Coogan v. FMR, LLC, a/k/a Fidelity Investments et al

Filing 89

Magistrate Judge Donald L. Cabell: ORDER entered. REPORT AND RECOMMENDATION re 61 Motion for Summary Judgment filed by Defendants. Recommendation: that the defendants' motion for summary judgment be GRANTED. Objections to R&R due by 9/15/2017. (DLC, law3)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

STEVE COOGAN,
Plaintiff,
No. 15-cv-13148-GAO
v.
FMR, LLC, SEAN BURKE, and
MICHAEL LUZZO
Defendants.

REPORT AND RECOMMENDATION ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT (DKT. NO. 61)
CABELL, U.S.M.J.
Steve

Coogan

(“Coogan”

or

“the

plaintiff”)

worked

for

Fidelity Management & Research, LLC (“Fidelity”) for over 20 years
before being terminated in 2013, at the age of 55.

He alleges age

discrimination and has brought suit against Fidelity and his former
supervisors, Sean Burke (“Burke”) and Michael Luzzo (“Luzzo”)
(collectively “the defendants”) pursuant to both M.G.L. c. 151B
(Counts I, III and IV) and the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 621 (Count II).
summary judgment.

(Dkt. No. 61).

The defendants move for

The plaintiff opposes the

motion. (Dkt. No. 78). After careful consideration of the record,
the parties’ briefs and the information adduced at a hearing on

the motion, it is respectfully recommended that the motion for
summary judgment be ALLOWED.
I.

RELEVANT FACTUAL BACKGROUND

The plaintiff worked for Fidelity in various positions from 1989
until his termination in February 2013.
went

well

for

him

from

1989

Broadly speaking, things

through

2010,

but

proceeded

precipitously downhill from 2010 to 2013.
1. 1989 to 2010
Fidelity hired the plaintiff in 1989 to work in its Internal
Document

Printing

Services

(“DPS”)

section.

(Statement

of

Undisputed Facts In Support of Defendants’ Motion for Summary
Judgment (“Defendants’ SUF”), at ¶ 5). The plaintiff left Fidelity
in 1994 but subsequently returned to DPS in 1995 and worked there
until his termination on February 12, 2013.

(Defendants’ SUF, at

¶¶ 1, 5; Coogan’s Statement of Undisputed Facts (“Plaintiff’s
SUF”), at ¶ 1).
The plaintiff’s responsibilities with DPS included “most of
the enterprise printing that supports Fidelity’s business units,
an all-digital configuration that produces (among other things)
presentations,

bound

booklets,

training manuals and posters.”

brochures,

flyers,

name

tags,

(Defendants’ SUF, at ¶ 4).

In 2008, when the plaintiff was 50, Fidelity promoted him to
the position of “senior manager.”
Plaintiff’s SUF, at ¶ 2, 33).

(Defendants’ SUF, at ¶ 10;

In that role, the plaintiff managed
2

10-20 direct reports, ensured that all print jobs were produced
timely and according to customer specifications, and oversaw the
mail room, quality control, and accounting for metrics and costs.
(Defendants’ SUF, at ¶¶ 10, 11; Plaintiff’s SUF, at ¶ 34).

Luzzo

was the plaintiff’s direct supervisor; he held bi-weekly meetings
with

the

plaintiff,

provided

him

with

ongoing

coaching,

and

counseled him on opportunities for performance improvement within
his role as senior manager.
From
positive

2008

through

performance

(Defendants’ SUF, at ¶¶ 12, 13).

2010,

reviews,

the

plaintiff

awards,

(Plaintiff’s SUF, at ¶¶ 1-44).

and

received

numerous

merit-based

raises.

In or around 2011, though, the

plaintiff began to experience difficulties.
2. 2011
In 2011, the plaintiff was awarded for the first time a
“project manager role.” (Defendants’ SUF, at ¶ 17; Plaintiff’s
SUF, at ¶ 45).

Among other things, the plaintiff was responsible

for overseeing the successful implementation of a new software
system

Fidelity

had

purchased.

Plaintiff’s SUF, at ¶ 50).

(Defendants’

SUF,

at

¶

17;

The software system was scheduled to

be implemented and launched in full within two years; during that
time the plaintiff and his team were responsible for meeting
various implementation-related deadlines.
20; Plaintiff’s SUF, at ¶ 52).

3

(Defendants’ SUF, at ¶

Unfortunately, the plaintiff and his team failed to meet
several of these interim deadlines, which in turn set back the
launch date of the software system.
Plaintiff’s SUF, at ¶ 56).
the

plaintiff,

and

also

(Defendants’ SUF, at ¶ 22;

Luzzo addressed these concerns with
counseled

the

plaintiff

on

training

modules, proper training documentation, and timely completion of
tasks.

(Defendants’ SUF, at ¶¶ 27, 30).

At his 2011 mid-year performance review, Luzzo indicated
among other things that the plaintiff was continuing to “lea[d]”
the implementation of the software system, and that the team was
“optimistic” about meeting an upcoming deadline despite being
“behind target dates.”

Luzzo also indicated that the plaintiff

did not fully meet expectations on another particular project.
The plaintiff disputes that this is an accurate portrayal of his
performance in 2011, but admits that Luzzo was not discriminating
against him based on his age, then 53.

(Defendants’ SUF, ¶¶ 33-

34).
At his 2011 year-end review, the plaintiff received an overall
performance rating of “inconsistent,” and Luzzo identified several
areas where the plaintiff had failed to fully meet performance
benchmarks.

(Defendants’

SUF,

at

¶¶

35-37,

39-42).

These

performance benchmarks included, among others, the “implementation
of the DPS operational software,” the ability to communicate

4

effectively, and “DPS lean document processing implementation.”
(Defendants’ SUF, at Ex. 12B).
3. 2012
In 2012, the plaintiff received a poor mid-year performance
review.

More particularly, the plaintiff received a performance

rating of “did not fully meet expectations” in several areas,
including in the areas of “improving customer experience” and
“delivering process excellence.”

(Defendants’ SUF, at ¶ 44).

Luzzo also reduced the plaintiff’s DPS-related tasks because the
plaintiff was continuing to struggle with timely implementation of
the new software system. Luzzo subsequently reassigned those tasks
to another DPS employee.

(Defendants’ SUF, at ¶¶ 45-47).

On or about May 24, 2012, Fidelity hired Burke as a “senior
director.”

(Defendants’ SUF, at ¶ 55; Plaintiff’s SUF, at ¶ 69).

Burke was born in 1957 and is approximately 11 months older than
the plaintiff.

(Defendants’ SUF, at ¶ 59; Plaintiff’s SUF, at ¶

74). Burke reported directly to Luzzo and supervised approximately
30 employees, including the plaintiff.
55).

As

the

plaintiff’s

supervisor,

(Defendants’ SUF, at ¶
Burke

was

primarily

responsible for evaluating the plaintiff’s performance, and for
providing performance related guidance and support.

(Defendants’

SUF, at ¶ 84).
On October 31, 2012, Burke met with the plaintiff to discuss
concerns he had with the plaintiff’s performance.
5

(Defendants’

SUF, at ¶ 85).

Burke identified a need for “drastic improvement”

in several areas, including in the areas of “leadership project
execution,”

“working

well

with

others,”

and

“communication.”

(Defendants’ SUF, at ¶ 87).
According to the plaintiff, Burke, at various times during
the year, made age-related remarks directly to the plaintiff or in
the plaintiff’s presence.

First, at some point between May and

October of 2012, Burke began to come into the office where Coogan
and a colleague named Zarrella worked and, referring to the smell
of the garbage room located in close proximity to the plaintiff’s
office,

would

say,

“It

smells

like

two

old

men

in

here.”

(Defendants’ SUF, at ¶¶ 192-93; Plaintiff’s SUF, at ¶ 87). Second,
Burke at some point during the summer of 2012 told the plaintiff
that he thought the plaintiff’s team was “old” and asked the
plaintiff about the ages of the employees who directly reported to
him, and how long each had worked at Fidelity. (Defendants’ SUF,
at ¶ 194; Plaintiff’s SUF, at ¶ 78).

Upon learning the ages of

the plaintiff’s staff, Burke allegedly responded that “we need to
be younger.”
81).

(Defendants’ SUF, at ¶ 194; Plaintiff’s SUF, at ¶

On another occasion, when Burke learned that a particular

employee was thinking about leaving Fidelity, he said “we can’t
lose him, he’s our youngest employee,” and he subsequently gave
the employee a “substantial off-cycle raise.”

6

(Defendants’ SUF,

at ¶ 195; Plaintiff’s SUF, at ¶ 88).
of these comments.

Burke denies having made any

(Defendants’ SUF, at Ex. 4).

4. The December 2012 Final Written Warning
In or around December 2012, Burke met with the plaintiff to
discuss a recent customer complaint regarding an improperly sized
document. 1

(Defendants’ SUF, at ¶ 92).

Although the plaintiff

denied any knowledge of the matter, Burke and Luzzo issued the
plaintiff

a

final

written

warning

on

December

12,

2012.

(Defendants’ SUF, at ¶¶ 92, 105; Plaintiff’s SUF, at ¶ 110).

The

final

the

written

warning

stated

in

part

that

“[Burke

and

plaintiff] have discussed [the plaintiff’s] overall performance on
multiple occasions over the past three months,” and the discussions
“focused

on

[the

plaintiff’s]

lack

of

follow-through,

[the

plaintiff’s] inability to understand and solve complex business
problems and an unwillingness to communicate problems and issues
to [the plaintiff’s] superiors.”
The

written

warning

also

(Defendants’ SUF, at ¶ 108).

identified

several

incidents

of

misconduct where the plaintiff “instructed associates to ship
inferior product to show (the business partner) it was wrong.”
(Defendants’ SUF, at ¶ 111).

1

DPS aimed to help their clients understand how to properly size and send a
PDF document. However, in the event that the client failed to do so, “it was
standard operating procedure” for DPS staff to shrink the document in order to
achieve proper sizing for printing. (Defendants’ SUF, at ¶ 90).

7

Burke

placed

(Plaintiff’s
dismissal

SUF,

during

performance

and

the
at
the
any

plaintiff
¶

111).

on
The

probation
plaintiff

probationary
identified

period

areas

of

for

90

days.

was

subject

unless

his

concern

to
job

improved.

(Defendants’ SUF, at ¶¶ 107, 116; Plaintiff’s SUF, at ¶ 111).
Burke continued to meet with the plaintiff during this time to
discuss work performance issues and opportunities for improvement.
(Defendants’ SUF, at ¶ 127).
On

December

24,

2012,

the

plaintiff

contacted

a

human

resources employee to express his surprise at having received a
final written warning.

(Defendants’ SUF, at ¶ 133).

During this

conversation, the plaintiff did not express any belief or concerns
that he was being discriminated against on the basis of his age.
(Id.).
5. The December 2012 Hiring of Jiao
On December 17, 2012, Fidelity hired Jiao, a younger woman,
to work alongside the plaintiff.

(Defendants’ SUF, at ¶ 125;

Plaintiff’s SUF, at ¶ 122). Jiao came to assume many of the
plaintiff’s areas of responsibilities:
reports,

communicated

with

business

she managed his direct
partners,

and

processed

delivery. (Defendants’ SUF, at ¶ 126; Plaintiff’s SUF, at ¶ 108).
Burke also reassigned to Jiao all of the plaintiff’s duties related
to the software implementation, ostensibly so the plaintiff could

8

return to his duties as an operational manager.

(Defendants’ SUF,

at ¶ 126; Plaintiff’s SUF, at ¶ 125).
At

his

2012

year-end

performance

review,

the

plaintiff

received a rating of “did not fully meet expectations” for several
key benchmarks, including among other things “partner to improve
the

customer

experience,”

and

“deliver

process

excellence.”

(Defendants’ SUF, at ¶ 134, Ex. 15; Plaintiff’s SUF, at ¶ 133).
These benchmarks accounted for 80% of the plaintiff’s designated
duties and responsibilities.
plaintiff’s

overall

(Defendants’ SUF, at ¶ 134). The

performance

was

rated

as

“inconsistent.”

(Plaintiff’s SUF, at ¶ 131).
6. The Plaintiff’s February 2013 Termination
On January 10, 2013, Burke issued the plaintiff a “coaching
note” which identified numerous performance concerns and “two
monumental errors in data approval.”
146).

During

a

meeting

to

(Defendants’ SUF, at ¶¶ 145,

discuss

the

coaching

note,

Burke

reassigned many of the plaintiff’s non-administrative tasks to
other DPS employees, particularly those which required him to come
in contact with clients.

(Defendants’ SUF, at ¶ 153).

Despite Burke’s ongoing coaching, the plaintiff continued to
commit several errors. Among them, the plaintiff failed to correct
the year on a print job in one matter.
plaintiff

sent

out

a

print

job

In another instance, the

earlier

than

the

client

had

requested, resulting in additional handling expenses incurred by
9

the client.

(Defendants’ SUF, at ¶¶ 157, 159; Plaintiff’s SUF, at

¶¶ 138, 141).
There is no dispute that Burke subsequently met with the
plaintiff and Zarrella to discuss the mailing mistake, but the
parties offer different versions of the specific details.
The plaintiff contends that he realized on January 25, 2013
that he had caused a premature mailing by inputting the wrong date.
He contends that he told Zarrella of the error and left it to
Zarrella as the lead on the account to do whatever he needed to
do.

He contends that he informed Burke of the error the following

morning.
By

(Plaintiff’s SUF, at ¶¶ 138-146).
contrast,

the

defendants

contend

that

the

plaintiff

reported at the meeting that he did not know anything about the
mistake but would look into it.

According to Burke, Zarrella then

returned approximately 15-20 minutes after the meeting and told
Burke that he and the plaintiff had lied.

Zarrella explained that

the plaintiff was worried the mistake might affect his job and he
therefore asked Zarrella to lie for him, or at least not say
anything if asked.
made a mistake.

Zarrella had agreed but now recognized he had

Burke believed Zarrella and reported the incident

to Luzzo and to Employee Relations (“ER”).

Zarrella subsequently

confirmed to Luzzo that the plaintiff had asked him to lie.
(Defendants’ SUF, at ¶¶ 161-163).

10

There is no dispute that, following the meeting, Fidelity’s
ER

representative

(Morrissey)

was

informed.

Fidelity

takes

potential termination matters seriously so Morrissey consulted
with her ER colleagues and Fidelity’s employment attorney prior to
the termination.

(Id., at ¶ 165).

On February 12, 2013, Burke and Luzzo met with the plaintiff.
The three of them discussed the plaintiff’s performance issues,
including the job that had been incorrectly expedited, and the
instruction to ship the job with the wrong date.
gave his explanation regarding each incident.

The plaintiff

Luzzo asked the

plaintiff whether he had asked anyone to lie for him to conceal
his mistake.
him.

The plaintiff denied telling Zarrella to lie for

(Id. at ¶¶ 166-168).
Luzzo asked the plaintiff for his badge and Blackberry and

instructed the plaintiff to go home.
would be contacted later.

The plaintiff was told he

Burke and Luzzo did not believe the

plaintiff and conveyed their belief to Morrissey.

Burke told

Morrissey that he felt they needed to terminate the plaintiff
because he did not trust him.

The actual decision to terminate

the plaintiff was made by Burke in consultation with ER and Luzzo.
Later that afternoon, Burke and Morrissey called the plaintiff
together and told him he was being terminated for dishonesty.

The

plaintiff continued to deny the conduct. (Id. at ¶¶ 171-177, 179).

11

At the time of his termination the plaintiff was approximately 55
years old.

(Defendants’ SUF, at ¶ 1).

Subsequently, in August 2013, Fidelity hired a woman in her
late

twenties

termination.
II.

to

fill

the

vacancy

left

by

the

plaintiff’s

(Plaintiff’s SUF, at ¶¶ 163, 165).

THE COMPLAINT

The operative complaint contains four counts.
Count I charges all three defendants with age discrimination
in violation of M.G.L. c. 151B.

No specific section of the statute

is referenced, but the plaintiff presumably alleges a violation of
Chapter 151B, § 4(1B).
Count

II

charges

Fidelity

with

age

discrimination

in

violation of the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 623.
Count III charges Burke and Luzzo with aiding and abetting
age discrimination in violation of M.G.L. c. 151B, § 4(5).
Finally, Count IV charges Burke and Luzzo with interference
with the plaintiff’s right to be free from discrimination in the
workplace in violation of M.G.L. c. 151B, § 4(4A).
III. STANDARD OF REVIEW
When

the

Court

is

presented

with

a

motion

for

summary

judgment, it shall grant it “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled
to a judgment as a matter of law.”
12

Fed. R. Civ. P. 56(a).

The

moving party bears the initial burden of “assert[ing] the absence
of a genuine issue of material fact and then support[ing] that
assertion

by

affidavits,

evidentiary quality.”
15, 19 (1st Cir. 2003).

admissions,

or

other

materials

of

Mulvihill v. Top-Flite Golf Co., 335 F.3d
Once the moving party meets that burden,

in order to avoid summary judgment, the opposing party must “‘show
that a factual dispute does exist, but summary judgment cannot be
defeated

by

relying

on

improbable

allegations, or rank speculation.’”

inferences,

conclusory

Fontanez-Nunez v. Janssen

Ortho LLC, 447 F.3d 50, 54-55 (1st Cir. 2006) (quoting Ingram v.
Brink’s, Inc., 414 F.3d 222, 228-29 (1st Cir. 2005)).
opposing

party

must

“‘produce

specific

facts,

Indeed, the
in

suitable

evidentiary form, to establish the presence of a trialworthy
issue.’”

Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006)

(quoting Triangle Trading Co. v. Robroy Indus. Inc., 200 F.3d 1,
2 (1st Cir. 1999)).
When determining whether summary judgment is appropriate, “a
court must view the record in the light most favorable to the
nonmoving party and give that party the benefit of all reasonable
inferences in its favor.” Id. (citing Nicolo v. Philip Morris,
Inc., 201 F.3d 29, 33 (1st Cir. 2000)).

The Federal Rules require

“the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
13

that party’s case, and on which that party will bear the burden of
proof at trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986) (citing Fed. R. Civ. P. 56)).

“‘Where the record taken as

a whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.’”

Scott v.

Harris, 550 U.S. 372, 380 (2007) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (further
internal quotation marks omitted).
IV.

ANALYSIS
a. Counts I and II

As

noted,

Counts

I

and

II

allege

age

discrimination

in

violation of the state statute Chapter 151B and the federal ADEA,
respectively.

Both chapter 151B and the ADEA prohibit employers

from discriminating against employees on the basis of their age.
See e.g., Santangelo v. New York Life Ins. Co., 785 F.3d 65, 68
(1st Cir. 2015).

Claims of age discrimination brought under

chapter 151B and the ADEA track one another closely and the
conventional

three-step

McDonnell

Douglas

framework

(commonly

called the “pretext analysis”) applies to cases brought pursuant
to both statutes where, as here, there is no direct evidence of
discrimination. 2

See McDonell Douglas Corp. v. Green, 411 U.S.

792, 802-805 (1973).

2

The plaintiff purports to present direct evidence of age discrimination
by pointing to several comments allegedly made by Burke reflecting
14

The first step of the McDonnell Douglas framework requires
the plaintiff to establish a four-element prima facie case.

Under

both Massachusetts and federal law, the plaintiff must establish
(1) that he was over the age of 40 when he was terminated; (2)
that his job performance “was sufficient to meet his employer’s
legitimate

expectations;”

(3)

that

he

suffered

an

adverse

employment action, such as termination; and (4) that Fidelity
“sought a replacement with roughly equivalent job qualifications,
thus revealing a continued need for the same services and skills.”
Mesnick v. General Elec. Co., 950 F.2d 816, 823 (1st Cir. 1991)
(citing Hebert v. Mohawk Rubber Co., 872 F.2d 1104, 1110 (1st Cir.
1989)).

“Establishment of the prescribed prima facie case creates

a presumption that the employer engaged in impermissible age
discrimination.”

LeBlanc v. Great American Ins. Co., 6 F.3d 836,

842 (1st Cir. 1993).
If the plaintiff meets his initial burden, the burden shifts
to the defendants to articulate a legitimate, nondiscriminatory
reason for the adverse employment action. McDonnell Douglas, 411
U.S. at 802.

“This entails only a burden of production, not a

burden of persuasion; the task of proving discrimination remains

“direct expressions of distaste for older employees.” (Dkt. No. 81).
In the court’s view these alleged comments are more properly categorized
as circumstantial rather than direct evidence of age discrimination.
See Olivera v. Nestle Puerto Rico, Inc., 922 F.2d 43, 49 (1st Cir. 1990).
In any event, the plaintiff proceeds under the McDonnell Douglas
paradigm.
15

the [plaintiff’s] at all times.” Mesnick, 950 F.2d at 823 (citing
Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 9 (1st Cir.
1990)).

To meet its burden, a defendant “must clearly set forth,

through the introduction of admissible evidence, the reason for
the plaintiff’s [termination].”

Texas Dept. of Community Affairs

v. Burdine, 450 U.S. 248, 255 (1981).

“The defendant need not

persuade the court that it was actually motivated by the proffered
reasons.”
If

Id. at 254.

the

defendant

discriminatory

reason

is

able

to

proffer

for

the

adverse

a

legitimate,

employment

action,

nonthe

presumption of age discrimination dissipates and the burden shifts
back to the plaintiff “to prove that the reason advanced by the
employer for the adverse employment action constituted a mere
pretext for unlawful age discrimination.”

LeBlanc, 6 F.3d at 842.

“It is not enough for the plaintiff simply to cast doubt on the
employer’s justification for the termination of employment. The
plaintiff must present a sufficient showing that a discriminatory
animus motivated the action.”
Supp. 809, 819 (D. Mass. 1995).

Biggins v. Hazen Paper Co., 899 F.
In assessing pretext, the court’s

“focus must be on the perception of the decisionmaker,” that is
whether the employer believed its stated reason to be credible.
Acevedo-Parrilla v. Novartis Ex-Lax, Inc., 696 F.3d 128, 141 (1st
Cir. 2012)(quoting Gray v. New England Tel. & Tel. Co., 792 F.2d
251, 265 (1st Cir. 1986)).
16

1. The Plaintiff’s Prima Facie Case
Applying the foregoing considerations here, the first prima
facie element is easily met because the plaintiff was at all
relevant times over the age of 40.
the

defendants

argue

that

the

Regarding the second element,

plaintiff

cannot

show

he

met

performance-related expectations where he himself acknowledged
subpar performance in some instances.

But, the plaintiff contends

that his overall performance was satisfactory and he recites in
his

memorandum

several

indicia

of

satisfactory

or

superior

performance, including that he was “regularly promoted, given
merit raises, and given merit bonuses over twenty-three years at
Fidelity.”

(Dkt.

No.

81,

Plaintiff’s

Opposition,

p.

15).

Understanding that the initial prima facie showing is not intended
to be onerous, the court finds that this second element is met.
See e.g., Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45
(2005).

The third element is met because the plaintiff was

terminated on February 12, 2013, and thus suffered an adverse
employment action.

Finally, the fourth element is satisfied

because Fidelity sought a replacement for the plaintiff’s positon
following his termination. 3

3

The parties disagree as to whether the plaintiff was replaced by two,
significantly younger employees, Jiao and Dolinskiy. The plaintiff maintains
that Burke hired Jiao, a woman in her twenties, to replace the plaintiff while
he was still employed at Fidelity, even though she “had no experience managing
direct reports or running a print operation.” (Dkt. No. 81). The plaintiff
further alleges that following his termination, Burke hired Dolinskiy, also in
her twenties, and that she “oversaw [the plaintiff’s] direct reports and took

17

2. Defendants’ Legitimate, Nondiscriminatory Reason for the
Termination
Because the plaintiff has established a prima facie case of
age discrimination, the burden shifts to the defendants to “rebut
the presumption of discrimination by producing evidence that the
plaintiff

was

[terminated]

nondiscriminatory reason.”
49, 52 (D. Mass. 1997).
clearly

set

forth,

.

.

.

for

a

legitimate,

Miner v. Connleaf, Inc., 989 F. Supp.

To meet its burden, the defendants “must

through

the

introduction

of

admissible

evidence, the reason for the plaintiff’s [termination].”

Burdine,

450 U.S. at 255.
Here,

the

defendants

have

clearly

identified

nondiscriminatory reason for the plaintiff’s termination.

a
They

assert that he had serious performance issues and ultimately was
terminated because he asked or instructed Zarrella to lie for him
to conceal a mistake the plaintiff had made.

In that regard, Burke

and Luzzo both testified that Zarrella told them the plaintiff had
asked him to lie or at least remain silent if asked about the
mistake.
misconduct

(Defendants’ SUF, at ¶ 162).
of

that

sort

would

There is no issue that

constitute

nondiscriminatory basis for termination.

a

legitimate

See e.g., Soto-Feliciano

over [the plaintiff’s] former duties.” (Id.). The defendants argue that Jiao
did not replace the plaintiff because she worked alongside the plaintiff prior
to his termination. In either event, the defendants maintain that both Jiao
and Dolinskiy had “superior credentials.” (Dkt. No. 62). The Court finds this
dispute to be immaterial but will assume for purposes of the summary judgment
only that the plaintiff was replaced by Jiao and Dolinskiy.

18

v. Villa Cofresi Hotels, Inc., 779 F.3d 19, 24 (1st Cir. 2015)
(plaintiff’s termination for misconduct was sufficient to satisfy
burden to articulate legitimate, nondiscriminatory reason); OrtizRivera v. Astra Zeneca LP, 363 Fed. Appx. 45, 47 (1st Cir. 2010)
(serious

doubts

about

plaintiff’s

honesty

constitutes

a

legitimate, nondiscriminatory basis for its adverse employment
action).
3. The Plaintiffs’ Burden to Demonstrate Pretext
The burden thus shifts back to the plaintiff to show by a
preponderance

of

the

evidence

that

the

defendants’

proffered

reasons for termination are pretextual and have no reasonable
support in the evidence. See Koster v. Trans World Airlines, Inc.,
181 F.3d 24, 30 (1st Cir. 1999); Wheelock College v. Massachusetts
Commission against Discrimination, 371 Mass. 130, 138 (1976).

At

this juncture, though, “state and federal law no longer parallel
each other.”

Brennan v. GTE Government Systems Corp., 150 F.3d

21, 26 (1st Cir. 1998).

Massachusetts law requires the employee

to show only pretext, whereas under First Circuit ADEA law “[t]he
plaintiff

must

do

more

than

cast

doubt

justification for the challenged action.”

on

the

employer’s

Goldman v. First Nat.

Bank of Boston, 985 F.2d 1113, 1117 (1st Cir. 1993); see also
Koster, 181 F.3d at 30. To show pretext under the ADEA, a plaintiff
must produce sufficient evidence “to show both that the employer’s
proffered reason is a sham and that discriminatory animus sparked
19

[its] actions.”

Cruz-Ramos v. Puerto Rico Sun Oil Co., 202 F.3d

381, 384 (1st Cir. 2000); see also Miner, 989 F. Supp. at 53 (“the
plaintiff cannot avert summary judgment if the record is devoid of
adequate

direct

or

circumstantial

evidence

animus on the part of the employer”).

of

discriminatory

By contrast, for claims

brought under M.G.L. c. 151B, “a plaintiff carries his burden of
persuasion

with

circumstantial

evidence

that

convinces

the

factfinder that the [employer’s] proffered explanation is not
credible.”

Kelley v. Airborne Freight Co., 140 F.3d 335, 349 (1st

Cir. 1998) (citing Wheelock College, 371 Mass. at 130).

The

plaintiff cannot make this showing regardless of the standard
applied.
To begin, the plaintiff does not explain why the defendants’
proffered

explanation

for

termination

of

employee

misconduct

should contrarily be seen as pretextual, i.e., he simply does not
address the issue in his opposition brief.

To be sure, the

plaintiff denies (in his statement of facts) that he ever asked
Zarrella to lie for him or to conceal his mistake if Burke asked
him about it.

But, as noted above, the defendants produced

evidence that the plaintiff asked Zarella to lie to Burke to
conceal a mistake.

Against this backdrop, the plaintiff’s mere

denial without more is simply insufficient to show pretext. See
Ronda-Perez v. Banco Bilbao Vizcaya Argentaria – Puerto Rico, 404
F.3d 42, 44 (1st Cir. 2005) (“Plaintiff’s plea that his denials
20

establish triable issues of fact foreclosing summary judgment
would, if accepted, spell the end of summary judgment.”).
Rather, the issue the plaintiff must address is whether the
defendants’ explanation for terminating the plaintiff, together
with any other evidence, could reasonably be seen by a jury not
only to be false but to suggest an age-driven animus.

Bennett v.

Saint-Gobain Corp., 453 F. Supp. 2d 314, 327 (D. Mass. 2006).

In

that regard, the plaintiff argues that discriminatory animus can
be inferred from Burke’s age related comments.

As noted above,

there was evidence that Burke allegedly would greet the plaintiff
and Zarella by saying “it smells like two old men in here,” and on
another occasion opined that “we need to be younger,” and on yet
another

occasion

expressed

concern

about

losing

an

employee

because “he is our youngest employee.”
Burke denies having made any such comments. But even assuming
he made them, offhanded jokes or comments endorsing the notion of
younger workers are not ipso facto evidence of age discrimination
or

a

discriminatory

insufficient

to

animus.

meet

the

Generally,
plaintiff’s

“stray
burden

comments

are

in

age

[an

discrimination case].” Thomas v. Sears, Roebuck & Co., 144 F.3d
31, 34 (1st Cir. 1998); see also Torrech-Hernandez v. General
Electric Co., 519 F.3d 41, 51-53 (1st Cir. 2008) (comments by
supervisor referring to employee as a “dinosaur” not sufficient to
support a finding of pretext); Gonzalez v. El Dia, Inc., 304 F.3d
21

63, 69-70 (1st Cir. 2002) (“stray workplace remarks normally are
insufficient, standing alone, to establish either pretext or the
requisite discriminatory animus”; remark that employee had “old
ways” insufficient to show pretext); Mesnick, 950 F.2d at 826
(“Words of praise for the youth . . . do not, by themselves,
indicate a bias against more mature workers.”); Medina-Munoz, 896
F.2d at 9 (comment that sales force was “getting too old” was not
indicative of age discrimination); Fontaine v. Ebtec Corp., 415
Mass. 309, 314 n. 7 (1993) (“isolated or ambiguous remarks tending
to suggest animus based on age are insufficient, standing alone,
to prove an employer’s discriminatory intent”).
Moreover, any consideration of Burke’s statements must take
into

consideration

that

Burke,

despite

being

the

plaintiff’s

direct supervisor, did not have the power to unilaterally fire the
plaintiff.

Rather, it was Luzzo who made the determination to

take the plaintiff’s badge and Blackberry and send him home, and
the plaintiff concedes that Luzzo himself never engaged in any
discriminatory behavior towards the plaintiff.

(Defendants’ SUF,

at ¶¶ 33, 38, 43, 53-54).
Finally, the plaintiff argues that proof of pretext can be
inferred from the “false” allegations of poor performance he
received in the period leading up to his termination.

He notes

that he previously received various accolades, awards, and merit
bonuses throughout his tenure, and appears to argue that the fact
22

that he had previously been so rewarded suggests that the poorer
treatment and performance evaluations he received after Burke was
hired were not genuine.

The court does not find this argument

compelling.
For one, this argument, even if true, still does not respond
to the defendants’ proffered reason for his termination, namely
that the plaintiff asked Zarella to lie to conceal his mistake.
Moreover, whether the poor performance evaluations and warnings
the plaintiff received were deserved or not misses the relevant
inquiry.

When assessing pretext, the court’s focus “must be on

the perception of the decisionmaker, that is, whether the employer
believed its stated reason to be credible.”
824 (quoting Gray, 792 F.2d at 256).

Mesnick, 950 F.2d at

“In the absence of some other

proof that the decisionmaker harbored a discriminatory animus, it
is

not

enough

that

his

perception

may

have

been

incorrect.”

Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st Cir. 2007)
(citing Mesnick, 950 F.2d at 825).

As noted above, the defendants

had a basis to harbor concerns about the plaintiff’s performance.
Among other things, they produced evidence of a number of incidents
of subpar performance, including problems implementing Fidelity’s
new

software

complaints.

system

and

mistakes

Indeed,

the

plaintiff

that
in

resulted
a

number

acknowledged the mistake or deficiency at issue.

23

in
of

customer
instances

In short, notwithstanding the plaintiff’s claims of pretext,
there is no evidence from which a jury could decide that the
actions taken against the plaintiff were not legitimate or that
they were “more probably than not caused by discrimination.” Burns
v. Johnson, No. 15-1982, 2016 WL 3675157, at *6 (1st Cir. Jul. 11,
2016).

Summary

judgment

should

therefore

be

entered

in

the

defendants’ favor on Counts I and II.
b. Count III
Count

III

alleges

that

“Burke’s

actions

towards

[the

plaintiff], including falsifying [the plaintiff’s] performance
record and firing him because of his age, are separate, individual
and distinct acts of age discrimination.”

(Dkt. No. 1, ¶ 113).

The plaintiff further alleges that by authorizing and endorsing
Burke’s

decision

committed

“a

to

terminate

separate,

discrimination.”

the

individual

plaintiff,
and

Luzzo

distinct

act

likewise
of

age

(Id. at ¶ 116).

M.G.L. c. 151B, § 4(5) makes it unlawful for “any person,
whether an employer or an employee or not, to aid, abet, incite,
compel or coerce the doing of any acts forbidden under [M.G.L. c.
151B].”

M.G.L. c. 151B, § 4(5).

To prevail on an aiding and

abetting claim the plaintiff must show: “(1) that the defendant
committed a wholly individual and distinct wrong . . . separate
and distinct from the claim in main; (2) that the aider or abetter
shared an intent to discriminate not unlike that of the alleged
24

principal offender; and (3) that the aider or abetter knew of his
or her supporting role in an enterprise designed to deprive [the
plaintiff] of a right guaranteed him or her under M.G.L. c. 151B.”
Ping Zhao v. Bay Path College, 982 F. Supp. 2d 104, 115 (D. Mass.
2013) (quoting Lopez v. Commonwealth, 463 Mass. 696 (2012)).
But, because an aiding and abetting claim under section 4(5)
requires proof that the aider or abetter shared an intent to
discriminate not unlike that of the alleged principal offender,
the

claim

is

wholly

derivative

of

the

underlying

claim

of

discrimination, and fails as a matter of law if the underlying
claim of discrimination fails. See Fisher v. Town of Orange, 885
F. Supp. 2d 468, 476-77 (D. Mass. 2012) (“A claim of aiding and
abetting is wholly derivative of the underlying discrimination
claim, and thus cannot be maintained unless the plaintiff has also
stated a claim alleging prohibited acts.”); Bennett, 453 F. Supp.
at 331 (holding that because employer was not liable for age
discrimination under state law, there can be no claim for aiding
and abetting).
principal

As the court has concluded that the plaintiff’s

discrimination

claim

lacks

abetting claim necessarily fails too.

merit,

the

aiding

and

See Russell v. Cooley

Dickinson Hosp., Inc., 437 Mass. 443, 458 n.7 (aiding and abetting
claim fails where underlying discrimination claim fails).
Independently, Count III fails because the plaintiff has not
shown or even alleged that Burke and Luzzo committed “a wholly
25

individual and distinct wrong” separate and distinct from the
principal claim of age discrimination.

Accordingly, Burke and

Luzzo should be granted summary judgment on Count III.
c. Count IV
Count IV alleges that Burke and Luzzo interfered with the
plaintiff’s right to be free from discrimination, in violation of
M.G.L. c. 151B, § 4(4A).

Section 4(4A) makes it unlawful for “any

person to coerce, intimidate, threaten, or interfere with another
person in the exercise or enjoyment of any right granted or
protected by [M.G.L. c. 151B], or to coerce, intimidate, threaten
or interfere with such other person for having aided or encouraged
any other person in the exercise or enjoyment of any such right
granted or protected by [M.G.L. c. 151B].” To prevail on a claim
of interference under § 4(4A), the plaintiff must show that Burke
and Luzzo “interfered with his rights in deliberate disregard of
those

rights,”

discriminate.”

which

requires

a

showing

of

“an

intent

to

Furtado v. Standard Parking Corp., 820 F. Supp.2d

261, 278-79 (D. Mass. 2011).
Like the aiding and abetting claim at Count III, Count IV is
derivative of the underlying age discrimination claim and thus
fails as a matter of law where the court has concluded that there
was

no

age

discrimination.

See

Araujo

v.

UGL

Unicco-Unicco

Operations, 53 F. Supp. 3d 371, 383 (D. Mass. 2014)(“In order to
maintain a claim under §4(4A), the plaintiff must allege, at a
26

minimum, facts showing that he was subjected to discrimination.”);
McLaughlin v. City of Lowell, 84 Mass. App. Ct. 45, 774 (2013)
(“Absent actionable discriminatory conduct, there exists no basis
on which to ground a claim of interference under Chapter 151B,
§4(4A).”). Count IV also fails independently because the plaintiff
has failed to provide any evidence that Burke and Luzzo supported
the plaintiff’s termination specifically because of his age. Burke
and Luzzo therefore should be granted summary judgment on Count
IV.
V.

CONCLUSION
For

the

foregoing

reasons,

it

is

recommended

that

the

Defendants’ Motion for Summary Judgment (Dkt. No. 61) be GRANTED
as to all counts.

The parties are hereby advised that under the

provisions of Federal Rule of Civil Procedure 72(b), any party who
objects

to

this

recommendation

must

file

specific

written

objections thereto with the Clerk of this Court within 14 days of
the party's receipt of this Report and Recommendation. The written
objections must specifically identify the portion of the proposed
findings, recommendations, or report to which objection is made
and the basis for such objections. The parties are further advised
that the United States Court of Appeals for this Circuit has
repeatedly indicated that failure to comply with Rule 72(b) will
preclude further appellate review of the District Court's order
based on this Report and Recommendation. See Keating v. Secretary
27

of Health and Human Servs., 848 F.2d 271 (1st Cir. 1988); United
States v. Emiliano Valencia-Copete, 792 F.2d 4 (1st Cir. 1986);
Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir.
1980).

/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

September 1, 2017

28