity to clarify that any ageist, sexist, or racist remarks by those involved in the decisional process may be considered probative of discrimination against a particular plaintiff. Cf. Blare, 419 Mass. at 447 n.9, quoting Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) ("[I]solated or ambiguous remarks [by a decision maker], tending to suggest animus based on age, are insufficient, standing alone, to prove an employer's discriminatory intent"). 23
See Fontaine, 415 Mass. at 314 n.7 (evidence sufficient for jury
to find that top executive's remarks indicated "that he thought
that the managers of these companies were too old and that
younger managers should be found to take their places"). See
also Wynn & Wynn, P.C. v. Massachusetts Comm'n Against
Discrimination, 431 Mass. 655, 667 (2000), overruled on other
grounds by Stonehill College v. Massachusetts Comm'n Against
Discrimination, 441 Mass. 549 (2004), cert. denied sub nom.
Wilfert Bros. Realty Co. v. Massachusetts Comm'n Against
Discrimination, 543 U.S. 979 (2004) ("The statements by [the
managing partner] . . . were not stray remarks. They were made
by a person with the power to make employment decisions").
Adams's division was also the focal point of these remarks,
and all eight of the employees selected in the January 2017
layoff, including Adams, were over fifty.8 Consistent with the
corporate strategy of replacing older workers with younger ones,
in September 2017, after the forced layoffs, Colby told a
8 The Appeals Court dissent accurately points out that the five oldest employees in the group were retained and that the statistical evidence as a whole may be challenged in a variety of ways. Adams, 101 Mass. App. Ct. at 533 (Meade, J., dissenting). While the jury will have the opportunity to consider this evidence as well, and the reasonable inferences that can be drawn from it, such evidence is not sufficient to support an award of summary judgment for Schneider Electric on this record as a whole. To the contrary, it shows that a genuine issue of material fact exists when viewed in light of the plaintiff's competing evidence. 24
manager under him to "hold off" on "hiring people with
experience" until after a meeting regarding an "upcoming
recruiting trip." The next month, Colby was given an explicit
annual performance goal along the same lines -- to improve the
"demographics mix" of his team through college recruiting and
early retirements.
All of this evidence was sufficient to create a genuine
issue of material fact whether Adams's group of older employees,
and thus Adams, were targeted for layoffs to make room for
Under this theory, Colby's knowledge of the strategy or
lack thereof is unnecessary. It would constitute unlawful
discrimination if executives at the company targeted the HBN R&D
group for layoffs in the first place because of the age of the
employees in that group, even if Colby himself was ignorant of
the larger scheme when he selected individual employees for
termination. "Even if Colby were the sole decision maker for
which particular employees would be [laid off] and the innocent
pawn of an undisclosed corporate strategy tainted by unlawful
discriminatory animus, a rational fact finder could conclude
that the [reduction in force] was unlawful." Adams, 101 Mass.
App. Ct. at 527-528.
This type of fact pattern has been called a "cat's paw"
case, after a fable in which a monkey convinces a cat to roast 25
chestnuts, and then makes off with the finished product, leaving
the cat with a burned paw and no chestnuts to show for it. See
Staub v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011). See also
Brnovich v. Democratic Nat'l Comm., 141 S. Ct. 2321, 2350
(2021), quoting Webster's New International Dictionary 425 (2d
ed. 1934) ("A 'cat's paw' is a 'dupe' who is 'used by another to
accomplish his purposes'"). Although this court has not used
that evocative terminology, it is clear that the employment
discrimination statute supports liability for such "monkey
business." The statute makes it illegal "[f]or an employer in
the private sector, by himself or his agent" to subject an
individual to an adverse employment action on the basis of age.
G. L. c. 151B, § 4 (1B). A corporate employer acts through
multiple agents. See Staub, supra at 420 ("An employer's
authority to reward, punish, or dismiss is often allocated among
multiple agents," not just "[t]he one who makes the ultimate
decision"). A discriminatory corporate decision is not
insulated from liability just because it is implemented by
managers with limited decision-making authority, unaware that
they are being used as "pawns" or "paws."
Our employment cases have recognized the issue of corporate
responsibility, although generally in the context of an ultimate
decision maker relying on biased input from lower rungs of the 26
corporate ladder.9 For example, in Bulwer, a hospital's decision
not to renew the plaintiff doctor's contract was made by an "ad
hoc committee" that relied on allegedly racially biased
performance evaluations and testimony from other physicians at
the hospital. Bulwer, 473 Mass. at 686-688. We explained:
"Where 'the decision makers relied on the recommendations of supervisors [whose motives have been impugned], the motives of the supervisors should be treated as the motives for the decision. . . . An employer [may not] insulate its decision by interposing an intermediate level of persons in the hierarchy of decision, and asserting that the ultimate decision makers acted only on recommendation.'"
Id. at 688, quoting Trustees of Forbes Library v. Labor
Relations Comm'n, 384 Mass. 559, 569-570 (1981), overruled on
other grounds by Wynn & Wynn, P.C., 431 Mass. at 669. See
Verdrager, 474 Mass. at 403 ("adverse employment decisions . . .
were made by individuals who were acting independently from the
plaintiff's immediate supervisors and who were not accused of
harboring the discriminatory views alleged to have been held by
those supervisors," but decisions were "based . . . on the
opinions" of those supervisors); Trustees of Forbes Library, 384
Mass. at 570 (library trustees fired employee based on
9 This is consistent with the origins of the doctrine. In Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990), in which Judge Richard Posner brought the "cat's paw" language into antidiscrimination law, the plaintiff employee's biased manager recommended to the "Career Path Committee" that the employee be fired. In Staub, 562 U.S. at 415, likewise, the HR department fired the employee based on his biased supervisors' reports. 27
recommendations from supervisors who intended to retaliate
against employee for protected union activity).
Although the discrimination may have taken place at a
different level of decision-making in the instant case, that is
to say among top managers rather than mid-level managers or
supervisors, the result is still the same: the company remains
responsible for the discrimination. Corporate liability is
perhaps even more clear-cut, as the allegedly discriminatory
action that resulted in termination was taken further up the
corporate hierarchy.
Federal courts have found employment discrimination in
situations similar to that in this case. For example, a
corporation was liable for a discriminatory firing where it was
found to have a long-standing practice of age discrimination
"under the stewardship of its president," even though the
employee's "immediate supervisor," the "key" decision maker, did
not appear to be biased. Freeman v. Package Mach. Co., 865 F.2d
1331, 1334, 1342 (1st Cir. 1988) ("The battle plan of the
admiral is a valid datum in assessing the intentions of the
captain of a single ship in the flotilla"). Likewise, summary
judgment was improper where a company's chief executive officer
had indicated that he wanted to fire the plaintiff in
retaliation for a wage-related lawsuit, although the plaintiff
was ultimately fired by someone else. Travers v. Flight Servs. 28
& Sys., Inc., 737 F.3d 144, 145 (1st Cir. 2013). "[T]he
retaliatory animus resided at the apex of the organizational
hierarchy. . . . A rational juror could conclude that such
strongly held and repeatedly voiced wishes of the king, so to
speak, likely became well known to those courtiers who might rid
him of a bothersome underling." Id. at 147. See Cravens vs.
Pact, Inc., U.S. Dist. Ct., No. 1:19-cv-01357 (D.D.C. Feb. 27,
2020) (company could be liable under cat's paw theory where
chief executive officer allegedly had sexist attitudes that
influenced corporate actions). Similarly, this court has
affirmed corporate liability where a law firm's biased managing
partner instructed the management committee not to hire the
plaintiff. Wynn & Wynn, P.C., 431 Mass. at 667 n.24.
d. Colby's credibility. The Appeals Court also concluded
that a "rational fact finder could find that Colby was aware of
management's age animus and therefore selected workers over age
fifty . . . in accordance with company policy." Adams, 101
Mass. App. Ct. at 529. We agree with this conclusion, but we
disagree in part with the court's analysis, particularly its
suggestion at the end of its opinion that it must disregard all
of Colby's testimony at the summary judgment stage, simply
because he is an interested witness and a jury might not find
him credible. 29
As the dissent explained, a fact is not disputed just
because it has been put forth by the moving party. Rather, the
nonmoving party bears a burden of production: it is "required
to produce evidence sufficient to create a genuine dispute of
material fact." Le Fort, 491 Mass. at 149, quoting Haverty v.
Commissioner of Correction, 437 Mass. 737, 759 n.28 (2002),
S.C., 440 Mass. 1 (2003). See Barron Chiropractic &
Rehabilitation, P.C. v. Norfolk & Dedham Group, 469 Mass. 800,
804 (2014) ("If the moving party . . . asserts the absence of
any triable issue, the nonmoving party must respond and make
specific allegations sufficient to establish a genuine issue of
material fact"). See also Sullivan v. Lawlis, 93 Mass. App. Ct.
409, 415 (2018).10
Reeves, the United States Supreme Court case cited by the
Appeals Court, is not to the contrary. The Appeals Court
10The summary judgment standard is no different in an employment discrimination case. See Reeves, 530 U.S. at 148, quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 524 (1993) ("trial courts should not 'treat discrimination differently from other ultimate questions of fact'"); Yee v. Massachusetts State Police, 481 Mass. 290, 302 (2019) ("Yee may satisfy this [summary judgment] burden by offering evidence which, when viewed in the light most favorable to Yee, is sufficient to convince a reasonable jury that the reasons the State police offered . . . were not the real reasons"); Bulwer, 473 Mass. at 680. Indeed, under the Appeals Court's standard, step two of the McDonnell Douglas test would be pointless: courts could simply disregard an employer's proffered legitimate, nondiscriminatory reason because a jury is not required to believe it. 30
majority appears to have taken the phrase "disregard all
evidence favorable to the moving party that the jury is not
required to believe" out of context. The full context from
Reeves shows that the Supreme Court simply meant that when
deciding judgment as a matter of law, courts should avoid
weighing evidence:
"[T]he court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence. . . . 'Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.' [Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).] Thus, although the court should review the record as a whole, it must disregard all evidence favorable to the moving party that the jury is not required to believe. See [9A C.A. Wright & A.R. Miller, Federal Practice and Procedure § 2529, at 299 (2d ed. 1995)]. That is, the court should give credence to the evidence favoring the nonmovant as well as that 'evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that that evidence comes from disinterested witnesses.' Id."
Reeves, 530 U.S. at 150-151. See LaFrenier v. Kinirey, 550 F.3d
166, 168-169 (1st Cir. 2008) (clarifying meaning and application
of Reeves and stating that on "summary judgment we need not
exclude all interested testimony, specifically testimony that is
uncontradicted by the nonmovant" [citation omitted]); Lauren W.
ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 271-272 (3d Cir.
2007) ("in considering a motion for summary judgment the court
should believe uncontradicted testimony unless it is inherently
implausible even if the testimony is that of an interested 31
witness"); Luh v. J.M. Huber Corp., 211 Fed. Appx. 143, 146 (4th
Cir. 2006) (to be disregarded, "testimony must display some
indicia that it is not credible"); Stratienko v. Cordis
Corp., 429 F.3d 592, 597-598 (6th Cir. 2005). In other words, a
court must determine judgment as a matter of law based on all
uncontested evidence, that is, evidence favoring the nonmovant
and "uncontradicted and unimpeached" evidence favoring the
movant. Uncontradicted and unimpeached evidence, even from
interested witnesses favoring the moving party, is to be
considered on summary judgment. In evaluating evidence favoring
the moving party, the Supreme Court did not say "only" evidence
from a disinterested party should be given credence. Rather, it
explained that uncontradicted and unimpeached evidence shall be
given credence, "at least to the extent" that it is provided by
disinterested parties. Indeed, in Reeves, supra at 144, an age
discrimination case, the Supreme Court specifically stated that
the plaintiff had "made a substantial showing that [the
employer's] explanation" for his firing "was false." Such
analysis figured prominently in the Court's decision. See id.
at 151.
Thus, to survive summary judgment, Adams could not simply
state that Colby was an interested witness and thus his
testimony could be disregarded. Adams was required instead to
identify specific material in the record that would support a 32
jury finding that Colby relied on age in selecting employees for
the reduction in force, despite his testimony to the contrary.
Although the Appeals Court may have confused this
requirement, the record, which we review de novo, establishes
that Adams met his burden. Le Fort, 491 Mass. at 149. As
reasons to doubt Colby's assertion, the summary judgment record,
as highlighted by the Appeals Court, includes (1) the statements
made by corporate executives demonstrating discriminatory animus
against older employees; (2) that Colby had met with Sharma and
Arria, who had articulated such views, while formulating the
layoff list, and thus "a rational jury could infer that the
wishes of senior management were expressed in those meetings";
(3) everyone on Colby's layoff list was over fifty; and (4)
Colby's efforts to dissuade Granato from rehiring Adams for
another division. Adams, 101 Mass. App. Ct. at 529-531. To
that, we would add that Colby stated shortly after the layoffs
that he knew that age diversity was a goal of the division and
that he had been asked to focus his hiring on recent college
graduates.
The fact that Adams admitted that he did not believe that
Colby bore discriminatory animus toward him does not change this
analysis. Adams's statement was not a legal conclusion that
Colby did not select him for the reduction in force for a
proscribed reason. It merely reflected his belief that Colby 33
was not personally biased against him. Indeed, like his view
that Colby was unbiased, other parts of Adams's deposition
testimony about the mechanics of the reduction in force proved
to be inconsistent with what was learned in discovery and could
be disregarded by a jury if introduced at trial -- for example,
Adams stated that his layoff was entirely HR's decision.
In sum, on these facts, a jury could find that Colby
inferred (or was directly told) that his managers wanted him to
select older employees for the reduction in force to improve the
demographic balance of the R&D team, and that he did so. In
other words, Adams has produced circumstantial evidence that
satisfies his burden of production to show a dispute of fact
regarding Colby's testimony. See Yee v. Massachusetts State
Police, 481 Mass. 290, 302 (2019); Bulwer, 473 Mass. at 682.
3. Conclusion. Because corporate decisions involve
multiple actors, an innocent decision maker can further a
discriminatory purpose. Here, Adams produced evidence from
which a jury could find that he was selected for the reduction
in force as part of a corporate strategy to lay off older
workers. Although this theory does not require that Colby knew
about the strategy, a jury could also find that he did and that
he selected Adams in accordance with it. As Adams produced
sufficient evidence to create a dispute of fact regarding
whether he was terminated due to discriminatory animus, the 34
grant of summary judgment is reversed, and the matter is
remanded to the Superior Court for further proceedings.
So ordered.