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Dragonas v. School Committee of Melrose9/6/2005
nt almost completely on their conflicting depositions and affidavits. See Lipchitz v. Raytheon Co., 434 Mass. at 499. See also Jackson v. University of Pittsburgh, 826 F.2d 230, 236 (3d Cir.), cert. denied, 484 U.S. 1020 (1987) (denying summary judgment where the issue of pretext turns on credibility issues).
We recognize that comparative evaluations of performance may simply reflect "good faith judgments" and differences of opinion, and that summary judgment may be appropriate in those circumstances. See, e.g., Brunner v. Stone & Webster Engr. Corp., 413 Mass. 698, 703-704 (1992) ("nothing in the materials submitted pursuant to Mass.R.Civ.P. 56 . . . refutes the evidence that, when the productivity levels, technical expertise, and skills of all the employees were compared, a good faith judgment was made by those with the responsibility to decide that the plaintiff was less qualified").
In such cases, factual disputes underlying performance evaluations will not be enough to defeat summary judgment. For example, in Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 (2005), a case involving a reduction in force of the legal department of an insurance company, there was "ample, uncontroverted evidence that the negative impression [the manager making the reduction in force decision], staff in the environmental unit, and others had formed of [the plaintiff's] abilities was a primary reason she was selected for layoff." Id. at 57. Although the plaintiff presented sufficient evidence to challenge whether she had in fact mishandled the company's environmental work, she did "not challenge whether [the manager] truly believed that her mishandling of environmental case jeopardized the Boston office's ability to retain environmental cases" (emphasis added). Ibid.
The matter before us, however, is different. In addition to putting almost all the facts underlying the performance evaluation in dispute, Dragonas has also raised triable issues regarding whether the evaluation did not reflect "good faith" judgment on the part of Burke. See Lipchitz v. Raytheon Co., 434 Mass. at 498 (in sex discrimination case based on the failure to promote "the jury could have credited [the plaintiff's] contention that the difficulties she had with . . . managers were not the result of her personality and workstyle and therefore, were the result of . . . bias"); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 56 (court's task is "to ensure [that employer's decision making] does not mask discriminatory animus"). On the record before us, a fact finder could determine that Burke's proffered assessment of Dragonas's performance was false and not a good faith judgment, and " rom such proof . . . infer that . . . discriminatory animus was the determinative cause of the adverse employment decision." Lipchitz v. Raytheon Co., supra at 507. Contrast Dorman v. Norton Co., ante 7, 9-10 (2005). A trial on the age discrimination claim is therefore required.
Conclusion
The judgment on counts one, two, four (as to both Burke and Martin), and six (as to Burke only) is reversed. In all other respects the judgment is affirmed.
So ordered.
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