Downing v. Omnicare, Inc.

Filing 71

Chief Judge Patti B. Saris: MEMORANDUM and ORDER entered. For the foregoing reasons, Defendants' Motion for Summary Judgment (Docket No. 46 ) is ALLOWED as to Count II against Defendant Sahney, Count III against Defendants Stamps, Workman, Sa hney, and Figueroa, Count V against Omnicare, and Count VI against Omnicare. The motion for summary judgment is DENIED in all other respects. A final pretrial conference will be held on November 27, 2017 at 9:00 A.M. A jury trial is scheduled for December 4, 2017 at 9:00 A.M. (Geraldino-Karasek, Clarilde)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
___________________________________
)
PATRICK F. DOWNING,
)
)
Plaintiff,
)
v.
)
Civil Action
)
No. 15-11853-PBS
OMNICARE, INC., JEFFREY STAMPS,
)
JOHN WORKMAN, NITIN SAHNEY,
)
JOHN FIGUEROA, and PRISCILLA
)
STEWART-JONES,
)
Defendants.
)
___________________________________)
MEMORANDUM AND ORDER
October 25, 2017
Saris, C.J.
INTRODUCTION
Plaintiff Patrick F. Downing was employed by Defendant
Omnicare, Inc., a pharmacy services company, from 2004 until his
termination in 2012. Plaintiff alleges that, in terminating his
employment, Omnicare and Defendants Jeffrey Stamps, John
Workman, Nitin Sahney, John Figueroa, and Priscilla StewartJones1, retaliated against him in violation of Massachusetts
General Laws Chapter 151B (Counts I and II). Plaintiff asserts
additional claims, including tortious interference with his
advantageous or contractual relationship with Omnicare (Count
III), breach of contract (Count IV), breach of the covenant of

1

Defendant Stewart-Jones is deceased.
1

good faith and fair dealing (Count V), and violation of Chapter
93A (Count VI).
Defendants Omnicare, Stamps, Workman, Sahney, and Figueroa
have moved for summary judgment on all claims. After a hearing
and consideration of the parties’ supplemental briefing,
Defendants’ Motion for Summary Judgment (Docket No. 46) is
ALLOWED IN PART and DENIED IN PART.
FACTUAL BACKGROUND
The facts below are interpreted in the light most favorable
to the non-moving party. Many are undisputed.
Plaintiff’s Employment
Omnicare purchased Plaintiff’s family-run pharmacy business
in 2004. As part of the Settlement and Release Agreement (“the
Agreement”), Omnicare granted shares of restricted common stock
to Plaintiff on April 1, 2008. The Agreement specified that the
stock would be distributed in ten equal installments that would
vest on the first ten anniversaries of the grant date. The
annual vesting of the stock was “subject to and conditioned upon
the continued employment of Patrick F. Downing by Omnicare as of
each vesting anniversary date.” Settlement and Release
Agreement, Docket No. 56-44, ¶ 4. The simultaneous execution of
an employment contract between Plaintiff and Omnicare was an
additional condition of the Agreement.

2

Plaintiff became an Omnicare employee in 2005. From 2005 to
his termination, Plaintiff held multiple high-level positions
within Omnicare’s Long Term Care Division (“LTC”). Stamps, who
was President of the LTC Division, promoted Plaintiff to his
final position, Division President of the Northeast Division of
LTC, in late 2010 or early 2011. Throughout his entire term of
employment with Omnicare, from 2005 to 2012, Plaintiff reported
to Stamps.
Stamps, in turn, reported to Figueroa, who was Omnicare’s
Chief Executive Officer (“CEO”) from January 2011 to June 2012.
Workman served as president and Chief Financial Officer (“CFO”)
from 2011 until June 2012, when he was appointed interim CEO.
During that same time period, Sahney was the head of the
“specialty pharmacy” division, and Stewart-Jones was Omnicare’s
top human resources executive.
Plaintiff’s Belief about Stamps-Burton Relationship
During his employment, Plaintiff believed that Stamps and
Karen Burton, a member of Omnicare’s clinical team, were
involved in an “inappropriate” relationship. Downing Dep. at
82:13-83:9. He noticed that Stamps and Burton engaged in
“flirting” and touched arms while speaking at work events.
Downing Dep. at 85:23-87:7. Burton personally informed Plaintiff
that she was getting a bikini wax in advance of a conference
that Stamps also would be attending. Burton mentioned that she
3

drove Stamps around Boston when he was in the city for work.
Plaintiff became aware that Burton and Stamps were speaking “on
an almost daily basis.” Downing Dep. at 83:8-9. Stamps’
assistant, Erla Burnside, told Plaintiff that Burton “had strong
influence over” Stamps. Downing Dep. at 84:24-85:4. In addition,
Plaintiff believed that Burton had no business reason for
attending events at which Stamps also was present. Plaintiff
also heard that Stamps and Burton attended an event without
their spouses, when significant others were welcome. Mindy
Ferris, the former Senior Vice President of Operations for LTC,
told Plaintiff that she believed Burton and Stamps engaged in
sexual activity in a hotel room while at a conference in Amelia
Island, Florida.
Defendants dispute the existence of any inappropriate
relationship, explaining that Stamps and Burton were good
friends and that Stamps was supportive of Burton during
difficult times in her life. They also maintain that Burton
worked on customer accounts and had oversight responsibilities
in New York City, which explained her attendance at galas and
events in the city.
From 2005 to 2007, Burton reported to Plaintiff. In late
2006, Plaintiff recommended that Burton be terminated based on
her performance. After this recommendation, Stamps restructured
the clinical departments, and Burton no longer reported directly
4

to Plaintiff. According to Plaintiff, when he recommended
Burton’s termination, Stamps responded, “[i]f you terminate her,
I’ll save her.” Downing Dep. at 98:5-14.
In 2011, two regional vice president (“RVP”) positions
opened up in the Northeast Division, one in New York and one in
New Jersey/Pennsylvania. Two women and five men applied for the
New York position, and on February 24, 2011, Plaintiff hired
Paul Jacques for the position. Plaintiff claims that he “sensed
[Stamps’] disappointment” when the two finalists, Jacques and
Michael Rosenblum, were announced. Downing Dep. at 22:21-23:21.
Two women and one man were considered for the New
Jersey/Pennsylvania position, and in September 2011, Plaintiff
hired Dale Lewis for the position.
Burton was one of the women who applied for these
positions, but she was not hired for either one. Burton was not
qualified for the RVP positions, in Plaintiff’s opinion. Stamps
did not directly lobby for Burton’s promotion to an RVP
position. However, according to Plaintiff, he called Stamps
after he denied Burton the RVP position; while Stamps said he
understood, Plaintiff contends that Stamps acted “more coolly”
toward him thereafter. Downing Aff., Docket No. 56-43, ¶ 8.
Figueroa, the CEO in 2011, told Plaintiff that Stamps had made
several negative statements about Plaintiff after Burton was not
promoted.
5

During the New Jersey/Pennsylvania RVP hiring period, a new
interview process was established to insulate Plaintiff and
others involved from retaliation by Stamps in case Burton was
not promoted. Throughout this process, Stamps criticized the
candidates Plaintiff brought forward and indirectly advocated
for Burton’s promotion to the New Jersey/Pennsylvania RVP
position by stressing the importance of “qualities that were
strengths of hers,” including customer relations. Downing Dep.
at 61:10-21, 63:4-65:21. While Stamps did not advocate for
Burton by name, Plaintiff interpreted Stamps’ comments as his
pushing for Burton to be promoted instead of a more qualified
male applicant. Operations experience -- a qualification which
both sides agree that Burton was lacking -- was a priority for
the New Jersey/Pennsylvania RVP job.
After the RVP positions were filled, Plaintiff felt that
Stamps was upset that he had not promoted Burton. Stamps made
comments about the competency of Jacques, Lewis, and Steve Rappa
-- three male RVPs -- that Plaintiff interpreted as pressure to
terminate them from their jobs.
Plaintiff’s Performance and Reviews
The quality of Plaintiff’s performance is hotly contested.
Prior to 2012, Plaintiff had always received performance
evaluations of “exceeds requirements” and “outstanding,” raises,
and incentive compensation including cash bonuses and stock
6

awards, commensurate with those reviews. He met operational
goals for his division’s budget in 2011, including bed
retention. Plaintiff’s bed loss and retention percentages for
2011 were within one percent of all but one other LTC division.
Defendants present a very different account of Plaintiff’s
performance. Figueroa became concerned with Plaintiff’s
performance beginning in the summer of 2011. By the end of 2011
or early 2012, Figueroa told Stamps that if he did not take
action against Plaintiff, Stamps would be held directly
accountable for Plaintiff’s poor results.
From Omnicare’s point of view, for calendar year 2011
Plaintiff’s Northeast Division was the worst-performing LTC
division for bed loss, an important marker of performance. In
December 2011, Plaintiff received official notice that a
correctional facility with 11,898 beds was not renewing its bed
contract with Omnicare effective February 15, 2012. Downing did
not advise Figueroa, Stamps, or Workman about this setback for
nearly two months. Overall, Plaintiff’s 2012 bed loss through
February 2012 totaled 17,347 beds. The next lowest-performing
region in the bed loss category lost only 2,373 beds.
In his time as Omnicare’s CEO, Figueroa introduced an
executive talent review process to the company in which the
senior management team, including Workman, Stamps, and StewartJones, rated the executives reporting to them. In January 2012,
7

Stamps evaluated Plaintiff in the “medium” performance level,
indicating that he was a “[s]olid performer.” As part of the
2012 Talent Review Summary dated April 16, 2012, Figueroa and
the rest of the senior team downgraded Stamps’ rating of
Plaintiff to “attention needed,” reflecting that Plaintiff’s
performance was “inconsistent” and “inadequate.”
Stamps contends that, in addition to retention concerns,
Plaintiff had “two significant compliance issues” in 2011.
Stamps Decl., Docket No. 46-11, ¶ 9. First, Plaintiff backdated
a customer contract. The compliance department recognized the
issue and timely corrected it. Defendants do not provide any
detail concerning the second compliance issue. Furthermore,
Plaintiff maintains that Stamps never discussed either of these
compliance issues with Plaintiff.
Figueroa gave Stamps his 2011 performance review on or
about February 22, 2012 and scored him an average rating of “3”
on a five-point scale, which meant that he “[c]onsistently met
expectations.” In early March 2012, Plaintiff met with Stamps to
receive his 2011 performance review. Plaintiff’s overall
performance rating was the same as the one Stamps had received
from Figueroa: “3, Consistently Met Expectations.” Figueroa
suggested that Plaintiff receive a “2” rating, but Stamps gave
Plaintiff a “2.85” rating which rounded up to a “3.”

8

In their meeting, Stamps told Plaintiff that he would be
receiving nearly one hundred percent of his projected cash bonus
and one hundred percent of his projected incentive stock awards,
but no pay raise. Figueroa told Stamps not to give a raise to
the lowest-performing division president, and Defendants say
that this was the reason Plaintiff did not receive a pay raise.
Plaintiff claims that Stamps never explained why his salary did
not increase. Plaintiff believed that the “3” review and lack of
pay raise was Stamps’ retaliation against him for not promoting
Burton to an RVP role.
Plaintiff’s Whistleblowing Meeting with Human Resources
On April 17, 2012, Plaintiff met with Stewart-Jones,
Omnicare’s Director of Human Resources, to express his
disappointment with his review and lack of pay raise. During
this meeting, Plaintiff told Stewart-Jones about his belief that
Stamps and Burton were engaged in an inappropriate workplace
relationship. Plaintiff also complained that his review and lack
of merit increase was retaliation “for [his] refusal to
participate in the promotion or favoritism to Karen Burton” to
the detriment of male employees. Downing Dep. at 165:4-12.
Plaintiff remembers giving Stewart-Jones the names of the three
male RVPs -- Jacques, Lewis, and Rappa -- whom he believed would
have been subjected to discrimination if he had promoted Burton.

9

After this meeting, Stewart-Jones reported to Figueroa and
Workman that Plaintiff had requested a severance package to
separate from Omnicare. Plaintiff denies that he ever asked for
a severance package or requested to leave Omnicare. StewartJones also reported that Plaintiff had complained about Stamps’
alleged relationship with Burton and Stamps’ alleged retaliation
against him.
Within weeks of his conversation with Stewart-Jones,
Omnicare put Plaintiff on a leave of absence.2 Plaintiff did not
want to be put on a leave of absence. Figueroa stated that he
put Plaintiff on leave because that was what Stewart-Jones
recommended and she told him that Plaintiff wanted to leave the
company. Workman agreed with Stewart-Jones’ recommendation to
put Plaintiff on paid leave.
During Plaintiff’s leave of absence, Omnicare hired an
outside attorney, Stephen Eberly, to investigate Plaintiff’s
complaint regarding Stamps’ relationship with Burton. Eberly
found that there was no evidence of sexual harassment, but he
did not reach a conclusion regarding the “precise nature” of the
relationship between Stamps and Burton or whether that
relationship influenced Stamps’ business decisions related to

2

The date on which the leave of absence began is disputed:
Plaintiff claims it commenced on or about April 30, 2012;
Defendants claim it began on or about May 15, 2012.
10

Plaintiff. Personnel Investigation -- Summary of Analysis and
Conclusions, Docket No. 59-2, at 7-9.
Figueroa resigned on June 10, 2012. On June 11, 2012
Workman became acting CEO, and Sahney became acting Chief
Operating Officer (“COO”). In mid-June 2012, Workman terminated
Plaintiff.3 Workman testified that he did not terminate Plaintiff
because of poor performance. Rather, Workman terminated
Plaintiff because Plaintiff “had expressed that he wanted to
separate from the company, and it would not have been in the
company’s best interest to continue the relationship with Pat
Downing.” Workman Dep. at 141:10-22. In coming to his decision,
Workman relied on Stewart-Jones’ representations of Plaintiff’s
desire to leave Omnicare and never saw any written documentation
from Plaintiff about wanting to leave the company.
Plaintiff, on the other hand, believes that his leave of
absence and termination were in retaliation for his complaint to
Stewart-Jones. He argues that, beginning on the day he
complained to Stewart-Jones, she “engineered an action to exit
[him] from the company.” Pl.’s Opp., Docket No. 52, at 8. He
bases this belief, in part, on communications between StewartJones, Stamps, and Figueroa regarding Plaintiff’s leave of

3

Whether Plaintiff was terminated on June 15, 2012 or June
18, 2012 appears to be in dispute.
11

absence and Omnicare’s “plan for what finally happens with”
Plaintiff. Docket No. 56-23 at 1.
DISCUSSION
I.

Summary Judgment Standard
Summary judgment is appropriate when 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). To succeed
on a motion for summary judgment, the moving party must
demonstrate that there is an “absence of evidence to support the
nonmoving party’s case.” Sands v. Ridefilm Corp., 212 F.3d 657,
661 (1st Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 325 (1986)). The burden then shifts to the nonmoving party
to set forth specific facts showing that there is a genuine
issue of material fact for trial. Quinones v. Buick, 436 F.3d
284, 289 (1st Cir. 2006). A genuine issue exists where the
evidence is “sufficiently open-ended to permit a rational
factfinder to resolve the issue in favor of either side.” Nat’l
Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir.
1995). A material fact is “one that has the potential of
affecting the outcome of the case.” Calero–Cerezo v. U.S. Dep’t
of Justice, 355 F.3d 6, 19 (1st Cir. 2004) (citing Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248–50 (1986)).
In its review of the evidence, the Court must examine the
facts in the light most favorable to the nonmoving party and
12

draw all reasonable inferences in its favor. Sands, 212 F.3d at
661. Ultimately, the Court is required to “determine if ‘there
is sufficient evidence favoring the nonmoving party for a jury
to return a verdict for that party.’” Id. (quoting Anderson, 477
U.S. at 249).
II.

Retaliation Claims (Counts I and II)
Chapter 151B of the Massachusetts General Laws (“chapter

151B”) makes it unlawful “[f]or an employer, by himself or his
agent, because of the . . . sex . . . of any individual . . . to
discriminate against such individual . . . in terms, conditions
or privileges of employment.” Mass. Gen. Laws ch. 151B, § 4(1).
This provision’s terms specify that it applies only to an
“employer.” Id. However, individuals who are not employers may
be held liable for workplace discrimination by provisions
forbidding “any person” from “interfer[ing] with another person
in the exercise or enjoyment of any right granted or protected
by this chapter,” id. § 4(4A), and prohibiting “any person” from
“aid[ing] . . . any of the acts forbidden under this chapter,”
id. § 4(5); see also Verdrager v. Mintz, Levin, Cohn, Ferris,
Glovsky, & Popeo, P.C., 50 N.E.3d 778, 793 (Mass. 2016).
Retaliation is prohibited under chapter 151B. Under the
statute, it is unlawful for “any person [or] employer . . . to
discharge, expel or otherwise discriminate against any person
because he has opposed any practices forbidden under this
13

chapter.” Mass. Gen. Laws ch. 151B, § 4(4). Notably, retaliation
claims in the employment context are “separate and distinct”
from discrimination claims. Verdrager, 50 N.E.3d at 799. “A
claim of retaliation may succeed even if the underlying claim of
discrimination fails, provided that in asserting her
discrimination claim, the claimant can ‘prove that [she]
reasonably and in good faith believed that the [employer] was
engaged in wrongful discrimination.’” Psy-Ed Corp. v. Klein, 947
N.E.2d 520, 529–30 (Mass. 2011) (alteration in original)
(quoting Abramian v. President & Fellows of Harvard Coll., 731
N.E.2d 1075, 1087-88 (Mass. 2000)).
To survive summary judgment on a retaliation claim, a
plaintiff must put forth evidence of four elements. First, an
employee must show a reasonable, good faith belief that “the
employer was engaged in wrongful discrimination.” Pardo v. Gen.
Hosp. Corp., 841 N.E.2d 692, 707 (Mass. 2006). Second, he must
provide evidence of protected activity: that the employee “acted
reasonably in response to that belief” to protest or oppose the
alleged discrimination. Verdrager, 50 N.E.3d at 800 (quoting
Pardo, 841 N.E.2d at 707). Third, there must be proof of an
adverse employment action by the employer. Id. Finally, the
employee must demonstrate that the adverse action was a response
to his protected activity. Id.

14

The fourth element is the most difficult for a plaintiff to
prove, because direct evidence of a retaliatory motive seldom
exists. See id. Thus, Massachusetts has adopted a burdenshifting framework to prove motive in cases like this one, where
a plaintiff has not produced direct motive evidence. See id. The
burden first lies with the plaintiff to show some protected
activity, an adverse action, and a “causal connection” between
the protected conduct and the adverse action. Id. (quoting Mole
v. Univ. of Mass., 814 N.E.2d 329, 338-39 (Mass. 2004)). Then,
the burden shifts to the employer, who must provide a
“legitimate, nondiscriminatory reason” for the adverse action.
Id. (quoting Esler v. Sylvia-Reardon, 46 N.E.3d 534, 539 n.7
(Mass. 2016)). Finally, the plaintiff must produce evidence
showing that the employer’s given reason for the adverse action
is merely pretext for retaliation. Id.
The only element of Plaintiff’s retaliation claims that is
not in contention is the existence of an adverse employment
action. While the exact dates of the adverse actions are
disputed, Plaintiff and Defendants agree that Plaintiff was put
on a leave of absence and subsequently terminated between April
and June 2012. In addition, the undisputed evidence shows that,
as a result of his lower evaluation in March 2012, Plaintiff did
not receive a base salary raise. A less positive evaluation and
a lack of salary increase are adverse actions that can form the
15

basis of a retaliation claim. See Blockel v. J.C. Penney Co.,
Inc., 337 F.3d 17, 27 (1st Cir. 2003) (stating that jury could
find that less favorable evaluation and lower pay increase were
adverse actions).
Defendants argue that summary judgment is proper because
Plaintiff has not provided sufficient evidence of his
reasonable, good faith belief in Stamps’ discriminatory conduct,
his protected activity, or a causal connection between those two
elements. The Court addresses each of these three remaining
elements in turn.
A.

Plaintiff’s Reasonable, Good Faith Belief in Wrongful
Discrimination

When the facts are viewed in the light most favorable to
Plaintiff, he has presented evidence from which a jury could
find that he reasonably and in good faith believed that Stamps
was engaged in conduct in violation of chapter 151B.
Defendants cite a number of cases to support their argument
that paramour favoritism is not illegal discrimination under
Title VII. See Defs.’ Mem., Docket No. 47, at 13-14 (collecting
cases). However, these cases do not construe state law. The key
case on point construing chapter 151B is Ritchie v. Dep’t of
State Police, 805 N.E.2d 54 (Mass. App. Ct. 2004). In Ritchie,
the plaintiff alleged that a Massachusetts state police
lieutenant and his assistant openly engaged in an office

16

relationship, in which they “spent time in the office kitchen
together, played ‘footsie,’ held hands, gave each other shoulder
massages, played romantic music in their shared office, and
departed from work together.” Id. at 57. The lieutenant
allegedly asked the plaintiff -- his subordinate -- and others
to contribute portions of their retroactive pay increases to
fund a bonus for his assistant and another employee. Id. In
addition, an internal investigation revealed that the lieutenant
had shown favoritism toward his assistant in other ways,
including “through overtime, time off and reprisals against
other employees.” Id. at 58. When the plaintiff objected to the
shows of favoritism, the lieutenant purportedly made
“disparaging remarks” about her. Id. at 57. The plaintiff
complained to another supervisor and to a union representative
and filed a sexual harassment complaint with the
Harassment/Discrimination Unit of the state police based on the
office romance. Id. at 58. After her formal complaint was filed,
the plaintiff received lower scores on her evaluation than ever
before. Id.
The plaintiff in Ritchie asserted that the facts as alleged
supported claims of a hostile work environment and retaliation
under chapter 151B. See id. at 58-59. The Massachusetts Court of
Appeals declined to decide whether her allegations of an office
romance and paramour favoritism were sufficient to state a
17

hostile work environment claim. See id. at 60-61. However, the
court did allow the plaintiff’s retaliation claim to go forward,
holding that paramour favoritism can form the basis of a
reasonable, good faith belief that the employer was violating
chapter 151B. See id. at 62 (“[W]e conclude that the facts
alleged are sufficient to satisfy the requirement that the
plaintiff ‘reasonably and in good faith’ believed that the
employer was engaged in conduct in violation of [chapter
151B].”).
Here, Plaintiff has presented evidence that Stamps and
Burton flirted and touched each other during their
conversations; talked almost daily; attended a function without
their spouses; drove and traveled together; and engaged in
sexual activity at a conference. Regardless of whether a
relationship actually existed, Plaintiff’s observations, along
with the observations of others, reasonably led him and others
in the company to believe that Stamps and Burton were involved
in an inappropriate relationship.
Defendants argue that Plaintiff cannot establish a
reasonable, good faith belief in a Stamps-Burton relationship
because inadmissible “hearsay rumors” make up the majority of
the evidence he presents. Defs.’ Mem., Docket No. 47, at 15; see
also Defs.’ Reply, Docket No. 59, at 2–4. Plaintiff, however, is
correct in his contention that the statements of others
18

regarding the existence of a relationship are not offered to
prove the truth of the matter asserted. See Fed. R. Evid.
801(c)(2). Instead, they are offered to show Plaintiff’s state
of mind and, thus, are admissible non-hearsay evidence. See,
e.g., Xiaoyan Tang v. Citizens Bank, N.A., 821 F.3d 206, 221
n.15 (1st Cir. 2016) (considering emails on summary judgment for
purpose of showing that superiors had “reason to believe” that
plaintiff was poor performer).
Plaintiff also presented evidence that he believed in good
faith that Stamps was engaging in favoritism towards Burton.
Plaintiff testified that, when he wanted to terminate Burton in
2006, Stamps told him: “If you terminate her, I’ll save her.”
Downing Dep. at 98:5-14. Burton also enjoyed “strong influence
over” Stamps. Downing Dep. at 84:24-85:4. In 2011, during the
hiring process for the New Jersey/Pennsylvania RVP, Plaintiff
felt that Stamps was indirectly advocating for the promotion of
Burton (instead of Lewis, a male employee) by stressing that
skills she possessed would be important for the position. Even
after the New Jersey/Pennsylvania RVP position was filled,
Plaintiff felt pressure from Stamps to terminate the male RVPs
whom Plaintiff thought were qualified. These facts support an
inference that Plaintiff believed in good faith that Stamps
would have engaged in gender discrimination in promotion
decisions but for Plaintiff’s opposition.
19

Plaintiff also produced evidence that Stamps acted “more
coolly” toward him and made negative comments about him to
Figueroa after Burton did not receive an RVP position. Downing
Aff., Docket No. 56-43, ¶ 8. Plaintiff believed that Stamps
retaliated against him by giving him a lower evaluation in March
2012 than ever before and by refusing to give him a salary
increase. Failure to receive a raise and an evaluation where the
employee “received lower scores than [he] ever previously had in
some categories” can form the basis of a retaliation claim under
section 4(4) of chapter 151B. Ritchie, 805 N.E.2d at 58, 63; see
also Blockel, 337 F.3d at 27 (stating that jury could find that
less favorable evaluation was adverse action caused by
plaintiff’s requests for a reasonable accommodation). While the
evidence supporting Plaintiff’s reasonable belief in Stamps’
retaliatory conduct is relatively weak, the burden at the prima
facie stage is a light one. See Che v. Mass. Bay Transp. Auth.,
342 F.3d 31, 38 (1st Cir. 2003). The facts taken in the light
most favorable to Plaintiff would support an inference that he
reasonably believed Stamps retaliated against him, in violation
of chapter 151B.
B.

Plaintiff’s Protected Activity

Once a plaintiff presents evidence sufficient to support
his reasonable, good faith belief in employment discrimination
via paramour favoritism, he must show that he reasonably
20

protested or opposed that perceived discrimination. Verdrager,
50 N.E.3d at 800.
Plaintiff met with Stewart-Jones, the head of human
resources, and lodged a complaint against Stamps on April 17,
2012. Complaining to the human resources department about a
supervisor’s discriminatory conduct is protected activity. Green
v. Harvard Vanguard Med. Assocs., Inc., 944 N.E.2d 184, 195
(Mass. App. Ct. 2011). Thus, Plaintiff has satisfied the
protected activity element of his retaliation claim.
C.

Causal Relationship Between Protected Activity and
Adverse Action: Burden-Shifting

To survive summary judgment, Plaintiff must show causal
links between (1) his opposition to Burton’s hiring and his less
positive review and lack of merit increase or (2) his complaint
to Stewart-Jones and his leave of absence and termination. When
the facts are viewed in the light most favorable to Plaintiff,
he has carried his burden only with respect to the leave of
absence and termination.
Stamps’ March 2012 review of Plaintiff’s performance
occurred approximately six months after Plaintiff promoted Lewis
to RVP. While a six-month interval might not support an
inference of retaliation, without more, see Mole, 814 N.E.2d at
341 (holding that adverse action must “follow close[ly] on the
heels of protected activity” to allow for an inference of

21

causation), “temporal proximity is but one method of proving
retaliation,” Verdrager, 50 N.E.3d at 801 (quoting Che, 342 F.3d
at 38). Plaintiff also may present evidence of “disparate
treatment in the time period between the protected activity and
the adverse employment action,” which can lead the jury to infer
that the “‘pattern of retaliatory conduct [began] soon after
[the protected activity] and only culminate[d] later in actual’
adverse action.” Id. (alteration in original) (quoting Mole, 814
N.E.2d at 341). Here, Plaintiff has provided facts showing that,
after he refused to promote Burton and before the performance
evaluation, Stamps seemed upset with him, acted “more coolly”
toward him, and made negative comments about him to Figueroa.
Downing Aff., Docket No. 56-43, ¶ 8. “When examining such
evidence, [this Court] keep[s] in mind that the prima facie case
is ‘a small showing that is not onerous and is easily made.’”
Che, 342 F.3d at 38 (quoting Kosereis v. Rhode Island, 331 F.3d
207, 213 (1st Cir. 2003)). These facts support an inference that
Stamps’ retaliatory conduct began soon after Burton lost out on
the RVP jobs and culminated in the less favorable performance
review.
With respect to his suspension and termination following
his complaint to Stewart-Jones, Plaintiff also has produced
evidence sufficient to support an inference of causation.
Plaintiff was put on a leave of absence no more than one month
22

after his conversation with Stewart-Jones. Such immediate
temporal proximity between Plaintiff’s complaint and his
suspension and termination makes out his prima facie case. See
Calero-Cerezo, 355 F.3d at 25-26 (holding that one-month period
was sufficient temporal proximity for prima facie case).
Defendants argue that a plaintiff with performance issues
that predate the protected activity must show more than temporal
proximity to prove a causal connection. See Defs.’ Reply, Docket
No. 59, at 9–10; see also Mole, 814 N.E.2d at 340 (“Where . . .
problems with an employee predate any knowledge that the
employee has engaged in protected activity, it is not
permissible to draw the inference that subsequent adverse
actions, taken after the employer acquires such knowledge, are
motivated by retaliation.”); Weeks v. Lower Pioneer Valley Educ.
Collaborative, No. 14-30097-MGM, 2016 WL 696096, at *12 (D.
Mass. Feb. 19, 2016) (dismissing retaliation claim where
defendant had pre-existing concerns about plaintiff’s
performance). Because Defendants have denied that Plaintiff’s
performance played any role in his termination, and it is hotly
disputed whether there were significant performance problems,
Plaintiff is not required to prove anything more in his prima
facie case.
Defendants then must meet their burden of providing
legitimate, non-discriminatory reasons for the adverse actions.
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They claim that Stamps’ evaluation was based on Plaintiff’s poor
performance in 2011. In addition, Figueroa told Stamps not to
give an annual salary raise to the lowest-performing division
president. Next, Defendants argue that Plaintiff was put on
leave and terminated because, based on Stewart-Jones’
representations, Figueroa and Workman believed that Plaintiff
had asked to leave Omnicare. Defendants’ reasoning for both
adverse actions shifts the burden back to Plaintiff to show that
the rationales are pretext.
With respect to the evaluation and pay raise issue,
Plaintiff does not provide any evidence to rebut Defendants’
legitimate, non-discriminatory reason for the action. Thus,
Plaintiff cannot pursue a retaliation claim based on this
particular adverse action theory.
However, his retaliation claim grounded in the leave of
absence and termination survives summary judgment because
Plaintiff provides evidence suggesting that Defendants’ reasons
were pretextual. Plaintiff disputes that he ever asked to leave
his employment with Omnicare, calling into question Defendants’
proffered reason for suspension and termination. In addition,
Defendants suggest that Plaintiff’s subpar 2011 performance
motivated his termination, but Workman testified that
Plaintiff’s performance did not play into the decision to fire
him. Thus, the only reason for termination supported by the
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record is Plaintiff’s alleged request to leave the company. If a
jury believed Plaintiff’s testimony that he never requested a
severance package or separation from Omnicare, the jurors could
infer that Defendants’ reason for terminating him was merely
pretext for retaliatory motive.
Plaintiff has raised triable issues of material fact with
respect to his retaliation claims against Defendants Omnicare,
Stamps, Workman, and Figueroa. However, Defendant Sahney
testified that he had no involvement in any adverse action taken
against Plaintiff, and Plaintiff has not provided any evidence
to dispute that testimony. Accordingly, Defendants’ motion for
summary judgment on the retaliation claims is DENIED with
respect to Defendants Omnicare, Stamps, Workman, and Figueroa,
and is ALLOWED with respect to Defendant Sahney.
III. Contract Claims
A.

Tortious Interference with Advantageous and/or
Contractual Relations (Count III)

Plaintiff does not oppose Defendants’ motion for summary
judgment on his claim for tortious interference with
advantageous and/or contractual relations (Count III). See Pl.’s
Opp., Docket No. 52, at 19-20; Pl.’s Surreply, Docket No. 62, at
10. The motion for summary judgment is ALLOWED for Defendants
Stamps, Workman, Sahney, and Figueroa on this claim.

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B.

Breach of Contract (Count IV)

Because Plaintiff’s retaliation claim against Omnicare
survives summary judgment, his breach of contract claim against
Omnicare must necessarily survive, as well. The terms of the
Agreement state that the annual vesting of the stock is “subject
to and conditioned upon the continued employment of Patrick F.
Downing by Omnicare as of each vesting anniversary date.”
Settlement and Release Agreement, Docket No. 56-44, ¶ 4.
However, Plaintiff argues that Omnicare cannot avoid its
obligation under the Agreement because the company wrongfully
terminated his employment.
“[O]ne who prevents the performance of a contract cannot
take advantage of its nonperformance.” Winchester Gables, Inc.
v. Host Marriott Corp., 875 N.E.2d 527, 536 (Mass. App. Ct.
2007) (quoting Frank Fitzgerald, Inc. v. Pacella Bros., Inc.,
310 N.E.2d 379, 381 (Mass. App. Ct. 1974)); see also Lobosco v.
Donovan, 565 N.E.2d 819, 821 (Mass. App. Ct. 1991) (“[I]t is
fundamental that a promisor may not avoid his promised
performance based on the nonoccurrence of a condition, where the
promisor has himself hindered or prevented its occurrence.”). If
a jury finds that Plaintiff was unlawfully terminated under
chapter 151B, then Omnicare cannot avoid performance through its
own illegal action. Since there is a disputed material fact as
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to whether Plaintiff’s termination constituted illegal
retaliation, Defendants’ motion for summary judgment on the
breach of contract claim is DENIED.
C. Breach of the Implied Covenant of Good Faith and Fair
Dealing (Count V)
Plaintiff did not oppose the motion for summary judgment on
the separate claim for breach of the covenant of good faith and
fair dealing (Count V). See Pl.’s Opp., Docket No. 52, at 19-20;
Pl.’s Surreply, Docket No. 62, at 10. Summary judgment for
Omnicare is ALLOWED on Count V.
IV.

Mass. Gen. Laws ch. 93A Claim (Count VI)
Finally, Plaintiff brings a claim under chapter 93A against

Omnicare. He argues that this claim is based on the Agreement
for the sale of his pharmacy business, not the employer-employee
relationship. According to Plaintiff, the claim arises from
“Omnicare’s wrongful termination of [his] employment as the
basis for their refusal to convey stock to him, which represents
partial payment for his pharmacy.” Pl.’s Surreply, Docket No.
62, at 10.
Private rights of action under section 11 of chapter 93A
are only available when both the plaintiff and the defendant are
involved “in the conduct of any trade or commerce.” Mass. Gen.
Laws ch. 93A, § 11. A sale of a business from one party to
another is sufficient to involve both parties in trade or

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commerce. See T. Butera Auburn, LLC v. Williams, 986 N.E.2d 404,
414 (Mass. App. Ct. 2013). However, the protections of section
11 do not extend to the employer-employee relationship. See
Manning v. Zuckerman, 444 N.E.2d 1262, 1265 (Mass. 1983) (“An
employee and an employer are not engaged in trade or commerce
with each other.”). To determine whether relief under section 11
is prohibited by the employer-employee relationship, a court
must determine whether, “taken as a whole,” the allegations are
“characterized fairly as ‘arising out of an employment
contract.’” Sargent v. Tenaska, Inc., 914 F. Supp. 722, 731 (D.
Mass. 1996) (quoting Mitchelson v. Aviation Simulation Tech.,
Inc., 582 F. Supp. 1, 2 (D. Mass. 1983)).
Here, the Agreement at issue was executed as part of the
sale of Plaintiff’s pharmacy company to Omnicare. Plaintiff’s
claim is based on the breach of the Agreement. Essentially, he
seems to argue that Omnicare’s use of his unlawful termination
as an excuse to withhold unvested stock is an unfair or
deceptive act or practice. Despite the fact that the Agreement
was for the sale of his business, Plaintiff’s stock benefits
were intertwined with and conditioned on his simultaneous
execution of an employment contract and his continued employment
with Omnicare. Thus, Plaintiff’s allegations can be
characterized fairly as arising out of a contract for

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employment-related benefits, and summary judgment is ALLOWED on
Count VI.
ORDER
For the foregoing reasons, Defendants’ Motion for Summary
Judgment (Docket No. 46) is ALLOWED as to Count II against
Defendant Sahney, Count III against Defendants Stamps, Workman,
Sahney, and Figueroa, Count V against Omnicare, and Count VI
against Omnicare. The motion for summary judgment is DENIED in
all other respects. A final pretrial conference will be held on
November 27, 2017 at 9:00 A.M. A jury trial is scheduled for
December 4, 2017 at 9:00 A.M.

SO ORDERED.

/s/ PATTI B. SARIS
____
Patti B. Saris
Chief United States District Judge

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