Pregnancy discrimination cases are rarely built on direct or “smoking gun” evidence. Instead, employment discrimination cases typically hinge on circumstantial evidence. The Supreme Judicial Court’s (“SJC”) ruling in Verdrager v. Mintz Levin, in which it reversed summary judgment thus allowing the case to proceed to trial, is a prime example of the various ways in which pretext for pregnancy and gender discrimination as well as retaliation may be inferred. The case is fact-intensive with a long, procedural history. Below is a summary of certain key facts along with a general overview of its precedential value among employment law attorneys, both in Massachusetts and in other jurisdictions.
Retaliation, Pregnancy & Gender Discrimination Allegations
The plaintiff, Kamee Verdrager, began working for the defendant law firm, Mintz Levin, in 2004 at its Boston office as an employment attorney. Shortly after joining the firm, she was assigned to work for a male partner, Bret Cohen, who allegedly spoke to her about “wanting to cheat on his wife” and who allegedly stated “in a very provocative tone” that “I was dreaming about you last night.” Verdrager reported these alleged comments to the firm’s human resources department and, within months thereafter, received negative feedback about her work from Cohen and others.
Later, in January 2005, Cohen allegedly increased the scope of a non-billable research project that he had assigned to Verdrager. Nevertheless, in March 2005, she received a performance evaluation with an overall rating of “always meets expectations” across five competencies. Later that year, in September 2005, Verdrager returned from her honeymoon and informed Mintz Levin’s then-Manager of the firm’s employment law practice group, Robert Gault, that she is pregnant. In response, Gault allegedly responded: “Well, I suppose these things happen. I guess we have your honeymoon to blame for this?” Gault also allegedly raised the possibility that Verdrager reduce her schedule to part-time, even though she never suggested that that would be necessary.
Unfortunately, Verdrager’s pregnancy resulted in medical complications, which required that she take a leave of absence. According to the court’s decision, Gault and a colleague, Donald Schroeder, exchanged e-mails expressing frustration about Verdrager’s absences and lack of availability. Gault also allegedly took the initiative to speak with Verdrager’s neighbors and, from these conversations, believed that Vergdrager was doing work around the house that belied her medical conditions. In March 2006, Verdrager received her second performance review and received overall ratings ranging from “usually exceeds expectations” to “always meets expectations” across ten competencies and “usually meets expectations” in one competency. Verdrager returned to work in November 2006 and thereafter allegedly registered a low number of billable compared to her peers. By early February 2007, she received two negative reviews, one of which came from Schroeder.
By that point, David Barmak had replaced Gault as Manager of the firm’s employment law practice group. In February 2007, Mintz Levin began to consider terminating Verdrager, but ultimately decided to demote her, which resulted in a cut in pay. According to the decision, Barmak commented that Vedrager is “someone who is playing the system,” “out a lot,” and “not someone who is committed to practicing law.” That same month, Verdrager retained counsel and filed in an internal complaint in which she alleged that her demotion was the result of gender discrimination. Mintz Levin’s investigators, which included the firm’s then-managing director, Peter Biagetti, concluded that no gender discrimination had occurred.
Following her demotion, Verdrager received several positive reviews in 2007. In December 2007, Verdgrager filed a complaint with the Massachusetts Commission Against Discrimination on the basis that her demotion was a result of gender discrimination. In doing so, she named Barmak, Gault, and Schroeder as individual respondents. In February 2008, Verdrager took a second maternity leave and returned to work in September 2008. In November 2008, as part of the national economic turmoil, Mintz Levin prepared to lay off employees. Around that time, Mintz Levin offered to settle Verdrager’s employment discrimination claims if she would accept the lay off. Verdrager rejected the offer and showed another partner of the firm evidence that she had gathered from Mintz Levin’s own files, a practice commonly referred to as “self-help discovery,” which she believed supported her gender discrimination claims. After confirming confirming with its information technology department that Verdrager had searched for files related to her case, Mintz Levin terminated her employment. Thereafter, Verdrager amended her complaint and removed her case to Superior Court.
In 2013, Superior Court Judge Lauriat dismissed dismissed all of plaintiff’s claims against Mintz Levin as well as the individually named defendants. Verdrager appealed the Superior Court’s decision and the SJC granted direct appellate review.
Inferring Pretext for Unlawful Discrimination
The SJC largely reversed the Superior Court’s decision and noted that Verdrager had “presented evidence from which a reasonable jury could infer that both her demotion and her termination were the result of unlawful discrimination, as well as evidence allowing an inference that both were the result of retaliation.” In doing so, the SJC noted that Massachusetts is a pretext-only jurisdiction and cited to its recent decision in Bulwer v. Mt. Auburn Hospital for the proposition that, in order to survive summary judgment, Verdrager need only show that the employer’s justification for the adverse actions was false and need not show directly that the real reasons were discriminatory. Notably, this is different than the standard set forth in the Superior Court decision (“Ms. Verdrager is tasked at this stage with establishing that the reason presented by Mintz Levin for her termination is pretextual, and that the actual motivation was a discriminatory intent.”).
In reversing summary judgment, and as discussed further here, the SJC observed several ways in which pretext for gender and pregnancy discrimination as well as retaliation may be inferred:
1. Comparators: Similarly situated male employees were treated differently than Verdrager. Schroeder, for example, criticized Verdrager for not being available for particular emergency assignments, yet Verdrager alleges that there many occasions when she could not find Schroeder during business hours because he was at the gym with a junior male associate. Verdrager also alleges that Schroeder evaluated her negatively for leaving the office no later than 5:30 pm while she was nursing her first child, but sent home a male associate earlier than her to be with his wife and kid.
2. Suspicious Timing: The SJC noted evidence that “Cohen attempted to undermine the plaintiff after she complained about his behavior, which may allow an inference that the plaintiff’s perceived performance deficiencies resulted in part from Cohen’s animus rather than from innate inadequacy.”
3. Stereotypical Comments: Remarks by Barmark may be interpreted to “reflect a stereotypical view of women as not committed to their work because of family responsibilities.”
4. Propensity Evidence: Other women at the firm, and in Vergdrager’s department in particular, complained of discriminatory treatment. In particular, the SJC pointed to a study by an outside consulting firm, which revealed that “[m]any female [attorneys] … believe it is more difficult for women than men at Mintz. In particular, they indicated that they are not given the same assignments or opportunities for exposure that men receive, there are fewer women in management for them to look up to or receive support from, and male partners make assumptions about the ability and willingness of women to do certain work.”
5. Leaky Pipeline: Statistics support the belief that the highest ranks of the firm were closed to women. Specifically, the SJC observed: “When the plaintiff joined the firm, there were five female associates and four male associates in the Boston ELB section senior to her in terms of the year they had graduated from law school.”
6. Temporal Proximity: The close temporal proximity between Verdrager’s protected conduct and her termination allows an inference of pretext. In particular, the SJC noted: “Popeo fired her on November 25, 2008, a few weeks after she had been selected for lay-off, five days after the firm had offered to settle her claims in exchange for her agreement to the lay-off, four days after she had rejected that offer, and one day after Popeo had been informed of her decision to reject the offer.”
Significantly, this opinion addresses the novel issue of self-help discovery. In doing so, the SJC made clear that, under certain circumstances, an employee’s acts of self-help discovery in aid of employment discrimination claims may constitute protected activity. Similar to the New Jersey Supreme Court’s ruling in Quinlan v. Curtiss-Wright, the SJC adopted a flexible, seven-factor totality of the circumstances test to determine whether self-help discovery constitutes protected activity. Under this test, no one factor is dispositive:
1. Authorization: This factor favors the employee who has authorization to access the documents in question, rather than the employee who comes into possession by “rummaging through files or by snooping around in offices of supervisors or other employees.”
2. Disruption: This factor asks whether the documents taken disrupted the employer’s business (e.g., if the information contained in the document was proprietary or constituted a trade secret) or if it simply affected individual company representatives.
3. Need: This factors examines the employee’s need to copy the document vs. describing or identifying its existence so that it could be requested through formal discovery pursuant to Mass. R. Civ. Pro. 26.
4. Dissemination: This factor favors the employee who shares documents only with his or her attorney.
5. Content: This factor considers the content of the particular documents and the employer’s interest in keeping such information confidential.
6. Company Policy: This factor evaluates whether the employee violated a clearly identified policy against taking documents.
7. Statute’s Broad, Remedial Purpose: This factor supplements the other factors and tips the balance in close cases. It requires a court to consider the broad, remedial purpose of M.G.L. c. 151B, §9. As such, close cases should be resolved in favor of the employee.
This decision highlights the importance of properly describing the employee’s burden at summary judgment – specifically, that only a showing of pretext is required and not an actual showing of discriminatory intent, which would be tantamount to providing direct evidence of unlawful motive. Rather, circumstantial evidence from which a jury may infer discrimination is sufficient. In addition, the decision demonstrates the careful approach that employees and attorneys must take in engaging in self-help discovery. Given the flexible nature of the totality of the circumstances test, and the lack of bright line distinctions, more litigation is likely to follow interpreting this test.
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