In April 2026 the Appeals Court affirmed a jury verdict for an employer in an age discrimination case and refused to order a new trial. The employee argued she was ambushed by new testimony at trial, but she never objected when it came in. The court also upheld dismissal of her separate claim against the company’s CEO. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.
What happened
The employee sued her former employer, a credit union, claiming it fired her because of her age in violation of G.L. c. 151B. She also sued the chief executive officer for interfering with her employment contract. The Superior Court granted the CEO summary judgment on the interference claim but sent the age claim to a jury. Throughout the case, the employer said it eliminated her position in a restructuring. At trial, the CEO testified that she was not effectively managing her department. The jury found for the employer, and the judge denied her motion for a new trial.
What the court decided
The Appeals Court affirmed in Oliveira v. First Citizens Federal Credit Union, No. 25-P-583 (Mass. App. Ct. April 17, 2026) (Rule 23.0 decision).
The framework. In a reduction in force case, the employee must first show she is in a protected class, performed acceptably, was let go, and that the layoff happened in circumstances suggesting discrimination. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34 (2005). The employer then gives a legitimate reason. The employee must then produce evidence that the reason is not true but a pretext. Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016).
No “trial by ambush.” The employee argued that the CEO’s testimony about her performance was a new, undisclosed reason for firing her. The court rejected this for two reasons. First, she did not object when the testimony came in, so the issue was likely waived. Failure to object generally waives the point. Freyermuth v. Lutfy, 376 Mass. 612 (1978). Instead of objecting, she used the testimony to cross-examine the CEO. Second, the testimony was not inconsistent with the employer’s position. The CEO was answering a question about what he concluded after reviewing her department, and he consistently said, at his deposition and at trial, that her position was eliminated. The court also noted that a second witness the employer called had been named in discovery as someone with knowledge of the restructuring. With no miscarriage of justice, there was no abuse of discretion in denying a new trial.
Claim against the CEO. To win an interference with contract claim, you must show the defendant’s interference was improper in motive or means. Weiler v. PortfolioScope, Inc., 469 Mass. 75 (2014). When the defendant is a corporate official acting within his corporate role, the bar is higher: you must show “actual malice,” meaning a spiteful purpose unrelated to the company’s legitimate interests, and it must be the controlling factor. Bresler v. Muster, 496 Mass. 111 (2025). The employee testified she believed the CEO did not like her but did not think he fired her for that reason. Evidence that he did not answer her greetings did not show ill will beyond personal dislike. The court also said Comey v. Hill, 387 Mass. 11 (1982), which held that age discrimination could support a finding of malice in an interference claim, did not apply because that case did not involve a corporate official acting within his role.
What this means for you
The employer won, and the lesson is about trial procedure. If a witness says something at trial that you think was never disclosed, your lawyer has to object right then. An objection lets the judge fix the problem, for example with an instruction to the jury. If you stay silent, an appeals court will usually treat the issue as waived.
Second, an employer can be unhappy with your work and still say it eliminated your job. Those two things are not necessarily contradictory. If the employer’s story shifts in a real way, that can be evidence of pretext, but you need to show an actual inconsistency, ideally by comparing trial testimony to the deposition.
Third, suing a supervisor or executive personally for interfering with your job is hard. Feeling disliked is not enough. You need evidence of real personal hostility that drove the decision and had nothing to do with the business.
What to do now
- Write down, close to the time, every reason your employer gives you for a termination or layoff.
- Keep emails, reviews and restructuring announcements that show what the employer said and when.
- In discovery, ask the employer to state every reason for the decision and name everyone involved.
- Know the deadline to file with the MCAD before you can sue under G.L. c. 151B, and do not miss it.
- Get a lawyer who will prepare for trial and make timely objections.
If this is your situation, call Doubleday Law at (617) 575-2006 or tell us what happened. Deadlines for discrimination and employment claims can be short.
