MARIE E. COLEMAN & Another v. CAMBRIDGE SAVINGS BANK.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-695

MARIE E. COLEMAN & another 1

vs.

CAMBRIDGE SAVINGS BANK.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiffs, Marie Coleman and Alda Soares, appeal from

a summary judgment in favor of the defendant, Cambridge Savings

Bank (CSB), on their employment discrimination claims brought

pursuant to the antidiscrimination statute, G. L. c. 151B, and

their promissory estoppel claims. The case arose from CSB's

termination of the plaintiffs' employment after they violated

CSB's bank vault security policy. We affirm the summary

judgment.

Background. We briefly summarize the facts from the

summary judgment record in the light most favorable to the

plaintiffs, reserving certain facts for later discussion. See

1 Alda V. Soares.
Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6

(2008).

CSB hired Coleman as assistant vice-president, branch sales

and service manager in 2013. She was an at-will employee, part

of the management team, and "generally was responsible for the

operations of [the Inman Square] branch" of CSB in Cambridge.

Coleman is an African-American woman who was over the age of

forty at all times relevant to the instant case.

CSB hired Soares in 1995, promoted her to retail operations

manager in 1998, and promoted her again to assistant branch

manager of its Inman Square branch (hereafter "Branch") in 1999.

She was part of the management team at CSB and was always an at-

will employee. Soares was over the age of forty at all times

relevant to the instant case.

CSB had a security policy that set out requirements for

bank vault access. The plaintiffs, "as part of their respective

roles in Branch management," were responsible for ensuring

compliance with the security policy, which included a "[d]ual

[c]ontrol procedure" requiring two people to be present each

time the bank vault was opened at CSB. Under the dual control

procedure, CSB split the combination to the vault into an "A"

combination and "B" combination, and CSB prohibited any single

person from having access to the entire vault combination.

Coleman, Soares, and the head teller, Nilsa Brita-Barbosa, held

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the A combination and the tellers at the Branch held the B

combination to the vault. CSB also required the Branch to

"maintain a log on which each person present when the vault was

opened was to sign the log to attest that at least two people

were present when the vault was opened." If the Branch needed

to open the vault but individuals with the A or B combination

were not present, staff "were required to call [CSB]'s

Operations Department so that [it] could provide the missing

portion of the vault combination and then reset the entire vault

combination." Both plaintiffs knew of this requirement, and, in

fact, had invoked the procedure and contacted CSB's Operations

Department in January of 2016.

On February 10, 2016, Coleman was present at the Branch

when the vault was to be opened, but no person with the B

combination was present. In an effort to open the Branch for

business, Coleman contacted the employee with the B combination

who was out sick that day and CSB's Operation's Department, but

neither responded. Coleman then retrieved a copy of the B

combination that she and Soares, who was not present at the

Branch at the time, previously decided to store in Soares's

office desk. The B combination was stored in Soares's desk for

approximately one week. An employee with the B combination had

placed the B combination inside of a sealed envelope that Soares

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never opened. Coleman and Soares knew that storing the B

combination in that location and manner violated CSB policy.

Aware that she was being filmed by the Branch's security

system, Coleman used the stored B combination to open the vault

in the presence of head teller Brita-Barbosa. All cash and

negotiable instruments were secured in separate money vaults

with different combinations that Coleman did not possess. Both

Coleman and Brita-Barbosa signed the vault log to indicate their

presence when the vault was opened, but Coleman did not contact

the Operations Department to reset the vault's combination. CSB

learned of the policy violation from Brita-Barbosa.

On February 18, 2016, Carol Sexton and Christine Mauras of

CSB's Operations Department met with Coleman to discuss the

February 10 incident. Coleman was less than forthcoming and at

one point provided a false explanation regarding some of the

events at issue. Coleman later claimed that she had fallen down

the stairs at home the day before the meeting and felt dizzy

during the meeting.

On February 22, 2016, Mauras and David Walker, also of

CSB's Operations Department, met with Soares to discuss the

events of February 10. In that meeting, Soares admitted to

storing the B combination to the vault in her desk and signing

the vault log for the opening on February 10, even though she

was not present for the vault opening that day. Soares knew

4
that she was required to sign the vault log when the vault was

opened, and not at some later time.

On March 3, 2016, CSB terminated Coleman's employment for

violating the security policy, in particular the dual control

procedure. That same day, CSB also terminated Soares's

employment for violating the security policy, in particular the

dual control procedure, and for "falsifying the [v]ault [l]og."

There was no evidence that any other CSB employee had violated

the dual control procedure in any of CSB's branches.

Coleman and Soares contend that CSB's decision to terminate

their employment was an act of age discrimination. Coleman

further claims that CSB's decision to terminate her employment

was an act of race discrimination. 2

Discussion. Summary judgment is appropriate where "there

is no genuine issue as to any material fact and . . . the moving

party is entitled to a judgment as a matter of law." Mass. R.

Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). In reviewing

a grant of summary judgment, we assess the record de novo and

2 In their brief, the plaintiffs assert that they "were subjected
to a hostile work environment." We note that count five of the
plaintiffs' complaint, in which Coleman alleged a "failure to
supervise" that subjected her "to a hostile work environment,"
was previously dismissed upon CSB's motion to dismiss. In any
event, as discussed infra, the evidence the plaintiffs cite in
support of their age and race discrimination claims is
speculative, conclusory, supported by citations to the record
that do not stand for the propositions cited, and thus
insufficient as a matter of law.

5
take the facts, together with all reasonable inferences to be

drawn from them, in the light most favorable to the nonmoving

party. See Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119

(2010). "[T]he court does not 'pass upon the credibility of

witnesses or the weight of the evidence [or] make [its] own

decision of facts.'" Shawmut Worcester County Bank, N.A. v.

Miller, 398 Mass. 273, 281 (1986), quoting Attorney Gen. v.

Bailey, 386 Mass. 367, 370, cert. denied, 459 U.S. 970 (1982).

1. Employment discrimination. An employee bringing a

complaint under G. L. c. 151B, § 4, must demonstrate that: (1)

the employee is a member of a protected class; (2) the employee

was subject to an adverse employment action; (3) the employer

bore discriminatory animus in taking that action; and (4) animus

was the actual reason for that action (i.e., causation). See

Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016). As to

both the race and age discrimination claims, there is no dispute

that both plaintiffs are members of a protected class and were

subject to an adverse employment action. Thus, this case turns

on discriminatory animus. "Because . . . direct evidence [of

the elements of discriminatory animus and causation] rarely

exists, . . . an employee plaintiff [asserting discrimination]

may also survive [a summary judgment motion] by . . .

using . . . [a] three-stage, burden-shifting paradigm"

(quotations and citations omitted). Id. at 680-681. At the

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first stage of this paradigm, plaintiffs bear the burden to

demonstrate a prima facie case of discrimination by providing

"evidence that: (1) [they are] a member of a class protected by

G. L. c. 151B; (2) [they] performed [their] job at an acceptable

level; [and] (3) [they were] terminated." Id. at 681, quoting

Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.

437, 441 (1995). At the second stage, an employer "can rebut

the presumption created by the prima facie case by articulating

a legitimate, nondiscriminatory reason for its [employment]

decision." Blare, supra. At the third stage, "the burden of

production shifts back to the plaintiff employee, requiring the

employee to provide evidence that 'the employer's articulated

justification [for the termination] is not true but a pretext.'"

Bulwer, supra at 681, quoting Blare, supra at 443.

The present case hinges on whether in the face of the

legitimate, nondiscriminatory reason for the adverse employment

action -- here, the violation of the dual control policy and

Soares's falsification of the vault log -- the plaintiffs

provided evidence that the employer's articulated justification

"is not true but a pretext." Bulwer, 473 Mass. at 681.

As to Coleman's race discrimination claim, she contends,

inter alia, that the evidence of pretext included the following:

during the course of her employment at CSB, there were "no

individuals in upper management who were Black"; CSB's "lack of

7
commitment to a diverse workforce and workplace culture made

[her] very uncomfortable"; one of CSB's operations managers

"would make racist comments concerning the dress of Black

employees" but "would not make such comments concerning

Caucasian employees"; "Coleman's termination, without warning,

stands in stark contrast to the treatment of white male managers

under similar circumstances"; and CSB replaced Coleman with a

white male without considering any African-American candidates.

As to the plaintiffs' age discrimination claims, Coleman and

Soares contend, inter alia, that it was standard policy for CSB

"to prefer younger employees for hiring and promotion to

management positions"; that "older employees were encouraged to

accept lower positions"; that CSB replaced them with younger

employees; and that Soares was "subjected to ageist belittling."

The plaintiffs' arguments suffer from a lack of evidentiary

support. At the outset, we note that the plaintiffs claim that

CSB refused to respond to discovery requests seeking to

"identify each [CSB] employee aged [forty] or older that [CSB]

discharged or laid off in the last ten years," the persons

filling those positions, and "each African-American hired to a

management position within the last ten (10) years." The

plaintiffs make repeated refences to this alleged discovery

violation and contend that it is "telling," and constitutes

"unrefuted evidence" supporting their claims of age and race

8
discrimination. We disagree. There are myriad reasons for a

party to object to discovery requests. The Massachusetts Rules

of Civil Procedure provide mechanisms, including motions to

compel, to resolve discovery disputes. See Mass. R. Civ. P. 26,

as amended, 474 Mass. 1401 (2016); Mass. R. Civ. P. 37, as

amended, 423 Mass. 1406 (1996). Here, as plaintiffs

acknowledged at oral argument, they did not file any motion to

compel or otherwise avail themselves of any mechanism in the

Superior Court to require production of such information.

Having failed to do so, they cannot claim that the unprovided

discovery constitutes "evidence." Indeed, they neither cite to

any authority for this proposition nor are we aware of any. 3

Consequently, the record does not contain comparator or

statistical evidence to support the plaintiffs' claims.

Contrast Adams v. Schneider Elec. USA, Mass., No. SJC-13352,

slip op. at 21 (June 21, 2023) (statistical data indicated

"layoffs had a disproportionate effect on employees over

fifty").

3 The record before us does not reveal the propriety of CSB's
objections or refusal to comply with all discovery requests and
we do not speculate or opine as to the wisdom or fairness of
CSB's actions. We merely note that to the extent that the
plaintiffs believed that CSB withheld available relevant
discovery, the plaintiffs had an obligation to act in the
Superior Court to try to obtain such information and did not do
so.

9
Of course, statistical data is not available in all cases

and, in any event, is not required to prove pretext in a

discrimination claim. See Blare, 419 Mass. at 439

(discriminatory intent "rarely is established by other than

circumstantial evidence"). This brings us, however, to another

shortcoming in the plaintiffs' claim: the lack of actual

admissible evidence in the summary judgment record to support

the plaintiffs' assertions.

As evidence of pretext in their age discrimination claim,

the plaintiffs contend that by 2015, CSB's standard policy was

to prefer younger employees for hiring and promotion to

management positions. As evidence of that claim, the plaintiffs

cite to Soares's deposition transcript wherein she testified

that "even the setup of [CSB] was" designed to "attract more

younger people, the students from Harvard and MIT, things like

that"; that "it feels like -- to me, it's like they were trying

to put more of an age group that is more -- more that -- more

comparable to what the new -- the people they're trying to

serve"; that "it feels like [CSB did not] want . . . older

people, like, to be a head of the department or a head of the

branch." She further testified that "it was more like all these

young crowds . . . they come at the lower pay than us, probably,

I'm assuming. I -- that, I don't know for sure." Finally, she

testified that she felt that her age was a factor. Far from

10
demonstrating a standard policy, this testimony is speculative

and does not rise the level of evidence of pretext. A

plaintiff's feeling, suspicion, or unsupported statement does

not constitute admissible evidence at summary judgment. See,

e.g., White v. University of Massachusetts at Boston, 410 Mass.

553, 558 (1991); Brooks v. Peabody & Arnold, LLP, 71 Mass. App.

Ct. 46, 56 (2008), quoting Medina-Munoz v. R.J. Reynolds Tobacco

Co., 896 F.2d 5, 8 (1st Cir. 1990) ("Even in cases where elusive

concepts such as motive or intent are at issue, summary judgment

may be appropriate if the nonmoving party rests merely upon

conclusory allegations, improbable inferences, and unsupported

speculation"). Contrast Adams, No. SJC-13352, slip op. at 20-23

(plaintiff established genuine issue of material fact whether

employer had policy to remove older staff for younger hires

where evidence showed that, inter alia, layoffs had a

disproportionate effect on older employees and corporate

executives repeatedly "expressed concern about the age of their

workforce," "stressed the need to make room for . . . younger

talent," and suggested strategies to change the "demographics

mix" through terminating older workers to hire younger college

graduates).

The plaintiffs also argue, citing the deposition of a

former CSB employee, Nikolay Hristov, that CSB "made it a

practice to hire white males under age [forty] to fill [CSB]

11
management positions." Asked "[w]hat facts [he was] relying on

to make that assertion," Hristov testified that Coleman and

Soares were let go in favor of younger managers. He further

testified that "there was a tendency [to] just promote white

males, as far as I remember in [the] Newtonville branch, that's

what I recall, it was younger guy got promoted, and I just don't

remember the rest of it, but it was kind of obvious." In other

words, as evidence of their claim that CSB's actions were

pretextual, the plaintiffs cite to Hristov's testimony (1)

repeating that the plaintiffs themselves were terminated in

favor of younger managers, and (2) his uncertain recollection,

unsupported by specific facts, of CSB's "tendency." Moreover,

Hristov acknowledged that when he was under the age of forty,

his manager at CSB had discouraged him from applying for

promotions, yet, after he was over the age of forty, CSB

promoted him. 4 Asked again, in light of his promotion after he

turned forty, to explain the basis for his claim that "it was

the standard policy and procedure" of CSB to prefer white males

under the age of forty, Hristov responded, "I mean, it looked

that way." Here again, we note that mere statements of belief

or bare allegations unsupported by actual evidence, are

4 Hristov further testified that he thought his promotion was not
"about the age, it was about the experience," but when asked if
he believed CSB makes promotion decisions based on candidates'
experience, he responded that he did not "know what [CSB] does."

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insufficient to defeat a moving party's motion for summary

judgment. See White, 410 Mass. at 558; Brooks, 71 Mass. App.

Ct. at 56. In any event, not only does Hristov's conclusory

testimony fail to support the claim of CSB's alleged "standard

policy"; it contradicts the claim as well.

Another means of establishing that an employer's proffered

reason for termination is a pretext for discrimination is to

demonstrate that "similarly situated" employees "in terms of

performance, qualifications and conduct" were treated

differently. See Matthews v. Ocean Spray Cranberries, Inc., 426

Mass. 122, 129 (1997), quoting Smith v. Stratus Computer, Inc.,

40 F.3d 11, 17 (1st Cir. 1994). Here, to support the claim that

Coleman's termination was in "stark contrast to the treatment of

white male managers under similar circumstances," the plaintiffs

cite only to Coleman's deposition testimony stating that a white

male manager "gave out money without a withdrawal slip" in 2014

or 2015 and was promoted rather than terminated. Coleman's

knowledge of this incident was based on hearsay statements told

to her by others, and she could not recall any further details.

This argument is thus unavailing.

We note that the plaintiffs do not contend that Brita-

Barbosa was a similarly situated individual who was treated

13
differently. 5 That notwithstanding and viewing the evidence in

the light most favorable to the nonmoving party, even assuming

arguendo that the plaintiffs implicitly contend that Brita-

Barbosa is a similarly situated individual such that CSB's

failure to discipline her demonstrates that the plaintiffs'

termination was pretextual, the argument is unavailing. Putting

aside that the record is silent as to Brita-Barbosa's age or

race, her being "present" when Coleman opened the vault and

signing the vault log to document her presence is not "of

comparable seriousness" to the plaintiffs' conduct. Matthews,

426 Mass. at 130. That Brita-Barbosa is the person who reported

the incident to CSB further demonstrates that there are

"differentiating or mitigating circumstances that would

distinguish their situations" (quotation and citation omitted). 6

5 The plaintiffs state in their brief, without any further
elaboration or legal argument, that "[a]lthough Ms. Brita-
Barbosa also signed the vault log and was present when the vault
was opened she was not disciplined by [CSB]." Furthermore, not
only did the plaintiffs not argue that Brita-Barbosa was a
similarly situated individual for purposes of showing pretext;
the plaintiffs disputed the inclusion of Brita-Barbosa's
statements in the summary judgment record on the ground that
they were inadmissible hearsay, and moved to strike them as
well.
6 While the plaintiffs disputed the inclusion of Brita-Barbosa's

statements in Sexton's and Mauras's affidavits in the summary
judgment record on the ground that they were inadmissible
hearsay, they did not dispute the fact that Brita-Barbosa
informed CSB of the incident.

14
Id. Furthermore, the plaintiffs' assertion that CSB did not

discipline Brita-Barbosa is unsupported by the record. 7

As further evidence of alleged pretext to support her race

discrimination claim, Coleman argued that one of CSB's

operations mangers "would make racist comments concerning the

dress of Black employees." Asked at her deposition to identify

such comments, Coleman clarified that she was referencing one

comment made by Sexton about the "undergarments" worn by a Black

customer service employee who worked in the Harvard Square

branch of CSB. 8

Coleman also contends that CSB replaced her with a white

male without considering any African-American candidates, and

that this action also constituted evidence of pretext. Even

assuming an admissible basis exists for this conclusory claim,

the record reflects that Coleman and Soares were terminated on

the same day, and CSB hired an individual who "identifies as

Black or African American" to replace Soares.

Finally, asked to list each act of race discrimination,

Coleman testified that there "was a lack of individuals who were

7 As evidence that Brita-Barbosa was not disciplined by CSB, the
plaintiffs cite only to Sexton's deposition testimony that she
could not recall whether Brita-Barbosa was disciplined.
8 Although Coleman's testimony is somewhat unclear, taken in the

light most favorable to the plaintiffs, Sexton commented that
the customer service employee's "skirt was so short you could
see her panties."

15
culturally diverse"; that another African-American woman was

hired on the same day that Coleman was hired; and that there

were no individuals in upper management who were Black. These

allegations suffer from the same problem as the above-referenced

claims. The plaintiffs raise broad allegations of age and race

discrimination, but the cited record references underlying each

assertion reveal conclusory, speculative, unsupported, and even

contradictory evidence. 9 Thus, even apart from the absence of

comparator or statistical evidence, the plaintiffs offer

insufficient anecdotal or other evidence to support their

discrimination claims as a matter of law. "Against the

preponderant information of the record, a finding of pretext

would require a speculative leap well beyond the length of a

reasonable inference." Chi Sang Poon v. Massachusetts Inst. of

Tech., 74 Mass. App. Ct. 185, 199 (2009).

2. Promissory estoppel. The plaintiffs also assert that a

rational jury could find that the plaintiffs reasonably relied

on CSB's promise to adhere to the progressive discipline policy

in their employee handbook. We disagree.

"An essential element under the promissory estoppel theory

is that there be an unambiguous promise and that the party to

9 We note that the excerpts from depositions included in the
record are, as the motion judge highlighted below, "highly
fragmented" and "appear to be purposefully missing pages that
would have afforded more context."

16
whom the promise was made reasonably relied on the

representation." Rhode Island Hosp. Trust Nat'l Bank v.

Varadian, 419 Mass. 841, 848 (1995), quoting Pappas Indus.

Parks, Inc. v. Psarros, 24 Mass. App. Ct. 596, 599 (1987).

Here, the progressive discipline policy states, inter alia, that

"[p]rogressive discipline is a standard method of upgrading the

performance and/or conduct of employees having difficulty

meeting [CSB's] expectations"; that the policy is "not intended

in any way to alter the employment at will relationship between

[CSB] and its employees"; and that CSB "at all times retains the

discretion to modify or eliminate any or all of the following

procedures according to the circumstances of the disciplinary

matter." Both plaintiffs testified during their depositions

that they understood that the policy did not alter their at-will

employment relationship. 10 Accordingly, the plaintiffs'

promissory estoppel claim is insufficient as a matter of law

where they can neither show that CSB made an unambiguous promise

to adhere to the progressive discipline policy prior to

10Coleman understood that with respect to its progressive
discipline policy, CSB was "not committing to following any
particular steps." Similarly, when asked about the portion of
the policy that states that "[t]he following progressive
discipline procedures are not intended in any way to alter the
employment-at-will relationship between [CSB] and its
employees," Soares acknowledged that "you can still be terminate
-- you know, that it's -- are not intended to -- that [the
policy] is not like a contract."

17
termination, nor that they reasonably relied on it. See

Varadian, supra at 848-850. 11

Judgment affirmed.

By the Court (Wolohojian,
Neyman & Smyth, JJ. 12),

Clerk

Entered: August 17, 2023.

11 To the extent that we have not specifically addressed
subsidiary arguments in the parties' briefs, they have been
considered, and do not warrant further discussion. See
Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
12 The panelists are listed in order of seniority.

18