Manning v. Metropolitan Property and Casualty Insurance Company

Filing 45

Judge F. Dennis Saylor, IV: MEMORANDUM AND ORDER entered granting defendant's 23 Motion for Summary Judgment (Cicolini, Pietro)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
_______________________________________
)
GRAHAM MANNING,
)
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Plaintiff,
)
)
v.
)
)
METROPOLITAN PROPERTY AND
)
CASUALTY INSURANCE COMPANY, a )
wholly owned subsidiary of Metlife, Inc.,
)
)
Defendant.
)
)
_______________________________________)

Civil No.
13-10506-FDS

MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
SAYLOR, J.
This is an action for gender discrimination arising from the firing of an employee.
Plaintiff Graham Manning was employed as a senior claims adjuster by defendant Metropolitan
Property and Casualty Insurance Company (“MPC”) until May 15, 2012. He alleges that
defendant engaged in discriminatory conduct in violation of Massachusetts law by firing him
because of his gender.
Defendant has moved for summary judgment, contending that it fired plaintiff because he
violated a company policy, not because he is male. Plaintiff contends that he was fired because
of his gender and that defendant’s stated reason is a pretext.
For the following reasons, defendant’s motion for summary judgment will be granted.

I.

Background
The following facts are undisputed unless otherwise noted.
A.

Manning’s Employment

Metropolitan Property and Casualty Insurance Company is a corporation engaged in the
sale of insurance products for homes, automobiles, and other property. (Def. SMF ¶ 1). It is
headquartered in Warwick, Rhode Island. (Id. at 2). From August 20, 2000, until May 15, 2012,
MPC employed Graham Manning as a claims adjuster in its office in Lowell, Massachusetts.
(Pl. SMF ¶¶ 1-2; Def. SMF ¶ 3).1
From 2010 through 2012, Manning consistently received good performance reviews from
his supervisors at MPC. (Pl. SMF ¶ 3; Wilgoren Aff., Exs. 1-4). He received a 10 percent bonus
for outstanding work performance during 2011 and 2012. (Pl. SMF ¶ 4; Manning Dep. at 4344).
B.

The 2007 Accident and Claim File

In 2000 or 2001, Manning purchased an automobile insurance policy from MPC. (Def.
SMF ¶ 25; Pl. SMF ¶ 11; Manning Dep. at 87).
In December 2007, Manning’s pregnant wife was involved in an four-car accident where
an uninsured motorist rear-ended her car. (Manning Dep. at 87-89). As a result of her injuries
from the accident, she gave birth prematurely. (Id. at 88).
Manning filed two uninsured motorist claims against MPC on behalf of his wife and son.
(Id. at 90). His wife and son each received the full limits of the insurance policy, or $100,000
each, from MPC. (Id.).

1

At some point before 2011, Manning was promoted to senior claims adjuster. (Def. SMF ¶ 3).

2

Following his wife’s car accident, Manning believed that MPC could bring a subrogation
claim against a separate insurance company. (Manning Dep. at 107-08). He contends that he
requested and received permission from his supervisor to contact MPC’s subrogation department
and inform them of his idea. (Id. at 108). After Manning’s wife and son were paid the full limits
of their insurance policy, Manning had no financial interest in the claim. (Id. at 108, 175).
MPC’s subrogation department brought suit against the insurance company in New
Hampshire, and named Manning as the plaintiff. (Id. at 38, 108). Manning first learned of this
lawsuit when he received a letter dated January 18, 2011, from the attorney for the defendant in
that case. (Id. at 38; Wilgoren Aff., Ex. 5).
Manning obtained access to the claim file arising out of his wife’s traffic accident on four
occasions in 2011: May 17, November 3, November 15, and November 22. (Def. SMF ¶ 26).
Manning contends that he accessed the claim file to determine the status of the lawsuit in New
Hampshire and obtain contact information for the attorney purportedly representing him in the
case. (Thomas Aff., Ex. C).
C.

MPC Policies on Employee Access of Claim Files

MPC has a corporate policy concerning employees who hold insurance policies with the
company. (DeCaporale Aff., Ex. A). The policy states that employees “are prohibited from
accessing any [c]ompany system for the purpose of viewing, obtaining, influencing, updating,
altering or disclosing any information related to a policy service, underwriting, or claims
transaction in which they, their family members, friends or co-workers have a personal interest.”
(Id. at 1).

3

MPC also has a protocol that “must . . . be followed when handling any reported claim
which involves a friend or relative of a [c]laim [d]epartment employee.” (DeCaporale Aff., Ex.
B at 1). It states that employees “are strictly prohibited from handling their own personal claims
arising from any type of policy issued by the [c]ompany as well as claims presented by their
friends and family members.” (Id.). The protocol also states that it must be followed to avoid
any potential or perceived conflicts of interest.” (Id.). It warns that “[b]reach of this protocol by
any employee could result in disciplinary action, up to and including termination of
employment.” (Id. at 2).
MPC requires all personnel working in its claims department to certify on an annual basis
their receipt and understanding of the protocol. (Def. SMF ¶ 7). Manning signed the protocol on
November 10, 2010, and November 21, 2011. (DeCaporale Aff., Ex. B at 2; Ex. C at 2).
Manning also received e-mails on December 3, 2010, and January 18, 2012, from the president
of MPC, detailing the policies in MPC’s employee protocol. (DeCaporale Aff, Exs. D, E).
D.

MPC’s Investigation

In March 2012, MPC conducted a nationwide audit of its electronic claims systems to
identify breaches of MPC policy. (Def. SMF ¶ 15). The audit identified 68 MPC employees
who had accessed their own claim file or that of a family member. (Id. ¶ 16). Those employees
included Manning and 13 of his female coworkers in MPC’s Lowell office. (Id.).
MPC investigators visited the Lowell office and interviewed the 14 employees, asking
them to explain the reasons why they accessed the claim files. (Id. ¶ 17). Each employee was
asked to submit a written statement explaining their actions. (Id.). The summaries of each
investigation were sent to Leslie Decaporale, the director of the Lowell office. (Id. ¶ 18).

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In his meeting with the investigators, Manning admitted to (1) accessing the claim of his
wife and son on multiple occasions, (2) contacting the subrogation unit and suggesting that they
pursue a subrogation claim, and (3) downloading a mediation summary from the New Hampshire
case from the claim file to his computer. (Id. ¶ 27). In his statement to investigators, Manning
admitted he accessed the claim file but said he did so only to assist MPC in recovering money
and determine if he was still named as a plaintiff in the lawsuit. (Thomas Aff., Ex. B).
Manning also contends that he received permission from his supervisor, Lori Kondek, to
access the claim file. (Manning Dep. at 114-116). MPC contends that Manning’s supervisors all
denied giving him permission to access the claim file. (Def. SMF ¶¶ 32-33).
DeCaporale reviewed the investigation summaries and discussed each case with MPC
Assistant Vice President Patrick Meyer to determine the appropriate discipline for the
employees. (Def. SMF ¶ 19). They evaluated each employee based on several criteria,
including (1) the number of times the individual accessed the claim file, (2) the extent to which
the individual attempted to influence the handling of the claim, (3) whether the claim file
involved multiple vehicles, and (4) whether the claim could contain sensitive medical
information or information protected by the attorney-client privilege. (Id. ¶ 20; DeCaporale Dep.
at 199).
On May 15, 2012, DeCaporale terminated Manning’s employment. (Def. SMF ¶ 23).
DeCaporale and Meyer contend that they determined that Manning’s conduct warranted
termination because (1) he clearly violated protocol, (2) he accessed the claim four times, (3) he
attempted to influence the claim by contacting the subrogation unit, (4) the claim involved
multiple vehicles and potentially contained medical and attorney-client privileged information,

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and (5) Manning downloaded information from the claim file onto his computer. (Def. SMF ¶
36).
E.

Status of Other Employees

Three other employees in MPC’s Lowell office were terminated for accessing claims in
violation of MPC policy: Adora Asiamah, Diana Santos, and Susan Whipple. (Def. SMF ¶ 23).
They had each accessed a prohibited claim file 66, 14, and 43 times, respectively. (DeCaporale
Dep. at 114). The remaining ten employees, listed below, were given final written warnings.
(Def. SMF ¶ 23).
1.

Lynne Birchett accessed two of her daughter’s claim files on two separate
occasions. (Docket No. 37, Ex. 13 at 3). One of those files contained medical
information on her daughter. (Id.). She was issued a final written warning. (Id.,
Ex. 12 at 7). Two weeks later, she was given a full severance package when she
left MPC. (DeCaporale Aff. at 65-66).

2.

Line Therrault was a supervisor who accessed her daughter’s claim seven times.
(Docket No. 37, Ex. 13 at 10). After MPC initiated the investigation, but before
she was issued a final warning, Therrault accessed the claim an eighth time. (Id.,
Ex. 12 at 9). MPC’s human resources department recommended that Therrault be
terminated. (DeCaporale Dep. at 199). She was instead issued a final written
warning. (Docket No. 37, Ex. 12 at 9).

3.

Kathleen Agresti accessed two of her own claims on three occasions. (Id., Ex. 13
at 2). None of the claims involved medical or attorney-client privileged
information. (Id.). She was issued a final written warning. (Id., Ex. 12 at 8).

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4.

Joy Roukes accessed her own claim on one occasion. (Id. at 5). She was issued a
final written warning. (Id.).

5.

Catherine Coughlin accessed the claim system on two occasions. (Id., Ex. 13 at
4). She inadvertently created a new claim in her own name and had it voided by
her supervisor. (Id.). She was issued a final written warning. (Id., Ex. 12 at 11).

6.

Maria Ferreira accessed her own claim on two occasions. (Id., Ex. 13 at 6). The
file did not contain any medical or attorney-client privileged information. (Id.).
She was issued a final written warning. (Id., Ex. 12 at 10).

7.

Rachel Gregory accessed her own claim on five occasions. (Id. Ex. 13 at 5).
There was no medical or attorney-client privileged information in the file. (Id.).
She was issued a final written warning. (Id., Ex. 12 at 2).

8.

Sherry Thibeault accessed her own claim on one occasion. (Id., Ex. 13 at 12).
The file contained no medical or attorney-client privileged information. (Id.).
She was issued a final written warning. (Id., Ex. 12 at 4).

9.

Monique Rodrigue accessed her own claim on four occasions. (Id., Ex. 13 at 8).
Her claim was closed in 2007 and contained no medical or attorney-client
privileged information. (Id.). She was issued a final written warning. (Id., Ex.
12 at 6).

10.

Raquel Henriquez accessed her own claim on four occasions. (Id., Ex. 13 at 7).
There was no medical or attorney-client privileged information in the file. (Id.).
She was issued a final written warning. (Id., Ex. 12 at 3).

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F.

Procedural Background

Manning filed this lawsuit on January 4, 2013, in the Massachusetts Superior Court. The
complaint alleges that MPC terminated Manning’s employment because of his gender in
violation of Mass. Gen. Laws ch. 151B, § 4. MPC removed the case to this Court.
MPC has moved for summary judgment, contending that Manning’s employment was
terminated because he violated company policy. Manning contends that MPC used his
violations of company policy as a pretext to fire him because of his gender.
II.

Standard of Review
The role of summary judgment is to “pierce the pleadings and to assess the proof in order

to see whether there is a genuine need for trial.” Mesnick v. General Elec. Co., 950 F.2d 816,
822 (1st Cir. 1991) (internal quotations omitted). Summary judgment is appropriate when the
moving party shows that “there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine issue is “one that
must be decided at trial because the evidence, viewed in the light most flattering to the
nonmovant . . . would permit a rational fact finder to resolve the issue in favor of either party.”
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990). In evaluating a
summary judgment motion, the court indulges all reasonable inferences in favor of the nonmoving party. O’Connor v. Steeves, 994 F.2d 905, 907 (1st Cir. 1993). When “a properly
supported motion for summary judgment is made, the adverse party ‘must set forth specific facts
showing that there is a genuine issue for trial.’” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250 (1986) (quoting Fed. R. Civ. P. 56(e)). The non-moving party may not simply “rest upon
mere allegation or denials of his pleading,” but instead must “present affirmative evidence.” Id.

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at 256-57.
III.

Analysis
Plaintiff alleges that defendant discriminated against him because of his gender in

violation of Mass. Gen. Laws ch. 151B. Under Chapter 151B, it is unlawful “[f]or an employer,
by himself or his agent, because of . . . sex [or] gender identity, . . . to discharge from
employment [any] individual or to discriminate against such individual . . . unless based upon a
bona fide occupational qualification.” Mass. Gen. Laws ch. 151B, § 4(1).
The SJC has construed Chapter 151B “as containing four elements an employee must
prove to prevail on a claim of discrimination in employment: membership in a protected class,
harm, discriminatory animus, and causation.” Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 39
(2005). In this case, it is undisputed that plaintiff has fulfilled the first two elements; he is in a
protected class and he suffered harm from the termination of his employment. The dispute
therefore centers around the remaining two elements.
Where, as here, there is no direct evidence of discriminatory animus and causation, a
plaintiff “can establish one or both by indirect or circumstantial evidence using the familiar
three-stage, burden-shifting paradigm first set out in McDonnell Douglas Corp. v. Green.”
Sullivan, 444 Mass. at 40. As the SJC has explained:
First, the plaintiff must establish a prima facie case of discrimination by a preponderance
of the evidence. If the plaintiff does so, the defendant may rebut the inference of
discrimination thus established by offering a legitimate, nondiscriminatory reason for its
employment action. Once the defendant does so, the plaintiff may, in the third stage of
the proceedings, produce evidence that the defendant’s stated reason for its action was
not a real one, but rather a pretext. Such evidence allows, but does not compel, the jury
to infer discriminatory animus, which is an essential element of a claim under [Mass.
Gen. Laws ch.] 151B.
Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 97 n.14 (2009).
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A.

Prima Facie Case of Discrimination

Generally, a plaintiff who is terminated establishes a prima facie case of discrimination
by producing evidence that he or she (1) is a member of a class protected by Mass. Gen. Laws
ch. 151B, (2) performed the job at an acceptable level, (3) was terminated, and (4) the employer
sought to fill the position by hiring another individual with similar qualifications. Sullivan, 444
Mass. at 41. However, strict adherence to these factors is unnecessary. A plaintiff “must simply
produce sufficient evidence that the employer’s actions, if otherwise unexplained, are more
likely than not based on the consideration of impermissible factors.” Trustees of Health and
Hospitals of City of Boston, Inc. v. Massachusetts Comm’n Against Discrimination, 449 Mass.
675, 683 (2007) (internal quotations omitted). In doing so, plaintiff can establish a prima
facie case by showing that he “was treated differently from another person, known as a
comparator, who was not a member of [his] protected class, but who otherwise was ‘similarly
situated.’” Id. at 682 (quoting Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129
(1997)).
According to defendant’s records, four female Lowell office employees accessed
prohibited claim files an equal or greater number of times as plaintiff, but were given a final
written warning. Plaintiff contends that he has established a prima facie case because those
female employees were similarly situated to him in terms of the number of times they accessed a
prohibited claim file. He further contends that defendant’s decision to fire him, but not them,
was arbitrary and capricious. Defendant contends that even if the decisions were arbitrary and
capricious, “courts cannot second-guess or re-evaluate the correctness of personnel decisions
taken by the employer absent a showing of discriminatory animus.” (Def. Reply at 2).

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Defendant also contends that there were several differences in how the employees violated
company policy that justified the different disciplinary measures.
Plaintiff need not provide evidence of discriminatory animus when establishing a prima
facie case of discrimination. See Trustees of Health and Hospitals, 449 Mass. at 682. He need
only show that a similarly situated individual not a member of his protected class was treated
differently. Id. “The test is whether a prudent person, looking objectively at the incidents,
would think them roughly equivalent and the protagonists similarly situated. Exact correlation is
neither likely nor necessary, but the cases must be fair congeners.” Id. at 683 (quoting
Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 19 (1st Cir. 1989)). In addition, the initial
burden of establishing a prima facie case is not intended to be onerous; it “is meant to be a
‘small showing’ that is ‘easily made.’” Id. (quoting Chungchi Che v. Massachusetts Bay Transp.
Auth., 342 F.3d 31, 38 (1st Cir 2003)).
Plaintiff has shown that female employees who violated defendant’s policy more times
than he did were not fired. That is enough to establish a prima facie case of discrimination that
creates an inference of discriminatory animus. See id. at 683-84 (plaintiffs established prima
facie case of discrimination where employer followed different procedures when firing AfricanAmerican female employees than when firing white male employees; employees were similarly
situated despite differences in job performance, qualifications, and conduct).
B.

Legitimate, Nondiscriminatory Reason for Decision

Once a prima facie case of discrimination has been made, the burden shifts to the
defendant to offer a legitimate, nondiscriminatory reason for the decision to rebut the inference
of discrimination. Haddad, 455 Mass. at 97 n.14. This burden “is one of production and not

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persuasion; [defendant] ‘need not prove that the reasons were nondiscriminatory.’” Sullivan, 444
Mass. at 51 (quoting Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 117
(2000)).
Defendant has introduced evidence showing that plaintiff was fired because he violated
company policy in a particularly egregious manner. In particular, plaintiff accessed claim files
containing medical and attorney-client privileged information, the claim files contained
information about multiple vehicles, plaintiff influenced the course of the claim by contacting
the subrogation unit about a lawsuit against a third party, and plaintiff downloaded a document
from the claim file onto his computer. Defendant contends that although plaintiff accessed a
prohibited claim file a fewer number of times than some of the female employees, the other
employees were not fired because they did not attempt to influence the course of the claims or
download documents from the files.
Defendant has therefore offered a legitimate, nondiscriminatory reason for firing plaintiff
sufficient to rebut the inference of discrimination created by his prima facie case. See
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 140 (1st Cir. 2012) (defendant
articulated legitimate, nondiscriminatory reason for terminating plaintiff by contending he failed
to comply with the objectives and duties of his position); Gu v. Boston Police Dept., 312 F.3d 6,
12 (1st Cir. 2002) (defendants’ assertion they hired the most qualified person enough to rebut
inference of discrimination in hiring).2
C.

Evidence of Discriminatory Motive

Once a defendant has given a legitimate, nondiscriminatory reason for an adverse

2
Massachusetts courts routinely cite federal case law when deciding discrimination cases under Chapter
151B. See, e.g., Trustees of Health and Hospitals, 449 Mass. at 683.

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employment action, the burden shifts to the plaintiff to show that the defendant’s
nondiscriminatory reason is a pretext for discriminatory animus. Haddad, 455 Mass. at 97 n.14.
“This may be accomplished by showing that the reasons advanced by [the employer] for making
the adverse decision are not true.” Sullivan, 444 Mass. at 55 (quoting Abramian, 432 Mass. at
117). As noted above, defendant contends plaintiff’s violations of company policy were worse
than those of the employees who were not fired because (1) he accessed prohibited claim files
that contained medical and attorney-client privileged information, (2) he influenced the course of
the claim by contacting the subrogation department, and (3) he downloaded a document from the
claim file to his computer.
Plaintiff contends that both of those reasons are a pretext for discriminatory animus.
First, he contends that his access to medical or attorney-client privileged information cannot be
the reason he was fired because (a) the medical information concerned his wife or his son, which
he was authorized to see; (b) the attorney-client privileged information could not have been kept
from him, because the attorney was purportedly representing him; and (c) Line Therrault
accessed a prohibited claim containing medical and attorney-client privileged information on
more occasions than he did, but was not fired. Second, he contends that he only contacted the
subrogation department, and later only accessed the claim files, after he was given permission to
do so by a supervisor. He further contends that he had no personal interest in the claim’s
outcome and was simply trying to help his company recover some of its losses from a third
party.
The task of a court in addressing alleged violations of Chapter 151B “is not to evaluate
the soundness of [the employer’s] decision making, but to ensure it does not mask discriminatory
animus.” Sullivan, 444 Mass. at 56 (citing Mesnick v. General Elec. Co., 950 F.2d 816, 825
13

(1991)). In Sullivan, the plaintiff attacked the process used to select her for termination, arguing
that the process improperly relied on subjective and unreliable assessments, compared her to
employees it should not have, and failed to compare her to employees it should have. Id. The
plaintiff in Sullivan also contended that her employer’s opinions of her job performance were
incorrect. Id. The Sullivan court affirmed summary judgment against the plaintiff, concluding
that even if it accepted the plaintiff’s criticisms of the reasons for her termination as true, those
criticisms “fail[ed] to reveal any hidden animus.” Id.
Plaintiff’s criticisms of defendant’s firing policy in this case likewise fail to reveal any
hidden animus in this case. Even if those criticisms are correct, they show nothing more than a
poor personnel decision by defendant. Plaintiff does not contend that he did not violate the
policy. Instead, he contends that his violations of the policy should not have resulted in the
termination of his employment because he had good reasons for violating the policy. That is not
enough to show that defendant’s reason for firing him was a pretext. Moreover, there is no
evidence to suggest that defendant’s decision to fire plaintiff and retain Therrault was due to
their different genders. Indeed, plaintiff admitted at his deposition that he had no facts to support
his belief that defendant’s management was targeting non-diverse people for termination.
(Manning Dep. at 142-43).3
Finally, plaintiff contends that he obtained permission from a supervisor to contact the
subrogation department and access the 2007 claim file. However, “[w]hen assessing a claim of
pretext in an employment discrimination case, a court’s focus is necessarily on the motivations
3

Plaintiff did state at his deposition that he believed defendant’s diversity initiative played a role in his
firing. However, plaintiff “cannot create an issue of material fact simply by stating [his] own unsubstantiated belief
that [a] diversity policy led to [his] discharge.” Bissett v. Beau Rivage Resorts Inc., 442 Fed. Appx. 148, 153 (5th
Cir. 2011) (collecting cases). Plaintiff has provided no evidence that defendant’s diversity initiative played a role in
the termination of his employment.

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and perceptions of the decisionmaker.” Davila v. Corporacion De Puerto Rico Para La Difusion
Publica, 498 F.3d 9, 16 (1st Cir. 2007) (emphasis added). The individuals who made the
decision to terminate plaintiff’s employment were told he did not receive permission to contact
the subrogation department.4 There is no evidence that any part of the investigation was done in
bad faith.
The Court’s role in a discrimination lawsuit is not to “second-guess a decision to fire [an
employee] . . . regardless of whether, to an objective observer, the decision would seem wise or
foolish, correct or incorrect, sound or arbitrary.” Davila, 498 F.3d at 17 (1st Cir. 2007).
Defendant has given a legitimate reason for the termination of plaintiff’s employment. Plaintiff
has provided no evidence that defendant’s firing policy was applied differently to him than his
female colleagues, as those colleagues neither attempted to influence the course of the claims
they accessed nor downloaded documents from those claims. Plaintiff has also introduced no
outside evidence of discriminatory animus in the decision to fire him.
Accordingly, defendant’s motion for summary judgment will be granted.
IV.

Conclusion
For the foregoing reasons, defendant’s motion for summary judgment will be

GRANTED.
So Ordered.
/s/ F. Dennis Saylor
F. Dennis Saylor IV
United States District Judge

Dated: April 14, 2014
4

Plaintiff objects to this evidence on hearsay grounds. The statements, however, are not being offered to
show that plaintiff did not receive permission to access the 2007 claim file. Instead, they are being offered to
illustrate the state of mind of the individuals making the decision to fire plaintiff, and are therefore not hearsay. See
Fed. R. Evid. 801(c)(2) (defining hearsay as a statement “a party offers in evidence to prove the truth of the matter
asserted in the statement.”).

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