Opinion
No. 99-5450
October 21, 2002
MEMORANDUM OF DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION
The circumstance giving rise to the plaintiff's complaint is the undisputed fact that she did not receive merit pay increases in her position as Assistant Superintendent for Veteran's Public Health at the Chelsea Soldiers Home after July of 1995 until her resignation in September of 2000. The plaintiff alleges that the reason she did not receive such increases was that she is female, so that the denial of the increases violated G.L.c. 151B, § 4(1). She also alleges that her efforts to obtain relief from such discrimination, including her filing of a series of charges with the MCAD, elicited an array of retaliatory actions against her, in violation of G.L.c. 151B,
§ 4(4). The Commonwealth responds, in substance, that the plaintiff did not receive merit raises because she was already being paid more than her position warranted, as a result of "collision" reclassification, and that the claimed retaliation does not amount to adverse employment action. Presently before the Court is the defendant's motion for summary judgment on all counts of the complaint. For the reasons that will be explained, the motion will be allowed.
BACKGROUND
The record submitted in connection with the present motion and opposition is complex, and in some respects difficult to comprehend, but establishes certain facts as undisputed. At all relevant times, the Commonwealth has had a policy of assigning its managerial positions to levels and steps in a salary scale. Until mid-1995, the Commonwealth also had a widespread policy and practice of reallocating certain positions to higher levels and/or steps than they would otherwise warrant so as to avoid situations referred to as "collisions" — that is, situations in which a manager would be paid less than, or insufficiently more than, his or her subordinates because the subordinates, but not the manager, had received increases pursuant to collective bargaining agreements. In mid-1995 a new policy was announced narrowing the category of personnel eligible for collision pay reallocation. Other managers were to be eligible for merit increases, under a merit pay policy that had been announced in May 1994, retroactive to October, 1993.
The Court has examined all materials submitted, including the parties' statements pursuant to Superior Court Rule 9A(b)(5), affidavits, and supporting exhibits. The Court has disregarded certain portions of the record that do not appear to meet evidentiary requirements, particularly portions of the plaintiff's affidavit and of her answers to interrogatories that do not appear to be based on personal knowledge. With respect to certain factual issues, although the plaintiff's Rule 9A(b)(5) statement asserts the existence of a dispute, documentary materials that, upon attestation, would be admissible without further authentication pursuant to M.R.Civ.P. 44(a)(1), particularly personnel history cards, support the defendant's assertions, and the plaintiff offers no admissible evidence to the contrary. As to those issues, the Court concludes that no genuine dispute exists, and recites the facts established by the documents.
As of July 1, 1995, the plaintiff, Silva Gerety, held the position of Assistant Superintendent for Veteran's Public Health at the Chelsea Soldiers Home. The responsibilities of that position included the duties of a director of nurses — her previous title at the same facility — as well as certain additional duties. Prior to that date, the plaintiff's position had been classified as M-VII. As of that date, her position was reallocated to M-IX because of a collision situation. The plaintiff also received a merit increase effective that date, but thereafter did not receive merit raises, despite consistently outstanding evaluations.
The "collision" apparently arose from salary increases granted to non-management nurses pursuant to a collective bargaining agreement. At the same time, and apparently for the same reason, several directors of nurses in other agencies of the Commonwealth were similarly reallocated. It appears that the reallocation actually occurred sometime later in the fiscal year, but was made retroactive to July 1, 1995. The record does not reflect whether other managers also received collision reallocation at that time, or if so, their positions or gender.
The plaintiff soon began to raise concerns about her salary with her superiors, both within the Chelsea Soldiers Home and with the Executive Office of Administration and Finance and the Office of the Governor. Her efforts elicited a response in the form of a letter dated November 28, 1996, from David C. McDonald, Director of the Classification and Compensation Group in the Human Resources Division of the Executive Office for Administration and Finance. McDonald acknowledged that an error had been made with respect to the plaintiff's step, which would be corrected retroactively. He went on, however, to inform the plaintiff that "since the inception of the merit pay program, it has been the policy of the Human Resources Division not to award merit pay increases to managers receiving pay as a result of salary collisions. This policy has been applied consistently to all managers who have experienced collisions. It is not directed solely toward Directors of Nurses." He pointed out that her salary at that time, at level M-IX, step 7, was two levels higher than the Level M-VII applicable to her position, was higher than all steps in the M-VII range, and was at the same level as her supervisor, the Commandant of the Chelsea Soldiers Home, whose position was classified as M-IX, thus creating "salary compression between your pay and the Commandant's pay." Merit raises, he noted, would "further exacerbate this internal inequity."
Soon after his letter to the plaintiff, McDonald issued a memorandum, dated December 12, 1996, addressed to all "Cabinet Secretaries, Agency Heads and Human Resources Directors." The memorandum recited that it was a "clarification of Merit Pay program rules and reflects a departure from previous implementation policy." It went on to advise that "Managers who are in salary collision and who have been rated Outstanding for FY `96, should receive the $500 bonus allotted to other manages with the same rating. They should not, however, receive an upward adjustment in base pay through either a merit increase or a merit increment since they have already received such an adjustment through salary collision provisions." Over the next several years, McDonald and other EOAF officials reiterated the same announced policy in various memoranda and documents directed to the plaintiff and to others who raised questions on the subject.
In her memorandum in opposition to the present motion the plaintiff questions the authenticity of this document, as she did also at argument. Review of the materials submitted reveals that the plaintiff herself authenticates the memorandum in paragraph 23 of her affidavit, and appends a copy. Moreover, pursuant to M.R.Civ.P. 44(a)(1), the only authentication needed for admission of this document in evidence at trial would be attestation.
The plaintiff acknowledges that she received the $500 bonus for that and subsequent years.
The plaintiff was the only female manager at the Chelsea Soldiers Home until the fall of 1999. Among management personnel at the facility, the plaintiff received the second highest salary between 1995 and July of 1999. Her boss, the Commandant, was the only manager paid more than she was during this period; his pay was at the same grade classification, but at a higher step. One other employee of the facility received higher pay than both the plaintiff and the Commandant; that individual was a physician, holding the position of Medical Director, and was a member of a collective bargaining unit and thus paid according to requirements of the collective bargaining agreement. Managers other than the plaintiff, including the Commandant, did receive merit raises during this time, but had not received collision reclassification. In July and December, 1999, respectively, two male managers at the facility received promotions and/or reclassifications that raised their salaries to levels higher than the plaintiff's.
The plaintiff asserts in her memorandum that these two men surpassed her salary because of merit raises. Their personnel history cards refute that assertion.
The plaintiff filed a series of charges with the MCAD in June 1997, January 1998, and February 1999, alleging sex discrimination in her salary. The plaintiff withdrew those charges from the MCAD in April of 1999, and filed this action in November of that year.
The record reflects a series of conflicts during the relevant time period between the plaintiff and the two individuals who held the position of Commandant, first William Thompson and then, as of August 30, 1999, Michael Resca. Documents reflecting these conflicts reveal disagreements about various management issues, as well as methods of communication, adequacy of consultation, and lines of authority. Also mentioned is the plaintiff's dissatisfaction with her salary, but no mention appears in the documents provided of any contention of discrimination on the basis of sex or other unlawful ground. The record does not indicate what, if any, knowledge either Thompson or Resca had of the plaintiff's MCAD charges or of her initiation of litigation.
During an interval between Thompson's tenure and Resca's appointment, Francis Thomson served as Acting Commandant. Thomson, it appears, was sympathetic to the plaintiff's complaints regarding her salary. In a letter to her dated July 29, 1999, Thompson expressed his view, based on review of her file, that "a major problem exists in that you have not received any salary increases since your reallocation from MVIII to MIX as of July 1, 1995. . . . I am in agreement with your claims and I am in support of appropriately adjusting your pay, retroactive to 7/1/95 to reflect the appropriate merit increment since your upgrade." He indicated that "I am pursuing this issue with HRD and EOHHS with the hope that it will be resolved once and for all."
Apparently, however, the issue was not resolved as of Michael Resca's appointment as Commandant effective August 30, 1999. In a memorandum of that same date, the plaintiff informed Resca that, having been told that she was unlikely to receive additional compensation, she would no longer perform a list of functions that she considered outside of her job description. These included supervision of eight specified departments. Resca responded, by memorandum dated September 2, 1999, that he would "transfer the direct reporting responsibility of the departments you identified to the Department Heads I deem appropriate." Resca hired Theresa Spinelli as Clinical Administrator, and transferred to her most of the functions the plaintiff had discontinued.
In early November, 1999, Resca transferred responsibility for administrative supervision of nurse practitioners from the plaintiff to Spinelli, although this function was not among those the plaintiff had declined to perform. In a memorandum dated November 3, 1999, the plaintiff protested this change, focusing particularly on Resca's delegation to Spinelli of the task of communicating it to the plaintiff, without prior consultation with her. In response, Resca informed the plaintiff, by memorandum dated November 4, 1999, that his decision "has nothing to do with your performance," but arose from his belief that "the transfer of Nurse Practitioners to Ms. Spinelli, who has substantial experience as a Nurse Practitioner, is in the best interest of the patients and residents at the Soldiers' Home." Resca expressed puzzlement at her protest of the lack of consultation in light of her own lack of consultation before her August announcement.
The medical director provided clinical supervision of nurse practitioners.
Some two months later, in a memorandum dated January 27, 2000, Resca expressed to the plaintiff his dissatisfaction with her performance. He characterized her conduct generally as manifesting a lack of "a spirit of teamwork," and cited a list of specific examples, beginning with her announcement, on his first day as Commandant, that she would no longer supervise eight departments, necessitating transfer of those functions to Spinelli, and her subsequent refusal to cooperate with Spinelli. The memorandum concluded by informing the plaintiff that "[t]his is a warning. Failure to comply with the above directives will lead to further disciplinary action up to and including termination of your employment for cause." The plaintiff resigned effective September 8, 2000.
The defendant's position on the salary issue is supported by an affidavit of David McDonald. In accord with his memoranda summarized supra, McDonald avers that, as a matter of policy, "when employees were being paid at a higher level than that to which their position was allocated, they were not entitled to merit increases." According to McDonald's affidavit, during the time in issue the Commonwealth employed twenty individuals, including the plaintiff, in director of nursing positions; of these, one was male and nineteen were female. Prior to 1995, the plaintiff's position was the only one of these allocated to the M-VII level; all others were at lower levels. As of July 1995, the plaintiff's and certain other director of nursing positions were reallocated to the M-IX level because of collision situations. In 1998, five of the twenty director of nursing positions received higher salaries than the plaintiff because, according to McDonald's affidavit, "for two years, the Department of Public Health allowed the directors of nurses in their department merit pay increases despite written instructions from the Human Resources Division not to do so." McDonald's affidavit goes on to state that the plaintiff's reduction of her duties in 1999 would have warranted a downgrade in the level of her position, but the Commandant "did not pursue such action," and that had the plaintiff "consented to return to her level M-VII position, she could have received merit pay increases for fiscal year 1999 and fiscal year 2000."
Other documents in the record establish that all five of these employees were female.
In response, the plaintiff submits her own affidavit, and also relies on her answers to interrogatories. She does not directly contradict McDonald's assertions, but recites her own interpretation of the Commonwealth's policy as follows: "Managers either get merit pay, which is the rule, or they get collision pay when the collision pay exceeds the highest pay they could have earned in their grade assuming the highest level of performance. . . . Every year, the managers eligible for merit pay are reassessed for merit pay increases irrespective of whether they received collision pay at some point in the past." In support of this interpretation, the plaintiff cites two appended documents. The first of these is a February, 1985, memorandum regarding collision pay. That document makes no reference to merit pay, a practice first established more than a decade later. The closest it comes to the issue is the following:
While a manger whose salary has been adjusted remains in a position, he/she will not automatically be entitled to step raises. If the manager's adjusted salary continues for a period of time, it is possible that his/her adjusted salary may at some point be a management salary increment less than the salary he/she would have been paid, had his/her salary not been adjusted. The salary adjustment will become void at that time and the manager's new salary will advance to the step-in-range that the manager would have attained had the salary adjustment not taken place.
The second document referenced is a September 1995 memorandum announcing changes in the collision policy, particularly narrowing of its scope to managers holding professional or technical licenses or certifications and providing technical (as opposed to merely administrative) supervision to personnel holding the same licenses or certifications. The memorandum recites that collision reallocation will be "at the first job grade in the management salary schedule which will allow resolution of the collision." The memorandum makes no reference to merit pay, and announces no policy regarding merit pay for managers who receive collision reallocation.
The plaintiff's affidavit sets forth her calculations of the pay she believes she should have received each year, according to her understanding of the Commonwealth's policies. Starting with her reallocation to level M-IX in 1995, she asserts, in apparent disregard of the policy announced in the September 1995 memorandum, that the step in which she was placed was for new hires, and that her lengthy service warranted a higher step within level IX. On that basis, she asserts that she should have been paid at a higher level than she was immediately upon her reallocation to M-IX. From there, she calculates the merit increases she contends she should have received each year. The result, according to her calculations, is a total deficit of $78,226.20 between the pay she received and the pay she contends she should have received between July 1, 1995, and her resignation in September of 2000.
The plaintiff's calculation assumes she did not receive a merit increase effective July 1, 1995, although her personnel history card indicates that she did.
With respect to her claim of retaliation, the plaintiff refers to her answers to interrogatories, dated June 13, 2000. In answer to interrogatory no. 11, the plaintiff asserts that, during William Thompson's tenure as Commandant, she was subjected to "several incidents of harassment" which she believes "were intended to undermine my authority over my subordinates," that a false charge of stealing "was trumped up to intimidate and threaten me," and that the administration failed "to quell inappropriate `pot shots' directed toward me from physicians who are displeased with my insistence on strict adherence to the policy of reporting all medication incidents," and that Thompson "encouraged" one of the physicians to conduct meetings with her staff "to undercut my authority over these employees," and allowed that physician to give "administrative directives and change in clinical system orders" to her staff, and "to blame me for the failure to implement visual field machine service, even though this physician has failed to take the steps he was required to undertake in order to accomplish this."
The interrogatory answer adds additional assertions of retaliation that, as presented, appear to be based entirely on multiple hearsay. The Court disregards these.
Commandant Resca, the interrogatory answer goes on, encouraged her staff to "`go directly' to him," particularly with respect to conduct by her "that is deemed as `harassment,'" that he "does not bother to obtain the other side of the story," that he ordered her to discipline subordinates without involving her in the investigation process, that he overturned her disciplinary actions without consultation, that he conducted a nurse staffing study without her involvement, that he created Theresa Spinelli's position "specifically to undermine my role," that he "treats [Spinelli] as an intermediary between us," and that "I believe that these actions were taken in order to manufacture opportunities to find fault with my performance in the future." In addition, the plaintiff asserts that Resca rarely communicates with her, that he "encourages inappropriate and disproportionate criticism of me." Specific examples include an occasion when Resca directed her, without consultation, "not to assign nurses to supervise the patients in the dining room," although she judged such assignment "clinically necessary and appropriate," and the conduct of a nursing staffing study, resulting in reports that are "vindictive and demeaning in tone," in an "attempt to demean my competence by criticizing me that a `staffing crisis' does not exist." Finally, the interrogatory answer asserts that Resca denied a previously approved position upgrade to a member of the plaintiff's staff; the plaintiff asserts her belief that "this action was taken to teach my subordinates a lesson as to what will happen to them if they are loyal to me."
The interrogatory answer goes on to say that the employee involved had filed a grievance, which was "has reached arbitration." The record does not disclose the outcome of the grievance.
The plaintiff's answer to interrogatory no. 5 adds another piece of information, not referenced in her affidavit, but relevant to her claim of discrimination. She asserts in that answer as follows:
At a meeting a few years ago, I asked David MacDonald of HRD why he was upgrading all the men whenever they were `in collision' so that they would not be kept in collision year after year, as I have been. Mr. MacDonald admitted that he had made determinations to upgrade others. He told me something to the effect that I, a "woman and a nurse" was not entitled to such consideration. He also intimated that it was somehow "inappropriate" for me, a female manager (albeit a manger who has received outstanding evaluations for years), to make more money than the Commandant, which would be the case if the appropriate management merit salary were followed.
The plaintiff's Amended Complaint, filed on November 19, 1999, sets forth four numbered counts. Count I alleges discrimination on the basis of sex, in violation of G.L.c. 151B, § 4(1). Count II alleges that the Human Resources Division of the Executive Office of Administration and Finance aided and abetted such discrimination, in violation of G.L.c. 151B, § 4(5). Count III alleges retaliation for her exercise of rights protected under c. 151B, in violation of G.L.c. 151B, § 4(4). Count IV alleges that the defendant intends to take further retaliatory action, in violation of the same provision. The complaint seeks injunctive relief, compensatory and punitive damages, costs and attorneys fees. The defendant moves for summary judgment on all counts, contending that the undisputed facts establish the plaintiff's inability to meet her burden of proof on the elements of these claims.
DISCUSSION
This Court grants summary judgment where no genuine issue of material fact exists and the record entitles the moving party to judgment as a matter of law. See Mass.R.Civ.P. 56(c); Cassesso v. Commissioner of Correction , 390 Mass. 419, 422 (1983); Community National Bank v. Dawes, 369 Mass. 550, 553 (1976). The moving party bears the burden of establishing the absence of genuine dispute on every material issue. See Pederson v. Time, Inc., 404 Mass. 14, 16-17 (1989). A party moving for summary judgment who does not bear the burden of proof at trial may demonstrate the absence of a genuine dispute of material fact either by submitting affirmative evidence negating an essential element of the non-moving party's case, or by showing that the non-moving party has no reasonable expectation of proving an essential element of its case at trial. See Flesner v. Technical Communications Corp., 410 Mass. 805, 809 (1991); Kourouvacilis v. General Motors Corp., 410 Mass. 706, 716 (1991).
Once the moving party establishes the absence of a triable issue by either of these methods, the party opposing the motion must respond with evidence of specific facts establishing the existence of a genuine dispute. See Pederson v. Time, 404 Mass. 14, 17 (1989). The opposing party may not rest on the allegations of the pleadings, nor may she rely on "bare assertions and conclusions regarding [its own] understandings, beliefs, and assumptions." Key Capital Corp. v. M S Liquidating Corp., 27 Mass. App. Ct. 721, 728 (1989). Mere contradictions of factual allegations, without evidentiary support, are insufficient to raise questions of material fact sufficient to defeat a summary judgment motion. See Madsen v. Erwin, 395 Mass. 715, 721 (1985), quoting Olympic Junior, Inc. v. David Crystal, Inc., 463 F.2d 1141, 1146 (3rd Cir. 1972) (noting that conclusory statements, denials, and allegations are insufficient to raise material issues of fact). The opposing party's obligation, rather, is to demonstrate the existence of admissible evidence sufficient to meet her burden of proof on the issues raised by the motion.
In deciding motions for summary judgment, the Court may consider pleadings, depositions, answers to interrogatories, admissions on file and affidavits. The Court reviews the evidence in the light most favorable to the nonmoving party, but does not weigh evidence, assess credibility or find facts. See Dawes, 369 Mass. at 553; Mass.R.Civ.P. 56(c); Colley v. Benson, Young Downs Insurance Agency, Inc., 42 Mass. App. Ct. 527, 528 (1996); see also Kelley v. Rossi, 395 Mass. 659, 663 (1985).
I. Discrimination.
To prove her claim of discrimination by disparate treatment on the basis of sex, the plaintiff must present evidence from which a jury could find (1) that she was a member of a protected class; (2) that she was subjected to some adverse employment action; (3) that the employer held a discriminatory animus toward her based on her sex; and (4) that the discriminatory animus caused the employer's decision to take the adverse action. See Lipchitz v. Raytheon Company, 434 Mass. 493, 502 (2001). The first two elements are undisputed for purposes of this motion; the plaintiff is female, and the Commonwealth concedes, for purposes of this motion, that the denial of merit raises for which the plaintiff would otherwise have been eligible constitutes adverse employment action. The latter two elements may be proven either by direct evidence or by evidence sufficient to support a finding that the reason given by the employer for its action is false, if the jury infers from the falsehood that the real reason was discrimination. See id.; Abramian v. President Fellows of Harvard College, 432 Mass. 107, 117-118 (2000).
The plaintiff offers some direct evidence of discriminatory animus: her testimony, as set forth in her interrogatory answer, that David McDonald told her "something to the effect that I, a `woman and a nurse' was not entitled to such consideration." The evidence offered is ambiguous, to be sure; it is unclear when or in what context McDonald made his statement, or how much of the plaintiff's account of it purports to be a direct quotation, as opposed to her paraphrase or characterization. Nevertheless, considered in the light most favorable to the plaintiff, the interrogatory answer must be considered to supply some evidence of discriminatory animus on the part of a person who held a decision-making position with respect to the plaintiff's salary.
The statement referred to, however, does not address the issue of causation, nor does anything else in the record supply evidence of this essential element. To the contrary, the record establishes as undisputed that the denial of merit raises to the plaintiff arose from application of a sex-neutral policy. Indeed, the plaintiff's own affidavit and attachments acknowledge the existence and terms of the policy, and establish the facts underlying its application to her. Although the record reflects departures from the policy in favor of five similarly situated women, that fact provides no support for the plaintiff's claim of sex discrimination; she can hardly contend that the decision not to depart from the policy on her behalf was based on her sex, where the departures that did occur were for the benefit of members of the same sex.
Her memorandum apparently seeks to backtrack from this acknowledgment by pointing out that McDonald's December, 1996, memorandum was issued in response to her complaints. The inference that it was so issued is certainly warranted, but does not support her claim. Nothing in the record contradicts the account of the policy stated in the memorandum, or the account of its application set forth in McDonald's affidavit. Nor does any evidence offered support the assertion in the plaintiff's memorandum that the conditions stated in the memorandum applied only to her.
Nor does the plaintiff offer any evidence to support a theory of pretext. She identifies no similarly situated male employee who received better treatment — that is, no male who received collision reallocation and then also received merit raises. See Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129 (1997). Accordingly, the undisputed facts establish that the plaintiff cannot meet her burden of proof on a theory of disparate treatment on the basis of sex.
In her memorandum in opposition to the summary judgment motion, the plaintiff refers to Joseph Lawlor, a manager at the Chelsea Soldier's Home. She asserts that he "was reallocated to a higher position due to a salary collision prior to the merit pay policy effective date of July 14, 1995," and that he received merit pay increases "every year since 1995." The evidence offered does not bear out this assertion. Lawlor's personnel history card reflects a "reallocation," without identified reason, from Program Manager V to Program Manager VI, effective March 17, 1985, a full decade before the events in issue here. No subsequent reallocation appears from that date until his resignation effective March 31, 1997, nor does anything identified as based on "collision" appear at any time. Lawlor's salary as of his resignation in 1997, reflecting merit raises received back to 1993, was less than half of the plaintiff's salary. Comparison with Lawlor would not support an inference that the plaintiff was discriminated against with respect to her salary on the basis of her sex.
In her opposition to the present motion — although not in her MCAD charges or in her amended complaint — the plaintiff asserts a theory of disparate impact. For purposes of this argument, she concedes the existence, facial neutrality, and proper application of the asserted policy, but asserts that it "disproportionately impacted women managers." See generally Cox v. New England Telephone and Telegraph Co., 414 Mass. 375, 384-386 (1993); Smith College v. MCAD, 376 Mass. 221, 227 (1978). In support of this theory, the plaintiff asserts in her memorandum that all of the people to whom the policy was applied were female directors of nursing who were reallocated as of July 1, 1995. From this she concludes that the policy applied only to women. The problem with this theory is that the evidentiary record simply provides no basis for it. The evidentiary materials offered provide no indication either way as to whether employees other than the female nursing directors received collision reallocation in 1995. Nor, even assuming that only women received collision reallocation in 1995, would that fact alone suffice to show disparate impact. Reallocation, the record establishes, resulted in increased pay, to the benefit of the employee. To base a claim of discrimination on the fact of reallocation, the plaintiff would have to provide evidence from which a factfinder could conclude that such reallocation, with its attendant ineligibility for merit raises thereafter, ultimately served to disadvantage the affected group of female employees as compared to similarly situated male employees who did not receive reallocation, but remained eligible for merit raises. The record provides no basis for any such comparison. Accordingly, the defendant is entitled to judgment as a matter of law on the claims of discrimination. 2. Retaliation.
The claim of aiding and abetting necessarily fails for the same reasons, as well as for the additional reason that the Commonwealth is a single entity, so that one of its agencies cannot aid and abet another in a statutory violation.
To support her claim of retaliation, the plaintiff must prove (1) that she engaged in activity protected by G. L. c. 151B; and (2) that the defendant took adverse employment action against her because of that activity. See Bain v. City of Springfield, 424 Mass. 758, 766 (1997); MacCormack v. Boston Edison, 423 Mass. 652, 662 (1996); Tate v. Department of Mental Health, 419 Mass. 356, 364 (1995). To satisfy the second element, the action taken against the plaintiff must go beyond "subjective feelings of disappointment and disillusionment," MacCormack, supra, at 663, based on "vague and impressionistic elements," Bain, supra, at 766. Rather, the evidence must show action subjecting the plaintiff to "material disadvantage." MacCormack, supra, at 662.
The Commonwealth does not challenge the sufficiency of the evidence as to the first element, but contends that the actions the plaintiff seeks to characterize as retaliation do not rise to the level of adverse employment action as that concept has been illuminated by these cases. The Court agrees. The actions described in the plaintiff's interrogatory answer, considered in the light most favorable to the plaintiff, amount to no more than subjective slights and disagreements of the sort the case law has held insufficient. The plaintiff does not contend that she was discharged or demoted, that her salary was reduced, that her title was changed, that office space or other resources were withdrawn or denied, that her job duties were changed involuntarily, or that she suffered any other changes in "objective terms and conditions of employment." MacCormack, supra, at 663. The closest she comes to alleging any of these types of actions is her contention that her subordinate was denied a recommended position upgrade; that action may have subjected the subordinate to a material disadvantage, but not the plaintiff herself. Accordingly, the defendant is entitled to judgment as a matter of law on the claim of retaliation. CONCLUSION AND ORDER
Count IV became moot upon the plaintiff's resignation.
For the reasons stated, the Defendant's Motion for Summary Judgment is ALLOWED . The Court orders entry of JUDGMENT for the defendant on all counts of the complaint.
______________________________ Judith Fabricant Justice of the Superior Court October , 2002