United States District Court, D. Massachusetts
PAUL F. COSTELLO, Plaintiff,
KIRKWOOD PRINTING COMPANY, LLC, Defendant.
MEMORANDUM AND ORDER
J. CASPER UNITED STATES DISTRICT JUDGE
Paul Costello (“Costello”) filed a complaint
against his former employer, Kirkwood Printing Company, LLC
(“Kirkwood Printing”), claiming that Kirkwood
Printing unlawfully discriminated against him on the basis of
his age in violation of Mass. Gen. L. c. 151B and the Age
Discrimination in Employment Act (“ADEA”). D. 1.
Kirkwood Printing then filed a motion for summary judgment.
D. 22. For the following reasons, the Court ALLOWS Kirkwood
Printing's motion for summary judgment.
Standard of Review
role of summary judgment is “to pierce the pleadings
and to assess the proof in order to see whether there is a
genuine need for trial.” Mesnick v. Gen. Elec.
Co., 950 F.2d 816, 822 (1st Cir. 1991) (quoting
Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st
Cir. 1990)). The Court grants summary judgment where there is
no genuine dispute as to any material fact and the undisputed
facts demonstrate that the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a). “A
fact is material if it carries with it the potential to
affect the outcome of the suit under the applicable
law.” Santiago-Ramos v. Centennial P.R. Wireless
Corp., 217 F.3d 46, 52 (1st Cir. 2000) (quoting
Sánchez v. Alvarado, 101 F.3d 223, 227 (1st
Cir. 1996)). A genuine dispute of material fact exists where
the evidence with respect to that fact “is such that a
reasonable jury could return a verdict for the nonmoving
party.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The movant bears the burden of
demonstrating the absence of a genuine dispute of material
fact and that it is entitled to judgment as a matter of law.
Carmona v. Toledo, 215 F.3d 124, 132 (1st Cir.
2000). The Court must view the entire record in the light
most favorable to the nonmoving party and make all reasonable
inferences in that party's favor. O'Connor v.
Steeves, 994 F.2d 905, 907 (1st Cir. 1993).
following facts are undisputed unless otherwise noted and are
drawn from the parties' submissions of material facts, D.
24, D. 29, D. 32. Kirkwood Printing is a printing and mailing
company that sells offset and digital printing services to
various customers. D. 24 ¶¶ 13, 16. Kirkwood
Printing is owned by Kirkwood Holdings, Inc.,
(“Kirkwood Holdings”), a holdings company that
owns five printing/mailing divisions. D. 24 ¶ 13.
Kirkwood Holdings has five co-owners: John Cummings, Robert
Coppinger, Edward Kelley, William Winship, and Chuck Colvin.
D. 24 ¶¶ 9, 14.
worked as a salesperson at Kirkwood Printing from 1993 to
2014. D. 24 ¶ 17. In 2014, Kirkwood Holdings experienced
financial difficulties and conducted layoffs across several
divisions, including Kirkwood Printing. D. 24 ¶¶
65-66. Costello was among those laid off and was 71 years old
at that time. D. 23 at 1; D. 25-1 ¶ 3. The sales team at
Kirkwood Printing, prior to the layoff, consisted of eighteen
people. D. 25-13 at 2. Two of those people were under 40; two
of those people were in their forties; seven of those people
were in their fifties; six of those people were in their
sixties; and only Costello was in his seventies. D. 24
¶¶ 70, 79; D. 25-13 at 2. The two people, other
than Costello, who were laid off were 33 and 51 years old. D.
24 ¶ 70; D. 25-13 at 2. Across Kirkland Holding's
divisions, thirty-six salespeople remained employed,
including one person who was 75 years old. D. 24 ¶ 80.
responsibilities consisted of “finding clients that
need services that were available from Kirkwood Printing and
presenting the capabilities of Kirkwood Printing to those
clients.” D. 24 ¶ 17. His supervisor, during the
relevant period, was Robert Brown. D. 24 ¶ 18. Each
salesperson reporting to Brown would have a set of prospects
on his list for which he was responsible for making contact.
D. 24 ¶¶ 20-21. If a salesperson wanted to call on
a prospect that was on the list of another salesperson, the
salespeople could agree to transfer the prospect and Brown
would approve it. D. 24 ¶ 21. If the salespeople did not
agree, then Brown would “referee” the decision of
who would be in charge of selling to that prospect, based on
whether any salesperson had made progress with the prospect
and which salesperson had the higher likelihood of success.
D. 24 ¶¶ 22-23. There is a dispute between the
parties regarding the extent to which Costello refused to
give up prospects to other salespeople, requiring
intervention from Brown. D. 24 ¶¶ 19-48; D. 29
¶¶ 25-27, 39. It is undisputed that Brown discussed
his perception that Costello unreasonably refused to give up
prospects with the co-owners of Kirkwood Holdings. D. 24
year from 2008 to 2013, Costello's annual sales declined.
D. 24 ¶ 49. Costello had only one new client in 2013,
and only one new client in 2014 as of June. D. 24 ¶ 50.
One of Costello's clients, Boston University, accounted
for the majority of Costello's sales in 2012, 2013, and
2014. D. 24 ¶¶ 51-52. Edward Kelley and William
Winship, two of the co-owners of Kirkland Holdings, D. 24
¶ 14, would also directly interface with Boston
University to handle its needs. D. 24 ¶¶ 54-64.
2014, when the co-owners discussed whom to lay off, they
solicited input from Brown. D. 24 ¶¶ 71, 73. The
co-owners discussed that if they terminated Costello, they
would be unlikely to lose Boston University's business
because of the relationship that Kelley had with Boston
University. D. 24 ¶ 71. They added that Costello had had
little success in converting prospects into clients. D. 24
¶ 71. They also discussed their view that Costello had
been challenging to deal with in terms of prospects. D. 24
¶¶ 71-72, D. 29 ¶ 89.
to laying off Costello, Kelley reached out to his contact at
Boston University to inform him that Costello would be laid
off, and the contact indicated that Costello's lay off
would not affect its business with Kirkwood Printing. D. 24
¶ 75. Costello was subsequently laid off in June 2014.
D. 24 ¶ 76. After that, the Boston University account
was serviced by Winship and Kelley for some time, and then
taken over by Bill Rizzo, another salesperson, who was
younger than Costello. D. 24 ¶ 83, D. 29 ¶ 85.
18, 2016, Costello filed suit in Middlesex Superior Court
against Kirkwood Printing, asserting violations of state and
federal antidiscrimination laws. D. 1-1 at 2-4. On August 12,
2016, Kirkwood Printing removed the case to this Court. D. 1
at 1. The Court heard argument on Kirkwood ...