Massachusetts Cases May 06, 2022: Eslinger v. Mass. Comm'n Against Discrimination

Case Description

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).

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Shirley J. Eslinger, filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging gender discrimination in violation of G. L. c. 151B, § 4 (1). As we discuss in more detail later, Eslinger was employed as the Deputy Chief Engineer of Bridges and Asset Management in the Massachusetts Highway Department (MassHighway) when the Legislature enacted the Transportation Reform Act, which merged MassHighway and other State agencies into the Massachusetts Department of Transportation (MassDOT). Eslinger claimed that MassDOT discriminated against her when it failed to select her for a new consolidated Deputy Chief position and instead attempted to reassign her to a newly created senior

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management position, which she viewed as a demotion, and then terminated her employment when she refused to accept the reassignment.

An investigating MCAD commissioner found probable cause to credit Eslinger's allegations, and the case was presented at a public hearing. Thereafter, an MCAD hearing officer determined that MassDOT had not discriminated against Eslinger on the basis of her gender and dismissed her complaint. Eslinger sought review by the full commission, which affirmed the decision of the hearing officer. Eslinger then commenced this action pursuant to G. L. c. 151B, § 6, and G. L. c. 30A, § 14. On the parties' cross motions for judgment on the pleadings, a judge of the Superior Court rejected Eslinger's claim and entered judgment in favor of MCAD and MassDOT. We affirm.

Background .

We summarize the relevant facts found by the MCAD hearing officer as follows. On November 1, 2009, MassDOT was created pursuant to the Transportation Reform Act, which merged the Massachusetts Turnpike Authority (MTA), the Department of Conservation and Recreation, and MassHighway into one new department. Prior to the merger, Luisa Paiewonsky served as Commissioner of MassHighway. Paiewonsky met Eslinger when she applied for the Chief Engineer position at MassHighway in early 2008. Although Eslinger was not selected for the position, Paiewonsky was impressed with Eslinger's credentials

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at the time and recruited her to apply for a position overseeing MassHighway's bridge and asset management staff. Eslinger was hired and assumed the position of Deputy Chief Engineer of Bridges and Asset Management on or about May 5, 2008. Eslinger was the first female Deputy Chief Engineer in the history of MassHighway. The hearing officer found that Paiewonsky was proud to have recruited Eslinger and was vested in Eslinger's success. Eslinger and two additional deputy chiefs, both of whom were men, reported directly to Chief Engineer Frank Tramontozzi.

Shortly after Eslinger was hired, in June 2008, a new program called the Accelerated Bridge Program was created. In January 2009, M. Shoukry A. Elnahal was hired as Director of that program. Elnahal was paid approximately $5, 000 more than Eslinger and the other two deputy chiefs. Eslinger was involved in the selection of Elnahal for the position and did not express any interest in applying herself. The hearing officer found that by all accounts, Elnahal excelled at his job and earned national recognition for his work. Elnahal also reported directly to Tramontozzi.

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After the merger of the transportation departments, Paiewonsky became Administrator of MassDOT's Highway Division and Tramontozzi become MassDOT's Chief Engineer. The merger created a need for consolidation, and, in her new role as Administrator, Paiewonsky was required to restructure and eliminate several management positions. The hearing officer found that the Secretary of Transportation gave Paiewonsky a clear directive to form a new management team with no redundancy. In carrying out this directive, Paiewonsky was forced to make a number of difficult decisions. Paiewonsky had to eliminate a number of high-level management positions held by male employees and "facilitate reassignments of some male managers to lower grade positions with significant salary cuts." Paiewonsky testified that these reassignments were based on objective criteria and the salary cuts were necessary to ensure the pay was commensurate with the new role. For example, the position of Chief Engineer at the MTA was eliminated, and the man who had held that job, Helmut Ernst, was subsequently assigned to a lower ranking role as head of District 6. His compensation was cut by approximately $20, 000.

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In addition, Paiewonsky decided to combine Eslinger's and Elnahal's positions to create a new position titled "Deputy Chief of Bridges and Tunnels." This position was given to Elnahal. The hearing officer found that Paiewonsky selected Elnahal over Eslinger because he demonstrated good communication skills, a willingness to take managed risks, and the ability to work well with others. Although Eslinger's sole performance review stated that she was a "successful performer," i.e., a step above "satisfactory," Paiewonsky described Eslinger's performance as a "mixed review." Paiewonsky testified that Eslinger did an "excellent job" at one point meeting with the steel industry, but there were other occasions when she was "silent" during staff meetings and did not interact or accept assistance from her colleagues. Also, Tramontozzi had received reports that Eslinger's peers had difficulty communicating with her. Nevertheless, Paiewonsky sought to retain Eslinger and ultimately offered her a position managing structural assets, including bridges and tunnels, in the newly formed District 6.

On December 7, 2009, Paiewonsky and Tramontozzi met with Eslinger and informed her that she would be given a new position as "head of structures" in District 6. The hearing officer

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found that the new assignment was not offered to Eslinger as a choice; however, Eslinger viewed it as such and, after the meeting, Eslinger told Paiewonsky that she did not want the new position and preferred to retain the one she had. In addition, Eslinger expressed concern that she was not qualified for the new role as she was not licensed as an engineer for tunnels. Eslinger also maintained that taking on responsibilities for which she was not qualified would jeopardize her current professional engineer (P.E.) license. Eslinger then requested a specific job title and description, which Tramontozzi subsequently provided.

On January 5, 2010, Eslinger met with Paiewonsky and Tramontozzi again to discuss the reassignment to District 6. In response to Eslinger's concern that acceptance of the new position would risk violating her P.E. license, Tramontozzi explained that Eslinger's new role would not involve designing and constructing tunnels, but rather ensuring that maintenance and preservation protocols were developed and implemented by staff. Thus, according to Tramontozzi, Eslinger's P.E. license would not be affected by accepting the reassignment.

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On January 7, 2010, Eslinger informed Paiewonsky and Tramontozzi that she was "not interested in a position that [she] was not qualified to do," and, although her salary and pay grade would remain the same, Eslinger viewed the reassignment as a demotion because she was in a lower position in the organizational structure, she was no longer reporting to the Chief Engineer, Tramontozzi, and she had less responsibilities and fewer subordinates. Eslinger was never officially informed that she would be terminated if she refused to accept the new position, but the hearing officer concluded that this was "clearly the implication" of the many discussions Eslinger had with Paiewonsky and Tramontozzi. Additionally, the hearing officer specifically credited Paiewonsky's testimony that she informed Eslinger that the merger of the transportation departments would result in layoffs. Ultimately, Eslinger did not accept the new position, and, on March 1, 2010, she was informed that her employment was terminated. Eslinger received a termination letter that stated her employment was terminated "due to a reorganization and consolidation of various management positions."

Because there was no direct evidence of gender discrimination, the hearing officer analyzed Eslinger's claim using the three-stage burden shifting model set forth in McDonnell Douglas Corp . v. Green , 411 U.S. 792, 802 (1973), and

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adopted by the Supreme Judicial Court in Wheelock College v. Massachusetts Comm'n Against Discrimination , 371 Mass. 130, 136 (1976). See Trustees of Health & Hosps. of Boston, Inc . v. Massachusetts Comm'n Against Discrimination , 65 Mass.App.Ct. 329, 333 n.4 (2005). Under this paradigm, the plaintiff must first establish a prima facie case of discrimination, the employer must then articulate a legitimate, non-discriminatory reason for its adverse employment action, and the plaintiff must ultimately produce evidence that the employer's articulated justification is not true, but rather a pretext for discrimination. Wheelock College , supra .

The plaintiff establishes a prima facie case by showing (1) she was a member of a protected class, (2) she performed her duties at an acceptable level, (3) she was terminated or otherwise subjected to an adverse employment action, and (4) she was treated less favorably with respect to that adverse action than similarly situated coworkers who were not members of the protected class. Trustees of Health & Hosps. of Boston, Inc ., 65 Mass.App.Ct. at 334. The hearing officer concluded that Eslinger established a prima facie case by demonstrating that she was in a protected class by virtue of her gender and that certain aspects of her reassignment could be characterized as an

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adverse employment action, if not a demotion. However, the hearing officer went on to conclude that MassDOT had successfully met its burden of demonstrating legitimate, nondiscriminatory reasons for its actions by showing that the selection of Elnahal over Eslinger as Deputy Chief of Bridges and Tunnels, Eslinger's reassignment to District 6, and the termination of Eslinger's employment after she refused to accept the reassignment, were based on objective considerations of Eslinger's strengths and weaknesses, as well as the "clear directive" impressed upon Paiewonsky in the wake of the merger to consolidate job functions and avoid duplication of positions at MassDOT. In reaching her conclusion, the hearing officer credited Paiewonsky's testimony that the merger impacted many highly placed male managers and that Eslinger's position was one of several that were eliminated. In addition, she credited Paiewonsky's explanation that Elnahal was selected for the

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Deputy Chief of Bridges and Tunnels position because he had better communication and leadership skills than Eslinger, and that the proposed reassignment would not violate Eslinger's license because Eslinger would not be responsible for the design and construction of tunnels.

Lastly, the hearing officer concluded that Eslinger failed to show that MassDOT's articulated reasons for its actions were pretextual or that MassDOT acted with discriminatory intent. The hearing officer rejected Eslinger's assertion, that her job had not been eliminated due to the reorganization but instead given to a male (Elnahal) who assumed her prior duties and was less qualified than she was for the position, as contrary to the evidence presented at the hearing. The hearing officer found that Elnahal's new position was broader in scope than Eslinger's former job and was in fact a consolidation of Elnahal's and Eslinger's former two positions. The hearing officer also rejected the assertion that Eslinger was a better candidate for the new Deputy Chief position since she had an engineering license and, unlike Elnahal, was licensed as a P.E. in Massachusetts, because such licenses were not required for the position.

Discussion .

1. MCAD's decision .

Our review of the MCAD's decision is limited. See Trustees of Health & Hosps. of Boston, Inc . v. Massachusetts Comm'n Against Discrimination , 449 Mass.

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675, 681 (2007). "We shall affirm a decision and order of the MCAD unless the findings and conclusions are unsupported by substantial evidence or based on an error of law." Ramsdell v. Western Mass. Bus Lines, Inc ., 415 Mass. 673, 676 (1993). "[U]nder the substantial evidence standard, the reviewing court must determine whether an agency decision is supported by such evidence as a reasonable mind might accept as adequate to support a conclusion" (quotation and citation omitted) . Sy v. Massachusetts Comm'n Against Discrimination , 79 Mass.App.Ct. 760, 765 (2011). "Deference should be given to the hearing officer's fact-finding role, including her right to draw reasonable inferences from the facts found," and "[c]redibility determinations are solely for the hearing officer to make and will not be disturbed on appeal." Massasoit Indus. Corp . v. Massachusetts Comm'n Against Discrimination , 91 Mass.App.Ct. 208, 210 (2017). In addition, we cannot substitute our judgment for that of the agency even if there is evidence to support the court's point of view. Sy, supra.

Eslinger argues that the MCAD's decision is not supported by substantial evidence because (1) her position had not been eliminated, (2) she was never informed that she would be terminated if she failed to accept the reassignment, and (3)

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Paiewonsky provided false, subjective, and misleading testimony. The problem with all three reasons advanced by Eslinger is that they are based on her interpretation of the evidence and do not address the central question of whether the hearing officer's findings are supported by substantial evidence. In effect, Eslinger is asking us to weigh the evidence and make our own credibility determinations rather than rely on those made by the hearing officer. This we cannot do. Here, the hearing officer credited Paiewonsky's testimony that she was under "clear directives to eliminate redundant positions within management." To comply with these directives, Paiewonsky consolidated Elnahal's and Eslinger's positions and created a new role at MassDOT titled "Deputy Chief of Bridges and Tunnels," which was awarded to Elnahal. Thus, there was substantial evidence to support the finding that Eslinger's position had been eliminated. Paiewonsky further testified that she selected Elnahal for the new role because he had technical expertise and demonstrated managerial skills that Eslinger lacked. The

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hearing officer also concluded that Eslinger was aware that the reassignment was not offered as a choice and that she, like others, would lose her job as a result of the merger. We will not disturb these findings as they are based on the hearing officer's assessment of the credibility of witnesses.

Next, Eslinger argues that the judge erred in concluding that "Eslinger's licenses were not implicated by the reassignment." However, the judge did not reach this conclusion. Rather, the judge accepted the hearing officer's finding that when Paiewonsky and Tramontozzi offered the reassignment to Eslinger, they believed that it would not affect Eslinger's licensure. As the judge explained, "[e]ven were this court to find that the Hearing Officer incorrectly concluded that Eslinger's licenses were not implicated by the reassignment, an issue this court does not reach, the Hearing Officer concluded that Eslinger's position did not aid her argument with regard to gender discrimination; Eslinger did not offer evidence showing that she was reassigned with the knowledge that she would be unqualified for the purpose of terminating her from MassDOT. Rather, the Hearing Officer found, and the Commission upheld, that Paiewonsky and Tramontozzi believed the reassignment would not affect her licensure."

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Eslinger's remaining arguments require little discussion. Eslinger claims that she was not given a full opportunity to present evidence supporting her claim because MCAD failed to conduct depositions prior to the public hearing and failed to call certain witnesses. We note that there was a significant delay between the finding of probable cause and the scheduling of a public hearing in this case. Given this delay, we believe that depositions of key witnesses would have been prudent, but we are not persuaded that Eslinger was denied the opportunity to present her case. More importantly, as MCAD notes in its brief, Eslinger had the opportunity to pursue a purely private right of action and chose not to do so. The proceedings at issue here were conducted on behalf of the public and not on behalf of Eslinger. See Stonehill College v. Massachusetts Comm'n Against Discrimination , 441 Mass. 549, 563 (2004) ("[T]he primary purpose of an administrative proceeding before the MCAD is to vindicate the public's interest in reducing discrimination in the workplace by deterring, and punishing, instances of discrimination by employers against employees. The MCAD was established to enforce the Commonwealth's anti discrimination laws. The complainant, thus, may be a party to a § 5 proceeding and may present testimony at the public hearing, but it is the MCAD, and not the complainant, that prosecutes the discrimination claim" [citations omitted]). In any event,

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despite Eslinger's overall dissatisfaction, we discern nothing inappropriate in the prosecution of Eslinger's claim. Eslinger also argues that the MCAD conducted a biased investigation in favor of MassDOT because MassDOT, like MCAD, is an agency of the Commonwealth. We discern no support for this allegation in the record.

2. Denial of motions to present additional evidence .

Eslinger challenges an order by a judge of the Superior Court denying her two motions to present additional evidence. Under G. L. c. 30A, § 14 (6), a judge has the discretion to order an agency to reopen an administrative proceeding for consideration of additional evidence so long as that evidence "is material to the issues in the case, and . . . there was good reason for failure to present it in the proceeding before the agency." See Northeast Metro. Regional Vocational Sch. Dist. Sch. Comm . v. Massachusetts Comm'n Against Discrimination , 35 Mass.App.Ct. 813, 817 (1994) .

Here, we discern no abuse of discretion in the denial of Eslinger's motions for leave to present additional evidence. The judge could properly have concluded that the proposed evidence, which consisted of (1) an email to Eslinger from MCAD's attorney, William F. Green, explaining, purportedly in

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jest, the reasons why "men are just happier people," and (2) several emails to Eslinger from MCAD's attorneys, William F. Green and Caitlin Sheehan, discussing discovery issues and litigation strategy, was not relevant to any issue in Eslinger's case. Moreover, the judge also could have concluded that Eslinger's September 3, 2020 motions offered no reason, let alone good reason, to explain why she failed to introduce the emails in evidence at the three-day public hearing held on May 9, 10, and 11, 2016. Thus, the judge did not abuse his discretion in refusing to reopen the evidence.

Judgment affirmed.

Vuono, Shin & Singh, JJ.

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