MARY REGAN v. DEBORAH HOOPER & Others.

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

23-P-56

MARY REGAN

vs.

DEBORAH HOOPER & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Mary Regan, appeals from a Superior Court

judgment entered following the grant of summary judgment in

favor of her former employer and two supervisors on her claims

of gender discrimination, retaliation, interference, and aiding

and abetting under G. L. c. 151B. We vacate the judgment on the

claim of gender discrimination and remand for further

proceedings. We affirm the judgment on the claims of

retaliation, interference, and aiding and abetting.

Background. We summarize the basic facts in the light most

favorable to Regan, as the party opposing summary judgment,

drawing all reasonable inferences in her favor. See Bulwer v.

1 President and Fellows of Harvard College and Denis Collet.
Mount Auburn Hosp., 473 Mass. 672, 680 (2016). In August 2011,

President and Fellows of Harvard College (Harvard) hired Regan

as Associate Portfolio Director for the Executive Education

program at Harvard Business School (HBS). Her responsibilities

included ensuring the overall success of a portfolio of open

enrollment and global programs that provided seminars taught by

HBS faculty to business executives. In July 2013, Regan was

promoted to portfolio director. Throughout Regan's employment

at HBS, Deborah Hooper directly supervised her, and Denis Collet

was the Associate Director or Director of Human Resources.

In January 2016, Hooper told Regan that certain HBS faculty

members were unhappy with her performance. Hooper met with

Regan and raised issues about her "aggressive" style,

"inappropriate body language," "angry" appearance, and having

her office door closed. She directed Regan to meet with Collet.

On January 25, 2016, Regan met with Collet and expressed

"concern[] about the stereotypical gender-related critiques made

about [her]." After the meeting, Collet emailed his supervisor

that

"[i]t is going to be a longer process with [Regan]. She
expressed concern about a lack of process and the fact that
concerns with her performance haven't been clear or
documented as a part of a performance improvement
plan . . . she's stated she hasn't heard negative feedback
and at the very least deserves the opportunity to improve
on aspects of her personality that are not meeting
expectations."

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On February 11, 2016, Regan emailed Collet, "I want to put on

record that the way I have been treated by my manager, Deborah

Hooper, and by HBS is discriminatory, based on my being a

female." She also stated that she had hired legal counsel and

that if her employment situation was not resolved amicably, she

expected to file a complaint for sex discrimination with the

Massachusetts Commission Against Discrimination.

In March 2016, Harvard provided Regan with the option to

resign with a separation package or stay in her position subject

to a Performance Improvement Plan (PIP). Regan remained in her

job and accepted the PIP. On May 13, 2016, Regan received the

PIP from Hooper. According to Harvard, the PIP identified areas

of concerns and expected improvements Regan must make. Regan

believed that the PIP was "harsh and punitive, made false

statements about [her] job performance and [] used as a means to

terminate [her] employment." The PIP stated Regan would have to

show marked improvement by July 8, 2016 "or disciplinary action

may be taken." After receiving the PIP, Regan met weekly with

Hooper.

On June 3, 2016, Regan submitted a written rebuttal to the

PIP. During that week, Harvard began to plan to terminate

Regan’s employment. On June 14, 2016, Hooper emailed her direct

supervisor that she and Collet "discussed whether final

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conversation [regarding terminating Regan] would happen next

week or [the] week after." Harvard terminated Regan's employment

on July 12, 2016.

Discussion. "Our review on summary judgment is de novo."

Yee v. Massachusetts State Police, 481 Mass. 290, 294 (2019).

"In considering a motion for summary judgment, we review the

evidence and draw all reasonable inferences in the light most

favorable to the nonmoving party." Verdrager v. Mintz, Levin,

Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016),

quoting Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777

(2013). The moving party has "the burden of establishing that

there is no genuine issue as to any material fact and that [it

is] entitled to judgment as a matter of law" (citation omitted).

Verdrager, supra, quoting Drakopoulos, supra.

1. Discrimination. Regan contends that the judge used an

incorrect standard in determining that she had failed to

establish a prima facie case of gender discrimination against

Harvard for the purposes of summary judgment. We agree.

To prove employment discrimination at trial, an employee

must demonstrate (1) membership in a protected class, (2) harm

by being subject to an adverse employment action by an employer,

(3) discriminatory animus by the employer in taking that action,

and (4) a causal relationship between the animus and the adverse

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action. See Bulwer, 473 Mass. at 680. At summary judgment,

there are two distinct paths available to a plaintiff to prove

the third and fourth elements of discrimination. A plaintiff

"may survive a motion for summary judgment by providing [d]irect

evidence of [the] elements of discriminatory animus and

causation" (quotation and citation omitted). Id. at 680-681.

However, because direct evidence to support these elements

"rarely exists," a plaintiff may also survive such a motion by

providing "indirect or circumstantial evidence [of

discriminatory animus and causation] using the familiar three-

stage, burden-shifting paradigm first set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802-805 (1973)" (quotation

and citation omitted). Bulwer, supra.

The first stage of this paradigm requires the plaintiff to

prove a prima facie case of discrimination. See Bulwer, 473

Mass. at 681. If the plaintiff meets this burden, the second

stage requires the employer to rebut the presumption of

discrimination established by the plaintiff by "articulating a

legitimate, nondiscriminatory reason" for the adverse action

(citation omitted). Id. If the employer meets its burden, the

third and final stage requires the plaintiff to present evidence

that "the employer's articulated justification . . . is not true

but a pretext" (citation omitted). Id.

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Here, the judge began her analysis by acknowledging the

proper standard, stating that the case "must be approached using

the three-part burden-shifting analysis." However, the judge

then analyzed Regan's discrimination claim based on the

evidentiary burden required at trial, including the element of

causation. See Bulwer, 473 Mass. at 680. In a discrimination

case arising from a termination, the plaintiff's prima facie

case at summary judgment has only three elements: (1) membership

in a class protected by G. L. c. 151B, (2) job performance at an

acceptable level, and (3) termination. See id. at 680-681.

Causation is not one of these elements. Rather, causation is

relevant at the third stage of the burden-shifting paradigm.

Additionally, although applicable to a plaintiff's burden of

proof of causation at trial, see Trustees of Health & Hosps. of

Boston, Inc., v. Massachusetts Comm'n Against Discrimination,

449 Mass. 675, 682-683 (2007), evidence that Regan was treated

differently than a male comparator was not required as part of

her prima facie case.2 Thus, it was also error for the judge to

consider comparator evidence.

2. Retaliation. Regan also argues that summary judgment

was improper on her retaliation claim against Harvard. "A claim

2 Because the judge determined that Regan did not
demonstrate a prima facie case of discrimination, she did not
reach the other stages of the burden-shifting paradigm.

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of retaliation is separate and distinct from a claim of

discrimination." Verdrager, 474 Mass. at 405. To make out a

prima facie case of retaliation, Regan was required to show

(1) her engagement in protected conduct, (2) the infliction of

some adverse action by Harvard, and (3) a causal connection

between the two. See Osborne-Trussell v. Children's Hosp.

Corp., 488 Mass. 248, 260 (2021).

The chronology of events is one method to prove causation,

see Verdrager, 474 Mass. at 407, but Regan's effort to do so

here fails. Although a causal link may be inferred "[w]here

adverse employment actions follow close on the heels of

protected activity, . . . as the elapsed time between those two

events becomes greater, the inference weakens and eventually

collapses." Mole v. University of Mass., 442 Mass. 582, 595

(2004). "The cases that accept mere temporal proximity between

an employer's knowledge of protected activity and an adverse

employment action as sufficient evidence of causality to

establish a prima facie case uniformly hold that the temporal

proximity must be 'very close.'" Id., quoting Clark County Sch.

Dist. V. Breeden, 532 U.S. 268, 273 (2001). Generally, the

adverse employment action must be "in the immediate aftermath of

the employer's becoming aware of the employee's protected

activity," Mole, supra, at 592, and periods of multiple months

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are insufficient. See Dube v. Middlesex Corp., 59 Mass. App.

Ct. 734, 741 n.3 (2003) ("one event following another is not, by

itself, sufficient evidence of causality to establish a prima

facie case of unlawful retaliation, particularly where . . . the

two events are separated by months, not days"). Here, where

approximately five months separated Regan's February 2016

written complaints of discrimination from her July 2016

termination, a causal connection between the events cannot be

established by temporal proximity.3 We thus conclude that

summary judgment was proper on Regan's claim of retaliation.

3. Interference and aiding and abetting. Finally, Regan

argues that we "should uphold [her] claims against the

individual defendants." Her brief does not identify the

elements for the claims of interference and aiding and abetting

under G. L. c. 151B or offer legal authority supporting her

position. Instead, Regan merely quotes the portion of the

statute that states that individuals may be held liable for

perpetuating or assisting another who violates G. L. c. 151B;

baldly asserts that Hooper and Collet knew that Regan had

claimed that "the allegations against her [of substandard job

3 We are not persuaded by Regan's argument that the
calculation of temporal proximity effectively "restarted" after
her rebuttal email in June 2016 in response to receiving the PIP
from Harvard.

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performance] were false, discriminatory, and pretextual, but

they did not investigate;" and suggests that a jury should be

allowed to evaluate the evidence. We therefore decline to

consider Regan's implicit argument that the judgment on these

claims was in error because briefing on the issue does not rise

to the level of appellate argument. See Commonwealth v.

Beverly, 485 Mass. 1, 16 (2020), citing Mass. R. A. P. 16 (a)

(9) (A), as appearing in 481 Mass. 1628 (2019). In any event,

we agree with the motion judge that there was no evidence that

Hooper or Collet committed a "wholly individual [and] distinct

wrong," separate from the discrimination and retaliation claims

against Harvard, see Lopez v. Commonwealth, 463 Mass. 696, 713

(2012), and thus affirm the judgment on the claims of

interference and aiding and abetting.

Conclusion. The judge used an incorrect standard in

determining that Regan had failed to establish a prima facie

case of gender discrimination, therefore we vacate the judgment

for Harvard and remand for further proceedings on the gender

discrimination claim. Because Regan failed to establish a

causal relationship between her protected conduct and

termination of her employment, we affirm the judgment on her

claim of retaliation against Harvard. Finally, declining to

consider Regan's argument, but noting that there was no evidence

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to support the claims against the individual defendants, we

affirm the judgment on the claims of interference and aiding and

abetting.4

So ordered.

By the Court (Meade, Blake &
Brennan, JJ.5),

Clerk

Entered: August 16, 2024.

4 The parties' requests for fees, damages, and costs are
denied.

5 The panelists are listed in order of seniority.

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