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Wesson v. FMR, LLC

Superior Court of Massachusetts, Suffolk

December 8, 2017

FMR, LLC et al.[1]


          Mary K. Ames, Associate Justice


         The plaintiff, Erika Wesson (" Wesson"), started working for Fidelity in April 2007, in a unit referred to as the Fidelity Real Estate Group (the " FRE Group"). After asserting complaints about gender discrimination, in October 2011, Wesson left her employment with Fidelity, pursuant to a settlement and release of claims agreement. Thereafter, in July 2015, she filed the current suit against the defendants, Pyramis Global Trust Company (" Pyramis"), FMR, LLC (" FMR" or, collectively with Pyramis, " Fidelity"), Long Wharf Real Estate Partners, LLC (" Long Wharf"), Michael Elizondo (" Elizondo"), and John Barrie (" Barrie"), alleging these entities and individuals waged an ongoing campaign of retaliation and disparagement against her that has prevented her from being able to find new employment.

         More specifically, Wesson asserted claims for retaliation, in violation of G.L.c. 151B, § § 4(4) and 4(4A) (Count I) and breach of contract (Count II) against all defendants. And, in addition, claims for defamation (Count III and Count IV) and interference with advantageous and/or contractual relations (Count V) against the individual defendants, Elizondo and Barrie. In response, the Fidelity Defendants filed counterclaims against Wesson for breach of contract (Counterclaim I), money had and received (Counterclaim II), and unjust enrichment (Counterclaim III) as well as a claim for declaratory relief (Counterclaim IV), requesting a determination as to whether Wesson breached the settlement agreement’s confidentiality provision.

         This matter is currently before the court on three motions: (1) Motion for Summary Judgment on Behalf of Long Wharf Real Estate Partners, LLC, Michael Elizondo, and John Barrie (the " Long Wharf Motion for Summary Judgment"); (2) FMR, LLC’s and Pyramis’s Motion for Summary Judgment (the " Fidelity Motion for Summary Judgment"); and (3) Plaintiff and Defendant-in-Counterclaim Erika Wesson’s Motion for Summary Judgment (" Wesson’s Motion for Summary Judgment"). For the reasons discussed below, the Fidelity Motion for Summary Judgment will be DENIED; the Long Wharf Motion for Summary Judgment will be DENIED; and Wesson’s Motion for Summary Judgment will be ALLOWED.


         Here, the court sets out only background information. This background is not intended to represent the court’s recitation of the undisputed facts (of which, there are very few). Rather, the information is presented in order to provide context for the court’s discussion of the arguments and issues raised by the parties. The court presents other relevant facts and addresses pertinent disputes of material fact, as necessary, during its discussion of the pending motions.

         The Formation of Long Wharf and the Spin-Off Transaction

         Pyramis is a wholly owned subsidiary of FMR. The parties refer to the two entities interchangeably as " Fidelity." The FRE Group was a business unit within Pyramis responsible for managing certain Fidelity-owned real estate funds. In approximately mid-2008, Fidelity decided to divest itself of the FRE Group. In July 2009, while Elizondo was employed as the head of the FRE Group, he formed Long Wharf Capital, LLC in anticipation of this divestiture. Elizondo and Fidelity anticipated a transaction (the " Spin-Off Transaction") in which: certain individuals currently employed in the FRE Group would cease working for Pyramis and transition into working for Long Wharf Capital; and Long Wharf Capital would act as subadvisor to Pyramis with respect to certain Fidelity-owned funds.

         In the first couple of years following Long Wharf Capital’s formation, the Spin-Off Transaction did not materialize and little happened with the LLC. In 2011, this changed. First, in February 2011, Long Wharf Capital changed its name to Long Wharf Real Estate Partners, LLC- the entity named in this suit. Then, on July 5, 2011, Long Wharf and Pyramis entered into an agreement whereby Pyramis " spun off, " i.e., it transferred, the business interests formerly managed by the FRE Group to Long Wharf. In order to carry out this divestiture, Pyramis and Long Wharf executed various agreements and contracts, including the Transaction Agreement, the Transition Services Agreement, and the Subadvisory Agreements.

         Wesson’s Employment with Fidelity and the Settlement Agreement

         On April 16, 2007, Wesson started working at Pyramis as a Real Estate Research Analyst. While employed with Pyramis, she worked in the FRE Group. Wesson was one of only a few women working in this unit. Wesson received an annual salary of $110, 000.00 and, she was eligible to participate in Fidelity’s bonus and/or incentive programs. Wesson’s performance was ranked as " exceeding expectations" during her first year of employment and, in 2008, she was given an overall rating of " outstanding." In December 2009, Wesson received a bonus of $75, 000.00.

         In January 2010, Wesson became an Associate Director working under Jeffrey Tapley (" Tapley"). According to Wesson, Tapley favored a junior male colleague, Sujit Sitole (" Sitole"). Wesson states Sitole was given his own office, while she had to remain in a cubicle, contrary to Fidelity’s policy regarding office space and seniority. She also states Tapley told her to report to Sitole, even though she had more seniority. According to Wesson, she brought concerns about this disparate treatment to the attention of her then-supervisors, Elizondo and Barrie, but her concerns were ignored.

         Wesson alleges that, when she met with Sitole, he told her she would have to make an extra effort to get in good with the other members of the FRE Group because she did not " drink beer, watch football or eat meat." And further, that he stated she needed to take a " back seat, " when the managing directors asked questions. At this time, Barrie was responsible for interfacing between Fidelity’s Human Resource Department (" Fidelity HR") and members of the FRE Group. When Wesson reported her concerns about Sitole’s statements to Barrie and Fidelity HR she was told to ignore his comments.

         On September 20, 2010, Fidelity placed Wesson on a Performance Improvement Plan (" PIP"). Elizondo, Barrie, and Tapley delivered the PIP to Wesson. Wesson alleges her performance did not warrant placement on the PIP and that, after the PIP was in place, her supervisors in the FRE Group struggled to identify issues to discuss during her review meetings. In his deposition, in talking about the PIP, Elizondo referred to the process as a sort of " charade." After receiving the PIP, Wesson again raised concerns about gender discrimination with Elizondo, Barrie, and Fidelity HR.

         By email dated October 4, 2010, Wesson wrote to Fidelity HR complaining about gender-based discrimination in the FRE Group. In this email, Wesson asked Fidelity HR to maintain her confidentiality, specifically requesting that Fidelity HR not speak to anyone in the FRE Group about her complaints. Thereafter, in an email dated November 23, 2010, Wesson requested that Fidelity conduct an investigation into her claims. Sometime in December 2010, a representative from Fidelity HR advised Wesson that the department had investigated her claims of discrimination and that, it had concluded her claims were unsubstantiated.

         In January 2011, Wesson retained Attorney James Hartley (" Attorney Hartley") to represent her concerning her employment with Fidelity. Between January and May 2011, Attorney Hartley and Fidelity’s in-house counsel, Jennifer Inker (" Attorney Inker"), negotiated Wesson’s departure from Fidelity. These negotiations took place around the same time that Fidelity and Long Wharf were preparing for the Spin-Off Transaction, culminating, on May 21, 2011, with the execution of the Settlement Agreement and Release of Claims (the " Settlement Agreement"). The Settlement Agreement contains various sections, provisions, and clauses relevant to the current matter, including: the Release, [2] the Non-Disparagement Provision, [3] the Confidentiality Clause, [4] and the Second Release.[5]

         Wesson’s Post-Fidelity Job Hunt

         Following execution of the Settlement Agreement, in May 2011, even though she was not scheduled to officially separate from Fidelity until October 15, 2011, Wesson immediately started looking for a new job. She worked with an executive search firm for at least a year, meeting with her assigned career coach over twenty times. Additionally, she networked extensively on her own, reaching out to various contacts and submitting numerous job applications to potential employers. The record evidence, viewed in the light most favorable to Wesson, establishes a pattern whereby Wesson would make progress with a contact or potential employer only to have the contact or potential employer back away or retreat from her after reaching out to Fidelity and/or the Long Wharf Defendants. In particular, Wesson asserts facts related to twelve specific lost job opportunities.


         Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 118-19 (2010), citing Ng Bros. Constr., Inc. v. Cranney, 436 Mass. 638, 643-44 (2002); see also Mass.R.Civ.P. 56(c). In deciding a motion for summary judgment, the court must consider all factual allegations, and draw all reasonable inferences therefrom, in favor of the non-moving party. Id. at 119, citing Maffei v. Roman Catholic Archbishop of Boston, 449 Mass. 235, 242-43 (2007). " [T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts." Bulwer v. Mount Auburn Hosp., 86 Mass.App.Ct. 316, 318 (2014), aff’d in part, 473 Mass. 672 (2016), quoting Shawmut Worcester County Bank N.A. v. Miller, 398 Mass. 273, 281 (1986). " [A] party moving for summary judgment in a case in which the opposing party will have the burden of proof at trial is entitled to summary judgment if he demonstrates, ... unmet by countervailing materials, that the party opposing the motion has no reasonable expectation of proving an essential element of that party’s case." Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).

         The employment discrimination context is somewhat unique. In these cases, " a defendant employer faces a heavy burden if it seeks to obtain summary judgment: summary judgment is disfavored in discrimination [and retaliation-type] cases ... because the question of the employer’s state of mind ... is ‘elusive and rarely is established by other than circumstantial evidence.’ " Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38 (2005), quoting Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439-40 (1995). " This requires ‘the jury to weigh the credibility of conflicting explanations’ of the adverse decision." Id., quoting Blare, 419 Mass. at 440. On the other hand, the plaintiff employee’s " burden is not onerous." King v. City of Boston, 71 Mass.App.Ct. 460, 467 (2008), citing Sullivan, 444 Mass. at 45. Nevertheless, " like any party opposing summary judgment, a plaintiff ... must demonstrate a ‘reasonable expectation of proving ... [the] essential element[s] of ... [his/her] case at trial.’ " Somers v. Converged Access, Inc., 454 Mass. 582, 600 (2009), quoting Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 127 (1997).


         The Long Wharf Defendants assert a number of arguments in support of summary judgment. First, they contend the Release and the Second Release (collectively, the " Release Provisions") bar Wesson’s claims for retaliation, defamation, and tortious interference.[6] Second, the Long Wharf Defendants argue the claim for retaliation fails because it is time-barred and, Wesson cannot establish a prima facie case of retaliation. Third, they argue her breach of contract claim fails because they are not bound by the terms of the Settlement Agreement and, even if they were, there is no evidence suggesting they did not comply with its terms. Last, the Long Wharf Defendants claim judgment should enter in favor of Elizondo and Barrie on Wesson’s claim for tortious interference because the claim is untimely and, there is no evidence Elizondo and Barrie ever communicated with a potential employer about Wesson.

         A. The Release

         In accord with the Release, Wesson agreed to " remise[ ], release [ ], acquit[ ], and forever discharge[ ]" Fidelity, FMR, Long Wharf, Elizondo, Tapley, Barrie, Gandel, and Sitole from " any and all claims, " arising out of her employment with, or separation from, Fidelity, including, but not limited to claims for breach of contract, unlawful discrimination (including claims based on retaliation), and tort violations. Pursuant to the Second Release, which Wesson executed on the date she officially separated from Fidelity, she released all claims relating to her employment with, or separation from, Fidelity, that existed through October 15, 2011.

         The Long Wharf Defendants’ contention that the Release Provisions bar Wesson’s claims is without merit. In executing the Release Provisions, Wesson did not release claims based on then-unknown unlawful conduct that had yet to occur. Rather, she released claims that existed at the time the documents were executed- claims based upon conduct that occurred, at the latest, on October 15, 2011. Her current claims are premised upon events which occurred after this ...

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