In August 2024, the Appeals Court revived a worker’s gender discrimination claim because the trial judge asked her to prove too much at summary judgment. At that first stage, a fired worker does not have to prove causation or point to a male coworker who was treated better. The court still ruled for the employer on retaliation, because five months passed between her complaint and her firing. This is an unpublished Appeals Court decision under Rule 23.0, which courts may cite as persuasive but not as binding precedent.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 worker was hired in 2011 to help run an executive education program at a business school and was promoted in 2013. In January 2016 her supervisor told her that some faculty were unhappy with her and criticized her “aggressive” style, body language and “angry” appearance. She told human resources she was concerned about stereotypical, gender-related critiques, and in February 2016 she wrote that her treatment was discriminatory because she is a woman and that she expected to file with the Massachusetts Commission Against Discrimination. In March the employer offered her a choice: resign with a separation package or stay on a performance improvement plan. She stayed, received the plan in May, and submitted a written rebuttal in June. The employer began planning her termination that week and fired her on July 12, 2016.
What the court decided
In Regan v. Hooper, No. 23-P-56 (Mass. App. Ct. August 16, 2024) (Rule 23.0 decision), 104 Mass. App. Ct. 1118 (2024), the Appeals Court vacated the judgment on the gender discrimination claim under G.L. c. 151B, § 4 (1), and affirmed on the other claims.
The prima facie case. A worker without direct evidence of bias can use a three-stage framework. First, the worker makes a prima facie case. Second, the employer gives a legitimate, nondiscriminatory reason. Third, the worker offers evidence that the reason is not true but a pretext. Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016). For a firing, the prima facie case at summary judgment has only three parts: you belong to a protected class, you performed your job at an acceptable level, and you were terminated.
The trial judge recited that framework but then judged the worker’s claim by what she would have to prove at trial, including causation. The Appeals Court held that was error. Causation is not part of the prima facie case. It comes in at the third stage. The judge also erred by requiring evidence that a male comparator was treated better. That kind of evidence may matter at trial, but it was not required for the prima facie case. Because the judge never reached the second and third stages, the claim goes back to the Superior Court.
Retaliation. G.L. c. 151B, § 4 (4) bars punishing someone for opposing discrimination. To make a prima facie case, a worker shows protected conduct, an adverse action, and a causal link. Timing can show the link, but only when the adverse action comes very close to the protected activity. As time passes, the inference weakens and eventually collapses. Mole v. University of Mass., 442 Mass. 582 (2004). About five months separated the worker’s February complaints from her July firing. The court held that gap was too long to prove causation by timing alone, and it rejected her argument that her June rebuttal restarted the clock.
The supervisors. The worker’s claims against two individual managers for interference and aiding and abetting failed. Her brief did not develop the argument, and the court agreed there was no evidence either manager committed a separate, individual wrong.
What this means for you
The first stage of a discrimination case is meant to be a low bar. If you were fired, you generally need to show only that you are in a protected class, you were doing your job acceptably, and you lost it. A judge should not throw out your case at that point because you lack proof of motive or a male coworker to compare yourself to.
Retaliation is different. If you complain and are fired months later, timing alone may not carry the claim. You will need other evidence: a change in how you were treated right after you complained, comments by decision makers, or reasons that shift over time.
Pay attention to criticism framed in terms like “aggressive” or “angry.” Raising your concern in writing, as this worker did, creates a record of protected activity.
What to do now
- Keep your performance reviews and any praise you received before the criticism started.
- Put any discrimination concern in writing and keep a dated copy.
- Write down every change in how you are treated after you complain, with dates and names.
- File with the MCAD within 300 days of the act you are challenging, as G.L. c. 151B, § 5 requires.
- Talk to an employment lawyer before you accept a separation package or sign a performance plan.
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.
