Anderson v. Home Depot U.S.A., Inc., CIVIL ACTION No. 02-11000-DPW (D. Mass. 1/8/2004)

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WILLIAM ANDERSON, Plaintiff, v. HOME DEPOT U.S.A., INC., Defendant.

CIVIL ACTION No. 02-11000-DPW.

United States District Court, D. Massachusetts.

January 8, 2004.

MEMORANDUM AND ORDER

DOUGLAS WOODLOCK, District Judge.

This suit arises out of plaintiff William Anderson's termination of employment with defendant Home Depot U.S.A., Inc. ("Home Depot"). Anderson's Complaint alleges that in firing him, Home Depot discriminated on the basis of both age and disability in violation of Mass. Gen. Laws. ch. 151B ("Chapter 151B"); the Complaint also alleged claims of breach of contract and promissory estoppel. Home Depot has moved for summary judgment on all counts, and Anderson opposes the motion only as to the age discrimination and promissory estoppel claims.¹ I will grant Home Depot's motion and accordingly dismiss all counts.

I. BACKGROUND

Unless otherwise noted, the following facts are undisputed. Anderson began working at Home Depot in November 1992 as a sales associate in Home Depot's Somerville, Massachusetts store. Defendant's Statement of Material Facts as to Which There is No Genuine Dispute Ex. ("DE") 1, at 26. Anderson never had a written employment contract with Home Depot, and he understood that his employment was at-will and for an indefinite period of time.² Id. at 38, 45-46. Anderson was originally hired in the Building Department of the Somerville store, but shortly after beginning work he was transferred to the Garden Department, where he was promoted to department head in 1997. Id. at 26-27.

In April of 1998, Home Depot, at Anderson's own request, transferred Anderson from the Somerville store to the Tewksbury, Massachusetts store. Id. at 67-68. Anderson was classified as a sales associate, rather than as department head, in the Tewksbury store.³ Id. at 68. Anderson believed that he had been transferred as a department head, and he inquired with Jason Carter, the Tewksbury store manager, why Carter did not acknowledge his department head position. Carter told Anderson that he would make Anderson department head as soon as Anderson registered for the position on the Home Depot job database in accordance with company procedure. Id. at 79-81. Anderson, however, refused to register because he believed he never had lost the position and therefore should not be required to reapply for it. Id. at 80.

On March 21, 2001, Anderson and Doug Romaine, the head of the Garden Department, unloaded an 18-wheel truck ithe parking lot using a forklift. DE 2, at 39. On that day, Debra Sheiner, then the Director of Safety for Home Depot's New England Division, happened to be in the Tewksbury store to discuss safety and loss prevention issues with Susan O'Farrell, then the Controller for Home Depot's New England Division.⁴ DE 3, at 36. At some point that day, Sheiner and O'Farrell were in or around the Garden section of the store, and they observed Anderson operating a forklift in the Garden department. Id. at 45. Under Home Depot policy, personnel using a forklift are required to have a "spotter" when inside the building.⁵ O'Farrell did a thorough search of the surrounding area but did not find any associates who could have been acting as a spotter. DE 4, at 6.

Sheiner and O'Farrell reported the incident to Carter who in turn questioned Anderson. Anderson claimed that Romaine and Katie Grenda, another employee, were at various times spotting him. DE 2, at 65-66. Later, Carter told Greg Morris, an assistant manager, to obtain Anderson's forklift license while the incident was investigated further. Id. 79, 81-82. Morris took Anderson's license and also prepared an "Associate Performance Notice" indicating that Anderson's license was suspended, that Anderson would attend forklift re-certification classes, and that any further violations would result in his termination from employment.⁶ DE 17.

Carter interviewed Grenda and Romaine, and according to Carter, both stated that they were not spotting Anderson at the time Sheiner and O'Farrell saw him operating the forklift. DE 2, at 116-18, 139-40. Both Grenda and Romaine prepared written statements to that effect.⁷ DEs 18, 19. On March 27, 2001, Carter prepared a second "Associate Performance Notice" notifying Anderson that his employment had been terminated:

On March 27, 2001 after investigation, it has been determined that Bill had no spotter while operating a forklift on 3/21/01 in the outside garden area. In violation of company policy, Bill is being terminated for safety violation. (Lift equipment safety standards.)

DE 20. At the time of his termination, Anderson was 54 years old. DE 1, at 9.

Anderson brought this action in April of 2002 in the Massachusetts Superior Court. Home Depot thereafter removed the case under diversity jurisdiction grounds.

II. DISCUSSION

A. Standard of Review

Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it has the "potential to affect the outcome of the suit under the applicable law." Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000), and a "genuine" issue is one that "may reasonably be resolved in favor of either party." Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir. 1997).

B. Age Discrimination

Chapter 151B states that it shall be unlawful practice:

For an employer in the private sector, by himself or his agent, because of the age of any individual, to refuse to hire or employ or to bar or to discharge from employment such individual, or to discriminate against such individual in compensation or in terms, conditions or privileges of employment, unless based upon a bona fide occupational qualification.

Mass. Gen. Laws ch. 151B § 4(1)(B).

For cases arising under Chapter 151B, Massachusetts courts have adopted the well-established analytical framework used in federal employment discrimination cases arising under Title VII and the Age Discrimination in Employment Act. See Wynn & Wynn, P.C. v. Mass. Comm'n Against Discrimination, 431 Mass. 655 (2000). Under the framework, a court can analyze a disparate treatment case in one of two ways: The first uses the burden-shifting "pretext" framework set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), and in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). See Wheelock Coll. v. Mass. Comm'n Against Discrimination, 371 Mass. 130 (1976) (adopting McDonnell Douglas-Burdine framework for Chapter 151B cases). The second involves the so-called "mixed-motive" analysis established in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). See Wynn, 431 Mass. 655 (using "mixed-motive" analysis).

Which analysis — "pretext" or "mixed-motive" — applies depends on the type of evidence the plaintiff offers to prove discriminatory intent. If the plaintiff can demonstrate some direct evidence of discriminatory intent, the latter applies, but if the plaintiff can muster only indirect, circumstantial evidence of discrimination the former applies. Wynn, 431 at 665-66. I find that under either analysis, Anderson has not adduced sufficient evidence to create a genuine issue of material fact as to his Chapter 151B age discrimination claim.

(1) Pretext Model

The McDonnell Douglas-Burdine framework involves a three-step analysis consisting of a shifting allocation of evidentiary burdens. Wynn, 431 Mass, at 665. In the first step, the plaintiff has the initial burden of establishing a prima facie case by showing: (1) he is a member of a class protected by Chapter 15IB; (2) he performed his job at an acceptable level; (3) he was terminated;⁸ and (4) his employer sought to fill the plaintiff's position by hiring another individual with qualifications similar to the plaintiff's. Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 441 (1995). Once the employee has established a prima facie case, a burden of production shifts to the employer to "articulat[e] a legitimate, nondiscriminatory reason" for the adverse employment action. Id. Finally, if the employer offers such a reason, the burden shifts back to the plaintiff who bears the ultimate burden of proof of showing that the employer's proffered reason is mere "pretext" for unlawful discrimination. Id. at 442.

Here, while he can demonstrate the first three elements of a prima facie case,⁹ Anderson has not offered any evidence that Home Depot sought to fill his position. Anderson confusingly argues that this element is not relevant to his case because his de facto demotion from department head to sales associate did not involve a specific position but merely involved a change in title. Insofar as his claims concern his termination, rather than his alleged demotion, see supra note 8, Anderson's arguments are misplaced. Accordingly, his claims fail because he has not established the fourth element of a prima facie case.

Even assuming that Anderson can establish a prima facie case, his claim fails in substance because he has not adduced sufficient evidence of Home Depot's discriminatory intent to survive the defendant's well-founded motion for summary judgment. Home Depot has offered a legitimate, nondiscriminatory reason for Anderson's termination: it contends that the reason for his termination was his failure to comply with the forklift safety procedures. Anderson has not produced any evidence that this reason was pretextual and that the real basis for his termination was Home Depot's age discriminatory animus.

Anderson contends that Home Depot's decision to terminate him was not justified for a number of reasons. First, he argues that he did not have proper notice of the new February 2001 safety regulations under which a single violation was grounds for immediate...