NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1086
LAUREN WOODWARD
vs.
BOARD OF REGISTRATION IN NURSING & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Lauren Woodward, "is a female employed as a
Compliance Officer III" (CO III) by the Massachusetts Department
of Public Health's (DPH) Board of Registration in Nursing
(BORN).2 She filed an action in the Superior Court alleging that
the defendant violated the Massachusetts Equal Pay Act (MEPA),
G. L. c. 149, § 105A, and the Massachusetts Fair Employment
Practices Act, G. L. c. 151B. The defendant moved for summary
judgment arguing, inter alia, that it conducted a good faith
self-evaluation of possible gender-based pay disparities and is
1 Massachusetts Department of Public Health.
2BORN is a component of DPH. See G. L. c. 13, § 9 (a); G. L. c. 112, § 1. We refer to them collectively as "the defendant" herein. statutorily immunized from the plaintiff's claims under the
defense set forth in G. L. c. 149, § 105A (d). Agreeing with
the Superior Court judge that the summary judgment record
reveals no genuine issue of material fact regarding whether the
defendant is entitled to this defense, we affirm.
Background. 1. Factual background. We summarize the
undisputed material facts in the summary judgment record. The
defendant hired the plaintiff as a CO III in 2015. The duties
of a CO III at DPH involve investigating complaints made against
nurses licensed in Massachusetts. At the time that the
plaintiff was hired in or around 2015, the Commonwealth's human
resources division (HRD) guidelines required the defendant to
calculate the number of years of comparable experience that the
plaintiff (or any hire) had to determine "the step at which each
person would be placed upon hire, which would in turn determine
their annual salary." The plaintiff was credited with ten years
of comparable experience from her prior work as a nurse and
paralegal, and the defendant recommended that the plaintiff's
"salary start at a grade 13, step 6, for a starting annual
salary of $65,241.28."
In 2019 and 2020, the defendant hired two male candidates,
Anthony Pettigrew and Edward Riggs, to CO III positions. The
defendant determined that Pettigrew possessed over thirty years
2 of comparable experience based on his prior work as a Federal
investigator for the Drug Enforcement Administration. The
defendant also noted that Pettigrew had a bachelor's degree in
criminal justice and a master's degree in service management and
recommended that his "salary start at a grade 13, step 12, for
an annual salary of $82,763.46." Similarly, the defendant
determined that Riggs possessed over twenty-five years of
comparable experience based on his prior work in law enforcement
as a police officer. The defendant also noted that Riggs had
started his career in the National Guard and as a military
police officer, held a bachelor of science degree in social
work, had an emergency medical technician certificate and had
conducted clinical quality control investigations in that role,
and recommended that his "salary start at grade 13, step 14, for
an annual salary of $87,829.82."3 The plaintiff, Pettigrew, and
Riggs were each entitled to annual salary increases under their
collective bargaining agreement.
2. MEPA amendment. In 2016, MEPA was amended to add an
affirmative defense to liability under G. L. c. 149, § 105A (b),
and G. L. c. 151B, § 4. See St. 2016, c. 177, § 2 (effective
3 It is undisputed that DPH is required to follow HRD's hiring guidelines, but the plaintiff maintains that there is a material dispute as to whether the defendant indeed followed those guidelines in these instances.
3 July 1, 2018). Consistent with this new law, in 2019, the
defendant conducted a self-evaluation of all bargaining unit
positions at DPH to determine whether there existed any
impermissible pay disparities under MEPA among employees of
different genders performing comparable work. At this time, HRD
circulated a ten-page document detailing the timeframes and
guidelines according to which a self-evaluation was to proceed.4
"This self-evaluation consisted of an initial, high-level review
performed by HRD, followed by a more detailed review conducted
[by the defendant and other agencies] when the high-level review
showed that employees of different genders, who may be in
4 The HRD self-evaluation guidelines provided, inter alia, that between October 18 and November 5, 2019, HRD would perform a preliminary analysis using aggregated data to identify employees for agency review; by November 6, 2019, the Executive Office of Health and Human Services (EOHHS), "the Secretariat within which [the defendant] sits and which has the ultimate authority with respect to [the defendant's] hiring decisions," would send out communications and HRD spreadsheets to agencies (including the defendant); between November 6 and November 25, 2019, agencies (including the defendant) would conduct their self-evaluation; by November 25, 2019, the defendant and other EOHHS agencies would send their "[s]elf-[e]valuation spreadsheets" to the classification and compensation unit at EOHHS; between November 25 and December 2, 2019, EOHHS human resources would review these spreadsheets and submit them to HRD for review; between December 2 and December 11, 2019, HRD would review the self-evaluation spreadsheets and compile data; and by December 12, 2019, HRD would provide a report to the Executive Office of Administration & Finance.
4 comparable jobs, were being paid differently."5 The defendant's
self-evaluation revealed seven persons6 employed by the defendant
who were subject to potentially impermissible pay disparities,
and as a result of the self-evaluation, these employees'
salaries were adjusted upwards. The defendant's MEPA self-
evaluation did not find any impermissible pay disparities
between the plaintiff and any of the male CO IIIs in BORN.
3. The plaintiff's complaint. On June 22, 2020, the
plaintiff filed a complaint in the Superior Court alleging
violations of MEPA and G. L. c. 151B. The defendant filed an
answer and asserted various affirmative defenses, including the
affirmative defense set forth in G. L. c. 149, § 105A (d), to
claims brought under G. L. c. 149, § 105A (b), and G. L.
c. 151B, § 4. The defendant subsequently moved for summary
judgment and, following a hearing, a Superior Court judge
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NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
COMMONWEALTH OF MASSACHUSETTS
APPEALS COURT
24-P-1086
LAUREN WOODWARD
vs.
BOARD OF REGISTRATION IN NURSING & another.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Lauren Woodward, "is a female employed as a
Compliance Officer III" (CO III) by the Massachusetts Department
of Public Health's (DPH) Board of Registration in Nursing
(BORN).2 She filed an action in the Superior Court alleging that
the defendant violated the Massachusetts Equal Pay Act (MEPA),
G. L. c. 149, § 105A, and the Massachusetts Fair Employment
Practices Act, G. L. c. 151B. The defendant moved for summary
judgment arguing, inter alia, that it conducted a good faith
self-evaluation of possible gender-based pay disparities and is
1 Massachusetts Department of Public Health.
2BORN is a component of DPH. See G. L. c. 13, § 9 (a); G. L. c. 112, § 1. We refer to them collectively as "the defendant" herein. statutorily immunized from the plaintiff's claims under the
defense set forth in G. L. c. 149, § 105A (d). Agreeing with
the Superior Court judge that the summary judgment record
reveals no genuine issue of material fact regarding whether the
defendant is entitled to this defense, we affirm.
Background. 1. Factual background. We summarize the
undisputed material facts in the summary judgment record. The
defendant hired the plaintiff as a CO III in 2015. The duties
of a CO III at DPH involve investigating complaints made against
nurses licensed in Massachusetts. At the time that the
plaintiff was hired in or around 2015, the Commonwealth's human
resources division (HRD) guidelines required the defendant to
calculate the number of years of comparable experience that the
plaintiff (or any hire) had to determine "the step at which each
person would be placed upon hire, which would in turn determine
their annual salary." The plaintiff was credited with ten years
of comparable experience from her prior work as a nurse and
paralegal, and the defendant recommended that the plaintiff's
"salary start at a grade 13, step 6, for a starting annual
salary of $65,241.28."
In 2019 and 2020, the defendant hired two male candidates,
Anthony Pettigrew and Edward Riggs, to CO III positions. The
defendant determined that Pettigrew possessed over thirty years
2 of comparable experience based on his prior work as a Federal
investigator for the Drug Enforcement Administration. The
defendant also noted that Pettigrew had a bachelor's degree in
criminal justice and a master's degree in service management and
recommended that his "salary start at a grade 13, step 12, for
an annual salary of $82,763.46." Similarly, the defendant
determined that Riggs possessed over twenty-five years of
comparable experience based on his prior work in law enforcement
as a police officer. The defendant also noted that Riggs had
started his career in the National Guard and as a military
police officer, held a bachelor of science degree in social
work, had an emergency medical technician certificate and had
conducted clinical quality control investigations in that role,
and recommended that his "salary start at grade 13, step 14, for
an annual salary of $87,829.82."3 The plaintiff, Pettigrew, and
Riggs were each entitled to annual salary increases under their
collective bargaining agreement.
2. MEPA amendment. In 2016, MEPA was amended to add an
affirmative defense to liability under G. L. c. 149, § 105A (b),
and G. L. c. 151B, § 4. See St. 2016, c. 177, § 2 (effective
3 It is undisputed that DPH is required to follow HRD's hiring guidelines, but the plaintiff maintains that there is a material dispute as to whether the defendant indeed followed those guidelines in these instances.
3 July 1, 2018). Consistent with this new law, in 2019, the
defendant conducted a self-evaluation of all bargaining unit
positions at DPH to determine whether there existed any
impermissible pay disparities under MEPA among employees of
different genders performing comparable work. At this time, HRD
circulated a ten-page document detailing the timeframes and
guidelines according to which a self-evaluation was to proceed.4
"This self-evaluation consisted of an initial, high-level review
performed by HRD, followed by a more detailed review conducted
[by the defendant and other agencies] when the high-level review
showed that employees of different genders, who may be in
4 The HRD self-evaluation guidelines provided, inter alia, that between October 18 and November 5, 2019, HRD would perform a preliminary analysis using aggregated data to identify employees for agency review; by November 6, 2019, the Executive Office of Health and Human Services (EOHHS), "the Secretariat within which [the defendant] sits and which has the ultimate authority with respect to [the defendant's] hiring decisions," would send out communications and HRD spreadsheets to agencies (including the defendant); between November 6 and November 25, 2019, agencies (including the defendant) would conduct their self-evaluation; by November 25, 2019, the defendant and other EOHHS agencies would send their "[s]elf-[e]valuation spreadsheets" to the classification and compensation unit at EOHHS; between November 25 and December 2, 2019, EOHHS human resources would review these spreadsheets and submit them to HRD for review; between December 2 and December 11, 2019, HRD would review the self-evaluation spreadsheets and compile data; and by December 12, 2019, HRD would provide a report to the Executive Office of Administration & Finance.
4 comparable jobs, were being paid differently."5 The defendant's
self-evaluation revealed seven persons6 employed by the defendant
who were subject to potentially impermissible pay disparities,
and as a result of the self-evaluation, these employees'
salaries were adjusted upwards. The defendant's MEPA self-
evaluation did not find any impermissible pay disparities
between the plaintiff and any of the male CO IIIs in BORN.
3. The plaintiff's complaint. On June 22, 2020, the
plaintiff filed a complaint in the Superior Court alleging
violations of MEPA and G. L. c. 151B. The defendant filed an
answer and asserted various affirmative defenses, including the
affirmative defense set forth in G. L. c. 149, § 105A (d), to
claims brought under G. L. c. 149, § 105A (b), and G. L.
c. 151B, § 4. The defendant subsequently moved for summary
judgment and, following a hearing, a Superior Court judge
5 The plaintiff admitted for purposes of summary judgment that the self-evaluation project undertaken by HRD and Commonwealth agencies was supposed to have been conducted in the fashion described in note 4, supra, but disputed that the project "identified all employees of different genders in comparable jobs subject to a pay discrepancy."
6 The defendant initially identified eight employees who may have been subject to impermissible pay disparities but subsequently determined that one of the individuals had been receiving the correct salary and thus removed that employee from the list.
5 (motion judge) determined that the defendant was entitled to the
affirmative defense outlined in MEPA and allowed the motion.
Discussion. We review a grant of summary judgment de novo
to determine whether, viewing the evidence in the light most
favorable to the nonmoving party, "all material facts have been
established and the moving party is entitled to judgment as a
matter of law" (citation omitted). Casseus v. Eastern Bus Co.,
478 Mass. 786, 792 (2018). See Mass. R. Civ. P. 56 (c), as
amended, 436 Mass. 1404 (2002). See also Kourouvacilis v.
General Motors Corp., 410 Mass. 706, 716 (1991).
G. L. c. 149, § 105A (d), provides in relevant part:
"An employer against whom an action is brought alleging a violation of subsection (b) and who, within the previous 3 years and prior to the commencement of the action, has both completed a self-evaluation of its pay practices in good faith and can demonstrate that reasonable progress has been made towards eliminating wage differentials based on gender for comparable work, if any, in accordance with that evaluation, shall have an affirmative defense to liability under subsection (b) and to any pay discrimination claim under section 4 of chapter 151B. For purposes of this subsection, an employer's self-evaluation may be of the employer's own design, so long as it is reasonable in detail and scope in light of the size of the employer, or may be consistent with standard templates or forms issued by the attorney general."
Consistent with this provision, in November 2019, the defendant,
in conjunction with extensive guidance from HRD, administered
and completed the self-evaluation described, supra. See note 4,
supra. As discussed above, that process involved an initial
6 high-level review by HRD, followed by a more detailed review
conducted by the defendant, and ultimately, because of the MEPA
self-evaluation, resulted in the identification of seven
employees with potentially impermissible pay disparities, and an
upward salary adjustment for those employees based on the
salaries of comparable employees of different genders.
Here, the plaintiff does not dispute that the defendant
conducted a self-evaluation of its pay practices in November
2019. Rather, the plaintiff contends that the defendant's self-
evaluation was not completed within three years of the present
action; was not conducted in good faith; and did not demonstrate
that reasonable progress had been made towards eliminating
impermissible pay disparities. The arguments are unavailing.
Initially, there is no merit to the plaintiff's claim that
the self-evaluation was not completed within three years of the
present action. To the contrary, the summary judgment record,
including but not limited to e-mail correspondence,
spreadsheets, HRD self-evaluation guidelines, and the affidavit
of Carol Cormier,7 a human resources business partner with EOHHS,
The Cormier affidavit confirms, inter alia, that the 7
defendant timely completed the self-evaluation. We note that the plaintiff did not move to strike the Cormier affidavit, and did not file any countervailing affidavit. See, e.g., Adams v. Schneider Elec. USA, 492 Mass. 271, 288 (2023) ("court must determine judgment as a matter of law based on all uncontested evidence, that is, evidence favoring the nonmovant and
7 demonstrates that the defendant's self-evaluation was completed
by late November 2019, several months prior to, and within three
years of, the filing of the present action on June 22, 2020.
Indeed, on November 27, 2019, the defendant provided Veronica
Gjino, the EOHHS director of classification and compensation,
with a revised spreadsheet delineating the results of the
defendant's self-evaluation. Furthermore, there is no
admissible record evidence that supports the plaintiff's
conclusory suggestion that the self-evaluation was not timely
completed. The plaintiff insists that the deposition testimony
of Gjino, the defendant's deposition designee pursuant to Mass.
R. Civ. P. 30 (b) (6), as appearing in 489 Mass. 1401 (2022),
created a dispute of material fact because Gjino was unable to
"provide the date [the defendant] purportedly completed the
self-evaluation." This argument fails for two independent
reasons. First, Gjino was not provided adequate notice within
the meaning of rule 30 (b) (6) that the MEPA self-evaluation was
an area of inquiry at her deposition. Indeed, the rule
30 (b) (6) notice contains no reference to the "affirmative
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" [quotations omitted]). See generally Stetson v. Board of Selectmen of Carlisle, 369 Mass. 755, 763 n.12 (1976) (judge may consider even faulty affidavits if no motion to strike).
8 defense" or to any "self-evaluation" under MEPA.8 See Mass. R.
Civ. P. 30 (b) (6) (requiring that notice under rule "must
describe with reasonable particularity the matters for
examination"). See also Judge Rotenberg Educ. Ctr., Inc. v.
Commissioner of the Dep't of Mental Retardation, 424 Mass. 430,
461 n.30 (1997). Second, Gjino's deposition testimony did not
conflict with other evidence in the summary judgment record
showing that the defendant had completed the self-evaluation.9
Next, the summary judgment record, including the HRD
guidelines, e-mail correspondence, spreadsheets, and the Cormier
affidavit, demonstrates that the defendant's self-evaluation was
8 The references in the rule 30 (b) (6) notice to the plaintiff's requests for a pay equity review and to "[a]ny and all pay equity review requests made to DPH and/or BORN" by their plain language do not provide notice or describe with reasonable particularity anything relating to the affirmative defense or self-evaluation under MEPA. Indeed, the plaintiff's "pay equity request" refers to a review specific to the plaintiff, whereas the MEPA self-evaluation pertains to an agency-wide review of pay equity.
9 The plaintiff claims that in her deposition testimony, Gjino contradicted the Cormier affidavit by confirming that the defendant had not completed its review by November 26, 2019. This is not the case. Rather, Gjino merely agreed that "it seems implied" that an e-mail attachment containing the names of the eight individuals initially identified by the MEPA self- evaluation review, see note 6, supra, "was not [the defendant's] final version," of the attachment, but that she "cannot confirm that." Again, viewed in context, Gjino's deposition testimony does not contradict the Cormier affidavit or other evidence in the summary judgment record.
9 made in good faith.10 Here again, the plaintiff's conclusory
denials do not constitute a sufficient basis to avoid summary
judgment. See Halbach v. Normandy Real Estate Partners, 90
Mass. App. Ct. 669, 670-671 (2016). We further note, in this
regard, that in response to interrogatory 16, which asks the
plaintiff to "describe in detail each and every basis for [the
plaintiff's] contention" that the defendant's "'self-evaluation
of its pay practices' does not constitute or qualify as an
affirmative defense under G. L. c. 149, § 105A," the plaintiff
objected and further responded that "discovery is ongoing" and
10The Office of the Attorney General has promulgated guidance regarding the amendments to G. L. c. 149, § 105A. See Office of the Attorney General, An Act to Establish Pay Equity: Overview and Frequently Asked Questions (updated March 1, 2018), www.mass.gov/files/documents/2018/05/02/AGO%20Equal%20Pay%20Act% 20Guidance%20%285-2-18%29.pdf. This guidance includes an explanation of what constitutes a good faith self-evaluation. See id. at § 10 ("A good faith self-evaluation is one that an employer conducts in a genuine attempt to identify any unlawful pay disparities among employees performing comparable work. This good faith requirement applies to both an employer's analysis of which jobs are comparable and to its analysis of pay differentials. A self-evaluation that is conducted so as to achieve certain pre-determined results [i.e., to find no disparities] or to justify known disparities likely will not qualify as good faith"). See also Garcia v. Steele, 492 Mass. 322, 326 (2023) ("It is a fundamental canon of statutory construction that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning" [quotations and citation omitted]); Black's Law Dictionary 832 (12th ed. 2024) ("good faith" is "state of mind consisting in . . . honesty in belief or purpose, . . . faithfulness to one's duty or obligation, . . . [or] absence of intent to defraud or to seek unconscionable advantage").
10 reserved the right to supplement or amend her answers to "this
interrogatory." There is no indication that the plaintiff did
so. Thus, we are left with a record on which the plaintiff
declined or otherwise failed to present evidence or provide a
substantive response explaining how and why the MEPA affirmative
defense did not apply to the present circumstances. Where the
plaintiff has not produced evidence sufficient to create a
genuine dispute of material fact regarding the good faith
element of the affirmative defense, we discern no error in the
entry of summary judgment. See Le Fort Enters., Inc. v. Lantern
18, LLC, 491 Mass. 144, 149 (2023) (nonmoving party required to
produce evidence sufficient to create genuine dispute of
material fact).11
Finally, the summary judgment record contains abundant
evidence supporting the defendant's contention that it made
reasonable progress towards eliminating wage differentials based
on gender as a result of the self-evaluation. This evidence
includes the conducting and completion of the process delineated
by HRD and implemented by and within HRD, EOHHS, and the
So far as the summary judgment record before us shows, 11
discovery in the present case focused on the underlying claims of discrimination and MEPA violation, and not on the affirmative defense provided under G. L. c. 149, § 105A (d). On a different record the applicability of this affirmative defense might well be in dispute. However, we are limited to the record before us.
11 defendant; the identifying of the seven individuals who were
subjected to potentially impermissible pay disparities; and the
upward salary adjustment for those individuals to correct those
potentially impermissible pay disparities. To counter this
evidence, the plaintiff again cites to the Gjino deposition
wherein Gjino testified to the effect that she was unsure
whether the defendant had ever rectified the salary
discrepancies, and if so, when that occurred. This argument
fails. As discussed supra, the MEPA affirmative defense and
self-evaluation were not topics for which notice was provided
under rule 30 (b) (6). Furthermore, Gjino's testimony merely
described her lack of knowledge, and did not contradict other
undisputed evidence in the summary judgment record demonstrating
that the salary adjustments had indeed occurred.
In short, the defendant satisfied its burden of showing
that within the previous three years and prior to the
commencement of the present action, it had completed a self-
evaluation of its pay practices in good faith and demonstrated
that "reasonable progress has been made towards eliminating wage
differentials based on gender for comparable work, if any, in
accordance with that evaluation." G. L. c. 149, § 105A (d).12
12Where we affirm the allowance of summary judgment on the application of the MEPA affirmative defense, we do not reach the
12 Therefore, summary judgment properly entered for the
defendant.13,14
Judgment affirmed.
By the Court (Neyman, Ditkoff & Englander, JJ.15),
Clerk
Entered: December 31, 2025.
underlying substantive claim regarding the plaintiff's pay disparity.
13 The plaintiff's request for attorney's fees is denied.
14We acknowledge the amicus brief filed by the Massachusetts Employment Lawyers Association and the Women's Bar Association of Massachusetts.
15 The panelists are listed in order of seniority.