United States: Massachusetts Supreme Judicial Court Clarifies "Cat's Paw" And "Stray Remarks" Doctrines In Employment Discrimination Cases

Key Takeaways:

• On June 21, 2023, the Massachusetts Supreme Judicial Court ("SJC") issued a ruling in Mark A. Adams v. Schneider Electric USA, Inc., SJC-13352 (2023), addressing the so-called "cat's paw" theory of liability and concluding that an employer can still be found liable for violating Massachusetts' employment discrimination statute where there is evidence that a mid-level manager, directed to lay off employees, furthered a discriminatory corporate policy without knowingly doing so.
• The SJC also clarified the "stray remarks" doctrine under Massachusetts law, holding that evidence of numerous statements by high-level corporate executives with decision making power may be considered on summary judgment to determine whether an adverse action was the result of corporate policy of discrimination.
• The Adams decision provides some clarity as to the SJC's interpretation of the "cat's paw" and "stray remarks" doctrines and puts employers on notice as to the types of indirect and circumstantial evidence that may be used by employees in pursuing a discrimination claim.

The Massachusetts Supreme Judicial Court's ("SJC") decision in Mark A. Adams v. Schneider Electric USA, Inc., SJC-13352 (2023) concerned the age discrimination claim of a plaintiff who was 54 years old when he was laid off by his employer in 2017 as part of a reduction in force (RIF). The plaintiff's manager was responsible for selecting employees for the 2017 RIF. The plaintiff was in a group of seven employees terminated by the manager, all of whom were over 50. The plaintiff sued his employer in the Massachusetts Superior Court for age discrimination, alleging disparate treatment in violation of M.G. L. c. 151B, § 4. In 2020, the trial judge granted summary judgment in favor of the employer, allowing the company to avoid liability because the plaintiff conceded that his manager harbored no discriminatory animus toward him and produced no evidence to rebut the manager's testimony that he alone made the decision to select the plaintiff for the RIF.

In 2022, the Appeals Court reversed the summary judgment order, ruling that the record revealed facts in dispute from which a jury could find that the employer unlawfully considered age in either its implementation of the RIF or in its selection of the plaintiff for the RIF, even though the plaintiff did not present explicit evidence that specifically challenged his manager's proclaimed neutral business reason for the termination. Despite the employer's assertion that age was not a factor in the RIF or the plaintiff's termination, the majority emphasized that a jury is not required to take the employer's explanations at face value; thus, because the plaintiff had offered other evidence of a discriminatory corporate policy, a genuine issue of material fact existed as to whether age was a factor in the termination. The dissent, however, viewed the evidence the plaintiff provided of an allegedly ageist corporate policy as mere "stray remarks" from nondecision makers selected from among over 9,000 pages of discovery materials. 

In addition, the dissent rejected the proposition that the manager's testimony should be disregarded on summary judgment simply because a jury might not believe it. Rather, the dissent insisted that the court should have considered the uncontradicted testimony as an undisputed fact and determined whether the employer, as the movant, was entitled to judgment as a matter of law on the undisputed facts. The SJC granted further appellate review to clarify the summary judgment standard used in employment discrimination cases, including the correct application of the "cat's paw" and "stray remarks" doctrines.

The SJC affirmed the Appeals Court decision that summary judgment should not have been granted to the employer, but clarified the standard by which it reached this conclusion. The SJC concluded that the plaintiff had presented sufficient evidence of discriminatory animus and causation at the summary judgment stage, and catalogued in its decision numerous comments, emails and other actions by multiple managers and Human Resource officers regarding the creation of "age diversity," campus recruiting of recent college graduates, and the performance of older employees, all of which, the SJC explained, could be considered by jurors in determining that the reasons given for the plaintiff's termination were pretext for age discrimination. Given this evidence, along with statistical data produced by the parties regarding disparate impact, the SJC ruled that the plaintiff had presented sufficient evidence to create a genuine question of material fact about whether his employer had a corporate policy that discriminated against older workers, making summary judgment improper.

In its decision, the SJC addressed two related doctrines of liability: the "stray remarks" doctrine and the "cat's paw" or "innocent pawn" doctrine. First, the SJC concluded the evidence provided by the plaintiff was more than "stray remarks" by those outside of the decision-making process such that it could be considered on summary judgment. The SJC clarified that although "stray" ageist remarks by those in the company not involved in the relevant employment decision may not, at least alone, be probative of discrimination against a particular plaintiff, there was more than that in this case. The plaintiff presented numerous comments by multiple high-ranking corporate executives, including individuals in Human Resources who were directly involved in the layoffs, all of which could lead a jury to conclude that the employer had a preference for younger workers and had developed processes and policies for replacing older workers like the plaintiff with younger employees. Because these statements were made by people with power to make employment decisions, they could be considered on summary judgment. 

Second, the SJC ruled that evidence of the plaintiff's manager's knowledge of the alleged discriminatory policy is unnecessary for the plaintiff to survive summary judgment. Under the "cat's paw" or "innocent pawn" theory of liability, it is consistent with liability under the Massachusetts employment discrimination statute for a mid-level manager directed to lay off employees in his division to be found to have furthered a discriminatory corporate policy without knowingly doing so. Because corporate decisions involve multiple actors, an innocent decisionmaker can further a discriminatory purpose. In Adams, the manager testified that he had no discriminatory animus toward the plaintiff, and that age was not a factor in his decision. Nonetheless, the SJC stated that the employer was not insulated from liability just because the manager implementing its policy was unaware that he was being used as a "pawn" or "paw" by the employer. Indeed, the SJC explained, corporate liability in a case like Adams is perhaps even more clear-cut because the allegedly discriminatory action that resulted in the plaintiff's termination was taken further up the corporate hierarchy and only enforced by an unknowing mid-level manager.

Finally, the SJC clarified that, although it reached the same conclusion as the Appeals Court, the Appeals Court had provided an incomplete description of the standard for summary judgment in employment discrimination cases. The Appeals Court incorrectly stated that a court, at summary judgment, must disregard all testimony of a moving party that a jury may or may not believe. That jurors may potentially disbelieve an employer's claims of acting free of discriminatory motive, in and of itself, does not create a disputed material fact. Rather, uncontradicted and unimpeached evidence, even from interested witnesses favoring the moving party, should be considered on summary judgment. Thus, the manager's testimony that age was not a factor in his decision to layoff the plaintiff should be considered against evidence presented by the plaintiff of a corporate policy of age discrimination that impacted the manager's decision.

The SJC's application of the "cat's paw" doctrine in Adams reflects the SJC's recognition that corporate decisions involve multiple actors. Under this doctrine, Massachusetts courts may consider any evidence presented by a plaintiff showing discriminatory animus within the corporation, not just that of the ultimate decisionmaker. Adams also clarifies that "stray" remarks by high-level executives, when presented by plaintiffs along with other indirect and/or circumstantial evidence in support of a discrimination claim, may properly be considered by the court on summary judgment. Still, such remarks, standing alone, are unlikely to be sufficient to support a discrimination claim under the Adams ruling.