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MCAD Claim Fails on Issue of Pretext

Posted on December 13, 2022

The Massachusetts Commission Against Discrimination (MCAD) recently dismissed claims of age and gender discrimination brought by a 66-year-old female employee who was terminated by the employer after working at a plant for more than 30 years.  The MCAD also dismissed claims of retaliation related to the employee’s discrimination allegations.

The employee was fired for poor performance in September 2016 after her supervisor found her asleep on the production floor.  Prior to terminating her, her supervisor and the supervisor’s manager undertook an investigation of the incident.  The employee was uncooperative with management during the investigation and was found to be insubordinate.  She was ultimately terminated for both sleeping on the job and her insubordination.

The employee’s prior disciplinary record consisted of numerous infractions, including failure to wear a required hairnet and mistakes that led to defects in the company’s products.  The company’s performance management system contained detailed records of the employee’s disciplinary violations, with consequences ranging from counseling to a suspension.

A three-day suspension had been imposed in August 2016 but was then rescinded by a more senior manager.  The senior manager did not dispute the supervisor’s right to impose the suspension but decided to use the incident as an opportunity to improve the company’s processes and commit them to writing.  He recruited the employee to assist with development of a manual, and he indicated that he wanted her employment with the company to continue.

In January of 2017, the employee filed her claims with the MCAD against the company.  The Investigating Commissioner added five individuals, company managers, as respondents (i.e., defendants).  In October of 2018 the Investigating Commissioner certified the matter for public hearing, which was ultimately conducted over Zoom in May of 2022.

The hearing dealt with the following issues, all brought pursuant to M.G.L. ch. 151B, the Massachusetts anti-discrimination statute: 1) Was the employee subjected to a hostile work environment due to her age and/or gender?  2) Was her termination unlawfully based on her age and/or gender? 3) Did the company retaliate against the employee? 4) Are the individual managers liable to the employee?

The MCAD found that the employee failed to prove that there was a hostile work environment.  She had claimed that she was more severely disciplined for infractions than younger and male employees.  The MCAD dismissed the hostile work environment charge, finding that the company followed its progressive discipline policy for her failure to comply with company standards. The company’s records of disciplinary actions across their workforce showed uniform enforcement of its policies.

With respect to the termination, the MCAD found that the disciplinary record and evidence given at the hearing supported the company’s position that the termination was not rooted in discriminatory animus, and that the employee had been given numerous opportunities to improve her performance.   The employee offered as evidence of pretext that her supervisor had said about the employee, “I can’t stand that woman.”  She also indicated that the supervisor had texted another employee saying that she was going to “get rid of” the employee.  The parties presented conflicting testimony about these remarks,

The MCAD hearing included the testimony of 17 witnesses and reams of documents.  The Investigating Commissioner heard conflicting testimony about the supervisor’s statements, and the text message was not produced.  The MCAD ultimately found the company’s witnesses more credible.  Their decision acknowledges that the supervisor clearly did not like the employee but concluded there was no discriminatory intent. The MCAD rejected the employee’s evidence of disparate treatment, as most of the employees working in her unit were above the age of 50, and of the four people terminated by the supervisor during her tenure, the employee was the only female.

The MCAD also dismissed the related claims of retaliation.  Facts presented by the employee focused on discipline she received. The employee reported to management in July 2015 that she believed the disciplinary measures were discriminatory.  The MCAD found that she did not prove a causal connection to this report and later discipline.  Likewise, the MCAD found her termination was not because she had made a report of discrimination, but for the stated performance reasons.

The parallel claims against the individual managers were dismissed on the same grounds as the discrimination and retaliation claims.

A few lessons for employers may be found in this decision.

One is that after an employer provides a legitimate and well-documented reason for its actions in a discrimination case, the burden of proof shifts back to the employee to prove that the given reason is a pretext.  This can be a difficult burden, and it can be equally difficult for the employer to counter any proof the employee has of discrimination.

Second, this case was decided in November 2022, almost six years after the claim was filed.  Even though the employer diligently documented performance issues, it was not vindicated for six years. This means that employers need to be prepared for the long haul in cases that are filed with the MCAD.

Members with questions about discipline or investigating reports of discrimination in the workplace may call the AIM Employer Hotline at 800-470-6277.