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Coogan v. FMR, LLC

United States District Court, D. Massachusetts

September 17, 2018




         The magistrate judge to whom this case was referred has issued a report and recommendation (“the R&R”) (dkt. no. 89) addressing the defendants' motion for summary judgment (dkt. no. 61). The R&R concludes and recommends that the defendants' motion should be granted. In response, the plaintiff filed timely objections to the magistrate judge's recommendation, to which the defendants have responded.

         The complaint alleges that Fidelity Management & Research, LLC (“FMR”), Sean Burke, and Michael Luzzo (collectively “the defendants”) violated Massachusetts General Laws Chapter 151B and the Age Discrimination in Employment Act, 29 U.S.C. § 621. The magistrate judge analyzed the claims using the conventional McDonnell Douglas three-step framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). After determining that the plaintiff and the defendants had satisfied their respective burdens at steps one and two, the magistrate judge concluded that Coogan had not proffered evidence sufficient to support a factfinder's conclusion that the defendants' articulated reason for terminating his employment- his dishonesty in lying to his superiors-was simply a pretext.

         I have reviewed the R&R as well as the pleadings and the parties' briefing and record evidence submitted both before and after the R&R. On the basis of that review, I am satisfied that the magistrate judge carefully and correctly analyzed the issues presented and that his recommendation that summary judgment be granted in favor of the defendants on all claims is sound. I accordingly adopt the recommendation and grant the motion for summary judgment. I add only a few comments.

         First, the magistrate judge was generous to the plaintiff in allowing that the plaintiff had established, at the first McDonnell Douglas step, a prima facie case for unlawful age discrimination. To satisfy that first step a plaintiff must show, among other things, that he was performing his employment duties in a way that was sufficient to meet his employer's legitimate expectations. Del Valle-Santana v. Servicios Legales De P.R., Inc., 804 F.3d 127, 129-30 (1st Cir. 2015); Knight v. Avon Prods., Inc., 780 N.E.2d 1255, 1262 (Mass. 2003). The record indicates that that had been true in the past, but that in a new assignment he was having difficulty and was receiving one-on-one coaching to help him overcome that difficulty. Even before the dishonesty incident, the plaintiff had been placed on a final warning status, and a failure to satisfactorily complete his probationary period would have justified, and likely resulted in, the termination of his employment. Nonetheless, the magistrate judge properly gave him the benefit of the doubt and determined he had made out a prima facie case.

         Second, in his objections the plaintiff argues a theory-that Burke was an “influencer” responsible for the employer's discriminatory action-that he had not explicitly made to the magistrate judge. At this stage, he may not fault the magistrate judge for not addressing an issue not raised before him, and I do not consider that objection. See Maurice v. State Farm Mut. Auto Ins. Co., 235 F.3d 7, 10-11 (1st Cir. 2000); Me. Green Party v. Me. Sec'y of State, 173 F.3d 1, 4 (1st Cir. 1999).

         Third, and importantly, that there may be a factual dispute about whether or not Coogan actually lied to Burke and Luzzo and tried to persuade Zarella to support his lie-he says he didn't, Zarella says he did-does not mean there is a genuine factual dispute about whether the defendants used Coogan's alleged dishonesty as a pretext to fire him. In other words, to establish that the articulated reason for termination-dishonesty-was not the real reason, the plaintiff would have to show that the defendants did not really believe Zarella's accusation, but nevertheless seized on it as a cover story for their wrongful act. There is no record evidence that would support a factfinder's conclusion that they did not really believe Zarella's accusation that Coogan had lied to them. It is not enough that they may have been mistaken in accepting an untrue report from Zarella. To show pretext there would have to be evidence that they did not in fact believe Zarella's report to be true, but nevertheless used it as a false explanation for the decision to terminate Coogan. There is simply no record evidence to support that proposition.

         The plaintiff's objections to the R&R are overruled. I ADOPT the R&R and GRANT the defendants' motion for summary judgment. Judgment shall enter in favor of the defendants on all counts.

         It is SO ORDERED.


          DONALD L. CABELL, U.S.M.J.

         Steve Coogan (“Coogan” or “the plaintiff”) worked for Fidelity Management & Research, LLC (“Fidelity”) for over 20 years before being terminated in 2013, at the age of 55. He alleges age discrimination and has brought suit against Fidelity and his former supervisors, Sean Burke (“Burke”) and Michael Luzzo (“Luzzo”) (collectively “the defendants”) pursuant to both M.G.L. c. 151B (Counts I, III and IV) and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 (Count II). The defendants move for summary judgment. (Dkt. No. 61). The plaintiff opposes the motion. (Dkt. No. 78). After careful consideration of the record, the parties' briefs and the information adduced at a hearing on the motion, it is respectfully recommended that the motion for summary judgment be ALLOWED.


         The plaintiff worked for Fidelity in various positions from 1989 until his termination in February 2013. Broadly speaking, things went well for him from 1989 through 2010, but proceeded precipitously downhill from 2010 to 2013.

         1. 1989 to 2010

         Fidelity hired the plaintiff in 1989 to work in its Internal Document Printing Services (“DPS”) section. (Statement of Undisputed Facts In Support of Defendants' Motion for Summary Judgment (“Defendants' SUF”), at ¶ 5). The plaintiff left Fidelity in 1994 but subsequently returned to DPS in 1995 and worked there until his termination on February 12, 2013. (Defendants' SUF, at ¶¶ 1, 5; Coogan's Statement of Undisputed Facts (“Plaintiff's SUF”), at ¶ 1).

         The plaintiff's responsibilities with DPS included “most of the enterprise printing that supports Fidelity's business units, an all-digital configuration that produces (among other things) presentations, bound booklets, brochures, flyers, name tags, training manuals and posters.” (Defendants' SUF, at ¶ 4).

         In 2008, when the plaintiff was 50, Fidelity promoted him to the position of “senior manager.” (Defendants' SUF, at ¶ 10; Plaintiff's SUF, at ¶ 2, 33). In that role, the plaintiff managed 10-20 direct reports, ensured that all print jobs were produced timely and according to customer specifications, and oversaw the mail room, quality control, and accounting for metrics and costs. (Defendants' SUF, at ¶¶ 10, 11; Plaintiff's SUF, at ¶ 34). Luzzo was the plaintiff's direct supervisor; he held bi-weekly meetings with the plaintiff, provided him with ongoing coaching, and counseled him on opportunities for performance improvement within his role as senior manager. (Defendants' SUF, at ¶¶ 12, 13).

         From 2008 through 2010, the plaintiff received numerous positive performance reviews, awards, and merit-based raises. (Plaintiff's SUF, at ¶¶ 1-44). In or around 2011, though, the plaintiff began to experience difficulties.

         2. 2011

         In 2011, the plaintiff was awarded for the first time a “project manager role.” (Defendants' SUF, at ¶ 17; Plaintiff's SUF, at ¶ 45). Among other things, the plaintiff was responsible for overseeing the successful implementation of a new software system Fidelity had purchased. (Defendants' SUF, at ¶ 17; Plaintiff's SUF, at ¶ 50). The software system was scheduled to be implemented and launched in full within two years; during that time the plaintiff and his team were responsible for meeting various implementation-related deadlines. (Defendants' SUF, at ¶ 20; Plaintiff's SUF, at ¶ 52).

         Unfortunately, the plaintiff and his team failed to meet several of these interim deadlines, which in turn set back the launch date of the software system. (Defendants' SUF, at ¶ 22; Plaintiff's SUF, at ¶ 56). Luzzo addressed these concerns with the plaintiff, and also counseled the plaintiff on training modules, proper training documentation, and timely completion of tasks. (Defendants' SUF, at ¶¶ 27, 30).

         At his 2011 mid-year performance review, Luzzo indicated among other things that the plaintiff was continuing to “lea[d]” the implementation of the software system, and that the team was “optimistic” about meeting an upcoming deadline despite being “behind target dates.” Luzzo also indicated that the plaintiff did not fully meet expectations on another particular project. The plaintiff disputes that this is an accurate portrayal of his performance in 2011, but admits that Luzzo was not discriminating against him based on his age, then 53. (Defendants' SUF, ¶¶ 33-34).

         At his 2011 year-end review, the plaintiff received an overall performance rating of “inconsistent, ” and Luzzo identified several areas where the plaintiff had failed to fully meet performance benchmarks. (Defendants' SUF, at ¶¶ 35-37, 39-42). These performance benchmarks included, among others, the “implementation of the DPS operational software, ” the ability to communicate effectively, and “DPS lean document processing implementation.” (Defendants' SUF, at Ex. 12B).

         3. 2012

         In 2012, the plaintiff received a poor mid-year performance review. More particularly, the plaintiff received a performance rating of “did not fully meet expectations” in several areas, including in the areas of “improving customer experience” and “delivering process excellence.” (Defendants' SUF, at ¶ 44). Luzzo also reduced the plaintiff's DPS-related tasks because the plaintiff was continuing to struggle with timely implementation of the new software system. Luzzo subsequently reassigned those tasks to another DPS employee. (Defendants' SUF, at ¶¶ 45-47).

         On or about May 24, 2012, Fidelity hired Burke as a “senior director.” (Defendants' SUF, at ¶ 55; Plaintiff's SUF, at ¶ 69). Burke was born in 1957 and is approximately 11 months older than the plaintiff. (Defendants' SUF, at ¶ 59; Plaintiff's SUF, at ¶ 74). Burke reported directly to Luzzo and supervised approximately 30 employees, including the plaintiff. (Defendants' SUF, at ¶ 55). As the plaintiff's supervisor, Burke was primarily responsible for ...

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