Zisch v. Textron Defense Systems

5 Mass. L. Rptr. 231
CourtMassachusetts Superior Court
DecidedApril 11, 1996
DocketNo. 951766
StatusPublished

This text of 5 Mass. L. Rptr. 231 (Zisch v. Textron Defense Systems) is published on Counsel Stack Legal Research, covering Massachusetts Superior Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Zisch v. Textron Defense Systems, 5 Mass. L. Rptr. 231 (Mass. Ct. App. 1996).

Opinion

Borenstein, J.

INTRODUCTION

Plaintiff Waldemar Charles Zisch (“the plaintiff’) brought this action under G.L.c. 15 IB alleging that he was discriminated against by his former employer, Textron on the basis of his age.

This matter is before the court on the defendants, Textron Defense Systems and Harold McCard, the president of Textron’s motion for summary judgment pursuant to Mass.R.Civ.P. 56(c). Both parties filed memoranda of law and the court heard argument on April 9, 1996. For the reasons set forth below, the defendants’ motion for summary judgment is ALLOWED.

BACKGROUND

The plaintiff, Waldemar Charles Zisch began working for Textron Defense Systems (“Textron”) at its Wilmington, Massachusetts location in 1984. Textron is engaged in the business of research and development of military defense systems. Textron’s primary customer is the United States military. In the late 1980’s, Textron experienced a significant loss of business caused in part by the end of the Cold War with the former Soviet Union and passage of the Strategic Arms Limitation Treaty. In response to the decline in orders for strategic missile systems, Textron reduced its work force from 4,162 employees in January 1987 to 919 persons as of January 1996. Staff reductions were accomplished primarily through layoffs and early-retirement incentive plans.

In 1984, the plaintiff began working as an at-will employee in Textron’s Strategic Engineering Division as the program engineer for the Peacekeeper logistics support system. He was responsible for coordinating the delivery of parts to Air Force sites. In November 1990, the plaintiff was assigned to the Minuteman II program in the Strategic Engineering Division. Throughout his employment with Textron, the plaintiff received positive performance appraisal reviews.

In 1991 and continuing into 1992, military orders for strategic systems declined, in particular for Peacekeeper and Minutemen systems. On January 31, 1992, Sheldon Weisman, Manager of Peacekeeper notified the plaintiff that due to the decrease in his duties and the decreased budget allowance by the Air Force for logistics activities, he would be laid off effective February 14, 1992. The plaintiff was fifty years old at this time. Upon Sheldon Weisman’s recommendation, Richard Donahue, who was 38 years old, and had worked at Textron for thirteen years, assumed the plaintiffs logistics duties in addition to continuing his other responsibilities in the Peacekeeper program.

Prior to his layoff, the plaintiff accepted a temporary assignment as a program manager for the Mobile Microwave Landing System (“MMLS”) project under the supervision of Russell Gamache. Russell Gamache selected the plaintiff based on his Air Force and program experience. The plaintiff was responsible for coordinating activities and schedules. Russell Gamache told the plaintiff that the position would only last a couple of months unless additionally funding was approved. In early April 1992, Russell Gamache informed the plaintiff that there would be no additional funding and consequently his position was eliminated.

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Mass.R.Civ.P. 56(c). The existence of disputed facts is consequential only if those facts have a material bearing on the disposition of the case. Norwood v. Adams-Russell Co., 401 Mass. 677, 683 (1988). A party in a civil action moving for summary judgment on a claim on which the opposing party will have the burden of proof at trial is entitled to summary judgment if it demonstrates by reference to the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). “[T]he opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion for summary judgment.” LaLonde v. Eissner, 405 Mass. 207, 209 (1989). “If the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege [232]*232specific facts which would establish the existence of a genuine issue of material fact in order to defeat [the] motion for summary judgment.” Pederson v. Time, Inc., 404 Mass. 14, 17 (1989).

DISCUSSION

G.L.c. 151B, §4(1B) states in pertinent part that “(i]t shall be an unlawful practice . . . [f]or an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire, ... or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.” Unless a different meaning clearly appears from the context of the statute, the term ‘age’ includes “any duration of time since an individual’s birth of greater than forty years.” G.L.c. 151B, §1(8).

In interpreting G.L.c. 15IB, Massachusetts courts may look to the interpretations of the Federal anti-discrimination statute. College-Town, Div. of Interco, Inc. v. Massachusetts Comm’n Against Discrimination, 400 Mass. 156, 163 (1987). In applying the anti-discrimination statute where disparate treatment is alleged, Massachusetts follows the three-stage order of proof used by the Federal courts under the Federal antidiscrimination provisions of Title VII. Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 440 (1995). See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

In the first stage of proof, “the plaintiff has the burden to show by a preponderance of the evidence a prima facie case of discrimination.” Blare, supra at 441. This burden is met with evidence that (1) the plaintiff is a member of a class protected by G.L.c. 15 IB; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) his employer sought to fill the plaintiffs position by hiring another individual with qualifications similar to the plaintiffs. Id.

In this case, the plaintiff was a member of the protected class of employees over the age of forty years. There is sufficient evidence that he performed his job at an acceptable level. See Performance Reviews dated January 12, 1989; December 27, 1989; February 21, 1991 all giving overall performance summaries of “exceeds some expectations”). Additionally, it is undisputed that the plaintiff was terminated. Finally, the plaintiff has offered evidence that Textron filled his position in the Peacekeeper program, with another employee from his department who was under the age of forty. Accordingly, the plaintiff has sustained his initial burden of making out a prima facie case of age discrimination.

In the second stage of proof, the employer may rebut the presumption created by the plaintiffs prima facie case by articulating a legitimate, nondiscriminatory reason for the termination. Blare, supra at 441. “(A]n employer must not only give a lawful reason or reasons for its employment decision but also must produce credible evidence to show that the reason or reasons advanced were the real reasons.” Id. at 442 (quoting Wheelock College v. Massachusetts Comm’n against Discrimination,

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