No. 95-00296Commonwealth of Massachusetts Superior Court CIVIL ACTION NORFOLK, ss.
May, 1996
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
BRADY, JUSTICE.
Plaintiff Donald R. Letourneau (Letourneau) alleges that his former employer, H.P. Hood, Inc. (Hood), unlawfully discriminated against him on the basis of his age when Hood terminated him from his position as Risk Manager on March 6, 1992. Hood now seeks summary judgment on this single-count complaint against it. For the following reasons, Hood’s motion is ALLOWED.
BACKGROUND
The undisputed, dispositive facts are derived from affidavits, depositions and exhibits contained in the summary judgment record.[1] Letourneau was continuously employed by Hood from May, 1961, until March 6, 1992, when he was terminated from employment at age 55 from the position of Risk Manager for Hood, which he had held since June, 1990.
Since being hired in 1961, Letourneau was promoted on a number of occasions, eventually to the position of Manager of Pricing Administration. In June, 1990, that position was eliminated and Letourneau’s pricing administration duties were reassigned to other employees already working for Hood. Rather than terminate Letourneau at that time, Hood offered him the Risk Manager position. Letourneau was not experienced in risk management, and worked with Hood’s outside insurance brokers to learn how to perform the job. Initially, Letourneau was offered the Risk Manager position at a lower salary than he had received as Manager of Pricing Administration, but after some discussion, Hood ultimately agreed to pay Letourneau at the same salary, $54,000 per year, and Letourneau accepted the position.
At one time, Hood’s risk management had been handled by a staff of three or four persons, but that number was reduced over the years to a single position, Risk Manager. The Risk Manager was responsible for processing worker’s compensation claims (which consumed some 50% of the Risk Manager’s time), auto claims, developing loss control programs at the regional facilities, renewing surety bonds, and working with the outside insurance brokers. Letourneau’s predecessor as Risk Manager, Matthew Lupa, was laid off on May 1, 1990. Susan Lester, an employee in the accounting department, was then assigned to process claim-related paperwork on a part-time basis and to oversee delegation of clerical functions related to risk management to employees at Hood’s regional offices. Other of the Risk Manager’s duties were not performed within Hood until Letourneau assumed the position on July 1, 1990. As Risk Manager, Letourneau was specifically responsible to decentralize workers’ compensation claims to the regional facilities, to develop a loss control manual to strengthen the regional facilities’ loss control and safety management, and to develop a computer program to make claims auditing faster and more accurate, all aimed at diminishing the Risk Manager’s duties and responsibilities. Letourneau was given a written evaluation on August 29, 1991, and was given an overall grade of “RD” (requires development), which Letourneau acknowledged as fair and constructive, given his lack of knowledge and experience in risk management.
Letourneau was discharged on March 6, 1992, during a brief meeting with his supervisor, Vice President and Controller Jonathan R. Davis (Davis), when Davis told him that the Risk Manager position was being eliminated. Letourneau asked who would assume his duties, and Davis told him that the Risk Manager’s duties would be performed by Hood’s outside insurance broker, Sedgwick James of Pennsylvania, Inc. (Sedgwick James).
According to Hood and not seriously disputed by Letourneau, the Risk Manager position was eliminated as a part of a corporate downsizing and restructuring of operations: Hood had begun operating at a net loss in 1990. Beginning in May, 1990, Hood undertook several reductions in force. In early 1992, Davis met with Chief Financial Officer Robert E. Schaejbe (Schaejbe) to discuss cost-cutting measures, and together they had determined, among other things, that Hood no longer required a full-time Risk Manager. In 1992 alone, of approximately 1,200 employees in Hood’s corporate headquarters and regional facilities, 92 employees in many different positions including a number of supervisors, managers and vice presidents, were laid off, and 59% of these laid-off employees were under the age of forty. Letourneau points out that, based on information provided by Hood, of sixteen employees laid off in the corporate section, two were over age 65 and two were over age 55.[2]
Hood did discuss and receive a fee proposal from Sedgwick James to perform the Risk Manager duties after the position was eliminated, and Sedgwick James did assume a greater role in risk management than when Letourneau was Risk Manager. However, by June, 1992, Schaejbe determined that much or all of Sedgwick James’ proposed fee could be saved by dividing certain of the Risk Manager’s duties among various current Hood employees. The Hood employees who then became responsible for risk management duties, in addition to their usual duties, were: Fran Torgerson, age 54, Vice President of Technical Services and Chair of the Safety Committee; James Mazur, age 31, Manager of Treasury Services; Pamela Brake, age 33, Corporate Counsel; and Roger Crouteau, age 30, a staff attorney and member of the Safety Committee. None of these individuals was hired to replace Letourneau. Letourneau states that no derogatory comments regarding his age were made to him by anyone at Hood, but maintains that he feels that the Risk Manager position is still necessary because the duties are still being performed by Hood employees, and, further, is cost-effective because he saved Hood $60,000 but was paid only $54,000 per year.
DISCUSSION
This court will grant summary judgment where there are no genuine issues of material fact and where the summary judgment record entitles the moving party to judgment as a matter of law. Community Nat’l Bank v. Dawes, 369 Mass. 550, 553 (1976); Cassesso v. Commissioner of Correction, 390 Mass. 419, 422
(1983). A moving party who does not bear the burden of proof at trial must affirmatively demonstrate the absence of a triable issue, and that the summary judgment record entitles them to judgment as a matter of law. Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). This may be done either by submitting affirmative evidence negating an essential element of the opposing party’s case or by showing that the opposing party is unlikely to submit proof of that element at trial. Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991). Once the moving party establishes the absence of a triable issue, the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact. Pederson, supra at 17. The opposing party cannot rest on his or her pleadings and mere assertions of disputed facts to defeat the motion. LaLonde v. Eissner, 405 Mass. 207, 209 (1989).
Summary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment. Blare v. Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 439 (1995). Nevertheless, where the summary judgment record demonstrates that the plaintiff will be unable to prevail at trial, summary judgment may be properly granted on claims under c. 151B. Id. at 440; Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995).
In an employment discrimination case under G.L.c. 151B, the plaintiff has the initial burden of producing adequate evidence on the elements of a prima facie case, which the will vary depending on the circumstances of each case. Blare, supra at 541; Beal v. Board of Selectmen of Hingham, 419 Mass. 535, 540, 541 (1995). Here, because his termination involved a reduction in force, Letourneau may carry his burden with evidence that: (1) he is at least 40 years of age; (2) he performed his job at an acceptable level; (3) he was terminated; and (4) that his employer either did not treat members of the protected class neutrally or retained persons not in the protected class in the same position. Runyon v. Massachusetts Institute of Technology, 871 F. Supp. 1502, 1508
(D.Mass. 1994). The fourth element is the only element in dispute for purposes of this motion. Letourneau seems to argue that because two employees over age 65 and two over age 55 were laid off out of sixteen employees laid off in the corporate section, Hood did not treat members of the protected class neutrally. Letourneau has offered no evidence, however, to show that Hood did not treat members of the protected class neutrally among all employees in the corporate section, nor has he shown why that section should be separately evaluated. Next, although the parties do not dispute that the sole Risk Manager position was eliminated, Letourneau maintains that by allocating his other duties to other, primarily younger employees, Hood has effectively retained persons not in the protected class in the same position. The court does not agree. The employees who became responsible for some of the risk management functions assumed those duties in addition to their pre-existing job responsibilities: Vice President of Technical Services, Manager of Treasury Services, Corporate Counsel, and a staff attorney. Letourneau has failed to show that any of these positions is the same position as Risk Manager. The court concludes that Letourneau does not have a reasonable expectation of proving this element of his prima facie case.
However, even if the court were to conclude that Letourneau had established a prima facie case, his claim suffers from another fatal flaw. An employer can rebut the presumption of discrimination created by the prima facie case by articulating a legitimate, non-discriminatory reason for its employment decision, and producing credible evidence to show that the reason advanced was the real reason. Blare, supra at 441-442. Hood has met this burden. Through the affidavit of Robert E. Schaejbe, Hood’s Chief Financial Officer, Hood’s articulated reason for Letourneau’s termination, a reduction in force, is well supported: Hood had begun operating at a net loss in 1990 and in May, 1990, had begun a series of reductions in force to cut costs, eliminating positions including Risk Manager, which Hood had determined was no longer required as a full-time position.
Once the defendant articulates a nondiscriminatory reason for its employment decision, the plaintiff must prove by a preponderance of the evidence that the actual motivation was discriminatory or that the asserted lawful reason was not the real reason for the termination. Blare, supra at 444; Tate, supra at 362. In support of his claim that Hood’s stated reason is a pretext, Letourneau offers only that he does not agree with Hood’s decision to eliminate the Risk Manager position, and that instead of transferring the risk management duties to Sedgwick James as Hood told him would happen, Hood also allocated certain duties to other existing Hood employees. “The employer’s reasons for its decision to terminate may be unsound or even absurd, but if they are not discriminatory and if the plaintiff does not prove they are pretexts, the plaintiff cannot prevail. Id. at 363. That Letourneau disagrees with Hood’s determination that a full-time Risk Manager was no longer necessary is insufficient to show pretext. Further, Letourneau offers no support for the notion that Hood’s failure to completely eliminate all risk management responsibilities from the company is an indication of pretext. The court concludes that Letourneau does not have a reasonable expectation of proving that the stated reason was a pretext, and Hood’s motion will be allowed.
ORDER
For the foregoing reasons, it is hereby ORDERED that H.P. Hood, Inc.’s motion for summary judgment is ALLOWED.
Patrick F. Brady Justice of the Superior Court
Dated: May, 1996
(1985); Key Capital Corp. v. MS Liquidating Corp., 27 Mass. App. Ct. 721, 728, rev. den. 406 Mass. 1101 (1989). The court will disregard Letourneau’s affidavit to the extent that it consists of his understandings, beliefs and assumptions (paras. 9 (regarding McGinnis), 10, and 12) and hearsay statements and denials (paras. 10, 11, and 12).