Verdrager v. Mintz, Levin: Expanding the Use of Indirect Evidence to Prove PretextPosted: August 24, 2016
In Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382 (2016), the Supreme Judicial Court (“SJC”) held, inter alia, that triable issues of fact existed as to whether a law firm’s legitimate, nondiscriminatory reasons for demoting and then terminating a female attorney were a pretext for gender discrimination. While the Court followed well-established precedent in applying the burden-shifting analysis to reach its conclusion, the evidence it relied upon ultimately may provide employee-plaintiffs who lack direct evidence of discrimination with expanding options to demonstrate pretext in order to survive summary judgment.
Verdrager v. Mintz, Levin, et al.
The plaintiff, Kamee Verdrager, was hired by Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo, P.C., (“firm”) in June 2004. Less than a month into her employment, she alleged that a male member of the firm made several sexually-charged comments to her — which she reported to human resources, the managing director, and the attorney managing her group. The firm investigated her claims and found no evidence of gender-based discrimination. Subsequent to lodging her complaint, Verdrager received several mixed performance reviews.
After returning from maternity leave in November 2006, Verdrager received two negative reviews and, in February 2007, the senior attorneys in her group sought to terminate her employment. However, the firm’s chairman instead decided to demote Verdrager by “setting her back” two years in seniority — with a corresponding salary reduction — thereby allowing the firm additional time to determine her eligibility for membership. In response, Verdrager retained counsel and filed an internal complaint alleging that the decision was the result of gender discrimination. The firm’s investigation did not substantiate her claims.
Later that spring, and approximately six times thereafter while accessing the firm’s document management system (DeskSite), Verdrager searched for and discovered dozens of internal documents related to her case which she forwarded to her personal email account.
After receiving five positive evaluations from April to October 2007, Verdrager filed a Charge of Discrimination at the Massachusetts Commission Against Discrimination (“MCAD”) in December 2007, alleging that the step-back decision was discriminatory.
In November 2008, during a national economic slowdown, several associates, including Verdrager, were selected for layoff. While the firm offered to settle her MCAD claim if she accepted the layoff, Verdrager refused. Later that same day, she met with and showed a member of the firm one of the documents she accessed from DeskSite. The firm subsequently discovered Verdrager’s previous DeskSite searches and terminated her as a result. (The use of self-help is discussed in another article in this edition).
Verdrager filed a second charge at the MCAD alleging that the step-back decision and her termination were the result of gender discrimination and retaliation for her internal complaint and previous MCAD complaint. After the case was filed in Superior Court, the defendants moved for summary judgment, which was granted. Verdrager petitioned for direct appellate review to the SJC.
McDonnell Douglas Burden-Shifting Analysis
To survive summary judgment, employee-plaintiffs must demonstrate that a “reasonable jury” could find: (1) that the plaintiff is a member of a protected class, (2) that the plaintiff suffered an adverse employment action (e.g., demotion or termination), (3) discriminatory animus on the part of employer, and (4) causation. Like most discrimination cases, the Court focused on the last two elements.
As the Court explained, while employees are rarely equipped with direct evidence demonstrating discriminatory animus and causation, “they may survive a motion for summary judgment by producing ‘indirect or circumstantial evidence [of these elements] using the familiar three-stage, burden-shifting paradigm first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).’” Verdrager, 474 Mass. at 396 (citation omitted). Having found the first two stages were satisfied – i.e., Verdrager demonstrated a prima facie case of discrimination (member of a protected class, performed her job at an acceptable level, suffered an adverse employment action), and defendants articulated a legitimate nondiscriminatory reason for her termination (mixed performance reviews, certain partners not willing to work with her, low utilization on a high billing rate, and her engaging in self-help), id. at 398 — the SJC turned its attention to the final stage, which requires that the plaintiff produce evidence that the employer’s justification for the adverse action was a pretext.
Lowered Burden of Production to Demonstrate Pretext?
At the outset, the Court reiterated that Massachusetts is a “pretext-only jurisdiction,” holding that an employee can show that an employer’s nondiscriminatory reasons given for its actions were not the real reasons, “even if that evidence does not show directly that the true reasons were, in fact, discriminatory.” Id. at 397, citing Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016). While the Court looked at several “traditional” examples of indirect evidence (e.g., similarly situated male employees being treated more favorably), the Court relied upon other indirect evidence in finding that the reasons given for the adverse job action may have been pretextual.
Significantly, the Court considered evidence from a 2005 report, which was completed by a consulting firm in the wake of an earlier discrimination suit, unrelated to the present case. The report found that “[m]any female [attorneys] … believe it is more difficult for women than men at Mintz[,]” id. at 400-01, and that some of the members may be inherently biased against women. The Court held that this could be considered evidence of the employer’s “general practice and policies” concerning members of the protected class, and supported Verdrager’s contention that the firm’s proffered reasons for her termination were pretextual. Id. at 400 (quotations omitted). By relying on generalized complaints about the attitude of the firm towards women, the Court made it virtually impossible for the firm win on summary judgment, since there is no feasible way to deny a perceived bias without creating a disputed material fact.
The Court also found that “a reasonable jury could interpret a number of the [criticisms made by] the plaintiff’s evaluators and supervisors as reflecting stereotypical thinking…categorizing people on the basis of broad generalizations,” id., at 399-400 (citations and quotations omitted), and that those statements, when considered with other evidence, “may lend support to the contention that the adverse employment action was made on an impermissible basis.” Id. at 400 (quotations omitted). For example, the Court held that comments related to Verdrager taking vacation and her not consistently being in the office “could be understood to reflect a stereotypical view of women as not committed to their work because of family responsibilities[,]” id. at 400, despite the comments themselves being completely gender-neutral.
While lower courts ultimately will decide how much weight to apply to perceived “stereotypical thinking” about protected classes, because those stereotypes are based upon subjective views historically held by others, this particular factor creates a type of pretext evidence that is likely to be more difficult for employers to rebut through summary judgment.
In sum, although the Court followed longstanding precedent in applying the McDonnell Douglas test, the specific factors it used to determine pretext arguably may lower the threshold for plaintiffs in meeting their burden moving forward.
Damien M. DiGiovanni is an associate at Morgan, Brown & Joy LLP where his practice focuses exclusively on management-side labor and employment matters. He is also a member of the Labor and Employment Law Section and the College and University Law Section of the Boston Bar Association.