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Appeals Court of Massachusetts.

Suraya CARNAKIE-BROWN v. SANTANDER BANK, N.A., & another.1


Decided: April 20, 2021

By the Court (Wolohojian, Henry & Singh, JJ.2)


Suraya Carnakie-Brown, a former employee of Santander Bank, N.A. (bank), timely appeals from a summary judgment entered in favor of the defendants on her race, national origin, and retaliatory discrimination claims. We reverse.

Background.3 In December 2016, Heather Nelson, the bank's district executive for the South Shore district (district), hired Carnakie-Brown, a Black woman of Cape Verdean origin, as a branch manager. Nelson is white. At the time, Nelson supervised fifteen branch managers, all of whom were white.4 When the bank hired Carnakie-Brown, the bank's Holbrook branch was understaffed. After placing Carnakie-Brown, who had years of managerial experience but no banking experience, in Holbrook in March 2017, Nelson assigned a “strong” floating branch manager, Shauna Moran-Lee Greene, to assist Carnakie-Brown. Greene is white. In May 2017, the bank terminated M.T., another Cape Verdean woman employed as a banker in Holbrook.

Carnakie-Brown had a number of performance problems, culminating in a final written warning (FWW) to her on June 27, 2017, for “poor performance.” Two days later, Carnakie-Brown filed two internal complaints: one submitted by e-mail to the bank's top executives regarding discrimination and hostile environment and one submitted through the bank's ethics line.5

After an investigation, Martha O'Donnell, an employee relations consultant, concluded, “Nelson was within her right to issue a [FWW]” and found no evidence of harassment or discrimination.

On October 2, 2017, Carnakie-Brown filed a complaint at the Massachusetts Commission Against Discrimination (MCAD). On December 11, the bank informed Carnakie-Brown that her employment was terminated.6 As Carnakie-Brown foresaw, Nelson subsequently filled Carnakie-Brown's position with Greene. In early 2018, A.O. complained about discriminatory treatment by Nelson, alleging that Nelson spent more time coaching her than anybody else. O'Donnell again found no evidence of discrimination. We reserve further details for later discussion.7

Discussion. 1. Race and national origin discrimination. These claims are governed by the standards explicated by the Supreme Judicial Court in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382 (2016), and Bulwer v. Mount Auburn Hosp., 473 Mass. 672 (2016). Carnakie-Brown presented indirect evidence of discriminatory animus and causation using the familiar three-stage burden-shifting paradigm. See Verdrager, supra at 396-397; Bulwer, supra at 680-681.

The first contested issue on appeal is whether Carnakie-Brown produced evidence of a prima facie case of discrimination.8 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, see Verdrager, 474 Mass. at 385; Bulwer, 473 Mass. at 680, 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.

Carnakie-Brown admitted to having performance problems early in her employment, including a violation of the bank's “Currency - Cash Orders” policy by leaving $123,000 unsecured in the bank vault, leading to a FWW for poor performance on June 27, 2017. Contrary to the bank's assertions, however, she disputed two of the incidents listed in the FWW.

Moreover, although her performance record was not unblemished between June 27 and her termination in December, objective evidence demonstrated improved customer satisfaction and performance by Carnakie-Brown. In September 2017, Carnakie-Brown's branch increased its customer satisfaction score from eighty percent in August to ninety percent, far surpassing the bank's seventy-eight percent expectation. Nelson congratulated Carnakie-Brown on the improved score, stating she was “[v]ery proud of the team.” Carnakie-Brown also produced testimony from Alison Sampson, a float employee assigned to the Holbrook branch, that around this time, the branch “started doing really well ․ [their customer satisfaction score] started going up. [Carnakie-Brown] started doing all the processes ․ that are put in place to be a good leader ․ [They] started turning around the branch. It used to be a branch that customers were ․ complaining about to being a good branch ․ [They] did really well.” The score increase was bolstered by reports of Carnakie-Brown's positive feedback from customers and a subordinate. This evidence was sufficient support of satisfactory performance for purposes of making out a prima facie case of discrimination. See Yee v. Massachusetts State Police, 481 Mass. 290, 300 (2019) (“[t]o establish a prima facie case, the plaintiff bears only the burden of production, which is satisfied by furnishing evidence in support of each element; the burden of persuasion that an element of the prima facie case has not been established rests with the defendant on summary judgment, even though it rests with the plaintiff at trial”); Trustees of Health & Hosps. of Boston, Inc. v. Massachusetts Comm'n Against Discrimination, 449 Mass. 675, 683 (2007) (plaintiff's initial burden “is meant to be a small showing that is easily made” [quotations and citation omitted]); Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 45 (2005) (“initial burden of establishing a prima facie case is not intended to be onerous”).

Turning to stage two, Carnakie-Brown does not dispute that the bank satisfied its stage two burden. She assumes for the sake of argument that the defendants articulated a legitimate nondiscriminatory reason for terminating her employment. See Verdrager, 474 Mass. at 397 (employer's burden of production at second stage is to articulate one or more nondiscriminatory reasons for adverse decision); Bulwer, 473 Mass. at 681 (same).

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. See Abramian v. President & Fellows of Harvard College, 432 Mass. 107, 117-118 (2000). Accord Verdrager, 474 Mass. at 397; Bulwer, 473 Mass. at 681-682. 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. In its answers to interrogatories, the bank stated that Nelson and O'Donnell were both involved in the “consensus” decision to terminate Carnakie-Brown. However, both O'Donnell and Nelson subsequently denied being involved in the decision-making. Second, the bank's articulated reasons for the termination decision were inconsistent and evolved over time. Initially, the bank informed Carnakie-Brown that it was terminating her because it no longer had “trust” in her. In the consolidated Rule 9A(b)(5) statement of the material facts, the bank claimed that following the FWW, Carnakie-Brown's “performance continued to falter throughout the remainder of her employment” and that Carnakie-Brown's “blatant disregard for [an] important internal deadline [issued by the anti-money laundering department (AMLD)] was the last straw.” See Rule 9A(b)(5) of the Rules of the Superior Court (2018). However, not only did Carnakie-Brown produce evidence rebutting these factual assertions, the bank's earlier answers to interrogatories did not reference the supposed “last straw.” A jury could find that Carnakie-Brown's performance had improved by the fall of 2017 and that her interaction with the 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.9

Third, Carnakie-Brown produced comparator evidence from which a jury could find that a similarly situated white peer (Greene) was treated differently.10 See Verdrager, 474 Mass. at 398-399; Bulwer, 473 Mass. at 685-686. While there may be factual differences between their situations, in the light most favorable to the plaintiff, both left cash unsecured in the vault in violation of a policy requiring that cash be stored in the dual-control vault to deter theft. The question of whether Carnakie-Brown and Greene were fair comparators was for the factfinder, and the jury could infer that the two employees acted comparably and were treated differently. See Haddad v. Wal-Mart Stores, Inc., 455 Mass. 91, 99-100 (2009); Trustees of Health & Hosps. of Boston, Inc., 449 Mass. at 682; Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. 122, 129-133 (1997).

Fourth, 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.11 Although standing alone, the remarks may not support a finding of discrimination, they are potentially relevant to Nelson's animus and decision-making process, or so a jury could find.12 See Bulwer, 473 Mass. at 686-687.

Fifth, it is well-established that an employer's failure to follow its written procedures may support an inference of intentional discrimination. See Bulwer, 473 Mass. at 687. 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 O'Donnell’s investigation did not satisfy these three criteria.13

The bank has not met its “burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue.”14 Bulwer, 473 Mass. at 683, quoting Sullivan, 444 Mass. at 39. Summary judgment on this claim was error.

2. Retaliation. 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. See Verdrager, 474 Mass. at 405-406. Carnakie-Brown presented sufficient evidence of a causal connection between the filing of her MCAD complaint and her termination: the bank fired her six weeks after she filed her complaint, at a time when a reasonable jury could find that she had turned the Holbrook branch around and was performing her job satisfactorily.15 See Mole v. University of Mass., 442 Mass. 582, 591-593 (2004). A jury could find that Carnakie-Brown did not file her discrimination complaint in order to obstruct “a well-deserved discharge.” Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991). There are many disputes of fact surrounding the trajectory of Carnakie-Brown's employment in the fall of 2017 as well as the timing and circumstances surrounding her termination. 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. See Verdrager, 474 Mass. at 406. 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.16 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.17 This evidence of pretext was sufficient to survive summary judgment.

Judgment reversed.


3.   In reviewing a grant of summary judgment, we assess the record de novo and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Yee v. Massachusetts State Police, 481 Mass. 290, 294 (2019); Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986), quoting Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982). Viewing the facts in this light, we then determine whether the moving party, the bank, has affirmatively shown that there is no real issue of fact, “all doubts being resolved against the party moving for summary judgment.” Id.

4.   During Carnakie-Brown's employment, Nelson commenced supervising a second woman branch manager who is Black, A.O.

5.   In her internal complaint to the bank, Carnakie-Brown claimed that Greene was no help at all and in fact was “scrutiniz[ing her] microscopically” and “undermining [her] role.” She accused Greene and Nelson of setting her up to fail and of targeting her for termination. Due to the fact that her every decision and action was being reported incorrectly and that proof she offered in her own defense was not being considered, Carnakie-Brown expressed to the top executives her belief that she was being discriminated against. Having observed what took place with M.T., she questioned, “if the bell tolls for [her] next in a district where all the Managers are white” and whether what was really going on was a plan by the bank to “get rid of [her] and reset the status quo.” Carnakie-Brown described an incident where she felt she was clearly “singled out” by Greene and Nelson with the goal of having Greene (or the manager from Hanover) take over the Holbrook branch.

6.   The bank claims that the termination decision was made in November 2017.

7.   We note that although the motion judge granted Carnakie-Brown's motion to strike exhibit 7, the defendants continue to cite that document. We do not consider exhibit 7.

8.   Only the second element of the prima facie case is disputed: whether Carnakie-Brown performed her job at an acceptable level. See Verdrager, 474 Mass. 396; Bulwer, 473 Mass. at 681.

9.   We also note that the defendants asserted to the motion judge that the plaintiff was terminated for at least four reasons: violating the Currency - Cash Orders policy, violating the Code of Conduct, missing the AMLD deadline, and receiving multiple customer complaints. On appeal, the bank offers one summary reason for the termination: Carnakie-Brown's “terrible” performance “in the several months preceding her termination.”

10.   Carnakie-Brown received the cash and left it unsecured in violation of the Currency – Cash Orders policy. Greene saw the unsecured cash in the vault and failed to secure it immediately to see what Carnakie-Brown would do. Nelson admitted that Greene's failure to immediately secure the cash also breached the same policy. Nelson recommended Carnakie-Brown's termination for the “serious” violation, which after consultation with O'Donnell was downgraded to a FWW. Nelson gave Greene a “coaching” for her violation, which is not considered discipline.

11.   On several occasions, Nelson mentioned to Carnakie-Brown that she wanted M.T., a Cape Verdean woman, “gone.” Nelson remarked, “Look at her hair [afro and dreads]. Look at her dress. Is that how she dressed to come to work? ․ She's got to go.” Nelson also asked Carnakie-Brown, the only manager who wore a dress to work, why she always wore a dress and whether she owned any pants. Although the bank had a dress code, it was not “cut and dry”; everyone wore what they wanted. Nelson only spoke out about the clothing of Carnakie-Brown and M.T. After M.T. committed an operational violation involving the mishandling of money, Nelson instructed Janine Parker, the district operations manager, to draft the letter [regarding M.T.’s performance issues] in such a way that the human resources’ only option was to fire M.T. Carnakie-Brown understood that the bank terminated M.T. for an operational violation. M.T.’s white manager, who had given M.T. instructions in connection with the incident, was not terminated and was later promoted.

12.   Were a jury to credit Carnakie-Brown's allegations about being undermined and set up to fail, a permissible inference would arise that Carnakie-Brown's “perceived performance deficiencies resulted in part from [Nelson's] animus rather than from innate inadequacy.” Verdrager, 474 Mass. at 399. Nelson's treatment of A.O. was also relevant to the pretext inquiry. See id. at 400-402.

13.   The bank selected O'Donnell, who had helped Nelson draft the FWW, to investigate Carnakie-Brown's allegations. O'Donnell gave Nelson -- the subject of the investigation -- a preview of her findings before she completed the investigation. Although O'Donnell claimed that she interviewed three witnesses in addition to Carnakie-Brown and Nelson, one (Greene) denied being contacted by O'Donnell or participating in any investigation, and another (Sampson) did not recall discussing discrimination with O'Donnell at any time before the date O'Donnell claimed she had completed her investigation. Nelson's “FWW” to K.B., a white branch manager and alleged comparator, allegedly reviewed by O'Donnell was actually a written warning (a lesser sanction) and did not issue until after O'Donnell’s investigation.

14.   To the extent that the motion judge adopted the bank's argument that Nelson's hiring of Carnakie-Brown a year before her termination undermined any inference of discriminatory animus, the Supreme Judicial Court rejected the same actor inference as inconsistent with the summary judgment standard. See Verdrager, 474 Mass. at 404 n.32.

15.   The bank does not challenge Carnakie-Brown's satisfaction of the other elements of the prima facie case.

16.   The corrective action and performance improvement provision in the team member handbook states that in determining what level of corrective or disciplinary action is appropriate, management should consider the employee's “commitment to and/or capability of showing improvement.” There was evidence that although Nelson quickly passed along performance issues to O'Donnell in the last two months of Carnakie-Brown's employment, she intentionally hid positive feedback and interactions. Michael Bruno, the acting regional president who had final say in the matter, testified that the termination decision came to him through Nelson and O'Donnell; and that he was told among other things that Carnakie-Brown's “performance wasn't getting better.”

17.   Nelson admitted that she believed Carnakie-Brown filed her internal discrimination complaint out of “ill-will.” When Nelson learned that O'Donnell would be interviewing her about the complaint, she set up a file on Carnakie-Brown, where she would transfer pertinent e-mails relating to Carnakie-Brown. Nelson also was suspicious of Carnakie-Brown. During career week in September 2017, Nelson offered every member of her team who was interested in possibly becoming a district executive the opportunity to spend a full or half-day following her. Carnakie-Brown accepted the offer and spent the day accompanying Nelson on branch visits. The two also had lunch. Nelson believed that Carnakie-Brown spent the entire day shadowing her not because she wanted to rise in the organization, but because she wanted to find things about her to “set [Nelson] up.” After learning of Carnakie-Brown's alleged “plan” for her, Nelson was reminded of “disgruntled employees [who] go in, shoot their boss, shoot up buildings ․” She reported the “plan” comment to O'Donnell and “vigorously” sought Carnakie-Brown's termination.

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Docket No: 20-P-295

Decided: April 20, 2021

Court: Appeals Court of Massachusetts.

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