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
23-P-56
MARY REGAN
vs.
DEBORAH HOOPER & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Mary Regan, appeals from a Superior Court
judgment entered following the grant of summary judgment in
favor of her former employer and two supervisors on her claims
of gender discrimination, retaliation, interference, and aiding
and abetting under G. L. c. 151B. We vacate the judgment on the
claim of gender discrimination and remand for further
proceedings. We affirm the judgment on the claims of
retaliation, interference, and aiding and abetting.
Background. We summarize the basic facts in the light most
favorable to Regan, as the party opposing summary judgment,
drawing all reasonable inferences in her favor. See Bulwer v.
1 President and Fellows of Harvard College and Denis Collet. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). In August 2011,
President and Fellows of Harvard College (Harvard) hired Regan
as Associate Portfolio Director for the Executive Education
program at Harvard Business School (HBS). Her responsibilities
included ensuring the overall success of a portfolio of open
enrollment and global programs that provided seminars taught by
HBS faculty to business executives. In July 2013, Regan was
promoted to portfolio director. Throughout Regan's employment
at HBS, Deborah Hooper directly supervised her, and Denis Collet
was the Associate Director or Director of Human Resources.
In January 2016, Hooper told Regan that certain HBS faculty
members were unhappy with her performance. Hooper met with
Regan and raised issues about her "aggressive" style,
"inappropriate body language," "angry" appearance, and having
her office door closed. She directed Regan to meet with Collet.
On January 25, 2016, Regan met with Collet and expressed
"concern[] about the stereotypical gender-related critiques made
about [her]." After the meeting, Collet emailed his supervisor
that
"[i]t is going to be a longer process with [Regan]. She expressed concern about a lack of process and the fact that concerns with her performance haven't been clear or documented as a part of a performance improvement plan . . . she's stated she hasn't heard negative feedback and at the very least deserves the opportunity to improve on aspects of her personality that are not meeting expectations."
2 On February 11, 2016, Regan emailed Collet, "I want to put on
record that the way I have been treated by my manager, Deborah
Hooper, and by HBS is discriminatory, based on my being a
female." She also stated that she had hired legal counsel and
that if her employment situation was not resolved amicably, she
expected to file a complaint for sex discrimination with the
Massachusetts Commission Against Discrimination.
In March 2016, Harvard provided Regan with the option to
resign with a separation package or stay in her position subject
to a Performance Improvement Plan (PIP). Regan remained in her
job and accepted the PIP. On May 13, 2016, Regan received the
PIP from Hooper. According to Harvard, the PIP identified areas
of concerns and expected improvements Regan must make. Regan
believed that the PIP was "harsh and punitive, made false
statements about [her] job performance and [] used as a means to
terminate [her] employment." The PIP stated Regan would have to
show marked improvement by July 8, 2016 "or disciplinary action
may be taken." After receiving the PIP, Regan met weekly with
Hooper.
On June 3, 2016, Regan submitted a written rebuttal to the
PIP. During that week, Harvard began to plan to terminate
Regan’s employment. On June 14, 2016, Hooper emailed her direct
supervisor that she and Collet "discussed whether final
3 conversation [regarding terminating Regan] would happen next
week or [the] week after." Harvard terminated Regan's employment
on July 12, 2016.
Discussion. "Our review on summary judgment is de novo."
Yee v. Massachusetts State Police, 481 Mass. 290, 294 (2019).
"In considering a motion for summary judgment, we review the
evidence and draw all reasonable inferences in the light most
favorable to the nonmoving party." Verdrager v. Mintz, Levin,
Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016),
quoting Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777
(2013). The moving party has "the burden of establishing that
there is no genuine issue as to any material fact and that [it
is] entitled to judgment as a matter of law" (citation omitted).
Verdrager, supra, quoting Drakopoulos, supra.
1. Discrimination. Regan contends that the judge used an
incorrect standard in determining that she had failed to
establish a prima facie case of gender discrimination against
Harvard for the purposes of summary judgment. We agree.
To prove employment discrimination at trial, an employee
must demonstrate (1) membership in a protected class, (2) harm
by being subject to an adverse employment action by an employer,
(3) discriminatory animus by the employer in taking that action,
and (4) a causal relationship between the animus and the adverse
4 action. See Bulwer, 473 Mass. at 680. At summary judgment,
there are two distinct paths available to a plaintiff to prove
the third and fourth elements of discrimination. A plaintiff
"may survive a motion for summary judgment by providing [d]irect
evidence of [the] elements of discriminatory animus and
causation" (quotation and citation omitted). Id. at 680-681.
However, because direct evidence to support these elements
"rarely exists," a plaintiff may also survive such a motion by
providing "indirect or circumstantial evidence [of
discriminatory animus and causation] using the familiar three-
stage, burden-shifting paradigm first set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973)" (quotation
and citation omitted). Bulwer, supra.
The first stage of this paradigm requires the plaintiff to
prove a prima facie case of discrimination. See Bulwer, 473
Mass. at 681. If the plaintiff meets this burden, the second
stage requires the employer to rebut the presumption of
discrimination established by the plaintiff by "articulating a
legitimate, nondiscriminatory reason" for the adverse action
(citation omitted). Id. If the employer meets its burden, the
third and final stage requires the plaintiff to present evidence
that "the employer's articulated justification . . .
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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
23-P-56
MARY REGAN
vs.
DEBORAH HOOPER & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Mary Regan, appeals from a Superior Court
judgment entered following the grant of summary judgment in
favor of her former employer and two supervisors on her claims
of gender discrimination, retaliation, interference, and aiding
and abetting under G. L. c. 151B. We vacate the judgment on the
claim of gender discrimination and remand for further
proceedings. We affirm the judgment on the claims of
retaliation, interference, and aiding and abetting.
Background. We summarize the basic facts in the light most
favorable to Regan, as the party opposing summary judgment,
drawing all reasonable inferences in her favor. See Bulwer v.
1 President and Fellows of Harvard College and Denis Collet. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). In August 2011,
President and Fellows of Harvard College (Harvard) hired Regan
as Associate Portfolio Director for the Executive Education
program at Harvard Business School (HBS). Her responsibilities
included ensuring the overall success of a portfolio of open
enrollment and global programs that provided seminars taught by
HBS faculty to business executives. In July 2013, Regan was
promoted to portfolio director. Throughout Regan's employment
at HBS, Deborah Hooper directly supervised her, and Denis Collet
was the Associate Director or Director of Human Resources.
In January 2016, Hooper told Regan that certain HBS faculty
members were unhappy with her performance. Hooper met with
Regan and raised issues about her "aggressive" style,
"inappropriate body language," "angry" appearance, and having
her office door closed. She directed Regan to meet with Collet.
On January 25, 2016, Regan met with Collet and expressed
"concern[] about the stereotypical gender-related critiques made
about [her]." After the meeting, Collet emailed his supervisor
that
"[i]t is going to be a longer process with [Regan]. She expressed concern about a lack of process and the fact that concerns with her performance haven't been clear or documented as a part of a performance improvement plan . . . she's stated she hasn't heard negative feedback and at the very least deserves the opportunity to improve on aspects of her personality that are not meeting expectations."
2 On February 11, 2016, Regan emailed Collet, "I want to put on
record that the way I have been treated by my manager, Deborah
Hooper, and by HBS is discriminatory, based on my being a
female." She also stated that she had hired legal counsel and
that if her employment situation was not resolved amicably, she
expected to file a complaint for sex discrimination with the
Massachusetts Commission Against Discrimination.
In March 2016, Harvard provided Regan with the option to
resign with a separation package or stay in her position subject
to a Performance Improvement Plan (PIP). Regan remained in her
job and accepted the PIP. On May 13, 2016, Regan received the
PIP from Hooper. According to Harvard, the PIP identified areas
of concerns and expected improvements Regan must make. Regan
believed that the PIP was "harsh and punitive, made false
statements about [her] job performance and [] used as a means to
terminate [her] employment." The PIP stated Regan would have to
show marked improvement by July 8, 2016 "or disciplinary action
may be taken." After receiving the PIP, Regan met weekly with
Hooper.
On June 3, 2016, Regan submitted a written rebuttal to the
PIP. During that week, Harvard began to plan to terminate
Regan’s employment. On June 14, 2016, Hooper emailed her direct
supervisor that she and Collet "discussed whether final
3 conversation [regarding terminating Regan] would happen next
week or [the] week after." Harvard terminated Regan's employment
on July 12, 2016.
Discussion. "Our review on summary judgment is de novo."
Yee v. Massachusetts State Police, 481 Mass. 290, 294 (2019).
"In considering a motion for summary judgment, we review the
evidence and draw all reasonable inferences in the light most
favorable to the nonmoving party." Verdrager v. Mintz, Levin,
Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016),
quoting Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777
(2013). The moving party has "the burden of establishing that
there is no genuine issue as to any material fact and that [it
is] entitled to judgment as a matter of law" (citation omitted).
Verdrager, supra, quoting Drakopoulos, supra.
1. Discrimination. Regan contends that the judge used an
incorrect standard in determining that she had failed to
establish a prima facie case of gender discrimination against
Harvard for the purposes of summary judgment. We agree.
To prove employment discrimination at trial, an employee
must demonstrate (1) membership in a protected class, (2) harm
by being subject to an adverse employment action by an employer,
(3) discriminatory animus by the employer in taking that action,
and (4) a causal relationship between the animus and the adverse
4 action. See Bulwer, 473 Mass. at 680. At summary judgment,
there are two distinct paths available to a plaintiff to prove
the third and fourth elements of discrimination. A plaintiff
"may survive a motion for summary judgment by providing [d]irect
evidence of [the] elements of discriminatory animus and
causation" (quotation and citation omitted). Id. at 680-681.
However, because direct evidence to support these elements
"rarely exists," a plaintiff may also survive such a motion by
providing "indirect or circumstantial evidence [of
discriminatory animus and causation] using the familiar three-
stage, burden-shifting paradigm first set out in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973)" (quotation
and citation omitted). Bulwer, supra.
The first stage of this paradigm requires the plaintiff to
prove a prima facie case of discrimination. See Bulwer, 473
Mass. at 681. If the plaintiff meets this burden, the second
stage requires the employer to rebut the presumption of
discrimination established by the plaintiff by "articulating a
legitimate, nondiscriminatory reason" for the adverse action
(citation omitted). Id. If the employer meets its burden, the
third and final stage requires the plaintiff to present evidence
that "the employer's articulated justification . . . is not true
but a pretext" (citation omitted). Id.
5 Here, the judge began her analysis by acknowledging the
proper standard, stating that the case "must be approached using
the three-part burden-shifting analysis." However, the judge
then analyzed Regan's discrimination claim based on the
evidentiary burden required at trial, including the element of
causation. See Bulwer, 473 Mass. at 680. In a discrimination
case arising from a termination, the plaintiff's prima facie
case at summary judgment has only three elements: (1) membership
in a class protected by G. L. c. 151B, (2) job performance at an
acceptable level, and (3) termination. See id. at 680-681.
Causation is not one of these elements. Rather, causation is
relevant at the third stage of the burden-shifting paradigm.
Additionally, although applicable to a plaintiff's burden of
proof of causation at trial, see Trustees of Health & Hosps. of
Boston, Inc., v. Massachusetts Comm'n Against Discrimination,
449 Mass. 675, 682-683 (2007), evidence that Regan was treated
differently than a male comparator was not required as part of
her prima facie case.2 Thus, it was also error for the judge to
consider comparator evidence.
2. Retaliation. Regan also argues that summary judgment
was improper on her retaliation claim against Harvard. "A claim
2 Because the judge determined that Regan did not demonstrate a prima facie case of discrimination, she did not reach the other stages of the burden-shifting paradigm.
6 of retaliation is separate and distinct from a claim of
discrimination." Verdrager, 474 Mass. at 405. To make out a
prima facie case of retaliation, Regan was required to show
(1) her engagement in protected conduct, (2) the infliction of
some adverse action by Harvard, and (3) a causal connection
between the two. See Osborne-Trussell v. Children's Hosp.
Corp., 488 Mass. 248, 260 (2021).
The chronology of events is one method to prove causation,
see Verdrager, 474 Mass. at 407, but Regan's effort to do so
here fails. Although a causal link may be inferred "[w]here
adverse employment actions follow close on the heels of
protected activity, . . . as the elapsed time between those two
events becomes greater, the inference weakens and eventually
collapses." Mole v. University of Mass., 442 Mass. 582, 595
(2004). "The cases that accept mere temporal proximity between
an employer's knowledge of protected activity and an adverse
employment action as sufficient evidence of causality to
establish a prima facie case uniformly hold that the temporal
proximity must be 'very close.'" Id., quoting Clark County Sch.
Dist. V. Breeden, 532 U.S. 268, 273 (2001). Generally, the
adverse employment action must be "in the immediate aftermath of
the employer's becoming aware of the employee's protected
activity," Mole, supra, at 592, and periods of multiple months
7 are insufficient. See Dube v. Middlesex Corp., 59 Mass. App.
Ct. 734, 741 n.3 (2003) ("one event following another is not, by
itself, sufficient evidence of causality to establish a prima
facie case of unlawful retaliation, particularly where . . . the
two events are separated by months, not days"). Here, where
approximately five months separated Regan's February 2016
written complaints of discrimination from her July 2016
termination, a causal connection between the events cannot be
established by temporal proximity.3 We thus conclude that
summary judgment was proper on Regan's claim of retaliation.
3. Interference and aiding and abetting. Finally, Regan
argues that we "should uphold [her] claims against the
individual defendants." Her brief does not identify the
elements for the claims of interference and aiding and abetting
under G. L. c. 151B or offer legal authority supporting her
position. Instead, Regan merely quotes the portion of the
statute that states that individuals may be held liable for
perpetuating or assisting another who violates G. L. c. 151B;
baldly asserts that Hooper and Collet knew that Regan had
claimed that "the allegations against her [of substandard job
3 We are not persuaded by Regan's argument that the calculation of temporal proximity effectively "restarted" after her rebuttal email in June 2016 in response to receiving the PIP from Harvard.
8 performance] were false, discriminatory, and pretextual, but
they did not investigate;" and suggests that a jury should be
allowed to evaluate the evidence. We therefore decline to
consider Regan's implicit argument that the judgment on these
claims was in error because briefing on the issue does not rise
to the level of appellate argument. See Commonwealth v.
Beverly, 485 Mass. 1, 16 (2020), citing Mass. R. A. P. 16 (a)
(9) (A), as appearing in 481 Mass. 1628 (2019). In any event,
we agree with the motion judge that there was no evidence that
Hooper or Collet committed a "wholly individual [and] distinct
wrong," separate from the discrimination and retaliation claims
against Harvard, see Lopez v. Commonwealth, 463 Mass. 696, 713
(2012), and thus affirm the judgment on the claims of
interference and aiding and abetting.
Conclusion. The judge used an incorrect standard in
determining that Regan had failed to establish a prima facie
case of gender discrimination, therefore we vacate the judgment
for Harvard and remand for further proceedings on the gender
discrimination claim. Because Regan failed to establish a
causal relationship between her protected conduct and
termination of her employment, we affirm the judgment on her
claim of retaliation against Harvard. Finally, declining to
consider Regan's argument, but noting that there was no evidence
9 to support the claims against the individual defendants, we
affirm the judgment on the claims of interference and aiding and
abetting.4
So ordered.
By the Court (Meade, Blake & Brennan, JJ.5),
Clerk
Entered: August 16, 2024.
4 The parties' requests for fees, damages, and costs are denied.
5 The panelists are listed in order of seniority.