David R. Knightly v. Town of Amherst.

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-686

DAVID R. KNIGHTLY

vs.

TOWN OF AMHERST.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, David R. Knightly, retired from the Amherst

police department (department) as a lieutenant, after having

been passed over for promotion to captain. He brought the

underlying Superior Court action against the defendant town of

Amherst (town), alleging that by failing to promote him to

captain, the town retaliated against him for having previously

brought discrimination claims against the town. A Superior

Court judge entered summary judgment in favor of the town, and

the plaintiff appeals. We affirm.

Background. We draw the facts from those in the summary

judgment record which the parties have agreed are undisputed,

considering them in the light most favorable to the plaintiff,

the party against whom summary judgment entered. See Flint v.

Boston, 94 Mass. App. Ct. 298, 299 (2018). In December 2017,
the plaintiff filed with the Massachusetts Commission Against

Discrimination (MCAD) a charge (2017 MCAD charge) alleging

discrimination against the town. After withdrawing the 2017

MCAD charge, in August 2018 the plaintiff filed a complaint

(2018 complaint) in Superior Court against both the town and the

department, alleging discrimination based on age, handicap, and

gender. The 2018 complaint also alleged that the town and the

department had retaliated against him in violation of G. L.

c. 151B, § 4, for bringing the age and gender discrimination

claims.

In 2019, the plaintiff was one of four lieutenants in the

department, all of whom applied for promotion to a single vacant

position of captain. The plaintiff had more seniority than the

other three candidates.1 Effective February 8, 2019, one of the

other lieutenant candidates was promoted to the position as

captain. On December 4, 2019, the plaintiff filed with the MCAD

a retaliation charge against the town.

In April 2020, on the 2018 complaint, a Superior Court

judge allowed summary judgment for the town on the plaintiff's

discrimination claims and his retaliation claim under G. L.

c. 151B, § 4 (4), but denied summary judgment on the plaintiff's

1 The department is not subject to the civil service statute,
G. L. c. 31. If it were, G. L. c. 31, § 8, may have provided
the plaintiff with an advantage in promotion based on "greatest
length of service" of the four candidates.

2
G. L. c. 151B, § 4 (4A), retaliation claim arising from

statements allegedly made by the police chief in September and

December 2017.2

In May 2021, the plaintiff filed against the town the

complaint at issue here (2021 complaint), alleging that the town

violated G. L. c. 151B, § 4, by denying his application for

promotion to captain in retaliation for his having previously

engaged in protected activity by filing the 2017 MCAD charge.3 A

Superior Court judge sua sponte consolidated the case involving

the 2021 complaint with the one involving the remaining count on

the 2018 complaint. In June 2022, the same judge allowed the

town's motion for summary judgment on the 2021 complaint, and

judgment entered for the town. The plaintiff filed timely

notice of appeal.4

2 The judge noted that Knightly clarified for the first time in
his post-hearing brief that his retaliation claim is brought
under both G. L. c. 151B, § § 4 (4) and 4 (4A), and he added a
further basis for his retaliation claim that he was not promoted
from lieutenant to captain in February 2019. The judge held
that the nonpromotion claim had not been brought to MCAD and was
not encompassed within the complaint.

3 The 2021 complaint did not specify a subsection of G. L.
c. 151B, § 4, nor did it allege facts to support a claim that
any person had "coerce[d], intimidate[d], threaten[ed], or
interfere[d] with" the plaintiff in the exercise or enjoyment of
his rights as an employee as prohibited by § 4 (4A).

4 As of oral argument, the remaining count of the 2018 complaint
was pending and scheduled for trial. The question has not been
raised as to whether the summary judgment on the 2021 complaint
is immediately appealable. See Trenz v. Family Dollar Stores of

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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," here, the plaintiff (citation

omitted). Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky &

Popeo, P.C., 474 Mass. 382, 395 (2016). The town, as 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). Id.

A claim of retaliation is a separate and distinct claim

from one for discrimination, and a retaliation claim may succeed

even if the underlying discrimination claim fails. See Abramian

v. President & Fellows of Harvard College, 432 Mass. 107, 121-

122 (2000). Although the word "retaliation" is not used in

G. L. c. 151B, see Verdrager, 474 Mass. at 405 n.33, the concept

Massachusetts, Inc., 73 Mass. App. Ct. 610, 613 (2009) (where
summary judgment is ordered on one of two consolidated cases,
appellant must obtain Mass. R. Civ. P. 54 (b) certification
allowing immediate appeal). Under the particular circumstances
here, however, we are of the view that the judge's sua sponte
consolidation of the two cases did not result in this case
losing its separate status for purposes of the final judgment
requirement. While the better practice would have been to
obtain a Mass. R. Civ. P. 54 (b) certification, here we will
consider the appeal because "[d]ismissal of the appeal would
serve no purpose and might require the parties to return to
reargue issues already briefed and argued" (quotation and
citation omitted). Commercial Wharf E. Condominium Ass'n v.
Boston Boat Basin, LLC, 93 Mass. App. Ct. 523, 532 n.20 (2018).

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is contained within the meaning of G. L. c. 151B, § 4 (4), which

provides that it is an unlawful practice for an employer "to

discharge, expel or otherwise discriminate against any person

because he has opposed any practices forbidden under this

chapter or because he has filed [an MCAD charge]." See Bain v.

Springfield, 424 Mass. 758, 765 (1997). A failure to promote

may constitute retaliation. Cf. Verdrager, supra at 406 ("step-

back" was retaliatory).

To survive summary judgment on his retaliation claim, the

plaintiff was required to produce evidence from which a jury

could infer (1) that he "reasonably and in good faith believed

that the [town] was engaged in wrongful discrimination";

(2) that he "acted reasonably in response to the belief" by

engaging in protected activity, here, by filing the 2017 MCAD

charge; (3) that the town "took adverse action against" him,

here, by failing to promote him in 2019; and (4) "that the

adverse action was a response to [his] protected activity"

(quotations and citations omitted). Verdrager, supra at 405-

406. For the purposes of summary judgment, the town concedes

the first three elements, but argues that the plaintiff did not

produce evidence as to causation.

Because employees claiming retaliation often cannot produce

direct evidence that an employer's "forbidden motive" caused the

adverse action, courts apply "a three-stage burden-shifting

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paradigm." Verdrager, 474 Mass. at 406, citing McDonnell

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

applied in this case, the first stage required the plaintiff to

produce evidence that he "suffered some adverse action, and that

'a causal connection existed between the protected conduct and

the action.'" Verdrager, supra, quoting Mole v. University of

Mass., 442 Mass. 582, 591-592 (2004). At the second stage, the

town would be required to articulate "a legitimate,

nondiscriminatory reason" for not promoting the plaintiff.

Verdrager, supra, quoting Elser v. Sylvia-Reardon, 473 Mass.

775, 780 n.7 (2016). Finally, at the third stage, the plaintiff

would be required to produce evidence that the town's "stated

reason for [not promoting him] was a pretext for retaliating

against" him on account of his protected activity. Id.

At the first stage, the mere occurrence of an adverse

employment action after the employer has learned of the

employee's protected activity does not necessarily show a causal

relationship. Mole, 442 Mass. at 592. "That an employer knows

of a discrimination claim and thereafter takes some adverse

action against the complaining employee does not, by itself,

establish causation. 'Were the rule otherwise, then a

disgruntled employee . . . could effectively inhibit a well-

deserved [lack of promotion] by merely filing . . . a

discrimination complaint.'" Id., quoting Mesnick v. General

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Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991), cert. denied, 504

U.S. 985 (1992). "Ordinarily, 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."

Dube v. Middlesex Corp., 59 Mass. App. Ct. 734, 741 n.3 (2003).

The judge concluded that the plaintiff's showing failed at

the first stage, because he had not shown a causal connection

between his bringing the 2017 MCAD charge and the town's failure

to promote him to captain in February 2019. The judge concluded

that the fourteen months that elapsed between those two events

was too long a period to give rise to an inference of causation,

particularly because the plaintiff pointed to no other evidence

of any discriminatory or disparate treatment during that time.

We agree. See Dube, 59 Mass. App. Ct. at 741 (evidence "too

tenuous" to support inference of retaliation, where nine months

lapsed after latest request for accommodations, and employee

suffered no other adverse job action during that period). See

also Mole, 442 Mass. at 595 ("as the elapsed time between those

two events becomes greater, the inference weakens and eventually

collapses"). Contrast Verdrager, 474 Mass. at 398-400, 407

(causation shown, where during two and one-half years between

plaintiff's filing of MCAD gender discrimination charge and her

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termination, employer subjected her to disparate treatment,

undermining, and criticisms based on stereotypes).

Because we agree with the judge that the plaintiff did not

present evidence to show causation that his being passed over in

February 2019 for promotion to captain was in retaliation for

his having brought the 2017 MCAD charge, we do not reach the

plaintiff's claims that the judge erred in applying the second

and third stages of the test.5 See Mole, 442 Mass. at 602.

Judgment affirmed.

By the Court (Englander,
Grant & Brennan, JJ.6),

Clerk

Entered: April 21, 2023.

5 Nor do we reach the plaintiff's claim that Adams v. Schneider
Elec. USA, 101 Mass. App. Ct. 516, 525 (2022), further appellate
review granted, 490 Mass. 1108 (2022), should control here.

6 The panelists are listed in order of seniority.

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