RICHARD G. STEARNS, District Judge.
This is an unusual employment case. Plaintiff Frank Woodward's former employer,
On June 22, 2010, Woodward commenced this action in the Massachusetts Superior Court against Emulex. Woodward brought claims for "illegal discrimination on account of his age" under Mass. Gen. Laws ch. 151 B, §§ 4 and 9 (Count I); "breach of express contract" stemming from Emulex's alleged failure to reimburse him for certain business-related expenses and to give him a full accounting of his 2009 commissions, and "breach of implied contract" based on Emulex's allegedly false assurances of long-term employment (Count II).
The facts are taken in the light most favorable to Woodward as the nonmoving party. Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir.1993). Emulex hired Woodward as an account manager in April of 2000. At that time, Woodward signed an "Acknowledgment of At-Will Employment." Defs.' SOF ¶ 1. The Acknowledgment read as follows.
Id. ¶ 2. After three years as an account manager, Woodward was promoted to director of sales, and the following year to senior director of sales (his technical title in Emulex's nomenclature was Senior Director OEM Account Manager).
Fred Gill, Emulex's former vice president of sales who recruited Woodward to Emulex, testified that he
Gill Aff. ¶ 8. Woodward earned a number of "design wins"
Trouble manifested itself in the first quarter of 2007, when Emulex's sales to EMC, particularly the sales of "host bus adapters" (HBAs) (a mainstay for Woodward's sales team), declined.
Woodward faults Emulex's decision as a mistaken business strategy and maintains that from the perspective of his thirty years of experience in the industry the "sales of HBAs for storage and servers remained strong during 2008 and 2009, and are still strong today." Woodward Aff. ¶ 52. Woodward contends that Emulex made several other errors in business judgment that negatively impacted the EMC account.
Early in 2009, Emulex hired Jeff Hoogenboom as its senior vice president of sales. At their first sales meeting, Hoogenboom informed Woodward that he was expected to "re-energize his [EMC] team." Woodward Dep. at 194. Woodward later came to believe that Hoogenboom's statement possibly was a coded reference to the age of his team — known to be Emulex's "oldest sales team." Id. at 194-195. By March of 2009, Emulex eliminated the positions of Woodward's two assistants, and told Woodward that he would be let go at the end of the fiscal year because of EMC's falling sales revenues.
During his employment at Emulex, Woodward was approached by "over a dozen [other] companies" that offered him sales positions. Woodward Aff. ¶ 25. Emulex's sales manager, Fred Gill, urged Woodward "to remain with Emulex, and assured him [that] his job was secure and his prospects for a future with the company were bright."
As part of his compensation, Woodward received a "monthly auto allowance of $550," and until December of 2008, was allowed to claim reimbursement for work-related mileage. Defs.' SOF ¶¶ 20-21. As a cost-cutting measure, Emulex revised the policy, cancelling mileage reimbursement for employees who received the monthly auto allowance. Id. ¶ 22. See also Rockenbach Aff. ¶¶ 4-8 (Defs.' Ex. G). However, Woodward complains that Emulex owes him some $4,558.40 in mileage costs incurred in 2009. Emulex counters that Woodward did not submit any mileage charges for the period from January 1 to July 3, 2009, confirming his knowledge of the change in policy, and only raised this claim post-termination. Id. ¶ 8. Woodward counters that he only later learned that "[o]ther sales force employees [received] reimbursement for mileage related expenses after January 2009." Opp'n SOF ¶ 22. Woodward states that he did file an expense report including mileage-related expenses incurred in 2009, but was told to resubmit it without the mileage reimbursement request. Id. ¶ 23.
On August 5, 2009, Woodward filed an age discrimination complaint against Emulex with the Massachusetts Commission Against Discrimination (MCAD).
Summary judgment is appropriate when "the movant 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). "To succeed, the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir.1990). In an employment discrimination case, the plaintiff "cannot rely exclusively on bald assertions, unsupported conclusions, or optimistic surmises.... Where, as here, the nonmovant-plaintiff has the burden of proof, the evidence adduced on each of the elements of his asserted cause of action must be significantly probative in order to
In analyzing Mass. Gen. Laws ch. 151B employment discrimination cases, Massachusetts courts apply the federally-mandated McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Knight v. Avon Prods., Inc., 438 Mass. 413, 420, 780 N.E.2d 1255 (2003). See also Wheelock Coll. v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 134-137, 355 N.E.2d 309 (1976). Woodward is unable, despite his best efforts, to offer credible direct evidence of age discrimination.
If Woodward succeeds in this, "[t]he burden then shifts to the defendant to present a legitimate, non-discriminatory reason, sufficient to raise a genuine issue of material fact as to whether it discriminated against the employee, for the employment decision." Quiñones v. Buick, 436 F.3d 284, 289 (1st Cir.2006). If the defendant provides such a reason, the burden then shifts back to Woodward requiring that he prove, by a preponderance of the evidence, that Emulex's alleged nondiscriminatory reason for his termination was in fact a pretext for discrimination. See Quiñones, 436 F.3d at 289. In applying this framework, the court is sensitive to the First Circuit's verbum sapienti that "courts should exercise particular caution before granting summary judgment for employers on such issues as pretext, motive, and intent."
There is little reason to linger over the first three prongs of the prima facie test as Woodward satisfies them easily (and Emulex does not argue otherwise).
I will assume, for sake of completeness, that Emulex's retention of Funari and Cowger and the assignment to them of Woodward's former duties despite any significant differences in the age of three men might be found sufficient to surmount the fourth prong of the reduction-in-force test. Where a prima facie case is successfully made, the employer has the responsibility to come forward with "a lawful reason for its decision and [to] produce supporting facts indicating that this reason was actually a motive in the decision." Trs. of Forbes Library v. Labor Relations Comm., 384 Mass. 559, 566, 428 N.E.2d 124 (1981). "The employer's reasons need not be wise, so long as they are not discriminatory and they are not pretext." Tardanico v. Aetna Life & Cas. Co., 41 Mass.App.Ct. 443, 448, 671 N.E.2d 510 (1996).
According to Emulex, in the face of the continued decline in revenues from the EMC account, it decided to reorganize the sales team by laying off the two junior members and eliminating the position that Woodward held, that of Senior Director OEM Account Manager. The forty-five year-old Cowger "added [Woodward's functions] to his existing duties," Defs.' Reply SOF ¶ 14, leaving only two employees on the EMC team itself — Funari, who was fifty-one years old, and Gary Archer, a senior systems engineer, who was fifty-seven. This explanation, which is not tested for credibility, but only plausibility, easily satisfies Emulex's second-stage burden. See Scott v. Boston Hous. Auth., 56 Mass.App.Ct. 287, 292-293 n. 7, 777 N.E.2d 174 (2002).
At the third stage, "the presumption created by the prima facie case drops from the case" and "the employee must show that the basis of the employer's decision was unlawful discrimination," see Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 117, 731 N.E.2d 1075 (2000); in other words, that the termination was "`because of' the discrimination."
As a general matter, the court agrees with Emulex that it had no responsibility to divert the sales of all products to EMC through Woodward in order to bolster his account team's numbers. Nor was it required to adopt any of the various "better" business strategies that Woodward recommends in his affidavit (from improving "shipping practices" to reforming "practices of the Field Sales Team" to more aggressively seeking out "potential growth opportunities"). Woodward Aff. ¶¶ 47-48, 59-61, 64. Woodward, however, contends that Emulex has retained other sales managers despite declining sales numbers. He cites the case of Walter Moore, the director of Emulex's Hewlett Packard account, as his prime example.
After Mr. Moore had been on the account for a few years, the revenues
Woodward Aff. ¶ 58. Woodward also points out that "Emulex hired a sales executive David Cloward in 2001, on an account that produced less than $5 million dollars per year in revenue." Woodward Aff. ¶ 65 (emphasis supplied). While Woodward's suggestion is one of disparate treatment, too little is offered by way of fact to assess the comparability of these two examples with each other or with Woodward himself.
In one aspect, Massachusetts case law arguably differs from that of its federal analog. If Woodward can show that any of Emulex's stated reasons for his termination were "deliberately false," the misrepresentation could "rationally support a jury verdict" in his favor. Joyal v. Hasbro, Inc., 380 F.3d 14, 17 (1st Cir.2004), citing Lipchitz, 434 Mass. at 498, 751 N.E.2d 360 (a plaintiff may be able — automatically and regardless of circumstances — to avoid a directed verdict and reach a jury if he or she proves that at least one of the reasons given by the defendant was pretextual). Woodward, however, provides no probative evidence of pretext. It is undisputed that the revenues on the EMC account dropped steadily from 2007 through Woodward's termination in mid-2009. Nor do the parties disagree that in 2009, Emulex laid off several other employees assigned to the EMC sales team. Finally, Woodward has not shown that he was treated in a manner significantly disparate from any of his similarly situated peers because of his age. In sum, the claim for age discrimination cannot survive summary disposition.
Woodward executed an Acknowledgment of At-Will Employment when he was hired by Emulex in April of 2000. It explicitly stated that his employment was terminable at will. Under Massachusetts law, an at-will employee may be terminated at any time and for any reason (or for no reason at all) and without prior warning. See, e.g., Kolodziej v. Smith, 412 Mass. 215, 221-222, 588 N.E.2d 634 (1992); Jackson v. Action for Boston Cmty. Dev., Inc., 403 Mass. 8, 9, 525 N.E.2d 411 (1988); Mullen v. Ludlow Hosp. Soc'y, 32 Mass.App.Ct. 968,
Woodward bases his express contract claim on the contention that Emulex "expressly agreed to reimburse [him] for business-related expenses that he covered out of his own funds during the course of his work on [its] behalf." Compl. ¶ 39. Woodward also complains that Emulex has refused to give him a complete accounting of his earned commissions ("despite repeated requests") and that it owes him $4,558.40 in mileage expenses. Emulex, however, offers unrebutted evidence that it accounted for and paid Woodward for all of his earned commissions and reimbursed him for all of the expenses to which he was entitled under Emulex's Travel Policy.
Woodward claims that Emulex unfairly induced him to remain in its employ and forego other opportunities, thus creating an implied contract of employment, which it then breached by the termination. A contract implied in fact comes into being when, notwithstanding the absence of a written or verbal agreement, the conduct or relations of the parties imply the existence of a contract. Popponesset Beach Ass'n v. Marchillo, 39 Mass.App.Ct. 586, 592, 658 N.E.2d 983 (1996). There are no facts here, however, that support the creation of such a contract.
First, Woodward knew from the very beginning of his employment, by signing the Acknowledgment, that he was an at-will employee and that "Emulex ha[d] the right to discharge [him] at any time for any reason not prohibited by statute." Defs' SOF ¶ 1. Woodward bases his claim to the contrary on the fact that Gill (who was then his supervisor) "urged [him] to remain with Emulex, assur[ing] him his job was secure and his prospects for a future with the company were bright.... [S]pecifically [Gill] mentioned to him that Emulex was likely to acquire additional companies and that these acquisitions raised the likelihood that [he] would be able to fit into a new, higher level sales leadership position as a result." Gill Aff. ¶¶ 26-27. Gill told Woodward that "if John Aliferia moved ahead in the company, Woodward would have been a logical candidate
Woodward's sole suggestion to the contrary is a citation to McAndrew v. Sch. Comm. of Cambridge, 20 Mass.App.Ct. 356, 480 N.E.2d 327 (1985). McAndrew, a music teacher, was offered a one-year permanent position as a band leader and orchestra teacher at Cambridge High and Latin School for the 1980-1981 school year. A Georgia resident, McAndrew had responded to a newspaper advertisement while visiting relatives in Boston. Eager to fill the position quickly (the former band leader had resigned suddenly, the beginning of the school year was at hand, and the band was committed to a number of musical events in the early fall, including a parade in celebration of Cambridge's 350th anniversary), the director and assistant director of music interviewed McAndrew, and after his references proved positive, offered him the position. Although McAndrew was told that the offer was contingent on the school committee's approval, he was assured that "would be no more than a `rubber stamp....'" Id. at 358, 480 N.E.2d 327. McAndrew accepted the position, gave up his teaching post in Georgia, moved to Cambridge (at a personal cost of $3,000), and began teaching on September 15, 1980. Three and one-half weeks later, after the 350th anniversary parade, the music directors fired him — stating only that his performance was "unsatisfactory." Id. at 358 n. 3, 480 N.E.2d 327. They never submitted his name to the superintendent of schools or to the school committee for approval. A jury subsequently found breach of an employment contract and awarded McAndrew $23,000.
The Appeals Court reversed, finding that McAndrew did not have an enforceable employment contract as the "`[a]uthority to employ him was vested solely in the school committee.'" Id. at 359, 480 N.E.2d 327, quoting Demers v. Sch. Comm. of Worcester, 329 Mass. 370, 373, 108 N.E.2d 651 (1952). The Court found, however, that, under section 90(1) of the Restatement (Second) of Contracts (1981),
Woodward claims that
Compl. ¶¶ 48-49. Hoogenboom contends that because Woodward "is relying on [unprovable] allegations of age discrimination to support his claim of malice" — this claim must be dismissed. Defs.' Mem. at 14.
To survive a motion for summary judgment on a tortious interference claim, Woodward must make out a genuine issue of material fact with respect to each of the following elements: (i) the existence of a business relationship with a third party, (ii) of which the defendant is aware, and (iii) with which he intentionally and improperly interferes, (iv) causing an impairment of the business relationship, (v) to the plaintiff's detriment. See Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 76 (1st Cir.2001) (applying Massachusetts law). In this context, actual malice must be shown to prove improper motive or means. Blackstone v. Cashman, 448 Mass. 255, 260-261, 860 N.E.2d 7 (2007); Bray v. Cmty. Newspaper Co., 67 Mass.App.Ct. 42, 48, 851 N.E.2d 1087 (2006). To establish malice, Woodward "must show more than garden-variety hostility or personal incompatibility." See Bennett, 507 F.3d at 33, citing Zimmerman, 262 F.3d at 76. See also King v. Driscoll, 418 Mass. 576, 587, 638 N.E.2d 488 (1994). Malice further must have been more than a mere concomitant of the parties' relationship; it must have been the "controlling factor" in the offending conduct. Zimmerman, 262 F.3d at 76. In other words, "something more than intentional interference is required" to make out the tort. United Truck Leasing Corp. v. Geltman, 406 Mass. 811, 815, 551 N.E.2d 20 (1990). See also King, 418 Mass. at 587, 638 N.E.2d 488 (where a corporate official is named as a defendant, the tort requires "actual malice" or "a spiteful, malignant purpose, unrelated to the legitimate corporate interest"; motivations of personal gain or dislike are not enough); Blackstone, 448 Mass. at 261, 860 N.E.2d 7 (corporate officials are held to a standard of actual malice, as their freedom of action with respect to corporate interests should not be restrained by a fear of personal liability).
While Woodward alleges in his Complaint that Hoogenboom advocated for his termination because of his age, he offers no evidence that this is true. The only "evidence" attributed to Hoogenboom in the record is his statement that Woodward needed to "reenergize his [EMC] team." Woodward Dep. at 194. As earlier explained, this statement will not support a prima facie case of age discrimination, much less the very high showing that proof of malice requires. See Blackstone, 448 Mass. at 261 n. 10, 860 N.E.2d 7 (the actual malice standard is a heightened burden placed on plaintiff and not a defense to be proved by the defendant).
For the foregoing reasons, defendants' motion for summary judgment is ALLOWED. The clerk will enter judgment for defendants on all claims and close the case.
SO ORDERED.
Lipchitz, 434 Mass. at 506 n. 19, 751 N.E.2d 360.