MEMORANDUM OF DECISION AND ORDER ON: (1) MOTION FOR
SUMMARY JUDGMENT ON BEHALF OF LONG WHARF REAL ESTATE
PARTNERS, LLC, MICHAEL ELIZONDO, AND JOHN BARRIE: (2) FMR,
LLCâs AND PYRAMISâ MOTION FOR SUMMARY JUDGMENT; AND (3) ERIKA
WESSONâS MOTION FOR SUMMARY JUDGMENT
K. Ames, Associate Justice
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
specifically, Wesson asserted claims for retaliation, in
violation of G.L.c. 151B, Â§ Â§ 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
agreementâs confidentiality provision.
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, LLCâs and Pyramisâs Motion for Summary Judgment (the
" Fidelity Motion for Summary Judgment"); and (3)
Plaintiff and Defendant-in-Counterclaim Erika Wessonâs Motion
for Summary Judgment (" Wessonâs 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 Wessonâs Motion for Summary Judgment
will be ALLOWED.
the court sets out only background information. This
background is not intended to represent the courtâs
recitation of the undisputed facts (of which, there are very
few). Rather, the information is presented in order to
provide context for the courtâs 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
Formation of Long Wharf and the Spin-Off Transaction
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.
first couple of years following Long Wharf Capitalâs
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
Employment with Fidelity and the Settlement Agreement
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
Fidelityâs bonus and/or incentive programs. Wessonâs
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.
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
Fidelityâs 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
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 Fidelityâs Human Resource
Department (" Fidelity HR") and members of the FRE
Group. When Wesson reported her concerns about Sitoleâs
statements to Barrie and Fidelity HR she was told to ignore
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.
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.
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 Fidelityâs in-house counsel, Jennifer
Inker (" Attorney Inker"), negotiated Wessonâs
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,  the Non-Disparagement Provision,
the Confidentiality Clause,  and the Second
Post-Fidelity Job Hunt
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.
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), affâd 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 partyâs case."
Kourouvacilis v. General Motors Corp., 410 Mass.
706, 716 (1991).
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 employerâs state of mind ... is
âelusive and rarely is established by other than
circumstantial evidence.â " 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 âthe jury to weigh
the credibility of conflicting explanationsâ of the adverse
decision." Id., quoting Blare, 419
Mass. at 440. On the other hand, the plaintiff employeeâs
" 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 âreasonable expectation of proving ... [the]
essential element[s] of ... [his/her] case at trial.â "
Somers v. Converged Access, Inc., 454 Mass. 582, 600
(2009), quoting Matthews v. Ocean Spray Cranberries,
Inc., 426 Mass. 122, 127 (1997).
LONG WHARF DEFENDANTSâ MOTION FOR SUMMARY JUDGMENT
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 Wessonâs claims for retaliation,
defamation, and tortious interference. 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
Wessonâs 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.
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.
Long Wharf Defendantsâ contention that the Release Provisions
bar Wessonâs 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 ...