MELISSA PACHECO v. UNIVERSITY OF MASSACHUSETTS & 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-984

MELISSA PACHECO

vs.

UNIVERSITY OF MASSACHUSETTS & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, an assistant dean at the University of

Massachusetts (UMass), claimed the defendants unlawfully

discriminated against her on the basis of sex in determining her

starting salary when she was promoted to that position. Her

amended complaint included counts under both the Massachusetts

Equal Pay Act (MEPA), G. L. c. 149, § 105A, and G. L. c. 151B,

§ 4. A judge of the Superior Court (motion judge) allowed the

defendants' motion for summary judgment on the c. 151B sex

discrimination claims and as to the MEPA claim against Karim;

the MEPA claims against Gunasekaran and UMass were tried to a

jury before a second judge (trial judge). The plaintiff

1 Angappa Gunasekaran and Mohammad Karim.
prevailed on her MEPA claims at trial. She appeals from the

summary judgments entered on the sex discrimination claims. We

affirm.

Background. "We summarize the findings set forth in the

order on the [defendants'] . . . motion[] for summary judgment,

supplemented by other uncontroverted facts in the summary

judgment record, . . . and viewing 'the evidence in the light

most favorable to the party against whom summary judgment was

entered,'" -- here, the plaintiff (citation omitted). Williams

v. Board of Appeals of Norwell, 490 Mass. 684, 685 (2022).

The plaintiff began working at UMass in 1996 and held

various positions. In July 2016, she applied for a promotion to

the position of assistant dean for graduate programs at one of

the UMass colleges. Gunasekaran was the dean of that college,

and Karim was the provost of UMass. Gunasekaran recommended the

plaintiff for the position.

As was the standard procedure at UMass, a compensation

analyst in the human resources department conducted a salary

analysis to determine the plaintiff's salary in her new role.

The analyst considered the job description, minimum and

preferred criteria for the job, and the plaintiff's credentials

compared to those of her peers. The analyst examined the

salaries of eight comparator employees, including those of

another assistant dean at the same UMass college and the person

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whom the plaintiff was replacing. In doing so, she did not

consider the $90,000 salary of an employee who held an interim

assistant deanship for four to six months and left UMass several

months before the plaintiff's promotion. The "strongest

comparators," as determined by the analyst, had starting

salaries (in 2011 and 2012) of $84,999.98. As part of the

salary analysis, the analyst reviewed these comparators'

resumes. In consultation with human resources, Gunasekaran

offered the plaintiff $85,000.

The plaintiff requested a higher salary and, after speaking

with the human resources analyst, Gunasekaran offered the

plaintiff $88,000, which she accepted. In arriving at this

figure, Gunasekaran and the analyst determined that it would not

be equitable to offer the plaintiff a higher salary than that

offered to the two comparator employees because they considered

these employees to be stronger candidates.

The plaintiff testified that Gunasekaran did not make any

comments about her gender during the application process for the

assistant dean position. She did not have any conversation with

Karim about her salary for that position.

Discussion. "The allowance of a motion for summary

judgment 'is appropriate where there are no genuine issues of

material fact in dispute and the moving party is entitled to

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judgment as a matter of law'" (citation omitted). Williams, 490

Mass. at 689.

We review a grant of summary judgment de novo to determine

whether, viewing the evidence in the light most favorable to the

nonmoving party, "all material facts have been established and

the moving party is entitled to judgment as a matter of law"

(citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786,

792 (2018). "The moving party bears the burden of affirmatively

demonstrating the absence of a triable issue." Milliken & Co.

v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008). "[A]

party moving for summary judgment in a case in which the

opposing party will have the burden of proof at trial is

entitled to summary judgment" if they demonstrate that the

opposing party "has no reasonable expectation of proving an

essential element of that party's case." Kourouvacilis v.

General Motors Corp., 410 Mass. 706, 716 (1991).

If the moving party carries its burden, "the party opposing

the motion must respond and allege specific facts establishing

the existence of a genuine issue of material fact." French King

Realty Inc. v. Interstate Fire & Cas. Co., 79 Mass. App. Ct.

653, 659-660 (2011). Even though summary judgment is disfavored

in employment discrimination cases of disparate treatment, "we

have upheld summary judgment in favor of an employer where 'the

plaintiff is unable to offer admissible evidence of the

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defendant's discriminatory intent, motive, or state of mind

sufficient to carry the plaintiff's burdens and support a

judgment in the plaintiff's favor.'" Sullivan v. Liberty Mut.

Ins. Co., 444 Mass. 34, 39 (2005), quoting Matthews v. Ocean

Spray Cranberries, Inc., 426 Mass. 122, 127 (1997).

To prove discrimination under G. L. c. 151B, an employee

must prove four elements, "membership in a protected class,

harm, discriminatory animus, and causation." Sullivan, 444

Mass. at 39. "Direct evidence of . . . discriminatory animus

and causation[] rarely exists, . . . and a plaintiff may

therefore establish one or both by indirect or circumstantial

evidence" under the paradigm described in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 802-805 (1973). Sullivan, 444

Mass. at 39.

A plaintiff's burden to establish "by the preponderance of

the evidence a prima facie case of discrimination" is "not

onerous." Sullivan, 444 Mass. at 40. The plaintiff "must

simply produce sufficient evidence that [the defendant's]

actions, if otherwise unexplained, are more likely than not

based on the consideration of impermissible factors" (quotation

and citation omitted). Id.

In support of her claim, the plaintiff cites (1) her

starting salary amount as compared to the then-current salaries

of male comparators and (2) two comments made by Gunasekaran

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during salary negotiations for one of the plaintiff's earlier

positions. We take these in order.

First, the summary judgment record established that

Pacheco's initial and increased salary offers came after UMass

conducted a salary analysis following its "standard procedure."

UMass examined the salaries of eight comparators of both sexes,

focusing most closely on two "strongest comparators."

Gunasekaran and the analyst concluded that, based on their job

experience, the two comparators (both men) were "stronger

candidates" than the plaintiff. Each had prior faculty

experience while the plaintiff had never held a faculty position

at a university or college. The position of assistant dean

required teaching at least one course per semester.

The two comparators were also distinguishable because each

had served in a supervisory position, one in the U.S. Army

R.O.T.C. and the other at a private company, while the plaintiff

had limited supervisory experience. For a position that

required "[c]ooperative and consultative leadership skills"

working with a diverse population, leadership experience was a

relevant, nondiscriminatory basis on which to distinguish

candidates' qualifications. See Delva v. Brigham & Women's

Hosp., Inc., 72 Mass. App. Ct. 766 (2008). Despite being less

qualified than the two comparators in the view of the analyst

and Gunasekaran, the plaintiff was offered a higher starting

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salary than either of them.2 Any salary disparity thus does not

amount to "objective evidence that [the plaintiff] has been

disadvantaged in respect to salary, grade, or other objective

terms and conditions of employment." MacCormack v. Boston

Edison Co., 423 Mass. 652, 663 (1996).

The plaintiff also alleged that, in meetings to discuss a

salary reclassification for her prior job, Gunasekaran said,

"[W]ell, I don't know what your husband makes," or words to that

effect, and, "[I]f my wife made more money I could sit home and

watch tv all day."3 The plaintiff maintains that these comments

implied that the plaintiff's husband was the real breadwinner

and that her salary was secondary because she is a woman.

Against the backdrop of undisputed facts about the salary

determination process, Gunasekara's sexist statements during an

earlier salary discussion, standing alone, are insufficient to

avoid summary judgment. Compare Adams v. Schneider Elec. USA,

492 Mass. 271, 277-278 (2023) (plaintiff sufficiently alleged

age discrimination where reductions in force disproportionately

2 The plaintiff's salary was offered in 2016 dollars while
those of the two comparators dated from 2011 and 2012. Although
these are presumably not the same, the plaintiff did not make
this argument, and the record is devoid of material that would
allow a comparison between the two.

3 Neither the complaint nor the interrogatory responses
places these comments precisely in time. They occurred during a
salary reclassification that spanned late July 2014 to at least
February 2016.

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affected older workers and internal e-mail messages focused on

replacing "age diversity" with plan to hire "early career

talents"); Sullivan, 444 Mass. at 47-48 (plaintiff sufficiently

alleged sex discrimination when asserted that defendant

disproportionately terminated women, disproportionately

reassigned her work to men, and retained men with lower

performance ratings). "[I]solated or ambiguous remarks, tending

to suggest animus based on [an impermissible basis], are

insufficient, standing alone, to prove an employer's

discriminatory intent." Fontaine v. Ebtec Corp., 415 Mass. 309,

314 n.7 (1993). In this case, unlike those noted by the court

in Fontaine, the remarks do stand alone. They are insufficient

to raise a disputed issue of material fact.

We take a moment to address the plaintiff's request that we

apply collateral estoppel based on the jury's verdict on the

MEPA claim and then award judgment in her favor on the c. 151B

claims against all three defendants. The argument fails for

several reasons. First, the plaintiff did not raise this

argument in the trial court. While she did file a motion to

reconsider on September 21, 2022, that was before the September

22 jury verdict. "Reliance on facts not before the motion judge

is improper. In our review of a motion for summary judgment we

are 'confined to an examination of the materials before the

court at the time the rulings were made.'" Fidelity Mgt. &

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Research Co. v. Ostrander, 40 Mass. App. Ct. 195, 200 (1996),

quoting Cullen Enters., Inc. v. Massachusetts Prop. Ins.

Underwriting Assn., 399 Mass. 889-890 n.9 (1987). Because the

jury verdict was not before the trial judge when she ruled on

the motion for reconsideration, it is not before us as we review

that ruling.

Second, our appellate jurisdiction extends only to the

review of rulings made by lower courts. See Mass. R. A. P.

3 (c) (1) (A) (ii), as appearing in 491 Mass. 1601 (2023) (in

civil cases, notice of appeal "shall designate" "the judgment,

decree, adjudication, or separately appealable order from which

the appeal is taken"). Although the plaintiff opposed the

motion for summary judgment, she did not seek entry in the

Superior Court of a judgment in her favor (e.g., by cross-moving

for summary judgment). Were we to find in favor of the

plaintiff, her remedy would be a remand, not the entry of

judgment in her favor that she now seeks.4

4 The plaintiff's argument that the judge should have
allowed her motion for reconsideration does not rise to the
level of appellate argument and we therefore do not consider it.
See Kellogg v. Board of Registration in Med., 461 Mass. 1001,
1003 (2011) (insufficient basis for appellate consideration
where appellant "failed to support his claims of error with
sufficient legal argument . . . and fail[ed] to cite to
sufficient supporting authority"). See also Mass. R. A. P.
16 (a) (9) (A), as appearing in 481 Mass. 1628 (2019)
("appellate court need not pass upon questions or issues not
argued in the brief"); Gaffney v. Contributory Retirement Appeal

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Although we do not reach the merits of the plaintiff's

collateral estoppel argument, we note that, in any event, the

issues raised by the two claims appear to be different. The

MEPA claim required no proof of discriminatory intent, see

Jancey v. School Comm. of Everett, 421 Mass. 482, 494 (1995),

while the c. 151B claim required such proof. G. L. c. 151B,

§ 4.

We conclude that summary judgment was properly allowed for

the defendants on the plaintiff's c. 151B claims.

Summary judgments dated
December 19, 2022,
affirmed.

By the Court (Englander,
Hershfang & Brennan, JJ.5),

Clerk

Entered: January 17, 2025.

Bd., 423 Mass. 1, 6 n.4 (1996) (conclusory statements in brief
do not rise to level of appellate argument).

5 The panelists are listed in order of seniority.

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