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Dragonas v. School Committee of Melrose9/6/2005
cts in a light most favorable to Dragonas, we hold that a triable issue of fact remains as to whether Burke abused his conditional privilege. It could be inferred from the tone and substance of Burke's statements -- that Dragonas might "rip your face off" and that she had accused him of sexual harassment -- that his motivation was not primarily to further a legitimate interest. There was also evidence that Burke had an ongoing antagonistic relationship with Dragonas. See Ezekiel v. Jones Motor Co., 374 Mass. at 391-392 (extrinsic evidence of the history of the employment relationship is relevant in determining whether the defendant possessed an improper motive). The timing of Burke's meeting with parents, just six to eight days after his memorandum to Dragonas regarding his desire to reorganize lead teachers along the lines of the MCAS curriculum, and just two to four days after the superintendent's invitation to Dragonas to retire, offer further support for the "unprivileged" explanation.
Given that there are genuine issues of material fact regarding whether (1) the allegedly defamatory comments made at the meeting were false, and (2) the conditional privilege was abused due to malice, we conclude that summary judgment was not appropriate on the defamation claim.
Age Discrimination
General Laws c. 151B, § 4(1C), inserted by St. 1984, c. 266, § 6, provides that it is unlawful " or the commonwealth or any of its political subdivisions, by itself or its agent, because of the age of any individual, to refuse to hire or employ or to bar or discharge from employment such individual in compensation or in terms, conditions or privileges of employment unless pursuant to any other general or special law."
Where, as here, there is no direct evidence of age discrimination, we apply the familiar, three-stage order of proof adopted in Wheelock College v. Massachusetts Commn. Against Discrimination, 371 Mass. 130, 138-139 (1976). In undertaking this analysis, we are mindful that " ummary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment . . . because the ultimate issue of discriminatory intent is a factual question." Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995).
In the first stage, the plaintiff has the burden to establish a prima facie case, thereby creating a presumption of discrimination. Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 116 (2000). This was accomplished here, as the record was sufficient to demonstrate that (1) Dragonas qualified as a member of the protected class (she was close to seventy years old at the time she was not reappointed); (2) Dragonas was doing her job as lead teacher acceptably, as evidenced by the fact that Burke had not taken any affirmative steps to discharge her during the 1999-2000 school year; (3) Dragonas was not reappointed to the leadership position she had held for many years; and (4) Dragonas was replaced by Cocchiara, who was a substantially younger (by twenty-four years) person with similar qualifications. There is no dispute that Dragonas established a prima facie case of discrimination.
"In the second stage, the employer can rebut the presumption [of discrimination] by articulating 'a lawful reason or reasons for its employment decision produc credible evidence to show that the reason or reasons advanced were the real reasons.'" Abramian v. President & Fellows of Harvard College, supra at 116, quoting from Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. at 442. "This burden of production is not onerous." Blare, supra.
Here, the defendants successfully rebutted the pre
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