Maglione v. Nashoba Reg'l Sch. Dist.

100 Mass.App.Ct. 1107

174 N.E.3d 331 (Table)

Richard MAGLIONE

v.NASHOBA REGIONAL SCHOOL DISTRICT & another.¹

20-P-1083

Appeals Court of Massachusetts.

Entered: September 7, 2021.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Richard Maglione, a former employee of the Nashoba Regional School District (district), timely appeals from an amended summary judgment dismissing his claims.³ We affirm.

Background. We set forth the facts in their aspects most favorable to Maglione, reserving certain facts for later discussion. See Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016) (summary judgment); Flomenbaum v. Commonwealth, 451 Mass. 740, 742 (2008) (judgment on pleadings). The district hired Maglione in October 2007 to work as the head custodian at two schools in Lancaster. In June 2013, Maglione applied for and obtained the position of custodial services manager (CSM). Maglione was the first person to hold the newly-created, administrative-level position that ran for a one-year term. As the CSM, Maglione was responsible for the daily operations and facilities planning for seven schools across three towns, the buildings and grounds, and all school events and activities; he also managed twenty-six custodians. He reported to the director of facilities.⁴ He shared office space with the director of facilities and an administrative assistant in the district's central, administrative building in Bolton. The parties’ employment relationship was governed by a written work agreement (contract). The district renewed Maglione's contract for consecutive one-year terms on July 1, 2014, and July 1, 2015.

On May 9, 2016, the interim superintendent of schools informed Maglione that the school committee had eliminated his CSM position for the next fiscal year. Following an interview, the interim superintendent confirmed Maglione's appointment to his former position of head custodian in Lancaster, effective July 1, 2016.⁵

When on or about June 1, 2016, the district posted the position of director of facilities management (facilities director), Maglione did not apply because he believed he did not meet the qualifications, including an engineering degree, and certain certifications and licenses. At the request of the interim superintendent, Maglione served on the interview committee, and rated the candidates on a scale of one to five. On July 1, 2016, Brooke Clenchy formally assumed her role as the district's superintendent of schools.

After Clenchy and the interim superintendent conducted a second round of interviews with the finalists for the position of facilities director, Clenchy selected a forty-six year old person. To assist in the transition of the new administration, Maglione agreed to serve in his CSM position during the months of July and August 2016. He agreed to delay the start of his head custodian job based on the interim superintendent's express promise that he would be reassigned to that position if the "interim" CSM position was eliminated at the end of August.

During July and August 2016, Clenchy met with Maglione daily to discuss various topics. Maglione left for vacation on August 13, and returned August 20. By letter dated August 16, 2016, Clenchy formally notified him that the interim CSM position had been eliminated and that he was being transferred to his former head custodian position in Lancaster, effective September 1, 2016. Before he left for vacation, Clenchy had specifically instructed Maglione that he could not "remove" his papers "from [c]entral [o]ffice" and take them with him to Lancaster. While Maglione was on vacation, the piles of documents stored on or near his desk were boxed and moved to the conference room in order to facilitate the office remodeling and reorganization. Nothing remained in his office space. In an August 16 e-mail, Clenchy informed Maglione that the documents in the conference room were a "concern," and that upon his return, they "need[ed] to have some discussion regarding them."

On August 21, 2016, a Sunday, Maglione entered the administrative building with his son and shredded a number of those documents, leaving three to four trash bags of shredded materials in the conference room. He also left four or five boxes of documents undisturbed in plain view.

On the morning of August 31, 2016, Clenchy met with Maglione, informing him she was "disappointed" and "upset" with him for shredding the documents and that he had put her "in a very difficult position." She acknowledged that he did not "act with any malicious intent." However, she asked him how she was going to explain the shredding to the school committee. At the end of Maglione's usual workday, Clenchy terminated him, effective immediately. Although Clenchy told Maglione not to return to work, she provided him with his regular salary through October 15, 2016. Maglione was fifty-nine years old at the time. Thereafter, the district permanently filled the head custodian position with an individual who was more than five years younger than Maglione. Because he was terminated before assuming the head custodian position, he was not permitted to grieve the termination.

Discussion. 1. Standard of review. The allowance of a motion for judgment on the pleadings is appropriate where the claim in issue is not legally cognizable. See Okerman v. VA Software Corp., 69 Mass. App. Ct. 771, 774-775 (2007). Summary judgment shall enter when "all material facts have been established and the moving part[ies] [are] entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Our review of both rulings is de novo. See Bulwer, 473 Mass. at 680 ; Commonwealth v. Fremont Inv. & Loan, 459 Mass. 209, 212 (2011).

2. Age discrimination claims. We see no error in the entry of summary judgment on the age discrimination claims under G. L. c. 151B.

a. Failure to promote. "Ordinarily, to succeed on a failure-to-promote claim, the plaintiff must show that he or she applied for and was denied a promotion." Charles v. Leo, 96 Mass. App. Ct. 326, 333 (2019). Maglione's claim fails as matter of law for the simple reason that he never applied for the position of facilities director. See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 711 (1991) ("A complete failure of proof concerning an essential element of the [nonmovant's] case renders all other facts immaterial"). Maglione correctly points out that an exception to the rule may be available if an application would have been "futile." Charles, supra. To qualify for this exception, however, Maglione must "show that applying would have been futile because a ‘consistently enforced pattern or practice of discrimination’ existed which would have resulted in the plaintiff's ‘explicit and certain rejection.’ " Id., quoting Nguyen v. William Joiner Ctr. for the Study of War & Social Consequences, 450 Mass. 291, 297, 298 (2007).

Here, at no point has Maglione alleged, let alone shown, that such a pattern of discrimination existed at the district. Furthermore, although the long list of qualifications in the job posting might have deterred some potential applicants from applying, Maglione was no ordinary applicant. He cannot claim that the real qualifications were hidden from him. As a member of the interview committee, he had an insider's knowledge that all the qualifications in the job description were not mandatory.⁶ Moreover, at the request of the interim superintendent and Clenchy, he had been "successfully" performing the duties of the facilities director position. In fact, he had received "high praise" from Clenchy for his job performance. Despite this knowledge and success, he never expressed any interest in the position, nor made inquiry about his qualifications. On these facts, no jury question regarding futility is presented.

b. Termination. Even assuming Maglione established a prima facie case of discriminatory termination, he failed to meet his production burden at the third stage of the governing order of proof -- that the reason for the termination was a pretext.⁷ See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973) ; Bulwer, 473 Mass. at 681-683.

We fail to see the "substantial evidence of pretext" claimed by Maglione. To start, the record demonstrates that Clenchy consistently stated that she terminated Maglione for insubordination in connection with the shredding incident. To the extent Maglione relies upon statements concerning his "unsatisfactory performance" contained in the defendants’ position statement submitted to the Massachusetts Commission Against Discrimination as evidence of pretext, the statements were offered in rebuttal of Maglione's claim that he met his stage-one burden. The nondiscriminatory reason given for the termination was Clenchy's finding that "Maglione's decision to shred the piles of [f]acilities documents that he had been expressly asked to retain [was] insubordinate, conduct unbecoming, and a failure to faithfully execute the duties and responsibilities of his position." That articulation of Clenchy's reasoning was consistent with her explanation to Maglione given on the date of his termination. The allegation in the position statement that Maglione had been insubordinate to the new facilities director during the summer of 2016 supplemented rather than contradicted Clenchy's reason for the termination. On this record, no jury could reasonably find that the nondiscriminatory reason for the termination was false.

There was a dispute of fact as to whether Clenchy bolstered her termination decision by claiming untruthfully that the administrative assistant also told Maglione not to shred the piles of papers.⁸ Given the clear and unequivocal documentary evidence and the nature of Maglione's actions, any dispute was not material and would not support a finding of pretext.

A failure to conduct a fair investigation may support a reasonable inference of pretext, but not on these undisputed facts. Here, Maglione asked Clenchy to...