Heard: March 5, 2018.
action commenced in the Superior Court Department on June 12,
2014. The case was heard by Robert L. Ullmann, J., on a
motion for summary judgment.
Mitchell J. Notis for the plaintiff.
Lena-Kate K. Ahern, Assistant Corporation Counsel, for the
Present: Vuono, Hanlon, & Wendlandt, JJ.
the defendant Boston public school department (BPS) declined
to renew her employment contract to work as a second grade
teacher, the plaintiff, Lisa Scarlett, brought an action in
two counts, alleging, inter alia, that BPS violated G. L. c.
151B, § 4, by discriminating against her on the basis of
her race (count I). A Superior Court judge allowed BPS's
motion for summary judgment and dismissed her complaint. On
appeal, we apply the familiar three-stage McDonnell
Douglas paradigm for assessing an employer's motion
for summary judgment with respect to an employee's claim
of racial discrimination in the context of a work force
reduction. See McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-805 (1973). See also
Wheelock College v. Massachusetts
Commn. Against Discrimination, 371 Mass. 130, 138
(1976). Finding that Scarlett met her burden under this
paradigm, we reverse the judgment as to count
briefly summarize the material facts in the light most
favorable to the plaintiff, the nonmoving party, reserving
additional facts for later discussion. Sullivan
v. Liberty Mut. Ins. Co., 444 Mass. 34, 35
(2005). In November of 2009, Scarlett, a black woman of
Jamaican descent, was hired as a full-time provisional
teacher, teaching second grade in a general education
classroom at the David A. Ellis elementary school (Ellis
school), a school which is part of BPS. Provisional teachers
are hired under one-year contracts. Every spring, BPS issues
"reasonable assurance letters" to provisional
teachers whom it intends to retain for the following school
Scarlett received a reasonable assurance letter in the spring
of 2010, and her contract was renewed for the 2010-2011
school year. Again, Scarlett taught second grade in a general
October of 2010, BPS entered into an interim settlement
agreement with the civil rights divisions of the United
States Departments of Justice and Education regarding
services provided to "English Language Learner"
(ELL) students. Pursuant to the settlement agreement, BPS
agreed to provide ELL students with sheltered English
immersion (SEI) programs in core content classes, and also to
train and to hire a sufficient number of teachers to serve
In order to adequately serve its diverse student body,
 BPS began
requiring its provisional teachers either to obtain English
as a second language (ESL) certification or to attend ESL
2010-2011 school year, the racial demographics of the student
body and staff at the Ellis school were as follows:
White, Asian or other/multiracial
previously indicated, Scarlett's race is black.
Approximately forty percent of Ellis school students were ELL
February of 2011, Norman Townsend became principal of the
Ellis school, and shortly thereafter was informed that BPS
faced a $63 million budget shortfall for the upcoming
2011-2012 school year. BPS was required, as a result, to
reduce staff. The Ellis school was no exception; Townsend was
forced to reduce the Ellis school staff, including some
provisional teachers. In doing so, Townsend prioritized
maintaining the services, including the SEI program,
 it was
providing to its ELL students, many of whom required services
were seven provisional teachers, including Scarlett, whose
contracts were subject to nonrenewal in view of the budget
shortfall: two Hispanic SEI teachers (one was ESL certified
and the other was not, but had majored in Spanish in
college); three ESL certified white teachers (two of whom
taught SEI classes and one of whom taught music); and two
black teachers (Scarlett and a math specialist). Scarlett and
the math specialist both lacked SEI teaching experience, and
the math teacher also lacked ESL certification. Scarlett had
been working on her ESL certification and received it on June
17, 2011, three days after BPS informed her that her contract
would not be renewed for the 2011-2012 school year.
connection with the annual "probable organization"
meeting, during which BPS administration representatives met
with leadership from the Ellis school to decide how properly
to staff the school for the upcoming 2011-2012 school year,
Townsend recommended that neither Scarlett nor the other
black provisional teacher (the math specialist) be
Scarlett did not receive a reasonable assurance letter, and
in June of 2011,  BPS informed Scarlett that, due to budget
constraints, her contract would not be renewed for the
2011-2012 school year.The math ...