Employment – Discrimination – Pretext

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Where a defendant bank was granted summary judgment on a terminated plaintiff’s claims of race and national origin discrimination and retaliation, a remand must be ordered because the plaintiff met her burden of producing evidence that the nondiscriminatory reasons the employer gave for the termination were not true.

“The first contested issue on appeal is whether [plaintiff Suraya] Carnakie-Brown produced evidence of a prima facie case of discrimination. Though the issue is close, viewing the evidence in the light most favorable to Carnakie-Brown and resolving factual disputes in her favor, as we must at this stage of the proceedings, … we conclude, as did the motion judge, that Carnakie-Brown provided evidence from which a jury could infer that she was performing her job at an acceptable level. …

“Turning to stage three, in a pretext only jurisdiction like Massachusetts, an employee may survive summary judgment at the third stage by presenting evidence that the employer’s nondiscriminatory reasons for the termination were not true. … Carnakie-Brown met her production burden here.

“To start, the bank offered conflicting evidence about the identities of the decision makers in the termination decision. … A jury could find that Carnakie-Brown’s performance had improved by the fall of 2017 and that her interaction with the [anti-money laundering department (AMLD)] did not evince a lack of responsiveness. The bank’s claim in its answers to interrogatories that it terminated Carnakie-Brown in part because of her ‘sustained failure to improve in [customer service]’ was at odds with the ninety percent September 2017 customer satisfaction score and positive customer feedback. From the lack of consistency and changing reasons, a jury could infer that one or more of the bank’s articulated reasons was false.

“Third, Carnakie-Brown produced comparator evidence from which a jury could find that a similarly situated white peer ([Shauna Moran-Lee] Greene) was treated differently. …

“Fourth, [Heather] Nelson’s negative comments about M.T.’s hair and dress as well as Carnakie-Brown’s wardrobe could be viewed by a jury as suggestive of racial bias. …

“Fifth, it is well-established that an employer’s failure to follow its written procedures may support an inference of intentional discrimination. … Here, the bank states in the team member handbook that ‘[a]ll reports of discrimination or harassment will be promptly, thoroughly and impartially investigated.’ A jury could find that [Martha] O’Donnell’s investigation did not satisfy these three criteria.

“The bank has not met its ‘burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue.’ … Summary judgment on this claim was error. …

“After analyzing Carnakie-Brown’s retaliation claim under a similar three-stage burden-shifting paradigm, we conclude that the claim should have been submitted to the jury. … At least one possible sequence of events would support an inference of retaliation.

“Not only did Carnakie-Brown provide evidence of a prima facie case of retaliation, she also produced evidence that the bank’s nondiscriminatory reasons for the termination were pretext for retaliating against her because of her protected activity. … The bank contends that it terminated Carnakie-Brown for sustained performance failings. However, a jury could find that the bank fired Carnakie-Brown despite her adequate performance and that the bank may have failed to factor in evidence of her improvement. Moreover, Carnakie-Brown presented evidence that Nelson disliked her, was looking to get rid of her for reasons unrelated to her performance, and harbored retaliatory animus against her. This evidence of pretext was sufficient to survive summary judgment.”

Carnakie-Brown v. Santander Bank, N.A., et al. (Lawyers Weekly No. 81-053-21) (13 pages) (Docket No. 20-P-295) (April 20, 2021).

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