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17-P-998                                                Appeals Court

               LISA SCARLETT    vs.   CITY OF BOSTON.


                            No. 17-P-998.

           Suffolk.       March 5, 2018. - July 19, 2018.

            Present:    Vuono, Hanlon, & Wendlandt, JJ.


Anti-Discrimination Law, Employment, Race. Employment,
     Discrimination. School and School Committee, Termination
     of employment. Practice, Civil, Summary judgment.



     Civil action commenced in the Superior Court Department on
June 12, 2014.

     The case was heard by Robert L. Ullmann, J., on a motion
for summary judgment.


     Mitchell J. Notis for the plaintiff.
     Lena-Kate K. Ahern, Assistant Corporation Counsel, for the
defendant.


    WENDLANDT, J.      After the defendant Boston public school

department (BPS) declined to renew her employment contract to

work as a second grade teacher, the plaintiff, Lisa Scarlett,

brought an action in two counts, alleging, inter alia, that BPS

violated G. L. c. 151B, § 4, by discriminating against her on
                                                                      2


the basis of her race (count I).   A Superior Court judge

allowed BPS's motion for summary judgment and dismissed her

complaint.   On appeal, we apply the familiar three-stage

McDonnell Douglas paradigm for assessing an employer's motion

for summary judgment with respect to an employee's claim of

racial discrimination in the context of a work force reduction.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-805

(1973).   See also Wheelock College v. Massachusetts Commn.

Against Discrimination, 371 Mass. 130, 138 (1976).    Finding that

Scarlett met her burden under this paradigm, we reverse the

judgment as to count I.1

     Background.   We briefly summarize the material facts in the

light most favorable to the plaintiff, the nonmoving party,

reserving additional facts for later discussion.     Sullivan v.

Liberty Mut. Ins. Co., 444 Mass. 34, 35 (2005).    In November of

2009, Scarlett, a black woman of Jamaican descent, was hired as

a full-time provisional teacher, teaching second grade in a

general education classroom at the David A. Ellis elementary

school (Ellis school), a school which is part of BPS.

Provisional teachers are hired under one-year contracts.      Every

spring, BPS issues "reasonable assurance letters" to provisional

     1 The judge also granted summary judgment on Scarlett's
claim of discrimination based on national origin (count II).
Having raised no challenges to that portion of the judge's
order, Scarlett has waived the issue. See Sullivan v. Liberty
Mut. Ins. Co., 444 Mass. 34, 35 n.1 (2005).
                                                                   3


teachers whom it intends to retain for the following school

year.2   Scarlett received a reasonable assurance letter in the

spring of 2010, and her contract was renewed for the 2010-2011

school year.   Again, Scarlett taught second grade in a general

education classroom.

     In October of 2010, BPS entered into an interim settlement

agreement with the civil rights divisions of the United States

Departments of Justice and Education regarding services provided

to "English Language Learner" (ELL) students.   Pursuant to the

settlement agreement, BPS agreed to provide ELL students with

sheltered English immersion (SEI) programs in core content

classes, and also to train and to hire a sufficient number of

teachers to serve ELL students.3   In order to adequately serve

its diverse student body,4 BPS began requiring its provisional




     2 In contrast, permanent teachers have additional job
protections and do not need to be renewed on an annual basis.

     3 SEI classes utilize materials specifically tailored for
ELL students, and incorporate English as a second language
instruction into the classroom. In certain language-specific
SEI classrooms, teachers also provide some instruction in the
specified foreign language.

     4 In the 2011-2012 school year, the BPS student population
was forty-two percent Hispanic, thirty-five percent black,
thirteen percent white, eight percent Asian, and two percent
other/multiracial. More than forty percent of BPS students
spoke a language other than English as their first language, and
approximately thirty percent of students had limited English
proficiency.
                                                                   4


teachers either to obtain English as a second language (ESL)

certification or to attend ESL "category" trainings.5

     In the 2010-2011 school year, the racial demographics of

the student body and staff at the Ellis school were as follows:

                       Student Body          Staff

Hispanic               61.4%                 28.2%
Black                  37.0                  46.2
White, Asian or         1.5                  23.1 (White)
other/multiracial
Native American         0                     2.6


As previously indicated, Scarlett's race is black.

Approximately forty percent of Ellis school students were ELL

students.

     In February of 2011, Norman Townsend became principal of

the Ellis school, and shortly thereafter was informed that BPS

faced a $63 million budget shortfall for the upcoming 2011-2012

school year.   BPS was required, as a result, to reduce staff.

The Ellis school was no exception; Townsend was forced to reduce

the Ellis school staff, including some provisional teachers.     In

doing so, Townsend prioritized maintaining the services,




     5 Category trainings were provided by BPS to help nonESL-
certified teachers quickly learn skills related to teaching ELL
students. ESL certifications are exam based and are issued by
the Massachusetts Department of Elementary and Secondary
Education.
                                                                    5


including the SEI program,6 it was providing to its ELL students,

many of whom required services in Spanish.

     There were seven provisional teachers, including Scarlett,

whose contracts were subject to nonrenewal in view of the budget

shortfall:   two Hispanic SEI teachers (one was ESL certified and

the other was not, but had majored in Spanish in college); three

ESL certified white teachers (two of whom taught SEI classes and

one of whom taught music); and two black teachers (Scarlett and

a math specialist).    Scarlett and the math specialist both

lacked SEI teaching experience, and the math teacher also lacked

ESL certification.    Scarlett had been working on her ESL

certification and received it on June 17, 2011, three days after

BPS informed her that her contract would not be renewed for the

2011-2012 school year.

     In connection with the annual "probable organization"

meeting, during which BPS administration representatives met

with leadership from the Ellis school to decide how properly to

staff the school for the upcoming 2011-2012 school year,

Townsend recommended that neither Scarlett nor the other black

provisional teacher (the math specialist) be renewed.7   Scarlett


     6 The Ellis school had successfully implemented an award
winning SEI program pursuant to the civil rights settlement
agreement concerning ELL students.

     7 The staffing recommendations made by school principals at
the probable organization meetings are normally followed. Final
                                                                      6


did not receive a reasonable assurance letter, and in June of

2011,8 BPS informed Scarlett that, due to budget constraints, her

contract would not be renewed for the 2011-2012 school year.9

The math specialist also did not receive a reasonable assurance

letter and was not renewed; his position was cut at the end of

the 2010-2011 school year.10

     Procedural history.   Scarlett filed a complaint with the

Massachusetts Commission Against Discrimination (MCAD), alleging

that she was terminated because of her race or national origin

in violation of G. L. c. 151B, § 4.     MCAD dismissed the

complaint for lack of probable cause.    Scarlett then commenced

the present civil action against BPS in Superior Court.      Ruling

on BPS's motion for summary judgment, the judge "assume[d] that

Scarlett ha[d] made out a prima facie case of discrimination

based on her race/color and national origin," but granted

summary judgment in favor of BPS even though Scarlett had

produced evidence that BPS had provided "inconsistent reasons"


decisions with regard to staffing are made by the BPS human
resources department at the end of the school year.

     8 At the end of the 2010-2011 school year, approximately 445
provisional teachers throughout BPS received nonrenewal letters.

     9 As previously set forth, a few days later, Scarlett
received an ESL certification.

     10Two white provisional teachers who had received
reasonable assurance letters based on Townsend's recommendation
in February, 2011, received letters of nonrenewal in June, 2011,
but were nonetheless renewed for the 2011-2012 school year.
                                                                    7


for her termination.    In doing so, the judge reasoned that "the

mere existence of evidence that in some contexts may support an

inference of pretext does not defeat summary judgment, if no

reasonable trier of fact could find discriminatory animus when

all the evidence and reasonable inferences favorable to the

plaintiff are considered."   This appeal followed.

    Discussion.    We review the allowance of a motion for

summary judgment de novo to determine whether the moving party

has established that, viewing the evidence in the light most

favorable to the opposing party, "there is no genuine issue as

to any material fact and that the moving party is entitled to a

judgment as a matter of law."     Bulwer v. Mount Auburn Hosp., 473

Mass. 672, 680 (2016), quoting from Premier Capital, LLC v. KMZ,

Inc., 464 Mass. 467, 474 (2013).    See Mass.R.Civ.P. 56(c), as

amended, 436 Mass. 1404 (2002).    An employer seeking summary

judgment in a discrimination case faces a high burden because

"the question of the employer's state of mind (discriminatory

motive) is elusive and rarely is established by other than

circumstantial evidence."    Sullivan, 444 Mass. at 38 (quotation

omitted).   Accordingly, summary judgment in such cases is

"disfavored."   Ibid.

    General Laws c. 151B, § 4, as amended by St. 1989, c. 516,

§ 4, provides, in pertinent part, that "[i]t shall be an

unlawful practice . . . [f]or an employer . . . because of the
                                                                    8


race [or] color . . . of any individual . . . to discharge from

employment such individual . . . ."   To survive summary judgment

on claims brought under this provision, an employee alleging

discrimination must produce evidence from which a reasonable

jury may infer "four elements:   membership in a protected class,

harm, discriminatory animus, and causation."   Lipchitz v.

Raytheon Co., 434 Mass. 493, 502 (2001).   Here, only the last

two elements -- discriminatory animus and causation -- are in

question.

     Because direct evidence of these elements is rare, an

employee may survive summary judgment by providing "indirect or

circumstantial evidence [of these elements] using the familiar

three-stage, burden-shifting paradigm [originally set forth] in

McDonnell Douglas Corp. v. Green, 411 U.S. [at] 802-805,"

Bulwer, 473 Mass. at 681 (quotation omitted), and adopted by the

Supreme Judicial Court in Wheelock College, 371 Mass. at 138.

At the first stage of this paradigm, the employee must

establish, by a preponderance of the evidence, a prima facie

case of discrimination.   Sullivan, 444 Mass. at 40.   In a

"reduction in force case" such as the present case,11 in order to

meet this burden, the employee must produce evidence that (i)

     11Scarlett's position at oral argument that this was not a
reduction in force case contradicts the parties' joint statement
of undisputed material facts, in which Scarlett admitted that
"[t]he Ellis School was experiencing a reduction in force for
the 2011-2012 school year."
                                                                       9


she is a member of a protected class; (ii) she performed her job

at an acceptable level; (iii) she was terminated; and (iv) her

layoff occurred in circumstances that raise a reasonable

inference of unlawful discrimination.      Id. at 41, 45.   If the

employee is successful at establishing a prima facie case, the

burden shifts to the employer, at the second stage, to rebut the

prima facie showing by "articulating a legitimate,

nondiscriminatory reason for its employment decision."       Bulwer,

473 Mass. at 681 (quotation omitted).      "[A]n employer must not

only give a lawful reason or reasons for its employment decision

but also must produce credible evidence to show that the reason

or reasons advanced were the real reasons."     Wheelock College,

371 Mass. at 138.     At the third stage, the burden of production

shifts back to the employee to provide evidence that the

employer's stated rationale for the termination is not true but

a pretext.     Bulwer, 473 Mass. at 681.   As the moving party, the

employer "has the burden of affirmatively demonstrating the

absence of a genuine issue of material fact on every relevant

issue, even if [it] would not have the burden on [the] issue

[at] trial."    Sullivan, 444 Mass. at 39 (quotation omitted).

    Here, Scarlett produced sufficient evidence under this

framework to survive summary judgment.      Starting with the first
                                                                     10


stage,12 BPS does not dispute that Scarlett produced sufficient

evidence under the first three prongs of the prima facie case.

BPS, however, argues that Scarlett has failed to produce

evidence to support a reasonable inference of unlawful

discrimination under the fourth prong.13   We disagree.

     "[E]vidence that a reduction in force has a

disproportionate impact on members of a protected class

sometimes may help establish a prima facie case of

discrimination . . . ."    Sullivan, 444 Mass. at 46 n.16.   Here,

Scarlett has come forward with evidence that, out of the seven

provisional teachers whom Townsend considered when determining

which teachers to cut to meet his reduced budget, two were

black.    These two teachers were the only teachers who were not

renewed.   This evidence is "sufficiently probative to allow a

factfinder to believe that the employer intentionally

discriminated against the plaintiff."    Id. at 44, quoting from

Barnes v. GenCorp, Inc., 896 F.2d 1457, 1466 (6th Cir.), cert.

denied, 498 U.S. 878 (1990).


     12Although, on appeal, Scarlett's argument is limited to
the judge's adverse finding at the third stage, BPS disputes the
judge's assumption that Scarlett met her burden to establish a
prima facie case of discrimination. Accordingly, we begin our
analysis here.

     13The judge assumed, without deciding, that Scarlett had
shown a prima facie case of racial discrimination. Perhaps as a
result, Scarlett does not expressly address her prima facie
showing in her brief on appeal.
                                                                 11


    In so concluding, we are guided by the Supreme Judicial

Court's admonition in Sullivan that the plaintiff's burden at

this stage is "meant to be a small showing that is easily made."

Sullivan, 444 Mass. at 45 (quotation omitted).    Indeed, in

Sullivan, the court contemplated a hypothetical situation very

similar to the present case, in which a hospital employed five

nursing supervisors, four of whom were women.    In implementing a

reduction in force, the hospital discharged only the male

supervisor.   The court concluded that "[t]he fact that the

hospital retained all women nursing supervisors and discharged

the only man is sufficient, by itself, to raise a reasonable

inference that the hospital selected the man for discharge

because of his sex."   Id. at 44 n.14.   Similarly, here, the

aforementioned evidence that BPS discharged the only two black

provisional teachers at the Ellis school suffices to raise an

inference of discriminatory animus sufficient for the small

showing required at this first stage of the McDonnell Douglas

paradigm.

    BPS argues that this evidence is insufficient because the

five provisional teachers who were renewed were not similarly

situated to Scarlett; they each had skills and qualifications --

experience teaching SEI classes, ESL certification, or Spanish

language fluency -- that Scarlett lacked.   This argument,

however, ignores the court's statement in Sullivan that "[t]he
                                                                   12


third stage [of the McDonnell Douglas paradigm] is the more

appropriate stage for the employer to establish that the

plaintiff's statistical evidence is unreliable or not probative

of discrimination because the statistics do not account for

factors pertinent to the employer's selection process."

Sullivan, 444 Mass. at 46 n.16.   See, e.g., Matthews v. Ocean

Spray Cranberries, Inc., 426 Mass. 122, 129-134 (1997)

(analyzing at third stage whether employees were similarly

situated).   Accordingly, the record supports a prima facie case

of racial discrimination.

     Moving to the second stage of the McDonnell Douglas

paradigm, BPS articulated at least three different rationales

for its decision not to renew Scarlett's contract.   First, BPS

cited performance issues in its MCAD position statement where it

stated, inter alia, that "Townsend expressed some concerns with

Ms. Scarlett's teaching performance" and that in "his opinion,

her skills and performance were at issue."   This performance

rationale is echoed in a BPS human resources document generated

around the time of the probable organization meeting,14 and in a

document BPS human resources sent by electronic mail message to


     14Deborah Pullen, a BPS human resources department
employee, testified in her deposition that this document would
have been drafted around the time of the probable organization
meeting, and that such a document was normally generated by the
school's principal.
                                                                     13


Townsend informing him that BPS had followed his recommendation

not to renew Scarlett's contract.15    Both of these documents

include a chart in which "performance issues" is the reason

listed for Scarlett's nonrenewal.     Additionally, Townsend stated

in his affidavit that he "had some concerns with Ms. Scarlett's

teaching performance."

     Second, BPS asserted that Scarlett was not renewed because

she lacked ESL certification.   Townsend testified that this was

the only basis for his recommendation not to renew Scarlett's

contract.   Moreover, in an affidavit submitted by BPS in

connection with its motion for summary judgment, Townsend

explained that, "[w]ithout a staff of teachers with ESL

licenses, it would cost more to hire additional staffers who are

licensed to teach [ELLs]."

     Finally, BPS indicated that Scarlett's contract was not

renewed because she lacked Spanish speaking abilities.      In its

MCAD position statement, BPS stated, "[T]he ability to speak a

language aside from English (namely, Spanish language) [is] an

important job qualification."   In his affidavit, Townsend


     15Although Townsend testified that he was not sure who
generated these documents, he stated that, in the winter or
spring of 2011, a BPS human resources representative informed
him that "performance issues" was the most appropriate language
to enter on the document. Townsend testified that, by June of
2011, he could "justify" listing performance issues, even though
he admitted that performance was not the real reason Scarlett
was not renewed.
                                                                  14


explained that each of the five provisional teachers whom he

wished to retain at the Ellis school had Spanish speaking

abilities.    He stated, "Given the high number of students who

speak Spanish at the Ellis [s]chool along with BPS's

[a]cceleration [a]genda for ELLs during 2010-2011, I have been

motivated to maintain a staff of teachers who speak Spanish."

Scarlett speaks very little Spanish.

    We turn then to the third stage of the McDonnell Douglas

paradigm to determine whether Scarlett has come forward with

evidence upon which a reasonable jury could rely to find that

BPS's articulated rationales were a pretext.    Here, Scarlett has

met her burden.   With regard to the performance rationale, BPS

admitted that, at the time of the probable organization meeting

in February of 2011, "Scarlett's work performance did not impact

BPS's decision not to give her a letter of reasonable

assurance."   Similarly, Townsend, in his deposition,

unequivocally stated that Scarlett's performance did not play

any role in his nonrenewal decision.    He testified that the

documents listing "performance issues" as the reason that

Scarlett was not renewed were not accurate.    In addition, in

February of 2011, Townsend had written about Scarlett that he

"believe[d] she has a sound teaching foundation upon which to

build a successful practice."    These statements directly

contradict BPS's MCAD position statement, Townsend's affidavit
                                                                    15


in support thereof, and the internal BPS human resources

documents, in which BPS explained that part of the rationale for

not renewing Scarlett was her performance.16   This direct

evidence that one of BPS's articulated rationales was false is

sufficient to meet Scarlett's burden at the third stage.     See,

e.g., Lipchitz, 434 Mass. at 506-507 (at trial, employee "was

not required to disprove every reason articulated by the

defendant or suggested in the evidence" and instead could meet

her burden at the third stage "by persuading the fact finder

that it was more likely than not that at least one reason was

false").

     Beyond the direct evidence that the performance rationale

was false, Scarlett has come forward with evidence that calls

into question the veracity of BPS's other articulated

rationales.   Specifically, while Townsend testified that the

     16Citing Chi-Sang Poon v. Massachusetts Inst. of
Technology, 74 Mass. App. Ct. 185 (2009), BPS argues that the
listing of "performance" as the reason that Scarlett was not
renewed was merely poor record-keeping and not evidence of
pretext. We disagree. Unlike the employee in Chi-Sang Poon,
Scarlett's employment contract was not renewed. Moreover,
unlike in Chi-Sang Poon, Scarlett has shown BPS's "inconsistent
and shifting explanations" for her nonrenewal. Id. at 198.
From this evidence, a jury could reasonably infer pretext. Cf.
id. at 198-199 (employer's poor record-keeping regarding reasons
for decision to halt review of employee was insufficient
evidence of pretext, where employee was not terminated and
documentary evidence indisputably supported employer's
explanation that employee had long history of personnel
conflicts with subordinates and that its failure to record
rationale was "a benevolent avoidance" of subject to protect
employee).
                                                                   16


sole reason he decided not to renew Scarlett was because she

lacked ESL certification, the record shows that at least one of

the provisional teachers whose contract was renewed also lacked

the ESL certification.   In addition, while BPS stated that

Scarlett was not renewed because she lacked critical Spanish

speaking abilities, Townsend (who admitted he does not speak

Spanish) testified that the only reason he believed that the

teacher (who lacked ESL certification and was nevertheless

renewed) spoke Spanish was that he overheard her speaking a

language that he assumed to be Spanish.   He also could not

recall whether he had any knowledge of Scarlett's Spanish

skills.

    On this record, Scarlett has produced evidence that BPS's

"facially proper reasons given for its action against [her] were

not the real reasons for that action."    Verdrager v. Mintz,

Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 397

(2016) (quotation omitted).   Significantly, "Massachusetts is a

pretext only jurisdiction."   Blare v. Husky Injection Molding

Sys. Boston, Inc., 419 Mass. 437, 443 (1995).   Thus, at this

third stage, the employee need only present evidence from which

a reasonable jury could infer that the rationales advanced by

the employer at the second stage were not the real reasons for
                                                                   17


the adverse employment action.17   Bulwer, 473 Mass. at 682.

"[C]ombined with establishment of a prima facie case[,] a

showing of pretext eliminates any legitimate explanation for the

adverse hiring decision and warrants, but does not require, a

determination that the plaintiff was the victim of unlawful

discrimination."   Verdrager, 474 Mass. at 397 (quotation

omitted).   Here, Scarlett has produced evidence that BPS

provided at least one false rationale for her nonrenewal, as

well as evidence from which a jury could infer that the

remaining rationales proffered were also false.   Coupled with

her prima facie showing, that was enough to survive summary

judgment.

     Conclusion.   So much of the judgment as dismisses count II

of the complaint is affirmed.   In all other respects, the

judgment is reversed.

                                    So ordered.




     17The judge erred in holding that Scarlett not only had to
come forward with evidence of pretext, but also had to produce
other "categories" of evidence directly suggestive of
discriminatory animus. See Bulwer, 473 Mass. at 681 (explaining
that defendant employer's argument that plaintiff must produce
specific evidence that pretext concealed discriminatory motive
"overstate[d] the plaintiff's burden at the summary judgment
stage because Massachusetts is a pretext only jurisdiction"
[quotation omitted]).
