United States District Court, D. Massachusetts
OPINION AND ORDER
A. O'TOOLE, JR. UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
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).
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.
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.
AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY
JUDGMENT (DKT. NO. 61)
L. CABELL, U.S.M.J.
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
RELEVANT FACTUAL BACKGROUND
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.
1989 to 2010
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).
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).
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,
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.
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).
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).
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).
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).
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).
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 ...