November 5, 2015.
action commenced in the Superior Court Department on November
case was heard by Peter M. Lauriat, J., on motions
for summary judgment.
Verdrager, pro se.
A. Lukey ( Justin J. Wolosz with her) for the defendants.
J. Messing, for Massachusetts Employment Lawyers Association,
amicus curiae, submitted a brief.
Robbins & Martin J. Newhouse, for New England Legal
Foundation & another, amici curiae, submitted a brief.
Botsford, Duffly, Lenk, & Hines, JJ.
N.E.3d 783] General Laws c. 151B, § 4, prohibits
employers from discriminating against employees on the basis
of gender. It also prohibits them from retaliating against
employees for engaging in " protected activity,"
i.e., activity undertaken " to protest or oppose
statutorily prohibited discrimination" (citation
omitted). See Thirkield v. Neary & Hunter OB/GYN,
LLC, 76 F.Supp.3d 339, 350 (D. Mass. 2015) (interpreting
G. L. c. 151B). Here, we are asked to determine whether
summary judgment should have entered for the employer on an
employee's claims for gender discrimination and
retaliation. In addressing the retaliation claim, we confront
the novel question whether it is " protected
activity" for an employee to search for, copy, and share
with the employee's attorney confidential [50 N.E.3d 784]
documents that the employee is authorized to access in the
course of employment and that may help prove a discrimination
plaintiff is an attorney who worked for a Boston law firm,
defendant Mintz, Levin, Ferris, Cohn, Glovsky and Popeo, P.C.
(firm). During the course of her employment with that firm,
from June, 2004, to November, 2008, she complained to her
superiors and, ultimately, to the Massachusetts Commission
Against Discrimination (MCAD), that she was being subjected
to discriminatory treatment on the basis of her gender --
treatment that, she believed, led to her demotion in
February, 2007. In the wake of this demotion, and on the
advice of her attorney, the plaintiff searched the firm's
document management system for items that might prove her
assertions of discrimination. In November, 2008, after these
searches were made known to the firm's chairman, the
plaintiff's employment was terminated " for
November, 2009, the plaintiff filed the present action in the
Superior Court, which, as amended, named as defendants the
firm, certain firm " members"  with whom she
worked, and the firm's chairman, R. Robert Popeo. The
complaint alleged that
both the plaintiff's demotion and her termination were
the result of discrimination on the basis of gender, and that
both also constituted retaliation for her having opposed such
discrimination. The complaint specified five counts pursuant
to G. L. c. 151B, § 4: gender discrimination (against
all defendants except Bret Cohen); pregnancy
discrimination (against the firm); aiding and
abetting discrimination (against all except the firm and
Cohen); failure to investigate and remedy discrimination
(against the firm); and retaliation (against all except
Cohen). A sixth count, tortious interference with contractual
relations, was filed only against Cohen, who was not named in
any of the other counts. The defendants then counterclaimed
on various grounds. Following cross motions for summary
judgment, only three of the defendants' counterclaims
survived, and all of the plaintiff's claims
were dismissed. The plaintiff appealed from the dismissal of
her claims, and we allowed her petition for direct
conclude, first, that the plaintiff has presented evidence
from which a reasonable jury could infer that both her
demotion and her termination were the result of unlawful
discrimination, as well as evidence allowing an inference
that both were [50 N.E.3d 785] the result of
retaliation. Therefore, summary judgment for the
defendants on those counts was inappropriate. Second, we hold
that an employee's accessing, copying, and forwarding of
documents may, in certain limited circumstances, constitute
" protected activity," but only where her actions
are reasonable in the totality of the
circumstances. Finally, we conclude that judgment was
entered properly on the claim against Cohen for tortious
interference with contractual relations.
summarize the facts, which are generally undisputed, "
drawing inferences in favor of the plaintiff where they may
reasonably be drawn from the facts." Young v. Boston
Univ., 64 Mass.App.Ct. 586, 587, 834 N.E.2d 760 (2005),
cert. denied, 549 U.S. 832, 127 S.Ct. 61, 166 L.Ed.2d 56
(2006). To the extent that facts are disputed, we resolve
them in favor of the plaintiff. See Miller v.
Cotter, 448 Mass. 671, 676, 863 N.E.2d 537 (2007). We
reserve certain details for later discussion.
graduating from law school in 1999, the plaintiff practiced
employment and labor law in New York. In June, 2004, she
began work as a fifth-year associate at the firm's Boston
office, in its employment, labor, and benefits (ELB) section.
the course of the plaintiff's employment, the firm had in
place an " Electronic Information System [EIS]
Acceptable Use Policy" (EIS policy). On June 16, 2004,
the plaintiff signed a copy of that policy and agreed to be
governed by its provisions. The plaintiff was trained in the
use of DeskSite, a document management system used by the
firm, at the beginning of her employment. She was told that
she " was supposed to save almost all documents which
she authored to the public section of DeskSite" and
" was expected to search the system regularly in
connection with her work." Any documents in the "
public" section of that system " were available to
everyone in the firm who could access DeskSite." Such
documents could be accessed directly or could be found
through a general word search of the system's contents.
Users also could choose, however, to save documents in a
" private" section of the system, accessible only
to themselves or to individuals that they specified. The EIS
policy provided that the " EIS should be used, with
limited exceptions, only for job-related communications.
Although personal use is permitted, employees should do so
with the full understanding that nothing is
private " (emphasis in original). Associates
frequently used DeskSite for personal or nonbusiness reasons,
including to check the time records of other associates to
see " who was getting the most work."
firm also had in place a confidentiality policy, which stated
that " [a]ll documents, correspondence, forms and other
product created or produced by the firm in connection with
the delivery of legal services to the firm's clients are
the sole property of [the firm] and its clients. Such
material should not be removed from the office or used for
any reason other than for or in connection with the delivery
of services on behalf of the firm."
after joining the firm, in late June and early July, 2004,
the plaintiff was assigned to work with Cohen, a member in
the ELB section, to draft a brief on behalf of one of the
firm's clients. In an electronic [50 N.E.3d 786] mail
message dated July 19, 2004, Cohen stated that the client
" has really liked our pleadings to date. Let's keep
up the good work!" Another firm member, who also worked
on the brief, later wrote in an evaluation that the plaintiff
" not only has a sound command of legal principles but
she appears to have great intuition and reaction to legal
issues that will make her an excellent advisor to clients and
an attorney who has much to contribute to strategic issues in
matters. On numerous matters in [this] case she has dropped
by my office to discuss an issue and her intuitive response
to the issue has been on point and well-considered ... . I
have not witnessed [her] interaction with clients, but I do
know that she has had extensive contact with opposing counsel
and the client in [this] matter. My impression is that [the
client] has appreciated [the plaintiff's] counsel and
that [she] is well-respected and had 'run with the
ball' in connection with opposing counsel in the matter
... . I would certainly like to work with her again on any
matters that involve ELB litigation[.]"
plaintiff maintains that, while Cohen and the plaintiff were
working on this brief, he made a number of inappropriate,
sexually charged comments to her. At some point in July,
2004, the plaintiff complained of these incidents to the
firm's human resources office. In mid-August, 2004, the
plaintiff spoke with, among others, the firm's managing
director, Peter Biagetti, and with the attorney managing the
ELB section, defendant Robert Gault, about the incidents.
Gault and Biagetti met with Cohen in August, 2004, to discuss
the plaintiff's assertions. Gault and Biagetti concluded
that her complaints were " management style
complaints" rather than " complaints related to
gender differences," and decided to hire an executive
coach to work with Cohen. At some point during that summer,
firm chairman Popeo was informed of the plaintiff's
complaints. Popeo spoke with Biagetti and was told that
Biagetti had looked into the complaints and had found no
evidence of gender-based discrimination.
October, 2004, after a client complained to Cohen about the
plaintiff's performance, Cohen asked the client to submit
the complaint in writing, which Cohen then forwarded to
Gault, the ELB section manager, and Starr, the director of
October, 2004, various individuals, both members and
associates, told the plaintiff that Cohen was making negative
remarks about her. In evaluating the plaintiff's
performance in the fall of 2004, [50 N.E.3d 787] Cohen rated
it as " usually below expectations." He wrote that
" needs a great deal of help on her writing. She is
smart and seems to have a great deal of institutional
knowledge but, at least when I dealt with her, was unable to
translate her knowledge into a cohesive thought... . Orally,
I find that she does not speak with confidence. For example,
she says 'um' a lot."
concerns regarding the plaintiff's writing were echoed in
the comments of her other evaluators. Defendant Donald
Schroeder, then a senior associate in the ELB section, who
would later be promoted to membership, rated the
plaintiff's performance as " always meets
expectations." In his written comments, however, he
added that the plaintiff " needs to develop her
analytical writing skills and organize her thoughts more
clearly on paper." Gault rated her work as "
usually meets expectations" and noted that " I
do not have much exposure" to her work but "
I've seen a few things [in her writing] that suggest a
need for more attention to detail."
January, 2005, Cohen increased the scope of a research
project he had assigned to the plaintiff. This project did
not count toward her quota of hours billable to clients.
Based on conversations she had at the time with her
colleagues, the plaintiff maintains that the scope of the
nonbillable work assigned to her was greater than that
assigned by Cohen to other associates, a point that Cohen
February 2, 2005, the United States Court of Appeals for the
Fourth Circuit upheld a jury verdict in favor of a female
employee in the firm's Virginia office. See Gallina
vs. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, 123
Fed.Appx. 558, 567 (2005) ( Gallina ). The jury
found that, in violation of Federal antidiscrimination laws,
the firm had retaliated against the employee for complaining
of what she believed to be discriminatory treatment on the
basis of her gender. 123 Fed.Appx. at 564. On February 11,
2005, Cherie Kiser, a member in the firm's Washington,
D.C., office who chaired the firm's diversity committee,
left a voicemail message for Popeo expressing her concern
that the firm in general, and section manager Gault, in
particular, did not take seriously employees' complaints
of gender discrimination. Popeo later spoke with Kiser,
stating his commitment to combatting discrimination based on
gender, but suggesting that Kiser was "
overreacting" to what " she was hearing from
March, 2005, the plaintiff underwent her annual performance
review. Among her evaluators were Schroeder and Gault. She
received an over-all rating of " always meets
expectations" in five competencies, and an over-all
rating of " usually meets expectations" in another
six competencies. Each evaluator also provided written
comments. Gault wrote that the plaintiff " seems very
smart but [I] think the writing issues may mask some of her
inherent intellectual ability." Schroeder wrote that
" her writing style is too informal" and that
" [s]he needs to proofread her work and pay more
attention to detail." Some of the other comments were
positive, including a comment from Gault that the plaintiff
" [s]eems to have a pretty good substantive knowledge of
a lot of general employment law areas" and from
Schroeder that she " is very good with clients." In
the fiscal year ending that month, the plaintiff had amassed
thirty-three more billable hours per month
than the average associate.
N.E.3d 788] Also in March, 2005, Starr, the human resources
director, and Rosemary Allen, a firm member who oversaw the
firm's personnel matters, received complaints from six
women that Cohen had made inappropriate comments to them.
After investigating, Starr and Allen concluded that no
gender-based discrimination had taken place.
20, 2005, Eastern Point Consulting Group, Inc. (Eastern
Point), a consulting company hired in the wake of the
Gallina case to investigate allegations of
discrimination, presented the findings from its investigation
to the firm. Among other things, Eastern Point reported that
many female attorneys, both members and associates, "
believe it is more difficult for women than men at [the
firm]." Starr was interviewed in the course of this
investigation, and stated that there is a " tolerance
for poor behavior" at the firm.
September, 2005, after returning from her honeymoon, the
plaintiff informed Gault that she was pregnant with her first
child. Gault responded, " Well, I suppose these things
happen. I guess we have your honeymoon to blame for
this?"  He then discussed the possibility of
the plaintiff reducing her schedule to part time, although
the plaintiff had not sought a reduction in hours or raised
the possibility of such a reduction. Subsequently, the
plaintiff experienced medical difficulties related to her
pregnancy and was placed on short-term disability. Gault and
Schroeder exchanged electronic mail messages in January,
2006, and March, 2006, in which each expressed that he was
" frustrated" with the plaintiff's absences and
lack of availability. Gault also spoke to the plaintiff's
neighbors and discovered that she was performing work around
her house that he did not believe was consistent with the
medical conditions she reported.
March, 2006, the plaintiff underwent her second annual
performance review. Gault was one of her evaluators. She
received over-all ratings of " usually exceeds
expectations" in four competencies, " always meets
expectations" in six other competencies, and a rating of
" usually meets expectations" in the eleventh area,
business development. In a written comment, Gault
stated, " I noted some areas of substantive knowledge
and writing in my last review that needed improvement,"
but that he " has seen what seems to be an improvement
in her work since her last evaluation." His main
criticism was that " I have not seen any evidence of
production potential/entrepreneurial instincts." Another
member wrote " that she spent excessive time on the
work" he had assigned her and that her " drafting
is not particularly precise." On the other hand, a firm
member from outside ELB wrote positively that " the work
[the plaintiff] did was for a very demanding client who set
pretty unrealistic expectations, but [she] was able to meet
separate evaluation dated May 1, 2006, Schroeder wrote, among
other things, that the plaintiff's " writing needs
to improve" and that she " did not always
communicate [her reduced] schedule to everyone in ELB and I
had to handle a number of matters on an emergency
N.E.3d 789] On May 3, 2006, the plaintiff gave birth to her
first child. She began a planned six-month maternity leave.
In June, 2006, defendant David Barmak replaced Gault as
section manager of the ELB section. While the plaintiff was
on leave, she was informed that, based on the performance
reviews she had received in March, 2006, prior to her leave,
she would be subject to another, interim performance review.
This review would be based on her performance during the
first ninety days after her return from leave.
plaintiff returned to work on November 1, 2006. Thereafter,
she registered a relatively low number of billable hours
compared to other associates in the ELB section. By early
February, 2007, the plaintiff had received two negative
reviews of her work. One review criticized her for putting
into a contract " poorly drafted language that needed to
be redrafted in more conventional form." The other
review, from Schroeder, noted, among other things, that she
took " too much time to complete [a writing] task"
he had assigned her and that " I had to perform more
editing than I normally need to do for memos done by more
junior associates." He also noted that " [d]espite
a full-time schedule, she is coming
in at 9[:]30 or so and leaving no later than 5[:]30 ... I
cannot understand why she has not attempted to step up to the
plate." The plaintiff also received positive comments
from a client who " was very complimentary of [the
plaintiff] and [her] work."
around February, 2007, Allen, the member overseeing personnel
matters, told Popeo, the firm chairman, that the senior
attorneys in the ELB section had requested that the plaintiff
" be separated from the firm." Popeo, in his
deposition, recalled that he proposed demoting the plaintiff,
or " set[ting] her back," rather than firing her.
He stated, " I participated in the decision to step her
back rather than terminate her. Indeed, I asked the
Employment and Labor Section to consider an alternative to
February 23, 2007, Barmak and a member of the human resources
department met with the plaintiff to inform her that she
would be " stepped back" two years in seniority,
which would lower her salary, but also would allow more time
before any decision would be made on her eligibility for
membership. According to that human resources officer, this
decision was based on the plaintiff's having received
" mixed reviews, [on the fact that there are] partners
who won't work with her, [on] low utilization, [and on a]
high billing rate." Barmak later commented, regarding
this decision, that the plaintiff
" is someone who is playing the system. She is out a
lot, [and therefore] there is just a sense that she is not
someone who is committed to practicing law, that she really
doesn't want to be here, but as she often says, she is
the 'breadwinner' ... [and] she doesn't want to
move on because of the money."
February 26, 2007, the plaintiff retained an employment
attorney in contemplation of filing a discrimination
complaint against the firm. At around that time, she filed an
internal complaint alleging that the step-back was the result
of gender discrimination. An internal body known as the Rapid
Workforce Response Team, which included Biagetti,
investigated this [50 N.E.3d 790] claim. The investigators
concluded that no discriminatory conduct had taken place.
April, 2007, the plaintiff's annual performance
evaluation was completed. She received two evaluations, both
strongly positive. One evaluator wrote that the
plaintiff's " great work alone should help to drive
more employment business to the firm."
point before May, 2007, while the plaintiff was working on an
assignment for a client using the DeskSite system,
she came across an internal memorandum related to the
Gallina case that discussed issues of gender
discrimination at the firm. On approximately six occasions
between May 8, 2007, and November 14, 2008, on instructions
from her attorney, the plaintiff conducted targeted searches
seeking other documents that might be related to her case or
to other issues of gender discrimination. In the course of
these searches, the plaintiff accessed and forwarded dozens
of documents to her personal electronic mail
address. She shared two of those documents
with her attorney.
October, 2007, the plaintiff received three more evaluations,
including one from Schroeder. All were strongly
positive, with comments ranging from an observation that
" [h]er interactions with [a specific client] have led
to significantly more employment work for us," to
comments from Schroeder that " [s]he has shown some very
positive signs in her development over the past year and I
truly look forward to working with her." In a section
for " areas for improvement," one evaluator wrote,
" Nothing I can identify," a second wrote, "
None that I am aware of," and Schroeder wrote, " I
would like [the plaintiff] to get involved in bar
association/trade association activities."
October, 2007, the firm solicited " upward
feedback" from associates, in which they would provide
anonymous comments evaluating members with whom they had
worked. Cohen and Biagetti each received feedback stating
that associates were concerned about their behavior towards
December 11, 2007, the plaintiff filed a complaint with the
MCAD alleging that her step-back was as a result of gender
discrimination. She named the firm, Barmak, Gault, and
Schroeder as respondents.
February, 2008, the plaintiff took a second maternity leave,
returning to work on September 3, 2008.
N.E.3d 791] On November 13, 2008, the plaintiff conducted
another search of the public section of DeskSite seeking
documents related to gender discrimination at the firm. She
found the transcript of voicemails left for Popeo over the
period from February, 2005, through December, 2005, which she
immediately copied and later forwarded in its entirety to her
attorney. The transcript had been prepared by
Popeo's administrative assistant and, pursuant to his
usual practice, saved to the public section of DeskSite.
Among the messages was the one described above, in which firm
member Kiser criticized the behavior of Gault during a
meeting about gender discrimination. Many of the other
messages were from Popeo's clients or potential clients
and concerned sensitive matters protected by rules of
attorney-client confidentiality and privilege.
November, 2008, in the wake of the national economic
slowdown, the firm prepared to lay off employees. The
plaintiff, among other associates, was selected for layoff.
According to the firm, this was because of her low rate of
billable hours, adjusted for the time that she had been on
maternity leave. The plaintiff asserts that the low number of
billable hours was the result of the " discriminatory
and retaliatory conduct of" defendants who either did
not assign work to her or discouraged others from doing so.
On November 20, 2008, counsel for the firm contacted the
plaintiff and offered to settle her discrimination case if
she would accept the layoff. The plaintiff rejected this
offer on November 21, 2008, and she was not then laid off. On
the same day that the plaintiff rejected this offer, she
visited the office of another firm member and showed the
member a portion of the voicemail transcript containing
messages left for Popeo. The member contacted Popeo.
Thereafter, the firm's information technology department
reviewed its records and learned that the plaintiff had
conducted a number of searches of DeskSite that appeared to
be related to her litigation against the firm. On November
after consulting with Allen and Starr, Popeo directed that
the plaintiff's employment be terminated for cause. On
December 5, 2008, Popeo filed a complaint with the Board of
Bar Overseers (board), claiming that the plaintiff's
searches of DeskSite in order to advance her litigation
against the firm was a violation of her ethical duties as an
September 2, 2009, the plaintiff filed a second complaint
with the MCAD, alleging that the firm, in terminating her
employment, had discriminated against her on the basis of her
gender and that it had retaliated against her for having
filed her first MCAD complaint. On November 3, 2009, the
plaintiff brought the present action in the Superior Court,
naming the firm, Gault, Barmak, and Schroeder as defendants.
In January, 2010, she filed an amended complaint naming Popeo
and Cohen as defendants. In February, 2010, the defendants
filed an answer and counterclaims. In November, 2011, the
defendants moved ...