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
25-P-583
SUSAN A. OLIVEIRA
vs.
FIRST CITIZENS FEDERAL CREDIT UNION & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Susan A. Oliveira, brought this action
against her former employer, First Citizens Federal Credit Union
(First Citizens), and the company's chief executive officer,
Christopher Howard. Her complaint alleged that First Citizens
unlawfully terminated her employment because of age
discrimination under G. L. c. 151B and that Howard interfered
with her employment contract.2 A judge of the Superior Court
allowed Howard's motion for summary judgment on the interference
1 Christopher Howard and Wendy Ferreira.
2The complaint also alleged that Wendy Ferreira interfered with Oliveira's employment contract, but the parties voluntarily dismissed Ferreira as a defendant with prejudice via joint stipulation. with contract claim but denied First Citizens' motion for
summary judgment on the age discrimination claim. That claim
proceeded to a three-day jury trial, and the jury returned a
verdict in First Citizens' favor. Oliveira moved for a new
trial pursuant to Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974),
and the same judge denied her motion. On appeal, Oliveira
argues she was denied a fair trial because First Citizens
disclosed grounds for her termination at trial that were not
disclosed in discovery, resulting in a trial by ambush. She
also claims the judge allowed Howard's summary judgment motion
in error because genuine issues of material fact existed. We
affirm the judgments3 and the order denying the motion for a new
trial.
Discussion. 1. Motion for new trial. "[A] new trial
should be granted only when 'on a survey of the whole case it
appears to the judge that otherwise a miscarriage of justice
would result.'" Fitzpatrick v. Wendy's Old Fashioned Hamburgers
of N.Y., Inc., 487 Mass. 507, 514 (2021), quoting Wojcicki v.
Caragher, 447 Mass. 200, 216 (2006). "We review the denial of a
motion for a new trial for an abuse of discretion" (citation
omitted). Doull v. Foster, 487 Mass. 1, 5 (2021).
3 Separate judgments entered on October 31, 2024, disposing of both claims.
2 Oliveira's theory of wrongful termination was that she was
terminated as a result of age discrimination in violation of
G. L. c. 151B. First Citizens' defense was that her employment
was terminated because First Citizens had eliminated her role in
a corporate restructuring. "Under the McDonnell Douglas
formulation, [Oliveira] [bore] the initial burden of
establishing by a preponderance of the evidence a prima facie
case of discrimination." Sullivan v. Liberty Mut. Ins. Co., 444
Mass. 34, 40 (2005), citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–805, (1973). In a "reduction in force case,"
where an employer reorganizes its workforce, the plaintiff must
demonstrate the following: (1) membership in a protected class;
(2) performance of the job at "an acceptable level";
(3) termination; and (4) the layoff occurred in circumstances
that raise a "reasonable inference of unlawful discrimination."
Sullivan, supra at 41, 45. If the plaintiff makes such a
showing, a presumption of discrimination arises, i.e., a prima
facie case is made.4 See Blare v. Husky Injection Molding Sys.
Boston, Inc., 419 Mass. 437, 441 (1995). The employer may rebut
this presumption by articulating a legitimate, nondiscriminatory
reason for its decision. See id. The burden then shifts back
4 Although First Citizens argued in its summary judgment motion that Oliveira failed to establish her prima facie case, it is not at issue on appeal.
3 to the plaintiff to produce evidence that the employer's
articulated reason for its decision is "not true but a pretext."
Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 681 (2016), quoting
Blare, supra at 443.
During pretrial litigation, First Citizens consistently
maintained that Oliveira was terminated because her position was
eliminated. Oliveira claims, however, that Howard's trial
testimony unfairly introduced a new reason for the employment
decision, namely that she was fired for poor performance. There
are several flaws in this argument. First, Oliveira did not
object to the testimony in question when it was given, and
therefore the issue is likely waived. See Freyermuth v. Lutfy,
376 Mass. 612, 616 (1978). Indeed, rather than objecting and
giving the judge an opportunity to issue a curative instruction
if one was necessary, Oliveira used the testimony to her
advantage to impeach Howard on cross-examination.
Next, even were we to put aside the issue of waiver, we are
unpersuaded by Oliveira's argument that she was subjected to a
"trial by ambush" in violation of her due process rights. When
Howard said that Oliveira was not "effectively managing the
department," he was responding to a question that asked what
conclusions he drew from a review of Oliveira's department. The
fact that Howard was unsatisfied with her performance is not
4 incompatible with First Citizens' articulated position that
Oliveira was terminated because it was eliminating her role. We
have reviewed the trial transcript and the transcript of
Howard's deposition taken pursuant to Mass. R. Civ. P.
30 (b) (6), as appearing in 489 Mass. 1401 (2022), and we
conclude nothing about the trial testimony contradicts the
deposition.5 Howard consistently maintained during both the
deposition and the trial that Oliveira's position was
eliminated. To the extent Oliveira now claims that the
testimony unfairly prejudiced her in the eyes of the jury, she
failed to object, and the issue is again waived.
In sum, we discern no miscarriage of justice in the trial
and therefore no abuse of discretion in the denial of Olivera's
motion for a new trial.
2. Summary judgment. The judge granted Howard's motion
for summary judgment as to Oliveira's interference with contract
claim because she did not offer evidence creating a genuine
dispute as to an essential element, namely a malicious reason
5 Oliveira also argues that the fact that First Citizens called Linda Cosme to testify about the decision to eliminate Oliveira's role amounted to trial by ambush because Howard indicated in his deposition that the decision was his.
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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
25-P-583
SUSAN A. OLIVEIRA
vs.
FIRST CITIZENS FEDERAL CREDIT UNION & others.1
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Susan A. Oliveira, brought this action
against her former employer, First Citizens Federal Credit Union
(First Citizens), and the company's chief executive officer,
Christopher Howard. Her complaint alleged that First Citizens
unlawfully terminated her employment because of age
discrimination under G. L. c. 151B and that Howard interfered
with her employment contract.2 A judge of the Superior Court
allowed Howard's motion for summary judgment on the interference
1 Christopher Howard and Wendy Ferreira.
2The complaint also alleged that Wendy Ferreira interfered with Oliveira's employment contract, but the parties voluntarily dismissed Ferreira as a defendant with prejudice via joint stipulation. with contract claim but denied First Citizens' motion for
summary judgment on the age discrimination claim. That claim
proceeded to a three-day jury trial, and the jury returned a
verdict in First Citizens' favor. Oliveira moved for a new
trial pursuant to Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974),
and the same judge denied her motion. On appeal, Oliveira
argues she was denied a fair trial because First Citizens
disclosed grounds for her termination at trial that were not
disclosed in discovery, resulting in a trial by ambush. She
also claims the judge allowed Howard's summary judgment motion
in error because genuine issues of material fact existed. We
affirm the judgments3 and the order denying the motion for a new
trial.
Discussion. 1. Motion for new trial. "[A] new trial
should be granted only when 'on a survey of the whole case it
appears to the judge that otherwise a miscarriage of justice
would result.'" Fitzpatrick v. Wendy's Old Fashioned Hamburgers
of N.Y., Inc., 487 Mass. 507, 514 (2021), quoting Wojcicki v.
Caragher, 447 Mass. 200, 216 (2006). "We review the denial of a
motion for a new trial for an abuse of discretion" (citation
omitted). Doull v. Foster, 487 Mass. 1, 5 (2021).
3 Separate judgments entered on October 31, 2024, disposing of both claims.
2 Oliveira's theory of wrongful termination was that she was
terminated as a result of age discrimination in violation of
G. L. c. 151B. First Citizens' defense was that her employment
was terminated because First Citizens had eliminated her role in
a corporate restructuring. "Under the McDonnell Douglas
formulation, [Oliveira] [bore] the initial burden of
establishing by a preponderance of the evidence a prima facie
case of discrimination." Sullivan v. Liberty Mut. Ins. Co., 444
Mass. 34, 40 (2005), citing McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–805, (1973). In a "reduction in force case,"
where an employer reorganizes its workforce, the plaintiff must
demonstrate the following: (1) membership in a protected class;
(2) performance of the job at "an acceptable level";
(3) termination; and (4) the layoff occurred in circumstances
that raise a "reasonable inference of unlawful discrimination."
Sullivan, supra at 41, 45. If the plaintiff makes such a
showing, a presumption of discrimination arises, i.e., a prima
facie case is made.4 See Blare v. Husky Injection Molding Sys.
Boston, Inc., 419 Mass. 437, 441 (1995). The employer may rebut
this presumption by articulating a legitimate, nondiscriminatory
reason for its decision. See id. The burden then shifts back
4 Although First Citizens argued in its summary judgment motion that Oliveira failed to establish her prima facie case, it is not at issue on appeal.
3 to the plaintiff to produce evidence that the employer's
articulated reason for its decision is "not true but a pretext."
Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 681 (2016), quoting
Blare, supra at 443.
During pretrial litigation, First Citizens consistently
maintained that Oliveira was terminated because her position was
eliminated. Oliveira claims, however, that Howard's trial
testimony unfairly introduced a new reason for the employment
decision, namely that she was fired for poor performance. There
are several flaws in this argument. First, Oliveira did not
object to the testimony in question when it was given, and
therefore the issue is likely waived. See Freyermuth v. Lutfy,
376 Mass. 612, 616 (1978). Indeed, rather than objecting and
giving the judge an opportunity to issue a curative instruction
if one was necessary, Oliveira used the testimony to her
advantage to impeach Howard on cross-examination.
Next, even were we to put aside the issue of waiver, we are
unpersuaded by Oliveira's argument that she was subjected to a
"trial by ambush" in violation of her due process rights. When
Howard said that Oliveira was not "effectively managing the
department," he was responding to a question that asked what
conclusions he drew from a review of Oliveira's department. The
fact that Howard was unsatisfied with her performance is not
4 incompatible with First Citizens' articulated position that
Oliveira was terminated because it was eliminating her role. We
have reviewed the trial transcript and the transcript of
Howard's deposition taken pursuant to Mass. R. Civ. P.
30 (b) (6), as appearing in 489 Mass. 1401 (2022), and we
conclude nothing about the trial testimony contradicts the
deposition.5 Howard consistently maintained during both the
deposition and the trial that Oliveira's position was
eliminated. To the extent Oliveira now claims that the
testimony unfairly prejudiced her in the eyes of the jury, she
failed to object, and the issue is again waived.
In sum, we discern no miscarriage of justice in the trial
and therefore no abuse of discretion in the denial of Olivera's
motion for a new trial.
2. Summary judgment. The judge granted Howard's motion
for summary judgment as to Oliveira's interference with contract
claim because she did not offer evidence creating a genuine
dispute as to an essential element, namely a malicious reason
5 Oliveira also argues that the fact that First Citizens called Linda Cosme to testify about the decision to eliminate Oliveira's role amounted to trial by ambush because Howard indicated in his deposition that the decision was his. But Howard did not testify in his deposition that no other employees were part of the decision-making process. Furthermore, First Citizens identified Cosme as a person with knowledge of the restructuring in response to Oliveira's interrogatory.
5 attributable to Howard, separate from First Citizens' alleged
age discrimination. Oliveira argues this was error because the
Supreme Judicial Court has held that age discrimination can
satisfy the "willful act" element of the interference with
contract tort. See Comey v. Hill, 387 Mass. 11, 19-20 (1982).
"We review a decision to grant summary judgment de novo."
Adams v. Schneider Elec. USA, 492 Mass. 271, 280 (2023).
"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" (citation omitted). Id. "We
review the evidence in the light most favorable to the party
against whom summary judgment entered," in this case, Oliveira
(citation omitted). Le Fort Enters., Inc. v. Lantern 18, LLC,
491 Mass. 144, 149 (2023).
To succeed on a claim for interference with contract, a
plaintiff must show that "(1) [s]he had a contract with a third
party; (2) the defendant knowingly induced the third party to
break that contract; (3) the defendant's interference, in
addition to being intentional, was improper in motive or means;
and (4) the plaintiff was harmed by the defendant's actions"
(citation omitted). Weiler v. PortfolioScope, Inc., 469 Mass.
75, 84 (2014). Where the defendant "is a corporate official
acting in the scope of his corporate responsibilities, a
6 plaintiff has a heightened burden of showing the improper motive
or means constituted 'actual malice,' that is, a spiteful,
malignant purpose, unrelated to the legitimate corporate
interest" (quotation and citation omitted). Id. "The malice
must be the 'controlling factor' in the defendant's conduct."
Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 55 (2020),
quoting Blackstone v. Cashman, 448 Mass. 255, 270 (2007).
Here, Oliveira failed to put forward any evidence in the
summary judgment record that plausibly suggests Howard acted
with "actual malice" in terminating her employment. Actual
malice "must rise to the level of unjustified personal hostility
or ill will 'exceeding personal dislike.'" Bresler v. Muster,
496 Mass. 111, 121 (2025), quoting Falcon v. Leger, 62 Mass.
App. Ct. 352, 362 (2004). Oliveira testified in her deposition
that she believed Howard did not like her, but that she did not
think he would let her go for that reason. In responses to the
defendants' interrogatories, Oliveira claimed Howard treated her
differently from other employees. Specifically, she alleged
that he would not respond to her when she said good morning to
him and reacted negatively when she said the word "stuff."
Olivera also noted her belief that she was terminated due to her
age and "hostility from the defendants." Even viewed in the
light most favorable to Oliveira, this evidence would not allow
7 a reasonable jury to find that Howard acted with unjustified ill
will that exceeds "personal dislike." Bresler, supra, quoting
Falcon, supra. Furthermore, Oliveira's reliance on Comey v.
Hill is inapposite because that case did not concern a corporate
official acting within the scope of his corporate
responsibilities. See Comey, 387 Mass. at 13-14.6
Judgments entered October 31, 2024, affirmed.
Order denying motion for new trial affirmed.
By the Court (Shin, Walsh & Allen, JJ.7),
Clerk
Entered: April 17, 2026.
6 First Citizens' and Howard's request for attorney's fees and costs is denied.
7 The panelists are listed in order of seniority.