United States Court of Appeals
For the First Circuit
No. 02-2199
JOHN R. CARIGLIA,
Plaintiff, Appellant,
v.
HERTZ EQUIPMENT RENTAL CORPORATION and JAMES HEARD,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Reginald C. Lindsay, U.S. District Judge]
Before
Lynch, Circuit Judge,
Siler, Senior Circuit Judge,*
and Lipez, Circuit Judge.
Herbert L. Holtz, with whom Thomas P. Smith, Caffrey & Smith,
P.C., were on brief for appellant.
Barry A. Guryan, with whom Christopher Novello, Epstein Becker
& Green, P.C., were on brief for appellees.
April 5, 2004
*
Of the Sixth Circuit Court of Appeals, sitting by
designation.
LIPEZ, Circuit Judge. This case requires us to explore
an important question related to corporate liability in an age
discrimination case: whether a corporation can be held liable for
discrimination when neutral decisionmakers, free of any age-based
animus, rely on information that is manipulated by another employee
who harbors age-based discriminatory animus.
Here, the plaintiff, John Cariglia, brought suit against
the Hertz Equipment Rental Corporation for terminating him because
of his age in violation of Mass. Gen. L. ch. 151B1 and against his
supervisor, James Heard, for intentionally interfering with his
advantageous relationship with Hertz. Following a bench trial, the
district court entered judgment for defendants on both counts.
After a careful review of the arguments and the record, we vacate
and remand.
I.
Cariglia was first hired to work for Hertz in 1980 as the
Boston Branch Manager. By 1992, after three promotions, Cariglia
held the position of National Equipment Sales Manager. In 1992,
1
The statute provides, in pertinent part, that
[i]t shall be an unlawful practice . . . [f]or
an employer in the private sector, by himself
or his agent, because of the age of any
individual, . . . to discharge from employment
. . . unless based upon a bona fide
occupational qualification.
Mass. Gen. Laws ch. 151B §4.
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however, that position was eliminated and Hertz President Daniel
Kaplan asked Cariglia to return to Boston to revive that branch
financially. Cariglia expressed reservations about assuming the
administrative paperwork required of a branch manager, and he also
was concerned that returning to a branch manager position would be
"a step back" for him. Kaplan proposed to appoint Bill Simmons, a
salesman at the Boston branch, to serve as Cariglia's assistant
branch manager and to handle those administrative tasks.
Additionally, Kaplan and Cariglia agreed that Cariglia's
compensation would be no lower than it was in his position as
National Equipment Sales Manager. Under these terms, Cariglia
agreed to return to Boston as branch manager.
From 1992 to 1996, Cariglia significantly improved the
financial condition of the Boston branch. While the branch had
suffered losses for at least the three previous years, it showed
pre-tax income of $581,000 in 1993 and $1.4 million in 1994. The
branch's gross profits grew to $2.3 million in 1995 and was on pace
for $2.6 million in 1996, the year in which Cariglia was
terminated. Every year the branch exceeded its pre-tax profit
goals by a considerable percentage, and the Boston branch became
the most profitable in the northeast. Not surprisingly, this
financial turnaround earned Cariglia commendation from Hertz,
including letters of praise from Kaplan and Gerry Plescia, Hertz's
vice-president of operations. Cariglia's direct supervisor during
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this time was defendant James Heard, Hertz's division vice-
president for the northeast region. Heard gave Cariglia above-
average overall rates on three successive performance evaluations
from 1993 to 1995.
At the end of 1994, which was a profitable year, Heard
told Cariglia that Hertz wanted to mitigate tax liability by
incurring expenses to offset some of the branch's profit. The men
discussed expending between $25,000 and $30,000 to paint large
lifts, called "booms," that the company eventually planned to sell.
However, Cariglia testified that he told Heard that booms could not
be painted immediately since they were being rented to customers,
and Heard responded that he did not care when the booms were
actually painted so long as the painting was expensed for the 1994
tax year. As the district court noted, Heard did not contradict
this testimony. In his testimony, Heard agreed that "it is general
practice to only paint rental booms before resale . . . [and] that
it was within Mr. Cariglia’s discretion as branch manager to keep
the booms out on rent earning money and satisfying customers rather
than being painted." Heard also testified that he expected the
booms to be painted as they became available. Ultimately, the
booms were not painted by the time Cariglia was fired in September
1996.
During Cariglia's tenure at the Boston branch, several
witnesses testified that Heard denigrated Cariglia, who was born in
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1934, because of his age. The district court found that "evidence
shows that Heard, Cariglia's supervisor, made statements rife with
discriminatory animus." The district court also found that in June
1996, Heard ordered an audit of the Boston branch "motivated not by
sound business reasons, but by a desire on the part of Heard to
'get the goods' on Cariglia because Heard believed Cariglia was
'over the hill,' 'not our kind' and 'should not be here.'"
This audit, conducted by Ken Eyerman, Hertz's northeast
regional controller, was atypical in four regards. First, Eyerman
usually scheduled branch audits himself, and this audit of the
Boston branch was the only time Heard had directed him to conduct
an audit. Second, according to Eyerman, whose testimony the
district court credited, Heard told him to "go up to Boston and get
the goods on Mr. Cariglia so he could get him out of there."
Third, while the scope of a typical audit usually covered the
preceding ninety days, Eyerman went back eighteen to twenty-four
months because, according to his testimony, "[a]fter completing the
audit guidelines, Mr. Heard said keep digging, dig deeper. He said
just keep looking. Find it. Find something. He asked me to . .
. see if I could get any more information about . . . anything that
was going on at the branch so that we could try to get rid of Mr.
Cariglia." Fourth, Eyerman spent three weeks performing the Boston
audit, in contrast to the usual three to five days.
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The result of the extended audit was a "poor" rating for
the Boston branch. Five items were specifically mentioned, all
related to internal controls: "(1) missing control copies of
billing documents; (2) improper check acceptance and credit
approvals; (3) inadequate safeguarding of equipment; (4) failure to
follow purchasing procedures completely; and (5) missing documents
from personnel files." Eyerman testified that the audit was
accurate and contained his independent conclusions. After Simmons,
the assistant branch manager who was directly responsible for the
branch's paperwork, wrote a response memo to Eyerman, a plan was
put in place to correct these internal control issues. However,
Eyerman also took the unusual step of including with the audit a
note to Plescia, vice-president of operations, stating that "I
think there is more going on [at] this branch than can be detected
through paper trails [and] internal control weaknesses."
Around the same time, Plescia received a copy of a letter
from the attorney of Boston branch employee, George Harrington.
This letter alleged improper business practices at the Boston
branch, including equipment rented without proper rental
agreements, money offered in exchange for ignoring improper
rentals, equipment leased to customers without accounts, and
equipment rented to customers but returned by others.
The Harrington letter, in conjunction with the Eyerman
audit results, spurred Plescia, Kaplan, and vice-president of
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employee relations Don Steele to request an internal corporate
security investigation. Hertz's local investigator, Graham Morgan,
conducted the investigation. Morgan interviewed Harrington and
four other Boston branch employees in the course of preparing his
report. He was unable to substantiate Harrington's allegations,
writing in his report that
[n]one of the others interviewed has any proof
that equipment is leaving the yard without
rental contracts. No one interviewed was ever
told to look the other way or offered money to
look the other way to enable a piece of
equipment to leave the yard. . . . Concerning
equipment that is rented by one company and
returned by another, not one of the
individuals could provide a concrete example
of activity in this regard. . . . None of the
people interviewed could accurately provide[]
any information that would substantiate
suspicion that John Cariglia . . . [is] taking
kickbacks.
Morgan's report did, however, identify five areas of
concern that emerged as a result of the interviews: "slipshod"
internal controls; "[b]ooms that were to be painted by a vendor
named New England Truck were never completed after money was paid
to have this work done;" Cariglia's failure to forward a low bid to
rehabilitate the branch site; favoritism in assigning Saturday
overtime work; and a "hostile environment created primarily by the
Branch manager." Morgan's report, dated August 23, 1996, was
forwarded to both Steele and Heard.
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On September 4, Plescia, Kaplan, and three other members
of Hertz senior management decided that Morgan and Eyerman should
interview Cariglia regarding the outstanding issues and conduct a
follow-up audit. Morgan asked Cariglia about each of the five
areas of concern he had identified in his August 23 report.
Cariglia essentially denied the substance of each item, with the
exception of the painting of the booms. Morgan wrote that in
response to that issue, Cariglia said that "Bob Zechello handles
the scheduling of the booms to be painted. Records in his office
and elsewhere are available for review in this matter." Cariglia
agrees that he made these statements, but he testified that Morgan
neglected to mention that Cariglia told him that the booms had not
been painted. Plescia and Heard received Morgan's second report.
Eyerman's follow-up audit concentrated on the vendor
files related to New England Truck, the company that had been paid
to paint the booms. After reviewing the relevant paperwork, he
concluded that the booms had been out on rental and not available
for painting. Eyerman sent the results of the follow-up audit to
Heard. There is no indication in the record that any other party
received a copy of this follow-up audit.
On September 19, Plescia and Steele instructed Heard to
go to the Boston branch and ask Cariglia about the booms. The next
day, Heard met with Cariglia in Boston and asked him if he had
forgotten to paint the booms. Cariglia told him that his "plans
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were to, as they had always been, to paint [the booms] when I got
ready to sell them." Heard then told Cariglia that he, Heard,
needed to call his supervisors and asked if Cariglia wanted to add
anything to what he had said. Cariglia declined, and Heard called
Plescia and Steele. According to Plescia, Heard informed them that
"the booms were not painted, and that there was no accountability
for the money that was paid." Plescia, Steele, and Kaplan then
decided to terminate Cariglia and directed Heard to inform Cariglia
that he was to be terminated for "gross misconduct." The district
found as a factual matter that Plescia, Steele, and Kaplan were
free of any personal age-based animus towards Cariglia when they
made this decision.
After his conversation with the three executives, Heard
called Cariglia back into the office and informed him that he was
fired for "gross misconduct." When Cariglia asked him what "gross
misconduct" meant, Heard did not provide an answer. Heard replaced
Cariglia with Benjamin Robin, who was under 40 years of age at the
time and had been the manager of Hertz's Newark branch.
Cariglia subsequently filed suit against Hertz and Heard
in Massachusetts Superior Court. The case was removed to federal
court. Following a five-day bench trial, the district court ruled
in favor of both defendants. Cariglia's appeal followed.
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II.
On appeal, Cariglia urges that the district court made
three errors: finding that Heard was not a decisionmaker, declining
to impose liability on Hertz for Heard's animus under Mass. Gen. L.
ch. 151B, and denying his intentional interference with
advantageous relations claim against Heard because his termination
was not a result of Heard's actions. We review the district
court's legal conclusions de novo and its factual findings for
clear error. Kinan v. Cohen, 268 F.3d 27, 32 (1st Cir. 2001).
A. Heard as a Decisionmaker
As noted, the district court found that Heard's desire to
terminate Cariglia as a Hertz employee was motivated by age-based
animus. In Cariglia's view, this finding alone means that Hertz
itself was motivated by age-based animus because Hertz's response
to an interrogatory constitutes an admission that Heard was a
decisionmaker, having caused or participated in the decision to
fire Cariglia. Cariglia also claims that Heard agreed with and
adopted questions explicitly identifying him as a decisionmaker
throughout the trial. Because neither Hertz nor Heard disputed the
premise of these questions--that Heard "made, ordered, caused or
participated in" the decision to fire him--Cariglia reasons that
the district court was required to find that Heard was a
decisionmaker.
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A close reading of the interrogatory and questions posed
at trial reveal that the defendants did not admit or acquiesce to
statements implying that it was Heard who made the decision to
terminate Cariglia. The interrogatories asked, inter alia, whether
Heard "participated in" Cariglia's termination, and the defendants
never denied that he did. Instead, they argued, and the district
court found, that Heard fired Cariglia pursuant to the instructions
of Plescia, Steele, and Kaplan. Therefore, the district court did
not clearly err in finding that the ultimate decision to terminate
Cariglia was made by Heard's supervisors, and not by Heard.
B. Hertz's Liability Under Mass. Gen. L. ch. 151B
Even Though Heard Was Not a Decisionmaker
Cariglia argues that even if Heard is not deemed a
decisionmaker, his animus impermissibly tainted the decisionmaking
process when he withheld from Plescia, Steele, and Kaplan
exculpatory information regarding the circumstances surrounding the
painting of the booms. Indeed, this alternative basis for
liability is the critical issue in this case: whether corporate
liability can attach if neutral decisionmakers, when deciding to
terminate an employee, rely on information that is inaccurate,
misleading, or incomplete because of another employee's
discriminatory animus.
Cariglia summarized his argument to the district court as
follows:
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Defendants cannot "launder" the decision to
terminate Mr. Cariglia by attempting to remove
Heard completely from the termination
decision. . . . [Hertz] regional vice
president Heard orchestrated the termination
and caused it by admittedly failing to inform
Gerry Plescia, his superior, that Mr. Cariglia
had been instructed by Heard to pay for
painting the booms upon the end of 1994, that
it was customary to only paint booms upon
resale, that it was within the branch
manager's discretion to keep the booms out on
rent rather than pulling them out of
productive use for repainting. Thus, Heard
presented (or intentionally let stand) a
completely false and misleading impression
that Cariglia had somehow engaged in financial
misconduct. . . .
As a legal proposition, this argument has merit under First Circuit
precedent and persuasive case law from other circuits. It is also
faithful to the Massachusetts Supreme Judicial Court's instruction
that the "primary purposes" of Mass. Gen. L. ch. 151B §4 "are to
protect citizens of the Commonwealth from adverse employment
decisions based on their age . . . and to discourage, and punish,
unlawful discrimination in the work place." Knight v. Avon
Products, 438 Mass. 413, 424 n.6 (2003)(citations omitted).
However, as we will explain infra, the district court did not
address this alternative basis for Hertz's liability. As a result,
it did not make a factual finding that is critical to the
applicability of this corporate liability doctrine.
Massachusetts General Law 151B "sets out four elements:
membership in a protected class, harm, discriminatory animus, and
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causation." Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001).
Here, there is no question that Cariglia was a member of a
protected class because of his age, that his termination
constituted harm, and that discriminatory animus was present in the
workplace. The appropriate focus, then, is on the causation issue:
whether his termination was "because of" discrimination. As the
district court noted, when assessing whether a plaintiff has
established causation, "[f]or cases brought under Mass. Gen. Laws
ch. 151B that are based on circumstantial evidence, the [Supreme
Judicial Court] has adopted the three-stage burden shifting
framework established by the United States Supreme Court under the
anti-discrimination provisions of Title VII."2 The plaintiff must
2
The district court analyzed this as a circumstantial evidence
case, an approach that Cariglia argued in his district court
pleadings and does not challenge on appeal. We do not necessarily
agree with this characterization because of the substantial
quantity of direct evidence regarding Heard's explicit
discriminatory animus. "Typically, direct evidence consists of
statements of discriminatory intent attributable to an employer."
Chief Justice for Admin. and Management of Trial Court v.
Massachusetts Comm'n Against Discrimination, 439 Mass. 729, 733
(2003). “Direct evidence in this context is evidence that 'if
believed, results in an inescapable, or at least highly probable,
inference that a forbidden bias was present in the workplace.'"
Wynn & Wynn, P.C. v. Mass. Comm'n Against Discrimination, 431 Mass.
655, 667 (2000).
Analyzing this case under the circumstantial evidence line of
cases works to Cariglia's detriment under Massachusetts law. Under
the more plaintiff-friendly direct evidence framework, once the
plaintiff has "demonstrated with a high degree of assurance that
the employment decision of which [he] complains 'was the product of
a mixture of legitimate and illegitimate motives,'" "the burden of
persuasion shifts to the defendant who 'may avoid a finding of
liability only by proving that it would have made the same
decision' even without the illegitimate motive." Wynn & Wynn, P.C.
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establish a prima facie case of age discrimination by showing that
“(1) he is a member of a class protected by G.L. c. 151B; (2) he
performed his job at an acceptable level; (3) he was terminated;
and (4) his employer sought to fill the plaintiff's position by
hiring another individual with qualifications similar to the
plaintiff's." Blare, 419 Mass. at 441. This prima facie case
creates a presumption of discrimination. Id. "In the second
stage, the employer can rebut the presumption created by the prima
facie case by articulating a legitimate, nondiscriminatory reason
for its hiring decision." Id. We agree with the district court
that the parties addressed the requirements of the first and second
stages.
At the third stage, "the presumption created by the prima
facie case drops from the case" and "the employee must show that
the basis of the employer's decision was unlawful discrimination."
Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107,
117 (2000). The district court found that "Cariglia's case
founders" at the third stage, holding that his termination was not
"because of" discrimination. The Massachusetts Supreme Judicial
Court summarized in Lipchitz v. Raytheon, 434 Mass. 493 (2001), the
various formulations that court has used when discussing the
"because of" causation requirement in Mass. G. L. ch. 151B.
v. Mass. Comm'n Against Discrimination, 431 Mass. 655, 666, 669-70
(2000)(citation omitted).
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Our decisions have described the causal
element in various ways, which essentially
have been the proximate or determinative cause
standard used in negligence cases. . . . [T]he
plaintiff must prove by a preponderance of the
credible evidence that the defendant’s
discriminatory animus contributed
significantly to that action, that it was a
material and important ingredient in causing
it to happen. That a defendant’s
discriminatory intent, motive or state of mind
is "the determinative cause" does not imply
the discriminatory animus was the only cause
of that action. See Dartt v. Browning-Ferris
Indus., Inc. (Mass.) supra at 7-9, 691 N.E.2d
526 ("because of" does not mean "solely
because of").
Lipchitz, 434 Mass. at 506, n.19 (internal citation omitted).
Citing Lipchitz, the district court held that Cariglia
did not establish that "discrimination was a determinative factor
in his termination in the sense that but for discrimination the
termination would not have occurred." Specifically, it held that
"the decision to terminate Cariglia was independent of any
discriminatory animus that underlay Heard’s derogatory, age-based
remarks" because "[t]here is no evidence in this case that any of
Plescia, Steele or Kaplan was motivated by discriminatory animus.
There is no evidence that Heard ever discussed or otherwise
infected Plescia, Steele or Kaplan with his age-based bias against
Cariglia." This focus on whether Heard’s animus infected people
(the decisionmakers) rather than the process (manipulating the
information relied upon by the decisionmakers) was erroneous.
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Although we have not been presented before with the same
fact pattern we face here, we have held that "evidence of corporate
state-of-mind or discriminatory atmosphere is not rendered
irrelevant by its failure to coincide precisely with the particular
actors or time frame involved in the specific events that generated
a claim of discriminatory treatment." Conway v. Electro Switch
Corp., 825 F.2d 593, 597 (1st Cir. 1987)(emphasis added). See also
Cummings v. Standard Register Co., 265 F.3d 56 (1st Cir.
2001)(same). Similarly, in Freeman v. Package Machinery Co., 865
F.2d 1331, 1342 (1st Cir. 1988), we rejected a defense that the
decisionmaker personally lacked animus and held that "[t]he inquiry
into a corporation's motives need not artificially be limited to
the particular officer who carried out the action." In Medina-
Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990),
we held that the "biases of one who neither makes nor influences
the challenged personnel decision are not probative in an
employment discrimination case," implying that the biases of those
who do make or influence the employment decision are probative.
Other circuits have reached similar conclusions. The
District of Columbia Circuit Court of Appeals ruled that "[a]n
unfavorable employment decision resulting from inaccurate,
discriminatorily-motivated evaluations by the employee's
supervisors violates Title VII," even though the decisionmaker was
completely free of animus. Stoller v. Marsh, 682 F.2d 971, 972
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(D.C. Cir. 1982). "When a supervisor . . . deliberately places an
inaccurate, discriminatory evaluation into an employee's file, he
intends to cause harm to the employee. . . . [T]he employer--that
is, the organization as a whole--cannot escape Title VII liability
simply because the final decisionmaker was not personally motivated
by discrimination." Id. at 977. Similarly, the Fifth Circuit has
held that "the discriminatory animus of a manager can be imputed to
the ultimate decisionmaker if the [manager] . . . had influence or
leverage over" the decisionmaking. Laxton v. Gap Inc., 333 F.3d
572, 584 (5th Cir. 2003). See also Russell v. McKinney Hosp.
Venture, 235 F.3d 219, 226 (5th Cir. 2000)("If the employee can
demonstrate that others had influence or leverage over the official
decisionmaker, and thus were not ordinary coworkers, it is proper
to impute their discriminatory attitudes to the formal
decisionmaker."); Abramson v. William Paterson Coll., 260 F.3d 265,
285-86 (3d Cir. 2001)("Under our case law, it is sufficient if
those exhibiting discriminatory animus influenced or participated
in the decision to terminate.").
The Seventh Circuit has held that "[a]n employer cannot
escape responsibility for wilful discrimination by multiple layers
of paper review, when the facts on which the reviewers rely have
been filtered by a manager determined to purge the labor force of
older workers." Gusman v. Unisys Corp., 986 F.2d 1146, 1147 (7th
Cir. 1993). More recently, the same court held that
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[t]here is only one situation in which the
prejudices of an employee . . . are imputed to
the employee who has formal authority of the
plaintiff’s job. That is where the
subordinate, by concealing relevant
information from the decisionmaking employee
or feeding false information to him, is able
to influence the decision. In such a case,
the discriminatory motive of the other
employee, not the autonomous judgment of the
nondiscriminating decision-maker, is the real
cause of the adverse employment action.
Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir.
1997)(citations omitted). See also Kientzy v. McDonnell Douglas
Corp., 990 F,2d 1051, 1057 (8th Cir. 1993); Stacks v. Southwestern
Bell Yellow Pages, 27 F.3d 1316, 1323 (8th Cir. 1994).
Here, the district court found as matters of fact (1)
that Heard directed illegal, age-based animus at Cariglia and
wanted to "get the goods" on Cariglia to justify a termination
decision; (2) that Heard at least authorized if not requested
Cariglia to expense painting the booms with the understanding that
they would not be painted while they were rented out to customers;
and (3) that the booms issue was "at the heart of the termination"
and was a "pivotal consideration" in Plescia, Steele, and Kaplan’s
decision to terminate Cariglia. Regarding this last finding, the
district court wrote that
[w]hat seemed most to disturb Plescia, Steele,
and Kaplan, however was the fact that Cariglia
had failed to get the booms painted after
having paid for that work. . . . It appears
that it was Cariglia’s failure to paint the
booms and to offer to his national bosses a
satisfactory explanation for this failure that
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was a straw that broke the camel’s back. It
is surprising that such a trivial deficiency
should be at the heart of Cariglia’s
termination. . . . [M]y judgment that the
failure to paint the booms should not have
loomed so large in the decision to terminate
Cariglia does not matter here. . . . For
better or worse, I believe it to be the case
that Cariglia’s payment for the painting of
the booms and his neglect to see that work
done was in fact a pivotal consideration in
the decision to fire him.
Also, the district court emphasized the role the boom issue played
in the termination decision when it wrote that
Cariglia was not terminated immediately after
these national officers received the Eyerman
audit and Harrington letter; he was not
terminated even after they received Morgan's
report. Rather, he was terminated following
Morgan's September 9 interview with Cariglia
concerning the booms and following the report
of Heard, who was given by Plescia and Steele
the specific task of going to Boston to
discuss with Cariglia the matter of painting
the booms.
Despite these factual findings, the district court did
not address the critical legal issue of whether corporate liability
can attach when neutral decisionmakers rely on information that is
manipulated by another employee who harbors illegitimate animus.
The crucial factual finding necessary to complete this legal
analysis is whether Heard withheld from Plescia, Steele, and Kaplan
exculpatory information about Cariglia's failure to paint the
booms--namely, that Heard instructed or authorized Cariglia to pay
for painting the booms at the end of 1994, that Heard knew at the
time that the booms were not going to be painted immediately, that
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he told Cariglia that he did not care when the booms were painted,
that the branches typically only painted equipment prior to resale,
and that it was within a branch manager's discretion to keep the
booms rented rather than taking them out of use to repaint them.
There is a strong suggestion in the district court's
findings that Heard, motivated by his desire to get rid of Cariglia
because of his age, did indeed withhold this information from the
decisionmakers. We base this observation on the district court's
findings that "Heard approved the decision to spend the money to
paint the booms," and, "[a]ccording to Cariglia, Heard said that he
did not care when the booms were painted, so long as the painting
was expensed at that time. Heard did not contradict this
testimony, but stated that he expected the booms to be painted as
they became available for resale." The court also observed that
"Plescia testified that he learned from his and Steele's
conversation with Heard that 'the booms were not painted, and that
there was no accountability for the money that was paid.'"
Furthermore, Plescia admitted at trial that he was "not aware that
Jim Heard told John Cariglia to spend [$]25 to 30,000 before the
end of the year[.]" Since the district court opinion credited
Plescia's testimony in every instance, we see no reason why this
portion of his testimony would not also be credible. Finally, from
our read of the trial record, Hertz never argues that Plescia,
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Steele, and Kaplan actually knew the full story surrounding the
booms when they decided to terminate Cariglia.
Although the district court's explicit findings approach
an implicit finding that Heard never divulged to Plescia, Steele,
and Kaplan all of the circumstances surrounding the booms issue, we
are reluctant to rely on an implicit finding on this critical
issue. Accordingly, we remand to the district court so that it can
address whether Heard did indeed fail to provide Plescia, Steele,
and Kaplan with the full story regarding the booms.3 If the court
so finds, then, as in Wallace, "the subordinate [Heard], by
concealing relevant information from the decisionmaking employee[s
Plescia, Steele, and Kaplan,] or feeding false information to
[them], is able to influence the decision." Wallace, 103 F.3d at
1400. This influence makes Heard's animus "probative in an
employment discrimination case . . . ." Medina-Munoz, 896 F.2d at
10. Under the relevant law, the issue of the booms as grounds for
termination would be impermissibly tainted with Heard's animus.4
3
We leave it to the district court to decide whether it can
make the necessary finding on the basis of the existing record or
whether it wishes to permit the introduction of additional
evidence. Also, we recognize that the district court, asked to
focus on the information that Heard communicated to the
decisionmakers about Cariglia's handling of the booms, may reach a
conclusion contrary to the strong suggestion we see in the court's
present findings. We do not preclude any such finding with our
analysis here.
4
If Cariglia had been afforded a meaningful chance to address
the allegations against him regarding the boom issue–-to inform the
Hertz executives that Heard instructed him to expense the painting
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We are aware that the district court said that it "[did]
not discount that Plescia, Steele and Kaplan were also influenced
in their decision to terminate Cariglia by the other deficiencies
in the Boston branch found by Morgan." This finding does not alter
our conclusion that the "because of" standard articulated in
Lipchitz would be met by the booms issue alone. Cariglia need not
show that his termination was "solely because of" the booms. Dartt
v. Browning-Ferris Indus., Inc., 427 Mass. 1, 7-9 (1998). Rather,
he need only show that the boom issue "contributed significantly to
[his termination], that it was a material and important ingredient
in causing it to happen." Lipchitz, 434 Mass. at 506 n.19. He has
done so: the district court found as a matter of fact that the boom
issue was "at the heart of the termination" and was a "pivotal
consideration." If the district court finds that Heard withheld
exculpatory information about the booms and thus impermissibly
tainted the decisionmaking process with his animus,5 Cariglia has
when he did, the money remained on account with the vendor, and, as
was the common practice, he always intended to paint the booms just
prior to their resale–-we might have reached a different result in
this case. See Conn v. GATX Terminals Corp., 18 F.3d 417, 420 (7th
Cir. 1994)(holding that a non-decisionmaker’s animus did not infect
the decisionmaking process when the plaintiff was able to appear
before the decisionmaker and present his side of the story).
5
Cariglia argued to the district court that the other four
alleged reasons for his termination were infected with Heard’s
animus, remedied prior to the termination decision, and/or the
responsibility of the assistant manager, who, instead of being
reprimanded, was promoted to fill Cariglia’s position. On appeal,
Cariglia focused more closely on the boom issue. Assuming Heard
withheld exculpatory information about the booms, the primary
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shown that "[Heard's] discriminatory animus contributed
significantly to [Cariglia's termination], that it was a material
and important ingredient in causing it to happen." Lipchitz, 434
Mass. at 506 n.19. Put more dispositively, Cariglia will have
proved that his termination was "because of" Heard's unlawful age-
based discrimination, and he would be entitled to a judgment in his
favor on the ch. 151B claim.
C. Intentional Interference With Advantageous Relations
"In an action for intentional interference with
advantageous relations, an employee must prove that (1) she had an
advantageous employment relationship with her employer; (2) the
defendant knowingly induced the employer to break that
relationship; (3) the defendant's interference, in addition to
being intentional, was improper in motive or means; and (4) the
employee was harmed by the defendant's actions." Weber v. Cmty.
Teamwork, Inc., 434 Mass. 761, 781 (2001). When this action is
brought against the plaintiff's supervisor, as it is here, the
"supervisor who discharges or recommends discharge of an employee
is not liable for interference with the employee's contract or
business relations unless the supervisor's actions were motivated
by actual malice." Galdauckas v. Interstate Hotels Corp. No. 16.,
reason for Cariglia’s termination, there is no need to address
whether Heard’s animus further infected the decision making process
by manipulating information regarding the four other items
mentioned in the security report.
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901 F.Supp. 454, 465 (D. Mass. 1995). In this context, "actual
malice" is a "spiteful, malignant purpose, unrelated to the
legitimate corporate interest." Shea v. Emmanuel College, 425
Mass. 761, 764 (1997).
Cariglia argues on appeal that the district court
committed an error of law when, after finding that Heard harbored
age-based animus against Cariglia and ordered the audit because of
his animus-based desire to "get rid" of Cariglia, it held that
Heard's actions did not interfere with Cariglia's employment
relationship with Hertz. The district court dispensed with this
claim briefly: "Any harm claimed by Cariglia from conduct on the
part of Heard would have to be the termination of Cariglia's
employment. But as we have discussed above, Cariglia's employment
was terminated for reasons independent of any conduct of Heard."
The district court apparently applied the causation standard from
Lipchitz in finding that Cariglia failed to prove that he was
harmed by Heard's actions. In light of our explanation of why the
district court's concept of "independent" was too limited, as well
as Lipchitz's explanation that "because of" does not mean "solely
because of," the district court must also reconsider its ruling on
the intentional interference claim against Heard.
III.
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For the reasons set forth, the judgment of the district
court is VACATED. We REMAND for proceedings consistent with this
opinion. The parties shall bear their own costs.
SO ORDERED.
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