Dorman v. Norton Co.
Dorman v. Norton Co.
Opinion of the Court
The plaintiff, Edgar W. Dorman, appeals from a judgment of dismissal of his complaint of age discrimination in employment, see G. L. c. 151B, § 4(1B), intentional interference with contractual relations, and employment termination in violation of public policy following the entry of summary judgment in favor of the defendants on each count.
The defendants prevailed on their motion for summary judgment with respect to the remaining counts as well. With regard to the plaintiff’s claim against the individual defendants for
On appeal, the plaintiff argues in essence that he presented, in the summary judgment record, admissible evidence sufficient to support a finding that at least one of the employer’s proffered reasons was false, thereby making permissible (though not obligatory) an inference by the fact finder that the employer’s real motivation for the termination was discriminatory. See Lipchitz v. Raytheon Co., supra. It follows, the argument continues, that a fact finder would be warranted in finding that the employer’s agents (defendants Clark and Gustafson) acted with improper motive or by improper means when they brought about termination of the plaintiff’s employment. See Weber v. Community Teamwork, Inc., supra. Finally, the plaintiff contends, with respect to his violation of public policy claim, that his discharge violated a protectable social interest in the reporting of criminal activity. We conclude that the judge’s legal and factual analysis of each claim was sound, and we accordingly affirm.
The underlying facts. The facts that appear from the summary judgment record to be genuinely undisputed are as follows. At the recommendation of the defendant Robert Clark, Norton’s chief engineer at its Worcester plant, the plaintiff was hired by Norton as a watch engineer in 1993. At that time, the plaintiff
The plaintiff’s annual evaluations in June, 1996, and June, 1997, were largely positive. In 1996, he received eighty-seven points out of a possible 100, and Clark wrote that the plaintiff “had considerable experience” and was “a pleasure to work with.” In 1997, the plaintiff received eighty-nine points out of a possible 100, and Clark, acknowledging the plaintiff’s “varied experience and very good job skills,” stated that he “works well with others.”
In mid-1997, the copper scrap incident took place. Prior thereto, Norton had permitted its employees to collect and sell scrap copper which accumulated at the company’s site.
In October, 1997, the plaintiff had an encounter with William Black, an employee assigned to the shift that the plaintiff supervised in his capacity as a watch engineer. Black apparently had concluded that the plaintiff was in some way responsible for vandalism to Black’s vehicle; Black threatened the plaintiff; and the plaintiff responded with profanity. After an investigation, it was determined that Black would receive a written warning for the threat, while the plaintiff would be given an oral
Later in November, 1997, a security officer reported that the plaintiff had been sleeping at his desk. While Clark told the plaintiff that such behavior would not be tolerated, no warning was issued and the incident was not referred to in the plaintiff’s evaluation (June, 1998). However, the plaintiff’s rating in that evaluation slipped considerably from what it had been in the preceding two years.
On June 23, 1998, Thomas Donahue, a Norton engineer, reported both to Clark and to Norton’s safety office that the plaintiff appeared to be sleeping in his office while a turbine alarm was sounding.
Discussion. As indicated above, the judge assumed that the plaintiff had satisfied his burden on summary judgment to present evidence that would, if believed, establish a prima facie case. The defendants challenge this, asserting that the plaintiff did not demonstrate that he was performing his job in an acceptable manner. See Abramian v. President & Fellows of Harvard College, 432 Mass. at 116.
That the defendants met their burden of producing and supporting nondiscriminatory reasons for discharging the plaintiff, see Sullivan v. Liberty Mut. Ins. Co., supra at 50, is not disputed. The outcome of the case turns, therefore, on the answer to the question whether the plaintiff has offered admissible evidence sufficient to avoid summary judgment that shows either that at least one reason given by the employer for the discharge was false, see Lipchitz v. Raytheon Co., 434 Mass. at 501, or that other facts demonstrate the existence of a discriminatory motive
The plaintiff did not attempt to develop so-called direct evidence of discrimination, such as suspect statements by management on the subject of age or statistical studies showing that protected class members were often treated differently from younger employees. Indeed, such demonstrations were unlikely given that virtually all of the employees at the operation of which the plaintiff was a part were over forty years of age, and that the plaintiff was first hired, then discharged, by a supervisor (Clark) who was himself the plaintiff’s junior by a mere three years.
Thus, the plaintiff instead attempted to make his third-stage case by offering evidence of alleged different treatment between himself and other employees who were younger. This, he argues, would support a finding that one or more reasons for the plaintiff’s discharge were a pretext, therefore permitting a fact finder to draw the inference that the employer’s true purpose was discriminatory. See Lipchitz v. Raytheon Co., supra. The principle, i.e., that evidence that similarly situated employees were treated differently can establish that a proffered reason for an adverse job action was a pretext, is sound. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). The problem for the plaintiff is that the evidence does not demonstrate that the defendants treated similarly situated employees differently, or otherwise singled out the plaintiff (or a class of which he was a member) for special, negative treatment. This being the case, the inference on which the plaintiff depends cannot reasonably be drawn.
Examining the plaintiff’s factual assertions in chronological order, there is no evidence of a connection between the plaintiff’s participation in March, 1995, in the watch engineers’ effort to obtain a wage increase and his employment termination in June, 1998. The effort was ultimately successful; the plaintiff’s role generated no negative oral or written responses; there was no evidence that adverse action was taken against any of the other watch engineers; the plaintiff’s evaluations in 1996 and 1997 were favorable; and the passage of time between the wage request and the discharge (more than three years) strongly suggests that the events were unrelated.
Turning to the plaintiff’s episode with his subordinate, William Black, and its aftermath, the plaintiff again complains of a difference in treatment. We are unable to identify an inequitable difference. Management disciplined Black more severely for the threat (a written warning) than it disciplined the plaintiff for the use of profanity to a subordinate (an oral warning). That management did not accommodate the plaintiff’s request for a shift change, arguably difficult given that the plaintiff had supervisory functions, was not shown to be a product of anything other than an exercise of management’s right to deploy personnel in a manner it deems best for its own business purposes. Likewise, management’s response to the plaintiff’s unauthorized installation of the motion detector, including the written warning advising that further disciplinary action would be cause for discharge, has not been shown to be unreasonable per se or otherwise inconsistent with Norton’s disciplinary practices.
The slippage in the plaintiff’s performance evaluation in June, 1998, and the emphasis on his need to improve his teamwork and supervisory skills were not arbitrary in light of the incident with Black and the motion detector installation. Given the events of the preceding eight months, particularly the written warning that further discipline could lead to discharge, the defendants’ termination of the plaintiff’s employment following the second report that he had been observed sleeping on
The plaintiff contests the truth of the engineer Donahue’s report of the plaintiff sleeping on the job that constituted the last link in a chain of events leading to his termination. He denies that he was sleeping (either then or on a prior occasion when a similar report was made) and argues with the accuracy of Clark’s effort to verify the report of a reading of the pressure gouge. It is unnecessary to resolve these questions. The plaintiff admitted that he intentionally delayed silencing the turbine alarm, an act of questionable judgment from an operational viewpoint that would by itself have been of legitimate concern to management. Furthermore, the plaintiff confuses the alleged falsity of Donahue’s accusation that he had been sleeping with the falsity, the plaintiff claims, of the reasons given by the employer for his discharge. It is the latter that is significant under Abramian v. President & Fellow of Harvard College, 432 Mass. at 117, and Lipchitz v. Raytheon Co. 434 Mass. at 501, and there is no evidence here that the defendants discharged the plaintiff on the basis of a report that they knew to be false.
To the extent that the plaintiff argues that the above incidents, taken as a whole rather than viewed in isolation, demonstrate a disparity between the leniency with which other employees were treated and the harshness meted out to the plaintiff, the short answer is that the offenses were dissimilar, particularly when examined in the light of the plaintiff’s work history immediately preceding his discharge. In the absence of any evidence of different treatment of the plaintiff by the defendants,
We briefly address the plaintiff’s remaining claims. An action for intentional interference with contract requires that the plaintiff prove the existence of a contract; the intentional interference with the contract by one or more third parties; that such interference was improper in motive or means; and resulting harm to the plaintiff. See Weber v. Community Teamwork, Inc., 434 Mass. at 781. His case on the third element (improper motive or means) is dependent on his allegation of age discrimination. That allegation, if proved, could satisfy the requirement that the interference be motivated by “a spiteful, malignant purpose, unrelated to the legitimate corporate interest.” Id. at 782, quoting from Boothby v. Texon, Inc., 414 Mass. 468, 487 (1993). Here, the absence of evidence of discriminatory purpose on the part of the individual defendants defeats the claim of intentional interference.
Finally, there was no evidence that the plaintiff’s discharge violated public policy. Passing the defendants’ contention that the plaintiff has waived his claim that he was fired because he was part of a group that had successfully sought improved wages three years earlier (by virtue of not arguing the issue before the Superior Court), we see no basis for concluding that there were actionable public policy implications either for that reason or because the plaintiff complained to management about the unauthorized collection and sale of copper scrap. The public policy exception to the rights of the employer in an at-will
Judgment affirmed.
An additional count alleging defamation was withdrawn by agreement.
The plaintiff earlier withdrew his intentional interference claim against the employer, recognizing that Norton could not interfere with a contract (i.e., the employment contract) to which it was itself a party. See Riseman v. Orion Research, Inc., 394 Mass. 311, 314 (1985).
The amounts collected from the sales were then used to purchase gift certificates for all employees.
Norton’s change between 1997 and 1998 in its scoring system prevents a specific point comparison among the evaluations in question.
The alarm was installed to indicate that steam pressure activity had become either unacceptably high or unacceptably low. Such conditions could result in damage to the system or to Norton’s product.
The defendants concede that the plaintiff made an adequate showing with respect to the remaining elements of the prima facie case.
We do not rely, in this regard, on the plaintiff’s admission in his response to the defendants’ statement of undisputed facts, see Superior Court Rule 9A(b)(5), that “Mr. Clark, Ms. Fitzgerald and Mr. Gustafson decided that Plaintiff’s sleeping on the job and failure to respond to a critical steam pressure alarm, while on a final written warning, warranted termination of his employment.” Read in isolation, the admission suggests a concession that the defendants acted in good faith. Looking at the responses in their entirety, however, we believe that the plaintiff has made it clear that he deems the reasons given to be a pretext.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.