Verdrager v. Mintz, Levin: Expanding the Use of Indirect Evidence to Prove Pretext

digiovanni_damienby Damien DiGiovanni

Case Focus

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.


Verdrager v. Mintz Levin: The SJC Establishes Standards for Protected Self-Help Discovery in Aid of Anti-Discrimination Claims in Massachusetts

messing_ellennewhouse_martinby Ellen Messing and Martin Newhouse

Case Focus

In Verdrager v. Mintz Levin, 474 Mass. 382 (2016), the Supreme Judicial Court answered a question of first impression under Massachusetts law: Do the anti-retaliation provisions of state anti-discrimination law protect an employee who accesses her employer’s documents to support her employment discrimination claim?  The SJC held that, under certain circumstances, such activity may be “protected,” thereby precluding an employer from taking any adverse employment action based on that activity.  The decision examined the interplay between “self-help discovery,” or searches of employer materials outside the formal litigation discovery process, and the protections of the Commonwealth’s chief anti-bias statute, G.L. c. 151B, which bars retaliation against plaintiffs who engage in “protected activity.”  G.L. c. 151B, §4(4).  The SJC articulated the standards to be applied in determining whether employee acts of self-help discovery are protected, and specified limits on that protection.

Although this was a question of first impression in Massachusetts, in deciding that “self-help” discovery in a c. 151B case may be protected activity, the Court was not writing on a blank slate.  Rather, its decision drew upon the sizeable case law on this issue that courts around the country have developed.  Indeed, the multi-factor test for protected activity that the SJC has now adopted was expressly derived from a leading New Jersey case, Quinlan v. Curtiss-Wright Corp., 8 A.3d 209, 204 N.J. 239 (2010).  It is likely that Massachusetts courts will look to decisions from other jurisdictions in applying the new Massachusetts standards.

Consistently with the courts that have confronted this issue and its own jurisprudence on protected activity under c. 151B, see, e.g., Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 121 (2000), the SJC in Verdrager held that self-help discovery “may in certain circumstances constitute protected activity under the statute, but only if the employee’s actions are reasonable in the totality of the circumstances.”  But the SJC placed an important limit on this holding, namely that only documents that would be subject to formal discovery may be subject to protected self-help discovery, although that can include privileged documents.  Finally, the Court noted that the determination whether the self-help discovery at issue was reasonable is to be made as a matter of law by the court, not by the jury.

Whether an employee’s self-help discovery was reasonable requires a fact-based determination.  The SJC held that, “without limiting the considerations that additionally may be relevant in individual cases, the seven nuanced factors in Quinlan should be taken into account in any such analysis.”  The Quinlan factors as adopted by the SJC are: (1) “how the employee came to have possession of, or access to, the document;” (2) a balancing of the “‘relevance’ of the seized documents to the employee’s legal action against the disruption caused by the seizure ‘to the employer’s ordinary business;”’ (3) “the strength of the employee’s expressed reason for copying the document rather than, for example, simply describing it or identifying its existence to counsel so that it might be requested in discovery;” (4) what the employee did with the document, or who the employee showed it to; (5) “the nature and content of the particular document in order to weigh the strength of the employer’s interest in keeping the document confidential;” (6) “whether there is a clearly identified company policy on privacy or confidentiality that the employee’s disclosure has violated” and “whether the employer has routinely enforced that policy;” and (7) “the broad remedial purposes the Legislature has advanced through . . . G.L. 151B” and “the decision’s effect on ‘the balance of legitimate rights of both employers and employees.’”  The SJC, again adopting the Quinlan approach, noted that this last factor is “‘a supplement’ to the other factors, and plays a decisive role only in the ‘close case’ in which it would be appropriate for these broader considerations to ‘tip the balance.’”

Of particular note for lawyers, the SJC held that self-help discovery protections apply equally to attorney-employees, such as the Verdrager plaintiff, and to documents that may be attorney-client privileged.  The SJC focused on the importance of ensuring that attorney-employees have the same opportunity as other employees to show documents to their own lawyers in order to obtain legal advice.

Verdrager clearly is a victory for employees’ rights in that it recognizes that employees who engage in self-help discovery in support of discrimination claims may be protected from adverse employment action.  The decision, however, sounded several cautionary notes.  First, the SJC limited its holding, and the application of the Quinlan factors, to claims under G.L. c. 151B, expressing no opinion on self-help discovery unrelated to such claims.  Second, because the decision protects only self-help discovery found to be “reasonable in the totality of the circumstances,” the SJC warned that employees who engage in self-help discovery “even under the best of circumstances . . . run a significant risk that the conduct in which they engage will not be found . . . [ultimately] to fall within the protections of the statute.”

Finally, the SJC envisioned that, in deciding whether self-help discovery in a particular case was reasonable, a court will separately analyze each document or type of document accessed.  As the SJC stated, “[t]he application of this test in particular cases may well result in determinations that certain acts of self-help discovery by the same employee are reasonable, while others are not.”  In such a case “the resolution of the claim of retaliation likely would entail a determination whether the employee’s unreasonable and unprotected acts, standing alone, would have induced [the employer] to make the same [adverse employment] decision.”

In sum, Verdrager now provides protection for reasonable acts of employee self-help discovery.  Employers will need to proceed very cautiously before taking adverse action against employees who acquire internal documents, even confidential ones, in the course of pursuing discrimination claims.  But discrimination plaintiffs, too, will need to consider carefully the factors articulated by the Court, and to judge carefully what acts of self-discovery will survive the future application of what we can now cal the seven-factor Verdrager test.

Martin J. Newhouse, President of the New England Legal Foundation, is a member of the SJC Clients’ Security Board and BBA Ethics Committee.

Ellen J. Messing is a partner in the Boston firm of Messing, Rudavsky & Weliky, P.C., which concentrates its practice in representing employees in labor and employment litigation, including wrongful termination, discrimination, contract, sexual harassment, and public employee matters.