                                                              Supreme Court

                                                              No. 2011-163-C.A.
                                                              (PC 08-231)


           Carmella Bucci                :

                 v.                      :

Hurd Buick Pontiac GMC Truck, LLC et     :
                  al.




           NOTICE: This opinion is subject to formal revision before publication in
           the Rhode Island Reporter. Readers are requested to notify the Opinion
           Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
           Rhode Island 02903, at Tel. 222-3258 of any typographical or other
           formal errors in order that corrections may be made before the opinion is
           published.
                                                                  Supreme Court

                                                                  No. 2011-163-C.A.
                                                                  (PC 08-231)

                                                                  (Concurring and dissenting
                                                                  opinion begins on page 24)

              Carmella Bucci                   :

                     v.                        :

 Hurd Buick Pontiac GMC Truck, LLC et          :
                   al.


              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Flaherty, for the Court. Hurd Buick Pontiac GMC Truck, LLC, Hurd Buick

Pontiac GMC Truck, LLC d/b/a Regine Pontiac GMC, and Hurd Chevrolet, Inc. (collectively

Hurd or defendant), terminated the employment of Carmella Bucci, the plaintiff, when she was

seventy-two years old. After it had hired the plaintiff twice at the age of sixty-seven for brief

periods of employment, the defendant rehired Bucci, then aged sixty-eight, as a titles and

registrations clerk. She then worked for a period of four years before Hurd terminated her for the

final time. Bucci filed suit in Superior Court alleging, inter alia, that the defendant fired her due

to unlawful age and disability discrimination in violation of G.L. 1956 § 28-5-1, the Fair

Employment Practices Act (FEPA). A justice of the Superior Court granted summary judgment

to Hurd, and Bucci timely appealed to this Court. We are called upon to determine if the parties

have met their burdens under the now familiar McDonnell-Douglas framework so that we may



                                                -1-
discern if summary judgment was appropriate. For the reasons set forth in this opinion, we

affirm the judgment of the Superior Court.

                                                  I

                                         Facts and Travel

       The defendant hired Bucci on three different occasions, the first of which was as a part-

time receptionist when Bucci was sixty-seven years old. That employment ended one month

later because her services were no longer needed. In August 2001, Bucci was rehired, this time

to work as the titles and registrations clerk. In this capacity, plaintiff was responsible for filing

the necessary paperwork to transfer titles and registrations to the vehicles that defendant had

purchased, sold, or leased.      It was her task to resolve discrepancies, locate any missing

documents, notarize titles, and send appropriate documentation to the various state registries of

motor vehicles. At least once or twice per day, plaintiff interacted with customers in an effort to

resolve issues pertaining to the registering of vehicles.

       The defendant terminated Bucci’s employment in November 2001, after it received

complaints from customers through Hurd’s finance and insurance and internet/e-mail

departments. That, however, did not bring Bucci’s employment history with Hurd to an end. In

August 2002, at the suggestion of one of her former supervisors at a different dealership, Hurd

hired Bucci for the third time to again serve as the titles and registrations clerk. At that time,

Bucci was sixty-eight years old.

       At the beginning of her third employment period, defendant provided Bucci with its

employee handbook, which stated in relevant part that “our employment-at-will policy permit[s]

you or HURD AUTOMOTIVE to end our relationship for any reason at any time.” The

handbook also says, “Neither the employee nor HURD AUTOMOTIVE is bound to continue the



                                                -2-
employment relationship if either chooses, at its will, to end the relationship at any time.”

Notably, the handbook instructed employees “to refrain from any illegal, dishonest, or unethical

conduct” and provided that failure to comply with Hurd’s “standard of business ethics and

conduct could lead to disciplinary action, up to and including possible termination of

employment.”

       Finally, the handbook includes a “Progressive Discipline” section that outlines the

manner in which the company will handle unsatisfactory conduct. However, and significantly,

this section also cautions that Hurd may make use of that policy “at its discretion.” The

disciplinary process described may include any of four steps: “verbal warning, written warning,

suspension with or without pay, or termination of employment.” It provided that, although

normally the steps would be followed in order, in some circumstances, including “extreme

situations, termination of employment” may occur “without going through the usual progressive

discipline steps.” Bucci acknowledged receipt of the handbook in 2004.

       When she returned to Hurd Automotive, Bucci’s job responsibilities as the titles and

registrations clerk were largely the same as before. She was required to complete and file the

registrations and titles in a timely fashion for the vehicles that defendant sold, leased, or

purchased. The record indicates that in 2005, defendant hired a new chief financial officer

(CFO), a new office manager, and a new human resources director, all of whom either

supervised or interacted with plaintiff. Unfortunately, some of the same performance issues that

had bedeviled Bucci during her second stint of employment with Hurd began to surface.

Although there had been one documented customer complaint about plaintiff’s professionalism

soon after she was rehired, indications of Bucci’s unsatisfactory performance began to increase.




                                              -3-
          In an affidavit in support of Hurd’s motion for summary judgment, office manager Alison

Drake attested that Bucci was confrontational, lost paperwork, or provided incomplete

paperwork to the various state motor vehicle departments and also that Drake had received

complaints from employees in other departments about Bucci’s “failure to fulfill her job duties in

a timely manner.” Another affiant, director of human resources, Connie Mandeville, attested

that, on at least three occasions, she had received complaints from the Rhode Island Division of

Motor Vehicles (DMV) about Bucci’s failure to forward proper registrations in a timely manner.

CFO Al Martin attested that he had personally observed plaintiff’s poor attitude and that he was

aware of customer complaints about delays in registration of vehicles that they had purchased or

leased.

          Also, Martin noticed that the titles and registrations department, over which he exercised

oversight, was not as productive as similar departments in other dealerships at which he had been

employed over the span of his forty-two-year career in the industry. He attested that, because

that department did not generate activity reports outlining the current status of titles and

registrations for vehicles sold by defendant, Hurd had difficulty tracking paperwork and

responding to questions from customers or state registries. He also attested that, generally, the

other titles and registrations departments at dealerships with which he had been associated

performed additional duties, such as payroll processing.             Martin discussed increasing

productivity with Bucci, but he said that he found that she was generally unwilling to perform

those responsibilities and that she resisted receiving training on the payroll computer system. By

contrast, in Bucci’s deposition testimony, she asserted that Martin had asked her to do billing for

wholesale vehicles. This, she said, she was willing to do because she had performed that type of

work previously. However, Bucci further testified that her computer was limited to use for



                                                 -4-
registrations, and, when it was programmed for the additional workload, a software conflict

would crash the registrations program. Therefore, Bucci said, she required a second computer to

perform the additional tasks, and she had not received it by the time of her termination.

Nonetheless, Martin averred that Bucci failed to perform other tasks, such as generating activity

reports, and that she had difficulty completing customers’ registrations and timely filing them

with the appropriate state registries. 1

          It is also significant that, in early 2006, plaintiff experienced certain physical health

problems. She began having pain in her left knee to the extent that she required a walker and

that made walking up and down stairs difficult for her. Eventually, defendant arranged to move

Bucci’s office from the second floor to the first so that she would be relieved of using the stairs.

Bucci did not miss any time from work as a result of her knee pain. Also, in the summer of

2006, Bucci underwent cataract surgery, which required her to take medical leave for less than a

week.

          It is undisputed that, on the day before she underwent cataract surgery, Bucci forged two

customer signatures to a letter sent to the Connecticut Department of Motor Vehicles (the

department). After she had registered a vehicle for two customers who resided in Connecticut,

plaintiff realized that the department had overcharged Hurd more than $900. Bucci learned from

the department that the only way to have the overcharged amount refunded to defendant, rather

than to the customers, was for the customers to send a letter to the department authorizing the

change. Bucci testified at her deposition that, instead of waiting until after her surgery to resolve

the issue, she drafted the letter, signed the customers’ names, and faxed it to the department.

Several days later, the customers called Hurd to complain that their signatures had been forged.



1
    Of particular note, plaintiff chose not to depose Martin.
                                                  -5-
The customers also contacted the police, although no criminal charges were lodged against

Bucci. As a result of this incident, on September 6, 2006, plaintiff’s supervisor, Wendy Bowen,

and Mandeville disciplined plaintiff by means of a written warning, which she acknowledged by

signing. The warning also instructed plaintiff that she was “never to sign for a customer under

[any] circumstances.” Mandeville testified that Martin and Bowen had considered discharging

Bucci because of the forgery incident, but, on reflection, they had decided to give her another

chance.

       Approximately two months later, Martin terminated plaintiff’s employment.             Martin

swore in his affidavit that, before the forgery incident, he had met with plaintiff on two occasions

at which he communicated his expectations for her job performance. According to Martin,

Bucci’s performance failed to improve after those meetings; she continued to be delinquent in

returning customer phone calls, was rude to coworkers, and filed late or incomplete title and

registration paperwork. Martin attested that in November 2006, after the forgery incident, he

reviewed Bucci’s personnel file for the first time and discovered complaints filed against

plaintiff dating from 2001. According to him, it was after this review that Martin discharged

plaintiff. He maintained that he based his decision upon his personal observations of plaintiff’s

work performance, the forgery incident, his desire to obtain more productivity from the titles and

registrations department, and plaintiff’s unwillingness to perform these additional tasks. When

she was deposed, Mandeville testified that Bucci had been fired for a variety of reasons,

including the forgery and poor work performance before and after the forgery, coupled with the

employer’s desire to rearrange positions in an effort to increase productivity.

       The plaintiff argues in her brief to this Court that Martin could not have reviewed Bucci’s

personnel file before he fired her because Mandeville testified when she was deposed that she



                                                -6-
kept all personnel files locked away and Martin did not ask to review Bucci’s file until after she

had been dismissed. When plaintiff inquired why Martin asked to review Bucci’s file after her

dismissal, Mandeville responded that Martin had “wondered if anyone else had the trouble we

had with her.”

          After she was fired, plaintiff filed for unemployment benefits with the Department of

Labor and Training (DLT). In response to a letter from DLT that requested the reason defendant

had discharged plaintiff, Hurd filed an employee termination report indicating that Bucci had

been let go because the employer was “rearranging people’s jobs.” Mandeville, who signed the

report, stated in her deposition testimony that Martin and Bowen decided to not disclose the

negative reasons for plaintiff’s discharge because defendant did not “want to make anything hard

for [Bucci]” but that it was “too bad she had so many complaints.” Mandeville testified that

even though poor work performance is not a disqualifying event for the receipt of unemployment

compensation benefits, she filed the report in that manner to ensure that Bucci could collect

them.

          The plaintiff filed charges of discrimination with the Rhode Island Commission for

Human Rights (RICHR) on June 9, 2007. 2 After receiving a notice of right to sue from the

RICHR on October 19, 2007, plaintiff filed a complaint in the Superior Court, alleging violations

of FEPA, for discrimination based on age and disability. On February 4, 2011, after both sides

had conducted discovery, Hurd filed a motion for summary judgment, alleging that there were no

genuine issues of material fact and that it was entitled to judgment as a matter of law.

          After a hearing on April 12, 2011, the trial justice granted Hurd’s motion for summary

judgment in its entirety.       Employing the burden-shifting, three-step analytical framework



2
    We thank the RICHR for the amicus curiae brief that it filed in this case.
                                                  -7-
outlined in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), the trial justice assumed

that plaintiff had satisfied the first step of this paradigm, the prima facie case, found that

defendant had met step two, the burden of producing a legitimate nondiscriminatory purpose for

Bucci’s termination, and then concluded that plaintiff had failed to meet her burden of presenting

material evidence demonstrating that Hurd’s legitimate reasons were merely a pretext for

discrimination. Specifically, the trial justice found that plaintiff “provide[d] no substantive or

evidentiary rebuttal” of Hurd’s reasons for termination, including “poor work performance,”

“ongoing customer and co-worker complaints, as well as a need to realize more productivity

from the title and registration clerk position formerly held by plaintiff.” The plaintiff filed a

timely appeal to this Court on April 27, 2011.

       Before this Court, plaintiff presses arguments for her claims of both age and disability

discrimination. In essence, she argues that (1) the trial justice erred in finding that defendant met

its burden of producing a legitimate nondiscriminatory reason for plaintiff’s dismissal; and (2)

the trial justice erred in holding that plaintiff failed to demonstrate that those reasons were

merely pretextual.

                                                 II

                                       Standard of Review

       “[T]his Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg, 68

A.3d 404, 406 (R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50

(R.I. 2012)). “Examining the case from the vantage point of the trial justice who passed on the

motion for summary judgment, ‘[w]e view the evidence in the light most favorable to the

nonmoving party, and if we conclude that there are no genuine issues of material fact and that the

moving party is entitled to judgment as a matter of law [,] we will affirm the judgment.’” Id. at



                                                 -8-
406-07 (quoting Sacco, 53 A.3d at 150). “Although summary judgment is recognized as an

extreme remedy, * * * to avoid summary judgment the burden is on the nonmoving party to

produce competent evidence that ‘prove[s] the existence of a disputed issue of material fact [.]’”

Id. at 407 (quoting Mutual Development Corp. v. Ward Fisher and Co., 47 A.3d 319, 323 (R.I.

2012)). We previously have cautioned that “we will not hesitate to affirm a grant of summary

judgment if the nonmoving party ‘fails to make a showing sufficient to establish the existence of

an element essential to that party’s case * * * .’” Beauregard v. Gouin, 66 A.3d 489, 493 (R.I.

2013) (quoting Lavoie v. North East Knitting, Inc., 918 A.2d 225, 228 (R.I. 2007)). Further, a

factual dispute alone will not defeat a motion for summary judgment, “the requirement is that

there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986).

                                               III

                                           Discussion

          The Fair Employment Practices Act prohibits an employer from discharging an employee

on the basis of age and disability. See § 28-5-7(1)(i). “This Court has adopted the federal legal

framework to provide structure to our state employment discrimination statutes.” Neri v. Ross-

Simons, Inc., 897 A.2d 42, 48 (R.I. 2006) (citing Newport Shipyard, Inc. v. Rhode Island

Commission for Human Rights, 484 A.2d 893, 898 (R.I. 1984)). Because plaintiff claims

employment discrimination, we will employ the now familiar three-part burden shifting

framework as outlined by the United States Supreme Court in McDonnell-Douglas Corp., 411

U.S. at 802-04. See McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012) (citing Center For

Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 685 (R.I. 1998)).




                                              -9-
                                                A

                                   Disability Discrimination

       Before we address the merits of plaintiff’s arguments on disability discrimination, we

must first direct our attention to whether her appeal is ripe for our consideration. Although

plaintiff states in her brief that she is appealing the trial justice’s grant of summary judgment

with respect to her claim of disability discrimination, she does not further develop this argument

in her brief. We are, therefore, unable to consider it. Generally, we will consider an issue to be

waived when a party “[s]imply stat[es] an issue for appellate review, without a meaningful

discussion thereof or legal briefing of the issues * * * .” State v. Chase, 9 A.3d 1248, 1256 (R.I.

2010) (quoting Wilkinson v. State Crime Laboratory Commission, 788 A.2d 1129, 1131 n.1 (R.I.

2002)). Accord State v. Rolon, 45 A.3d 518, 519 n.1 (R.I. 2012) (finding arguments not

advanced in full brief to Supreme Court to be waived). In its amicus curiae brief, the RICHR

fashions a disability discrimination claim; however, we will not consider arguments that have

been made by an amicus curiae but that were not advanced by a party. See Lane v. First

National Bank of Boston, 871 F.2d 166, 175 (1st Cir. 1989) (“We know of no authority which

allows an amicus to interject into a case issues which the litigants, whatever their reasons might

be, have chosen to ignore.”). Therefore, we confine our discussion to plaintiff’s arguments with

respect to her age-discrimination claim.




                                              - 10 -
                                                  B

                                       Age Discrimination

                                                  1

                                        Prima Facie Case

       In the first step of the McDonnell-Douglas paradigm, plaintiff must make out a prima

facie case of age discrimination. Neri, 897 A.2d at 48-49. To meet this burden in cases of age

discrimination, plaintiff must demonstrate that

               “(1) she was at least forty years of age; (2) her job performance
               met the employer's legitimate expectations; (3) the employer
               subjected her to an adverse employment action (e.g., an actual or
               constructive discharge); and (4) the employer had a continuing
               need for the services provided by the position from which the
               claimant was discharged.” Id. at 49 (quoting Ramírez Rodríguez
               v. Boehringer Ingelheim Pharmac[eu]ticals, Inc., 425 F.3d 67, 78
               n.11 (1st Cir. 2005)).

       If a plaintiff is able to establish these elements, a presumption arises that the employer

engaged in unlawful discrimination. Barros, 710 A.2d at 685 (citing Texas Department of

Community Affairs v. Burdine, 450 U.S. 248, 254 (1981)).

       However, before we may consider the elements of a plaintiff’s prima facie case, we pause

to discuss whether plaintiff has properly brought this matter before the Court. In her brief to this

Court, Bucci does not appear to present arguments to demonstrate that she had satisfied her

burden to establish a prima facie claim. Instead, Bucci relies upon the trial justice’s assumption

that Bucci had made a successful prima facie claim without establishing it, and she directs us to

the memorandum she filed objecting to defendant’s motion for summary judgment, “[t]o the

extent this Court decides to review [the prima facie claim] de novo[.]” 3 Article I, Rule 16(a) of


3
  Although not material to our discussion here, we do note that plaintiff did not include the
objection to summary judgment in her appendix on appeal. Also, it goes without saying that our
review of summary judgment is always de novo.
                                               - 11 -
the Supreme Court Rules of Appellate Procedure states that “[e]rrors not claimed, questions not

raised and points not made ordinarily will be treated as waived and not be considered by the

Court.” As discussed above, we generally will consider an issue waived that is not raised by the

appellant. Chase, 9 A.3d at 1256.

       It is also true, however, that the trial justice assumed, without deciding, an element of a

claim in a summary judgment proceeding, which we have held is “consistent with the summary

judgment standard of viewing all facts in the light most favorable to the non-moving party, here,

[the] plaintiff.” See Daniels v. Fluette, 64 A.3d 302, 305 (R.I. 2013). We consistently have

agreed with the United States Supreme Court that a plaintiff’s burden to establish a prima facie

case of discrimination is “not especially onerous.” See Barros, 710 A.2d at 685; see also St.

Mary’s Honor Center v. Hicks, 509 U.S. 502, 506 (1993) (holding the plaintiff satisfies the

burden of a prima facie case by a preponderance of the evidence); McGarry, 47 A.3d at 280. In

Daniels, 64 A.3d at 305, the trial justice assumed an element, and we adopted that approach.

Thus, we will give plaintiff the benefit of the doubt and assume without deciding that she has

established a prima facie case, thereby satisfying the first step of McDonnell-Douglas. 4



4
  Unlike in Center for Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 685 (R.I.
1998), defendant raises a challenge to plaintiff’s ability to establish her prima facie case on
appeal. The defendant argues that plaintiff failed to meet Hurd’s legitimate expectations because
of her poor work performance, forgery, and customer complaints. See also Neri v. Ross-Simons,
Inc., 897 A.2d 42, 49 (R.I. 2006). But see Ashley v. Paramount Hotel Group, Inc., 451 F. Supp.
2d 319, 332 (D.R.I. 2006) (determining under FEPA that the plaintiff did not meet the
employer’s legitimate expectations because there was unrebutted evidence of the plaintiff’s poor
work performance). Several federal circuits have discussed the difficulty inherent in denying a
plaintiff’s prima facie claim on the basis of not meeting legitimate expectations because
employers articulate the same legitimate nondiscriminatory reasons for termination used in step
two, which essentially forces the plaintiff to argue pretext at the prima facie stage. See Thomas
v. Denny’s, Inc., 111 F.3d 1506, 1510 (10th Cir. 1997); Davenport v. Riverview Gardens School
District, 30 F.3d 940, 944 (8th Cir. 1994); Siegel v. Alpha Wire Corp., 894 F.2d 50, 54 (3d Cir.
1990). We need not, and do not, reach the issue here because doing so is not necessary for us to
decide this case.
                                              - 12 -
                                                2

                            Legitimate Nondiscriminatory Reason

       Under the McDonnell-Douglas framework, after plaintiff establishes her prima facie case,

the burden shifts to defendant to come forward with legitimate nondiscriminatory reasons for the

employee’s termination. Neri, 897 A.2d at 49 (citing Barros, 710 A.2d at 685). The defendant’s

burden is one of production, not persuasion. Id. (citing Casey v. Town of Portsmouth, 861 A.2d

1032, 1037 (R.I. 2004)). When a defendant offers such a reason, it “eliminates the presumption

of discrimination created by the prima facie case.” Id. (citing Wellborn v. Spurwink/Rhode

Island, 873 A.2d 884, 889 (R.I. 2005)). To satisfy this burden of production, a defendant need

only offer affidavits supporting the nondiscriminatory reason. Id. at 50.

       The defendant articulated legitimate nondiscriminatory reasons for discharging plaintiff

as follows: (1) plaintiff forged customers’ signatures on a letter submitted to a state agency; (2)

plaintiff was unable or unwilling to perform additional responsibilities such as generating

activity reports and payroll processing through defendant’s computer system; (3) plaintiff

struggled to properly and timely complete customers’ registrations with appropriate state

departments of motor vehicles; (4) defendant received complaints from customers and coworkers

about plaintiff’s poor work performance; (5) following the forgery incident, plaintiff’s work

performance did not improve, and she failed to take on additional responsibilities that Martin had

requested of her. To support its assertions, defendant presented plaintiff’s admission to the

forgery in her deposition testimony, Mandeville’s deposition testimony, documented customer

complaints, and affidavits from Martin, who fired Bucci, as well as Hurd’s office manager,

Alison Drake, who attested to Bucci’s poor work performance and complaints that she received

about Bucci from other Hurd employees.



                                              - 13 -
       On appeal, plaintiff sets forth a number of arguments attempting, without success in our

opinion, to demonstrate that the trial justice erred when she found defendant failed to meet its

burden of production.

       First, plaintiff contends that defendant is precluded from relying on a reason that was not

available to it at the time of the discharge, or that it did not consider at the time the termination

was effectuated. In Martin’s 2011 affidavit, he swore that he made the decision to terminate

Bucci after he had learned about complaints about her dating back to 2001 and that those

complaints had been recorded in Bucci’s personnel file. However, Bucci points out that that

assertion stands in stark contrast to Mandeville’s deposition testimony, in which Mandeville

testified that no one had examined Bucci’s personnel file until after Martin had discharged her.

This, she argues, is mendacious and demonstrates clearly that Hurd’s stated reasons for firing

Bucci were merely pretextual. However, we are not persuaded because, even if Martin had not

viewed Bucci’s personnel file at any time before he discharged her, Bucci does not dispute the

other incidents that are set forth in Martin’s affidavits. 5 In those affidavits, Martin said that he

had received complaints from coworkers about plaintiff’s poor work performance and attitude

and from customers who had complained about plaintiff. Martin further attested that he met with

Bucci on at least two occasions with regard to his expectations of her, but that the meetings

failed to result in any significant improvement in her performance because she continued to not

return customers’ telephone calls, filed late or incomplete registrations, and declined to be

trained on the payroll computer system to assist with payroll processing.




5
 Martin filed two affidavits, the first in 2007, and the second in 2011. The 2007 affidavit makes
no mention of a review of Bucci’s personnel file at any point, but it does refer to ongoing
customer complaints about Bucci, her poor attitude, and her poor performance.
                                               - 14 -
       Second, Bucci cites to our decision in Casey, 861 A.2d at 1037 n.2, in which we held that

any legitimate nondiscriminatory reason must be admissible under the rules of evidence. See

also Burdine, 450 U.S. at 255 and n.9. Bucci argues that to depend on customer complaints from

2001-02 is to rely upon hearsay upon hearsay because the complaints upon which defendant

relied were vague and were from unidentified customers. We do not agree. The record indicates

that defendant documented four complaints made against Bucci in 2001-02, three of which state

the name of the complainant and specify the reason for the complaint. Moreover, even if we

were to agree with Bucci that these complaints were rife with hearsay, Bucci nonetheless fails to

dispute the affidavits and testimony of Hurd employees that they had received complaints from

customers, motor vehicle departments, and coworkers in 2006, which appear to provide a more

legitimate reason for termination than complaints from five years earlier. 6

       Finally, plaintiff maintains that defendant relied upon evidence that was too vague.

Bucci urges that Mandeville could not provide the name of one complainant, or even describe in

detail the nature of the complaints. In our opinion, this is not dispositive because Martin, Drake,

and Bowen all swore to customer, coworker, and motor vehicle department complaints arising

from Bucci’s job performance. Bucci has not challenged these averments on appeal.

       Because defendant’s burden is limited to one of production, we are convinced that Hurd

has provided legitimate nondiscriminatory reasons for discharging plaintiff.




6
 In all likelihood, the complaints from 2001-02 would not constitute hearsay because, as we also
discussed in Casey v. Town of Portsmouth, 861 A.2d 1032, 1037 n.2 (R.I. 2004), when
considering similar complaints, defendant does not offer the complaints for the truth of the
matter asserted, but to serve as the basis for Martin’s state of mind when he decided to terminate
plaintiff. See Wells v. Uvex Winter Optical, Inc., 635 A.2d 1188, 1193 (R.I. 1994).
                                               - 15 -
                                                 3

                                              Pretext

       The final step articulated in McDonnell-Douglas Corp. shifts the burden back to the

plaintiff to focus on “the ultimate question of ‘discrimination vel non.’” Neri, 897 A.2d at 50

(quoting Casey, 861 A.2d at 1037). To prove discrimination, a plaintiff need not provide a

“smoking gun,” but rather must prove that “[the] defendants’ legitimate, nondiscriminatory

reason for not hiring [her] was merely pretext (which would mean that the real reason for not

hiring [the] plaintiff was unlawful animus).” Casey, 861 A.2d at 1038 (citing Barros, 710 A.2d

at 685). The plaintiff may demonstrate pretext “either directly by persuading the court that a

discriminatory reason more likely motivated the employer or indirectly by showing that the

employer’s proffered explanation is unworthy of credence.” Barros, 710 A.2d at 685 (quoting

Burdine, 450 U.S. at 256). Further, “a plaintiff’s prima facie case, combined with sufficient

evidence to find that the employer’s asserted justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated.” Casey, 861 A.2d at 1038 (quoting Reeves

v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000)).                 The inference of

discrimination is stronger if there is a “suspicion of mendacity” surrounding the reason for

terminating the employee. Neri, 897 A.2d at 50 (quoting Barros, 710 A.2d at 685). However,

the plaintiff has the burden of demonstrating not only that the offered reasons are false, but “that

discrimination was the real reason.” McGarry, 47 A.3d at 281.

       On appeal, plaintiff contends that the trial justice erred when she found that plaintiff had

failed in her burden to demonstrate pretext. In that regard, the trial justice found that plaintiff

had “fail[ed] to offer any valid rebuttal to the defendant’s alleged legitimate reason for her

termination.” The plaintiff, in her efforts to convince us to vacate the judgment, unleashes a



                                               - 16 -
barrage of arguments to demonstrate the trial justice’s error. Because plaintiff offers no direct

evidence of a discriminatory reason, she employs the indirect method to undermine defendant’s

proffered reasons for discharge.

       Primarily, Bucci argues that the trial justice erred because there was evidence of

falsehood or mendacity. Specifically, Bucci contends that the affidavit of Martin, in which he

swore that he fired Bucci after gleaning customer complaints from her personnel file, is an

“undisputed lie” because Mandeville, the director of human resources, testified in her deposition

that Martin did not even review the file until after Bucci was fired. Also, Bucci claims that

Mandeville’s testimony that the DMV had made complaints about Bucci’s job performance was

“unworthy of belief” because a DMV employee who had interacted with Bucci attested that he

had no recollection of making complaints about Bucci or having any problems with her job

performance. As further evidence of pretext, Bucci contends that defendant deviated from its

own personnel policies when it fired her. Bucci points out that, aside from the warning notice

she received for the forgery incident, she received no other documented incident reports or

warning notices, either prior to or after the forgery incident.

       In this step of a McDonnell-Douglas analysis, we first must consider whether the

purportedly legitimate, nondiscriminatory reasons for termination offered by the employer are

tainted by this claimed “suspicion of mendacity.” Neri, 897 A.2d at 50 (quoting Barros, 710

A.2d at 685). In Barros, 710 A.2d at 686, we observed that the employer found the employee’s

conduct to be objectionable only after she had announced that she was pregnant. That gave rise

to a suspicion of mendacity, which, when combined with the employer’s failure to follow its

personnel policies, was deemed to be sufficient to support a finding of unlawful gender

discrimination.   Id.   We have noted that “Barros stands for the proposition that evidence



                                                - 17 -
suggesting a meaningful ‘suspicion of mendacity’ will greatly bolster a plaintiff's case.” Neri,

897 A.2d at 50. However, and without in any way retreating from our holding in Barros, we also

echo the cautions described in Mesnick v. General Electric Co., 950 F.2d 816, 825 (1st Cir.

1991), that “[c]ourts may not sit as super personnel departments, assessing the merits—or even

the rationality—of employers’ nondiscriminatory business decisions.” Simply put, an employer

may terminate an employee for any reason, good or bad, provided that “the decision to fire does

not stem from the person’s age.” Freeman v. Package Machinery Co., 865 F.2d 1331, 1341 (1st

Cir. 1988).

       We simply do not perceive a Barros-like event in the present case. Indeed, it would

appear that the event that ultimately would serve as the harbinger for plaintiff’s ultimate

discharge was Hurd’s hiring of Martin as CFO in 2005. Martin seemingly had a higher, more

stringent standard with which he wanted plaintiff to comply. It is true that there is some

inconsistency between the testimony of Mandeville and the affidavit of Martin about the timing

of Martin’s review of plaintiff’s personnel file. However, a mere inconsistency, without more,

does not give rise to a suspicion of mendacity. Bucci is correct when she argues that the facts

should be construed in a light most favorable to her, but we do not agree that this standard

demands that we consider the factual dispute as evidence of intentional falsehood. In a de novo

review of a grant of summary judgment, we will make all reasonable inferences in favor of the

nonmoving party. Martin v. Marciano, 871 A.2d 911, 914-15 (R.I. 2005). Because the record

contains only the inconsistency between Martin’s affidavit and Mandeville’s deposition

testimony and not some other evidence that would suggest that Martin had been untruthful in his

affidavit, it would be inappropriate for this Court to conclude that Martin lied. Viewing the facts

in the light most favorable to Bucci, it is certainly reasonable to conclude that Martin never



                                              - 18 -
reviewed plaintiff’s personnel file before he discharged her. However, were we to agree with

plaintiff that a party could defeat summary judgment whenever there is some non-material

factual dispute, summary judgment would never be appropriate in these cases because the trial

court would be required to assume that the moving party had lied, even though there may be

other reasonable explanations for the discrepancy. 7

        Moreover, even assuming that Martin had not reviewed the personnel file before he fired

Bucci, the 2001-02 complaints about Bucci’s performance were not the solitary evidence

defendant presented to support the termination. Mandeville testified in her deposition that the

forgery incident was one of the reasons for firing Bucci. It is also significant that Martin

supervised plaintiff’s department for more than a year, received complaints from coworkers

about Bucci’s performance, and personally attested to her unwillingness to assume more

responsibilities in her capacity as titles and registrations clerk.

        The plaintiff also provided the affidavit of DMV employee Thomas San Bento to support

her pretext argument; she argues that that affidavit demonstrates that Mandeville’s testimony

regarding DMV complaints about Bucci is not worthy of belief. It is important to note, however,

that San Bento said in his affidavit that he did not recall making any complaints about Bucci and

that he found her to be “professional, efficient and competent.” But Mandeville never said that it

7
  Bucci also contended in her brief, and at oral argument, that the apparent inconsistency
between Martin’s affidavit and Mandeville’s deposition testimony was a material factual dispute
that should have been resolved by a jury. We disagree. “A ‘genuine’ issue is one that could be
resolved in favor of either party, and a ‘material fact’ is one that has the potential of affecting the
outcome of the case.” Calero-Cerezo v. United States Department of Justice, 355 F.3d 6, 19 (1st
Cir. 2004) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986)). This dispute
does not have the potential to affect the outcome of the case because plaintiff does not challenge
the several other offered reasons for her termination, which were sufficient to overcome a claim
of discriminatory animus. Indeed, in her brief submitted to this Court, plaintiff acknowledges
that Martin based his decision to fire Bucci on what he found in the file and on his own
“observations and assessments of her work performance.”


                                                 - 19 -
had been San Bento who had made a complaint to her about Bucci. Indeed, other employees

from the DMV, or employees from motor-vehicle departments from other states, may well have

complained about Bucci’s performance. When a plaintiff attempts to counter a claim by an

employer that it fired an employee for poor performance, it is simply not sufficient for a plaintiff

to present evidence that her performance was satisfactory.          See Alvarez v. Royal Atlantic

Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010). The plaintiff’s burden is to demonstrate

that it was unlawful discrimination that motivated the dismissal, and not simply an employer’s

erroneous belief or assessment about poor performance. Id. at 1267.

       The plaintiff correctly asserts that Hurd did not follow its own employment-termination

policies that are set forth in its employee handbook, and she relies upon Barros, 710 A.2d at 686,

to support an argument that this too gives rise to a suspicion of mendacity. This argument is

unpersuasive, however, because it is undisputed that her employment was designated as “at will”

that could be terminated “with or without cause, at any time.” Hurd’s policy of progressive

discipline does outline a system of escalating actions to address an employment deficiency, but it

also reiterates, at the outset of the description of the policy, that employment is “at will” and that

defendant “may use progressive discipline at its discretion.” On the other hand, the handbook in

Barros, 710 A.2d at 686, did not grant discretion to the employer when pursuing employment

termination. Even if defendant had the benefit of a larger paper trail detailing plaintiff’s alleged

performance deficiencies and if, as a result, defendant had made use of the progressive-discipline

policy, its failure to do so does not constitute pretext when implementation of the policy is

discretionary and plaintiff is an at-will employee. Cf. Morris v. City of Chillicothe, 512 F.3d

1013, 1020 (8th Cir. 2008) (holding failure to follow progressive discipline policy does not

constitute pretext when employer reserves right to fire at-will employees without notice);



                                                - 20 -
Timmerman v. U.S. Bank, N.A., 483 F.3d 1106, 1120 (10th Cir. 2007) (holding failure to follow

progressive discipline does not demonstrate pretext when use of the policy is entirely

discretionary); Fane v. Locke Reynolds, LLP, 480 F.3d 534, 541 (7th Cir. 2007) (holding no

pretext for not following progressive discipline where policy contemplated immediate

termination for certain offenses).

       Further, the policy states that there are some employee problems that would in “extreme

situations” warrant immediate termination. Presumably, one such extreme situation could stem

from an employee’s failure, by engaging in a forgery, to comply with Hurd’s standard of

business ethics charging its employees to refrain from any dishonest or unethical conduct.

Hurd’s handbook continues that violation of this standard “could lead to disciplinary action, up

to and including possible termination of employment.” It is clear that plaintiff received a

warning after the forgery, but defendant argues that the forgery was but a part of the mosaic

leading to her termination; it was not the sole grounds for dismissal. Nevertheless, such an

incident could surely be taken into consideration at the time the final decision about Bucci’s

employment was made. However, it is important to consider that determining whether the

employer properly or efficiently made use of its discretionary progressive-discipline policies is

not the role for this Court. Rather, our role is to determine if the personnel action was motivated

by discrimination due to age. To second-guess discretionary uses of personnel policies for at-

will employees when there is a lack of evidence of age discrimination would place this Court in

the role of a “super personnel department”; a role we decline to embrace.

       The plaintiff next argues that there is an inconsistency between Martin’s affidavit, in

which he swore that Bucci was unwilling to take on certain additional tasks, and Bucci’s

deposition testimony, in which she indicated that she was willing, but computer problems



                                              - 21 -
stymied her ability to do so. On appeal, Bucci claims that, after she informed Martin that she

required two computers to begin the payroll processing, Martin promised to provide her with a

second computer but then failed to abide by his commitment. However, when we analyze

Bucci’s deposition testimony, it is unclear that she actually informed Martin of the need for two

computers, and there is no indication that Martin promised or even indicated to Bucci that he

would provide her with a second computer. Even if we were to assume that Bucci’s version of

events is accurate, she fails to address defendant’s affidavits that stated she was unwilling to

receive training on Hurd’s payroll system and that she did not take on the other tasks that Martin

requested of her, such as generating activity reports to track the status of pending registrations. 8




8
    Bucci’s testimony on both of these matter is as follows:
                          “Q: Do you recall sitting down with Mr. Martin and him
                  talking to you about some changes he wanted to make with respect
                  to the way you had been doing things?
                          “* * *
                          “[BUCCI]: In my office I had a computer that was just for
                  the Registry, nothing else. So, he had said that he wanted that
                  office to do more than just registrations. He wanted it to do the
                  billing for the wholesale vehicles. I said to him fine. I’ve done
                  that before, so I can do it again.
                          “So, he was going to make arrangements to have the
                  information put into my computer, which was supposed to be only
                  for registrations. So, he had someone come in to program the
                  whole computer for what he wanted done for the dealership.
                          “It didn’t work out, because every time I went from the
                  Registry format to the Hurd format, it would kick me out of
                  registrations. So, I ended up calling the Registry every time I got
                  kicked out, and I was told by Mr. Sambento [sic] that that
                  computer should not be used for anything else but registrations.
                          “* * * If he wanted me to do something else, he was going
                  to have to get me a new computer just for that so I would have two
                  computers.
                          “They were going to be in the process of doing it and all
                  they gave me at the time was the printer for the billing but never
                  set up the computer for it. It was still that way until I left.”
                                                - 22 -
        Finally, in an effort to demonstrate pretext, Bucci takes aim at the forms defendant

provided to DLT after her discharge, which were silent as to any negative reasons for plaintiff’s

termination. She points out that Mandeville, who filled out and filed the report, specified that

“we are rearranging people’s jobs” as the reason for termination. The plaintiff contends that this

inconsistency demonstrates that the real reason for her firing was her age. This argument also

founders because the record reveals that Hurd’s consistent effort to achieve more productivity

out of plaintiff’s department was a reason for her termination. Further, Mandeville testified that

Hurd often did not list negative reasons for termination out of a concern that doing so might

jeopardize the former employee’s ability to collect unemployment. Specifically, Mandeville

testified that she did not “want to make anything hard” for Bucci. Cf. Hux v. City of Newport

News, Va., 451 F.3d 311, 315 (4th Cir. 2006) (“Once an employer has provided a non-

discriminatory explanation for its decision, the plaintiff cannot seek to expose that rationale as

pretextual by focusing on minor discrepancies that do not cast doubt on the explanation's

validity, or by raising points that are wholly irrelevant to it.”).

        Ultimately, after considering the pleadings and affidavits in a light most favorable to the

plaintiff, it is our opinion that the plaintiff has been unable to cast any meaningful doubt that the

defendant’s proffered reasons for termination were merely a cover-up for age discrimination.

Arguably, Hurd did not handle this termination as nimbly as possible, but it is the plaintiff’s

burden to demonstrate that the true reason for discharge was unlawful discrimination, and she

has not done so. Further, we are not persuaded that there are any genuine issues of material fact

that would need to be decided by a jury. A reasonable juror could not infer age discrimination

based on the presence of minor inconsistencies in testimony and the undisputed evidence of

substandard performance. We have carefully considered each of the other arguments raised by



                                                 - 23 -
the plaintiff, and we conclude that they are without merit. We hold that the motion justice

properly entered summary judgment in favor of the defendant on both employment

discrimination claims.

                                                 IV

                                            Conclusion

       For the foregoing reasons, we affirm the grant of summary judgment in favor of the

defendant. The record shall be remanded to the Superior Court.



       Justice Goldberg, concurring in part and dissenting in part. This case highlights the

tension between the summary judgment standard and the substantive framework applied to

employment discrimination claims. Although this Court has adopted the three-step McDonnell-

Douglas framework in these cases, we did not dispense with the Rules of Civil Procedure.

Rule 56 of the Superior Court Rules of Civil Procedure requires that a Superior Court justice

deny summary judgment when there exists a genuine issue of material fact. Because my de novo

review of the record results in a substantially different view of the evidence and because I

therefore conclude that genuine issues of material fact concerning Hurd’s motivation for

terminating Bucci are manifest, I respectfully dissent. 1




1
  I concur with the majority’s conclusion that plaintiff’s disability discrimination claim was
waived. Although many of the facts supporting an age discrimination claim would also support a
disability discrimination claim, plaintiff’s discussion of her medical conditions in her brief states
only that “[d]uring CFO Martin’s tenure, Plaintiff began having problems associated with old
age.” No such discussion of a disability occurs in the brief. The only mention of any disability
whatsoever is Bucci’s averment that she filed a disability claim with the Commission for Human
Rights and the allegations in the complaint. With those meager statements, particularly given
that there is a question of whether there is any evidence that defendant regarded her as having a
disability, the issue was not sufficiently developed for our review.
                                                - 24 -
                                                I

                 Summary Judgment in Employment Discrimination Cases

       An employment discrimination case is a unique cause of action. Unlike a straightforward

tort or breach of contract case—where, on summary judgment, a trial justice can look at one set

of elements to a cause of action and determine whether or not there is a genuine issue of material

fact relating to one or more of those elements—the McDonnell-Douglas framework is more akin

to a moving target with three steps and shifting burdens of proof and production. Thus, I begin

my analysis by describing the proper legal context for consideration of a motion for summary

judgment in an employment discrimination case.

                                                A

                              The Summary Judgment Standard

       The starting point for any legal analysis by this Court is the standard of review. “[T]his

Court reviews a grant of summary judgment de novo.” Sullo v. Greenberg, 68 A.3d 404, 406

(R.I. 2013) (quoting Sacco v. Cranston School Department, 53 A.3d 147, 149-50 (R.I. 2012)).

Thus, we examine the case “from the vantage point of the trial justice who passed on the motion

for summary judgment * * *.” Id. Critically important here, “[w]e view the evidence in the light

most favorable to the nonmoving party * * *.” Id. In performing this review, we draw all

reasonable inferences in favor of the nonmoving party. See Peloquin v. Haven Health Center of

Greenville, LLC, 61 A.3d 419, 424-25 (R.I. 2013) (noting that “the facts and all reasonable

inferences therefrom” are viewed “in the light most favorable to the nonmoving party” (quoting

Derderian v. Essex Insurance Co., 44 A.3d 122, 126-27 (R.I. 2012))).

       “Ultimately, the ‘purpose of the summary judgment procedure is issue finding, not issue

determination.’” DeMaio v. Ciccone, 59 A.3d 125, 130 (R.I. 2013) (quoting Estate of Giuliano



                                              - 25 -
v. Giuliano, 949 A.2d 386, 391 (R.I. 2008)). After examining the evidence in the light most

favorable to the nonmoving party and drawing reasonable inferences, summary judgment is

appropriate only when “there is no genuine issue as to any material fact and * * * the moving

party is entitled to judgment as [a] matter of law.” Sola v. Leighton, 45 A.3d 502, 506 (R.I.

2012) (quoting Plunkett v. State, 869 A.2d 1185, 1187 (R.I. 2005) (emphasis added)). If the

evidence submitted permits an inference that creates a genuine issue of material fact, the motion

must be denied. See DeMaio, 59 A.3d at 132 (holding that a Superior Court justice may not

choose between conflicting inferences at summary judgment stage).             Finally, “[s]ummary

judgment is a drastic remedy, and a motion for summary judgment should be dealt with

cautiously.” Cruz v. DaimlerChrysler Motors Corp., 66 A.3d 446, 451 (R.I. 2013) (quoting

DeMaio, 59 A.3d at 129).

                                                 B

           Employment Discrimination and the McDonnell-Douglas Framework

       The plaintiff here asserts a statutory right; thus, the analysis should begin with the statute

that grants her the right that she seeks to enforce. The Rhode Island General Laws provide that it

is unlawful for any employer “to discharge an employee * * * because of his or her * * * age

* * *.” G.L. 1956 § 28-5-7(1)(i)(ii). In enacting the Fair Employment Practices Act (FEPA), the

General Assembly made the following legislative findings:

               “The practice or policy of discrimination against individuals
               because of their race or color, religion, sex, sexual orientation,
               gender identity or expression, disability, age, or country of
               ancestral origin is a matter of state concern. Such discrimination
               foments domestic strife and unrest, threatens the rights and
               privileges of the inhabitants of the state, and undermines the
               foundations of a free democratic state. The denial of equal
               employment opportunities because of such discrimination and the
               consequent failure to utilize the productive capacities of
               individuals to their fullest extent deprive large segments of the

                                               - 26 -
               population of the state of earnings necessary to maintain decent
               standards of living, necessitates their resort to public relief, and
               intensifies group conflicts, thereby resulting in grave injury to the
               public safety, health, and welfare.” Section 28-5-2.

Further, the Legislature declared that it is “the public policy of this state to foster the

employment of all individuals in this state in accordance with their fullest capacities, regardless

of their * * * age * * * and to safeguard their right to obtain and hold employment without such

discrimination.” Section 28-5-3.

       To analyze employment discrimination cases under FEPA, this Court has looked to

analogous federal anti-discrimination law. See Neri v. Ross-Simons, Inc., 897 A.2d 42, 48 (R.I.

2006) (“This Court has adopted the federal legal framework to provide structure to our state

employment discrimination statutes.”). Thus, “the parties must engage in the three-part burden-

shifting paradigm set forth by the United States Supreme Court in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802-04 (1973).” McGarry v. Pielech, 47 A.3d 271, 280 (R.I. 2012).

       Under the first McDonnell-Douglas prong, the plaintiff must set forth a prima facie case

of discrimination. McGarry, 47 A.3d at 280. Thus, in an age discrimination case based upon

termination, the plaintiff must show that

               “(1) she was at least forty years of age; (2) her job performance
               met the employer’s legitimate expectations; (3) the employer
               subjected her to an adverse employment action (e.g., an actual or
               constructive discharge); and (4) the employer had a continuing
               need for the services provided by the position from which the
               claimant was discharged.” Neri, 897 A.2d at 49 (quoting Ramirez
               Rodrigues v. Boehringer Ingelheim Pharmaceuticals, Inc., 425
               F.3d 67, 78 n.11 (1st Cir. 2005)).

“The burden placed on the complainant at this stage is not especially onerous.” Center for

Behavioral Health, Rhode Island, Inc. v. Barros, 710 A.2d 680, 685 (R.I. 1998). “Once the

plaintiff establishes these four elements, a presumption arises that the defendant committed

unlawful discrimination.” McGarry, 47 A.3d at 280.

                                              - 27 -
       Once the plaintiff has met his or her initial burden, the burden shifts to the defendant to

“offer a legitimate, nondiscriminatory reason for terminating the employee.” Neri, 897 A.2d at

49. The burden on the defendant employer is one “of production rather than persuasion.” Id. If

the defendant proffers such a nondiscriminatory explanation, the presumption of discrimination

disappears. McGarry, 47 A.3d at 280.

       The third prong in the McDonnell-Douglas framework “constitutes the crux of proving a

discrimination case.” McGarry, 47 A.3d at 281. This prong “focuses on the ultimate question of

‘discrimination vel non.’” Neri, 897 A.2d at 50 (quoting Casey v. Town of Portsmouth, 861

A.2d 1032, 1037 (R.I. 2004)).       Generally, at this stage, the plaintiff must show that the

employer’s proffered reasons for its action were pretextual and that discrimination was the real

reason for the termination. McGarry, 47 A.3d at 281. Because the standard for this prong on

summary judgment is at the heart of this case, it is discussed in more detail below.

                                                C

           The Problem of Summary Judgment in Employment Discrimination Cases

       As with most employment discrimination cases, this case glides through the first and

second prongs of the McDonnell-Douglas framework with ease. Accordingly, I agree with the

majority’s analysis under those prongs. However, on consideration of the third prong, our views

diverge.

       The third prong of the McDonnell-Douglas framework is intrinsically malleable. This

Court’s pronouncements in previous cases provide fertile ground for both employers and

employees. A defendant-employer can point to the fact that “a plaintiff must do more than

simply cast doubt upon the employer’s justification [for firing the plaintiff].” McGarry, 47 A.3d

at 281 (quoting Resare v. Raytheon Co., 981 F.2d 32, 42 (1st Cir. 1992)). Furthermore, “[t]he



                                              - 28 -
plaintiff must demonstrate not only that the defendant’s purported reason for not hiring the

plaintiff was false, but also that discrimination was the real reason.”       Id. Nevertheless, a

plaintiff-employee knows that “[p]roof of discrimination does not require evidence of the

‘smoking-gun’ variety,” and that the factfinder may “infer the ultimate fact of intentional

discrimination.” Casey, 861 A.2d at 1038 (quoting Barros, 710 A.2d at 685). The thin line

between sufficient and insufficient evidence really comes to light when juxtaposing the

statements that “proof that a reason for not hiring plaintiff was pretextual is insufficient, on its

own, to support a finding of discrimination,” McGarry, 47 A.2d at 281 (quoting Casey, 861 A.2d

at 1038), yet, “a plaintiff’s prima facie case, combined with sufficient evidence to find that the

employer’s asserted justification is false, may permit the trier of fact to conclude that the

employer unlawfully discriminated.” Neri, 897 A.2d at 50 (quoting Casey, 861 A.2d at 1038)

(emphasis added).

       Applying these precepts is particularly problematic at the summary judgment stage. See

Hon. Bernice B. Donald and J. Eric Pardue, Bringing Back Reasonable Inferences: A Short,

Simple Suggestion for Addressing Some Problems at the Intersection of Employment

Discrimination and Summary Judgment, 57 N.Y.L. Sch. L. Rev. 749, 755 (2013) (“The

application of the McDonnell Douglas framework is complicated by the procedural rules of

summary judgment.”). Although typically framed as a question of what the plaintiff must

“prove,” a plaintiff is not required to “prove” anything on a motion for summary judgment in the

same way that he or she would at trial. On summary judgment, the plaintiff must only put forth

enough evidence to show that a dispute of material fact exists in the case.

       Recent legal literature discusses the mountain that a plaintiff-employee must climb just to

get to a jury trial. See Kerri Lynn Stone, Shortcuts in Employment Discrimination Law, 56 St.



                                               - 29 -
Louis U. L.J. 111, 112 (2011) (“Research confirms everyday observations of how much more

difficult it is for employment discrimination plaintiffs than for other plaintiffs to survive pre-trial

motions to dismiss their cases and to win at trial or on appeal.”). “The Federal Judicial Center

has noted that ‘[s]ummary judgment motions by defendants are more common in [employment

discrimination] cases, are more likely to be granted, and more likely to terminate the litigation.’”

Donald and Pardue, 57 N.Y.L. Sch. L. Rev. at 752 (quoting Memorandum from Joe Cecil &

George Cort, Federal Judicial Center, to Judge Michael Baylson, at 3 (Aug. 13, 2008)). “Recent

data suggests that * * * 73% of summary judgment motions in employment discrimination cases

are granted—the highest of any type of federal civil case.”           Elizabeth M. Schneider, The

Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and

Employment Discrimination Cases, 158 U. Pa. L. Rev. 517, 549 (2010). Although these studies

concern federal courts—and to my knowledge no such study of Rhode Island cases exists—my

experience with employment discrimination cases comports with these conclusions.

       Here, the majority parses each piece of evidence proffered by plaintiff and—while

purporting to view the evidence in the light most favorable to plaintiff—proceeds to explain (and

indeed decide) why each of plaintiff’s arguments fail to show pretext or discrimination. It is my

opinion that this is the wrong approach; it results in a piece-by-piece analysis of the evidence

rather than placing the evidence in the context of the whole claim. See Schneider, 158 U. Pa. L.

Rev. at 544 (“Judicial opinions on summary judgment are often so mechanistic that they become

‘sliced and diced,’ a process that * * * ‘sees less in the parts by subjecting the nonmovant’s

“evidence” to piece-by-piece analysis’ instead of analyzing it contextually.” (quoting Stephen B.

Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward

Bethlehem or Gomorrah?, 1 J. Empirical Legal Stud. 591, 624, 625 (2004))).



                                                - 30 -
       In my opinion, the correct approach requires a court to look at the case as a whole and

consider the ultimate issue based on the totality of the evidence. Although the details are

malleable, it is settled that the third prong “focuses on the ultimate question of ‘discrimination

vel non.’”   Neri, 897 A.2d at 50 (quoting Casey, 861 A.2d at 1037); see also Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 153 (2000) (“The ultimate question in every

employment discrimination case involving a claim of disparate treatment is whether the plaintiff

was the victim of intentional discrimination.”). A Second Circuit judge with extensive

employment discrimination experience frames the ultimate issue on summary judgment as

“whether the plaintiff presented evidence from which a reasonable jury could find that, more

likely than not, the employer’s decision was motivated at least in part by discrimination.”

Hon. Denny Chin, Summary Judgment in Employment Discrimination Cases: A Judge’s

Perspective, 57 N.Y.L. Sch. L. Rev. 671, 679 (2013) (emphases added). Importantly, however,

Judge Chin notes that “[t]he evidence has to be considered as a whole—seemingly innocuous or

innocent pieces of evidence may take on a different meaning when placed in context.” Id. at

680.

       The preferred approach of placing the evidence in context and considering the ultimate

issue is a route that is grounded by Supreme Court precedent. Although undertaking review of a

Rule 50 motion in an employment discrimination case, the Supreme Court noted that “[i]n the

analogous context of summary judgment under Rule 56, we have stated that the court must

review the record ‘taken as a whole.’” Reeves, 530 U.S. at 150 (quoting Matsushita Electric

Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). Furthermore, in reviewing the

evidence, “the court must draw all reasonable inferences in favor of the nonmoving party, and it

may not make credibility determinations or weigh the evidence.”                Id.    “Credibility



                                              - 31 -
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the

facts are jury functions, not those of a judge.” Id. at 150 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 255 (1986)).

          Significantly, when the case is viewed in the proper context, a factfinder’s disbelief of an

employer’s proffered nondiscriminatory reasons may carry significant weight. The Supreme

Court noted that, in a prior decision, the Court “reasoned that it is permissible for the trier of fact

to infer the ultimate fact of discrimination from the falsity of the employer’s explanation.”

Reeves, 530 U.S. at 147 (citing St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993)). A

factfinder’s disbelief of reasons proffered by the defendant-employer, particularly when

“accompanied by a suspicion of mendacity,” may, “with the elements of the prima facie case,”

be sufficient to show discrimination. Id. (quoting Hicks, 509 U.S. at 511). A party’s dishonesty

may be considered as “affirmative evidence of guilt.” Id. (quoting Wright v. West, 505 U.S.

277, 296 (1992)). Potentially false (or perjurious) evidence cannot be overlooked or, worse,

ignored on summary judgment. With these principles in mind, it follows that a plaintiff is not

required to disprove each and every one of a defendant’s proffered nondiscriminatory reasons

when he or she can cast substantial doubt on all of them because there is evidence suggesting

mendacity. 2 Ultimately, the question of whether to draw the necessary inferences to establish the



2
    As the Third Circuit stated when addressing a Title VII claim:

                  “We do not hold that, to avoid summary judgment, the plaintiff must cast
          doubt on each proffered reason in a vacuum. If the defendant proffers a bagful of
          legitimate reasons, and the plaintiff manages to cast substantial doubt on a fair
          number of them, the plaintiff may not need to discredit the remainder. That is
          because the factfinder’s rejection of some of the defendant’s proffered reasons
          may impede the employer’s credibility seriously enough so that a factfinder may
          rationally disbelieve the remaining proffered reasons, even if no evidence
          undermining those remaining rationales in particular is available.” Fuentes v.
          Perskie, 32 F.3d 759, 764-65 n.7 (3d Cir. 1994).
                                                 - 32 -
claim is for a jury: “Whether the defendant was in fact motivated by discrimination is of course

for the finder of fact to decide * * *.” Reeves, 530 U.S. at 154 (Ginsberg, J., concurring). 3

          Focusing on the ultimate issue and viewing the evidence as a whole comports with the

statute that Bucci seeks to enforce, a factor absent from the majority’s analysis. The General

Assembly has declared that the policy of Rhode Island is “to foster the employment of all

individuals in this state in accordance with their fullest capacities, regardless of their * * * age

* * *, and to safeguard their right to obtain and hold employment without such discrimination.”

Section 28-5-3. Accordingly, an employee need only “demonstrate[] that * * * age * * * was a

motivating factor for any employment practice, even though the practice was also motivated by

other factors.” Section 28-5-7.3 (emphasis added). Thus, even if an employer can prove that an

incident of poor work performance by an employee played a part in a termination, if the plaintiff-

employee can show that discrimination also was a motivating factor, then a statutory claim

exists.     See id.    Simply querying whether every one of an employer’s reasons has been

specifically rebutted by the plaintiff’s evidence contravenes the statute and is plainly wrong. 4



3
    It is preferable for juries to decide these issues:

          “In civil rights or employment discrimination cases, however, where subtle issues
          of credibility, inferences, and close legal questions may be involved, where issues
          concerning the ‘genuineness’ or ‘materiality’ of facts are frequently intertwined
          with law, a single district judge may be a less preferable decisionmaker than a
          jury. Juries are likely to be far more diverse and to bring a broader range of
          perspectives to bear on the problem.” Elizabeth M. Schneider, The Changing
          Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and
          Employment Discrimination Cases, 158 U. Pa. L. Rev. 517, 542-43 (2010).
4
 I must pause here to note that this Court very recently discussed “the General Assembly’s very
explicit determination” regarding the necessity of anti-discrimination measures:

          “The General Assembly has sounded neither an uncertain nor a muted trumpet in
          this domain; it has clearly manifested an intent of the highest order to extirpate
          discrimination in employment in view of its deleterious effect on individuals and
                                                    - 33 -
       My approach is not a departure from our case law. See Donald and Pardue, 57 N.Y.L.

Sch. L. Rev. at 762-63 (advocating for liberal construction of drawing all reasonable inferences

in favor of the nonmoving party and noting that it is, arguably, already the standard). It merely

places the substantive framework of an employment discrimination case—as adopted by this

Court—in the proper context of a summary judgment motion. Therefore, on the third prong of

the McDonnell-Douglas framework, the burden on the plaintiff at the summary judgment stage is

merely to put forth evidence from which a jury could reasonably conclude that, when viewed as

a whole, the employer’s decision was motivated at least in part by discrimination. 5 It is in this

context, that I proceed to analyze the evidence presented in this case.

                                                 II

                Application of the Standard and the Framework to the Facts

       The majority, quite appropriately, begins its discussion of the third prong of the

McDonnell-Douglas framework by addressing Bucci’s argument that there was evidence of

mendacity, based primarily on the glaringly inconsistent testimony of Martin and Mandeville.

Martin testified by affidavit that, in conjunction with the warning notice given to Bucci for the

forgery incident with the Connecticut Department of Motor Vehicles (the Connecticut incident),

“I reviewed Ms. Bucci’s employment file for the first time and found there were many previous

complaints against her, dating as far back as August 2001.” Martin then detailed what he learned


       on society more generally. * * * The General Assembly specifically and solemnly
       declared that the FEPA was designed to address ‘matter[s] of state concern * * *
       [which] foment[] domestic strife and unrest * * * and undermine the foundations
       of a free democratic state.’” Weeks v. 735 Putnam Pike Operations, LLC, No.
       2012-356-A., slip op. at 17-18 (R.I., filed Feb. 28, 2014) (quoting G.L. 1956 § 28-
       5-2).
5
  This formulation does not ignore pretext; viewing the evidence as a whole also includes
consideration of the defendant’s proffered nondiscriminatory reasons for its action.


                                               - 34 -
from the file in three paragraphs. Martin then attested that “[b]ased on my observations and

assessment of Ms. Bucci’s work performance and upon my review of her personnel file, Hurd

discharged her for the third and final time in November 2006.” 6 Mandeville, however, testified

in her deposition that no one looked at Bucci’s file until after she was terminated. 7 Only one of

these witnesses was truthful, and it is not for this Court, or the trial justice on summary

judgment, to decide which one.

         The majority errs in its conclusion that this striking dichotomy, viewed in the light most

favorable to plaintiff and drawing all reasonable inferences from this evidence, does not permit a

factfinder to infer that there was “a suspicion of mendacity” regarding Hurd’s motivation for

firing Bucci. See Barros, 710 A.2d at 685 (noting that the elements of a sufficient prima facie

case can “combine with the factfinder’s belief that the basis for dismissing the employee was

pretextual, particularly if ‘accompanied by a suspicion of mendacity,’ [thus] the factfinder is
6
  Additionally, in its response to interrogatories, defendant stated that “[w]hen Hurd began to
consider the possibility of firing Plaintiff, Mr. Martin looked into Plaintiff’s file and noticed the
previous complaints against Plaintiff.”
7
    The following colloquy occurred during Mandeville’s deposition:

                “Q. * * * [I]n order to get the [employment] folder, they would
                have to talk to you right?
                “A. Correct.
                “Q. Who has sought to look at [Bucci’s] folder?
                “A. We didn’t -- they didn’t ask to see the folder until after she
                was dismissed.
                “Q. Who did?
                “A. Wendy [Bowen] and Al [Martin].
                “* * *
                “Q. Had anyone ever looked at [the folder] before [Bucci] left the
                third time?
                “A. Before, no.
                “Q. Did you keep them locked?
                “A. Yes.
                “Q. Does anyone else have the key?
                “A. No.”


                                               - 35 -
permitted ‘to infer the ultimate fact of intentional discrimination’” (quoting Hicks, 509 U.S. at

511 and citing Woodman v. Haemonetics Corp., 51 F.3d 1087, 1092 (1st Cir. 1995))). The

majority declares—without citation—that “a mere inconsistency, without more, does not give

rise to a suspicion of mendacity.” The majority then states that it would be “reasonable to

conclude that Martin never reviewed plaintiff’s personnel file before he discharged her,” but that

“it would be inappropriate for this Court to conclude that Martin lied.” 8 I agree with the majority

that it would be inappropriate for this Court to conclude that Martin lied—that is a question for a

factfinder, i.e., a jury. However, a reasonable jury could conclude that Martin’s proffered

reliance on a personnel file that he never saw was a post-hoc justification and, therefore,

mendacious (and arguably perjurious), which infects the credibility of the entire affidavit. Such

issues of credibility are not to be resolved on summary judgment. See DeMaio, 59 A.3d at 130

(“The motion justice ‘must refrain from weighing the evidence or passing upon issues of

credibility.’” (quoting Doe v. Gelineau, 732 A.2d 43, 48 (R.I. 1999))). Because my de novo

review requires me to draw an inference in favor of plaintiff, as I believe is required under our

law on summary judgment, I continue my analysis with the understanding that a suspicion of

mendacity pervades Hurd’s purported reasons for terminating Bucci.

       Although standing alone, the fact that Martin may have lied about examining Bucci’s

personnel file may not be sufficient to give rise to an issue of fact as to a motivating factor for

age discrimination, I need not reach such an issue in this case because there is a plethora of

evidence piled on top of the allegedly mendacious affidavit. 9 First, the very content of the file


8
  I am not willing to overlook this evidence as merely “inconsistent” testimony. Nor do I believe
that a justice of the Superior Court, when confronted with testimony that may be untruthful,
should do so either.
9
  The majority’s orientation toward the evidence at its analogous point of discussion highlights
the difference in our analytical viewpoints. After the majority’s discussion of mendacity, it
                                               - 36 -
includes complaints against Bucci from 2001 and 2002. However, it is undisputed that Bucci

was rehired after those complaints. The fact that Hurd now employs some of the same reasons to

fire Bucci that it overlooked when it rehired her suggests that the proffered reasons for firing her

in this case were pretextual.

       Additionally, Hurd provided numerous inconsistent reasons for terminating Bucci. As

noted above, Martin stated that Bucci’s termination was “[b]ased on [his] observations and

assessment of Ms. Bucci’s work performance and upon [his] review of her personnel file,” which

was locked away. Mandeville, however, wrote on the form submitted to the Department of

Labor and Training that the “reason for separation” was that Hurd was “rearranging people’s

jobs.” Mandeville testified that she had never been untruthful on the forms submitted to the

Department of Labor.       This additional inconsistency, especially when combined with a

mendacious affidavit, can be evidence of pretext.

       The majority may be correct to say that Hurd could have fired Bucci because of the

Connecticut incident. But Hurd chose not to do so. Instead, Hurd issued a written warning in

accordance with its personnel policy—the first and only such written warning issued to Bucci

during her third stint of employment at Hurd. Earlier that year, Bucci had begun to experience

knee problems, resulting in her wearing a brace.         The day after the Connecticut incident


continues that “the 2001-02 complaints about Bucci’s performance were not the solitary
evidence defendant presented to support the termination.” In my view, this is the wrong
orientation; it slices and dices plaintiff’s evidence, which we are supposed to view in the light
most favorable to plaintiff and in the context of the entire claim. Additionally, it contravenes the
statute, which only requires plaintiff to demonstrate that age “was a motivating factor for any
employment practice, even though the practice was also motivated by other factors.” Section 28-
5-7.3. On summary judgment, the analysis should continue to search for whether plaintiff has
raised an issue of fact as to discrimination, not whether one of defendant’s listed reasons can
survive a piecemeal analysis. See Sullo v. Greenberg, 68 A.3d 404, 407 (R.I. 2013) (“[T]he
burden is on the nonmoving party to produce competent evidence that ‘prove[s] the existence of
a disputed issue of material fact[.]’” (quoting Mutual Development Corp. v. Ward Fisher & Co.,
47 A.3d 319, 323 (R.I. 2012))).
                                               - 37 -
occurred, Bucci went on a short medical leave for cataract surgery. Knee and cataract problems

are associated with age. Bucci received no additional written warnings after the warning for the

Connecticut incident, yet Hurd fired her approximately two months later. This written warning

and the two month interval until discharge also undercuts defendants’ response to interrogatories

which alleged that the Connecticut incident was “the final straw.”

       Furthermore, Bucci states in her affidavit that she “recall[ed] asking Martin if the reason I

was being terminated from Defendants was because of the September warning [for the

Connecticut incident]. He said no.” Viewing this evidence in the light most favorable to

plaintiff, a reasonable jury could infer that Hurd’s proffer of the Connecticut incident as the

reason for her termination was pretextual and that a real reason was Bucci’s age. Alternatively,

even if the forgery incident was one of the reasons for firing Bucci, she need only “demonstrate[]

that * * * age * * * was a motivating factor for any employment practice, even though the

practice was also motivated by other factors.” Section 28-5-7.3.

       The majority also dismisses the conflicting evidence regarding Bucci’s alleged

unwillingness to take on additional tasks. Martin’s affidavit contends that Bucci was “generally

unwilling” to perform additional duties. The plaintiff, however, actually testified that she agreed

to at least some of the tasks, 10 but she was unable to do so on her computer because that

computer could not be used for anything other than online vehicle registrations. The plaintiff

submitted additional evidence from the Department of Motor Vehicles (DMV) that corroborated

the DMV’s requirement of a dedicated computer for registrations. Bucci went on to say that she

would need a second computer to perform the additional tasks, and that “[t]hey were going to be

in the process of doing it” before she was fired. Nevertheless, the majority concludes that

10
   As quoted in footnote 8 of the majority opinion, regarding billing for wholesale vehicles,
plaintiff stated, “I said to [Martin] fine. I’ve done that before, so I can do it again.”
                                              - 38 -
Bucci’s deposition testimony did not specifically rebut Martin’s allegations that Bucci was

unwilling to receive training on the payroll system and generate activity reports on pending

transactions. In so doing, the majority fails to see what is really at stake in the greater context of

the case: an employer suggesting that an employee refused additional responsibilities, and an

employee contending that she was willing but her employer did not provide her with the

necessary resources—in this case, an additional computer. In my view of the evidence in the

light most favorable to plaintiff, whether Bucci was “generally unwilling” to take on additional

responsibilities or instead was actually unable to perform the duties because of her computer

system is a question of fact for a jury.

       Finally, Hurd did not follow its own termination procedure.              In my opinion, the

majority’s observation that plaintiff is an at-will employee—terminable with or without cause at

any time—is a red herring on this issue. A plaintiff’s employment status is irrelevant because

our law prohibits discrimination no matter the employee’s status. See § 28-5-7. As most

employees are at-will, the consideration of an employee’s at-will status as a factor weighing

against discrimination would render the statute meaningless. Although progressive discipline is

discretionary in Hurd’s employee handbook, here, plaintiff presented evidence that Hurd gives

warnings because “[u]sually three warnings [and] you’re terminated.” The policy itself states

that its purpose is to “administer[] equitable and consistent discipline for unsatisfactory conduct

in the workplace.” This evidence suggests that Hurd typically follows its progressive discipline

policy, and therefore, in this case, defendant departed from the company norm. Thus, the

violation of a permissive policy may contribute to the mosaic of evidence supporting

discrimination, particularly when there is evidence that the policy is usually followed and




                                                - 39 -
actually was followed for two months. It is for a jury—not this Court and not the Superior

Court—to decide the weight of this evidence.

       Having assessed the evidence discussed above—the suspicion of mendacity resulting

from Martin’s affidavit, the defendant’s inconsistent reasons for termination and evidence of

their falsity, and a failure to follow its own employment procedures—and viewing this evidence

in the light most favorable to the plaintiff and in the context of the entire claim, a reasonable jury

could find that age was a motivating factor in Hurd’s decision to fire Bucci. For this reason, it is

my opinion that summary judgment should have been denied in this case.

                                                 III

                                            Conclusion

       Our procedural rules seek to balance the scales of justice: summary judgment provides a

party with an opportunity to terminate litigation before a costly trial, but only if no material facts

are genuinely in dispute. The summary judgment standard takes into account the potential cost

of a trial to a party facing weak claims, the opposing party’s right to a jury’s determination of

witness credibility, facts, and inferences, and the judiciary’s interest in judicial economy. It is

my opinion that the majority’s approach in this case wrongly tips the scales in favor of

employers. An employment discrimination plaintiff’s case is strongest when the evidence is

viewed as a whole and not parsed into pieces. This results in a tinted view of the evidence that

does not comport with the summary judgment standard. When considering the context of the

whole claim, the facts and inferences discussed above permit a factfinder to conclude that age

was a motivating factor in Hurd’s decision to fire Bucci. I make no conclusions about the factual

strength of Bucci’s claim; it is not for this Court—or the Superior Court—to decide, it is a




                                                - 40 -
question for a jury. Unfortunately, the majority deprives Bucci of her right to have a jury answer

it. Consequently, I dissent.




                                              - 41 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Carmella Bucci v. Hurd Buick Pontiac GMC Truck, LLC et al.

CASE NO:              No. 2011-163-C.A.
                      (PC 08-231)

COURT:                Supreme Court

DATE OPINION FILED: March 4, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Providence County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Sarah Taft-Carter

ATTORNEYS ON APPEAL:

                      For Plaintiff: Patricia E. Andrews, Esq.

                      For Defendant: David A. Wollin, Esq.
