The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 19-12377-RGS
THE ESTATE OF PATRICK G. RUSSI,
v.
EAST SIDE ENTERPRISES, LLC
MEMORANDUM AND ORDER ON
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
November 25, 2020
STEARNS, D.J.
Patrick G. Russi1 brought this lawsuit against East Side Enterprises,
LLC, alleging handicap- and age-based employment discrimination under
Mass. Gen. Laws ch. 151B, § 4. East Side moves for summary judgment
pursuant to Fed. R. Civ. P. 56(c). For the following reasons, the court allows
the motion in part and denies it in part.
BACKGROUND
The essential facts, viewed in the light most favorable to Russi as the
non-moving party, are as follows. East Side owns and operates a chain of gas
stations and convenience stores in Rhode Island, Massachusetts, and New
1 Because Russi passed away on April 6, 2020, the court substituted
The Estate of Patrick G. Russi as plaintiff on August 11, 2020.
Hampshire. In August of 2018, East Side offered Russi a position as a Store
Manager-in-Training for the company’s South Dennis, Massachusetts,
outlet. Russi was 66 years old at the time.
As part of its Manager-in-Training program, East Side required Russi
to shadow Brian Tierney – the Store Manager of its Raynham,
Massachusetts, store – to learn the duties of a Store Manager. The most
important of these are referred to as “showtime” duties. They include tasks
intended to maintain the appearance of the store, for example, sweeping the
parking lot, cleaning the fuel pumps, cleaning the restrooms, ensuring that
store product is presentably organized, and generally ensuring a store
ambience pleasing to customers.
The parties dispute whether Russi adequately performed the showtime
duties. Compare Def.’s Stmt. of Undisputed Facts (Def.’s SUMF) ¶¶ 39, 45-
66, 75-78 (Dkt. # 17), with Pl.’s Suppl. Stmt. of Undisputed Facts (Pl.’s Suppl.
SUMF) ¶¶ 16-18, 26 and Pl.’s Resp. to Def.’s SUMF ¶¶ 39, 44-46, 48-52, 54,
56-60, 63-64, 75-78 (Dkt. # 22). East Side, for example, offers testimony
from several employees who observed Russi shirking the physical side of the
job. It also provides contemporaneous emails from Tierney to David Orr,
East Side’s Operations Director, stating that he was “not convinced [Russi]
will be able to handle the physical nature of this position” and opining that
Russi “lacks the drive to complete daily [showtime] tasks.” Ex. D to Def.’s
SUMF at 11, 14. Russi, however, counters with weekly performance
evaluations from Tierney stating that he “me[t] requirements for
performance” with respect to physical duties such as “[c]ompletes all orders
and correctly manages inventory” or “[m]onitors, controls and tracks waste
to acceptable levels” after completing the third week of the training program.
See Ex. 9 to Pl.’s Suppl. SUMF; see also Ex. 5 to Pl.’s Suppl. SUMF ¶ 9
(admitting that, “[d]uring his training period, . . . Russi climbed ladders and
washed gas pumps, clean[ed] windows, carried totes packed with food
product, stocked the food product on store shelves and cleaned bathrooms”).
The evaluations also indicate that, in every week except Russi’s final week,
Russi acceptably completed his showtime daily tasks “and maintain[ed] WTS
standards.” See Ex. 9 to Pl.’s Suppl. SUMF.
On September 28, 2018, Orr terminated Russi’s employment with East
Side, citing an alleged “[i]nability to do work.” Ex. 4 to Pl.’s Suppl. SUMF at
27. According to Orr, Russi “was not able to fulfill the physical requirements
of the position he was hired for.” Id. East Side eventually replaced Russi
with two younger applicants: 28-year-old Kellie Gillman and 43-year-old
Greg Ahearns.
After administratively exhausting his claim by filing a charge of
discrimination before the Massachusetts Commission Against
Discrimination in January of 2019, Russi filed the instant action in state
court on September 30, 2019. East Side removed the case to this court and,
following the completion of discovery, moved for summary judgment on
both claims.
DISCUSSION
Summary judgment is appropriate when, based upon the pleadings,
affidavits, and depositions, “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). “To succeed, the moving party must show that there is an absence
of evidence to support the nonmoving party’s position.” Rogers v. Fair, 902
F.2d 140, 143 (1st Cir. 1990). “‘[T]he mere existence of a scintilla of evidence’
is insufficient to defeat a properly supported motion for summary
judgment.” Torres v. E.I. Dupont De Nemours & Co., 219 F.3d 13, 18 (1st
Cir. 2000), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252
(1986).
Russi asserts two claims of employment discrimination against East
Side: (1) handicap discrimination in violation of Mass. Gen. Laws ch. 151B,
§ 4(16); and (2) age discrimination in violation of Mass. Gen. Laws ch. 151B,
§ 4(1B). The court assess the validity of both claims using the burden-shifting
paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 681 (2016).
Under this paradigm, a plaintiff bears the initial burden “to show . . . a prima
facie case of discrimination.” Blare v. Husky Injection Molding Sys. Boston,
Inc., 419 Mass. 437, 441 (1995). If the plaintiff makes the requisite showing,
the burden shifts to the employer to “rebut the presumption created by the
prima facie case by articulating a legitimate, nondiscriminatory reason for its
[employment] decision.” Id. If the defendant proffers a legitimate,
nondiscriminatory reason for its action, “the burden of production shifts
back to the plaintiff employee, requiring the employee to provide evidence
that ‘the employer’s articulated justification [for the termination] is not true
but a pretext.’” Bulwer, 473 Mass. at 681, quoting Blare, 419 Mass. at 443
(alteration in original).
a. Handicap discrimination claim
East Side argues that it is entitled to judgment as a matter of law on
Russi’s handicap discrimination claim because Russi has not made a prima
facie showing that he is “handicapped within the meaning of the statute.” See
Dartt v. Browning-Ferris Indus., Inc., 427 Mass. 1, 3 (1998). The court
agrees.
Under Chapter 151B, an individual qualifies as handicapped if he
(1) has “a physical or mental impairment which substantially limits one or
more major life activities of a person”; (2) has a record of “such impairment”;
or (3) is “regarded as having such impairment.” Mass. Gen. Laws ch. 151B,
§ 1(17). Russi asserts only the last definition, namely, that East Side regarded
him as having a physical or mental impairment that substantially limits a
major life activity. See Pl.’s Opp’n at 16-18 (Dkt # 21). He identifies several
“physical malformations” that East Side allegedly viewed as physical
impairments, including an amputated finger, a limp, and swelling in his
hands. Id. at 16. But he has not submitted any medical records to
substantiate the allegation that he had these “malformations.’’ Nor has he
offered any evidence that East Side otherwise perceived him to have these
conditions (let alone that, even if East Side did perceive Russi to have these
conditions, it would have reasonably considered any of them to be
impairments).
Even assuming Russi had established that East Side regarded him as
physically impaired, he has still failed to make a prima facie showing that he
is handicapped within the meaning of Chapter 151B. Chapter 151B
distinguishes between “persons who have a physical or mental impairment”
and persons “whose impairment ‘substantially limits’ a ‘major life’ activity”
and only affords protection to those falling within the latter category. See
Ocean Spray Cranberries, Inc. v. Massachusetts Comm’n Against
Discrimination, 441 Mass. 632, 637 (2004), quoting Dahill v. Police Dep’t of
Boston, 434 Mass. 233, 237 (2001). Russi, however, has not offered any
evidence that East Side viewed him as substantially limited in the ability to
perform a major life activity. Although, as Russi notes, East Side referenced
“[i]nability to do work” as the reason for terminating him, it further stated in
the same document that Russi “was not able to fulfill the physical
requirements of the position he was hired for” – i.e., Store Manager of the
high-volume South Dennis location. See Ex. 4 to Pl.’s Suppl. SUMF at 27
(emphasis added). It did not imply that Russi was categorically unable to
fulfill the physical requirements of a Store Manager at any gas station or
convenience store.2 And because an impairment only substantially limits an
individual’s ability to work “if it prevents or significantly restricts the
individual from performing a class of jobs or a broad range of jobs in various
2 A review of other documents in the record confirms that East Side’s
assessment was limited to the position of Store Manager of the South Dennis
location. Tierney, for example, at one point recommended that East Side
move Russi “to a slower store.” Ex. D to Def.’s SUMF at 14. And Orr testified
that Russi did not have a “skill set issue,” but instead “was not going to do
the job that we had hoped and expected him to do” because he appeared to
want an office job rather than a physical job. Ex. B to Def.’s SUMF at 9; see
also id. at 6, 8, 15.
classes,” see Ocean Spray, 441 Mass. at 639, quoting Massachusetts
Commission Against Discrimination Guidelines: Employment
Discrimination on the Basis of Handicap Chapter 151B, § II.A.6 (1998)
(emphasis added), the absence of any suggestion that East Side viewed Russi
as so limited is fatal to his handicap discrimination claim. The court
accordingly enters summary judgment against Russi on this count.
b. Age discrimination claim
East Side also moves for summary judgment on Russi’s age
discrimination claim, contending that Russi has not produced sufficient
evidence for a reasonable juror to find that “he . . . performed his . . . job at
an acceptable level.” See Massasoit Indus. Corp. v. Massachusetts Comm’n
Against Discrimination, 91 Mass. App. Ct. 208, 210 (2017), quoting Bulwer,
473 Mass. at 681 (alterations in original). On this issue, the court disagrees.
Russi has submitted performance reviews from Tierney indicating that he
had “me[t] requirements” to perform many of the tasks required of a Store
Manager, for example, maintaining inventory and tracking waste or
completing daily showtime tasks, by the third week of his training program.
Ex. 9 to Pl.’s Suppl. SUMF. He also offers evidence that East Side found the
same overall ratings to be acceptable in other (younger3) employees. Pl.’s
3 The court rejects East Side’s suggestion that any individual older than
Suppl. SUMF ¶¶ 19-25; see also Exs. 11-14 to Pl.’s Suppl. SUMF. A reasonable
juror, crediting this evidence, could find that Russi performed the Store
Manager job to a reasonably acceptable level.
East Side argues that it terminated Russi because he was unable and
unwilling to perform certain physical tasks required of a Store Manager. It
offers enough evidence in support of this assertion for a reasonable juror to
conclude that East Side had a legitimate, non-discriminatory reason for
Russi’s termination. Numerous contemporaneous emails from Tierney to
Orr, for example, report that Russi often avoided performing the physical
aspects of his job. And several East Side employees testified to the same
reluctance on Russi’s part during their depositions.
Under the McDonnell paradigm, the burden of production would
ordinarily shift back to the plaintiff to provide evidence “that ‘the employer’s
articulated justification [for the termination] is not true but a pretext.’” See
Bulwer, 473 Mass. at 681, quoting Blare, 419 Mass. at 443 (alteration in
original). The evidence of pretext in this case, however, is the same as the
age 40 cannot be considered a “younger” employee for the purposes of
Russi’s age discrimination claim. Russi sues under state law, and
Massachusetts courts have accepted evidence of an employer’s treatment of
individuals over the statutory age of 40 who are younger than the plaintiff in
age discrimination cases. See, e.g., Massasoit Indus. Corp., 91 Mass. App.
Ct. at 211 (finding that a 74-year-old plaintiff had established a prima facie
case of age discrimination where he was replaced by a 68-year-old woman).
evidence establishing Russi’s prima facie case. The portions of the record
suggesting that Russi performed his job to an acceptable level, after all, also
serve to discredit the genuineness of East Side’s explanation for Russi’s
termination.4 Any determination as to pretext thus will center on the
adequacy of Russi’s work performance. And because there is sufficient
evidence for the jury to find in favor of either party on this issue, the record
contains at least one genuine dispute of material fact. The court accordingly
declines to enter summary judgment on plaintiff’s age discrimination claim.
ORDER
For the foregoing reasons, the motion for summary judgment is
ALLOWED in part and DENIED in part. The court enters judgment against
Russi on his disability discrimination claim. Russi’s age discrimination
claim, however, survives this motion, and the clerk will schedule it for trial.
4 Because “Massachusetts is a pretext only jurisdiction,” Bulwer, 473
Mass. at 681, quoting Blare, 419 Mass. at 443, Russi need not show at this
stage that East Side’s explanation specifically concealed discriminatory
animus. He “need only present evidence from which a reasonable jury could
infer that ‘the respondent’s facially proper reasons given for its action against
him were not the real reasons for that action.’” Id. at 682, quoting Wheelock
College v. Massachusetts Comm’n Against Discrimination, 371 Mass. 130,
139 (1976). The court notes, however, that the alleged disparate treatment
of younger individuals likely would suffice to support a reasonable inference
of discriminatory animus even if something more than a mere showing of
pretext were required.
SO ORDERED.
Richard G. Stearns___ _____
UNITED STATES DISTRICT JUDGE