-: SJC-13352, Mark A. Adams v. Schneider Electric, USA.
-: Okay, Attorney Mantell.
-: Thank you.
May it please the court?
Ilir Kavaja and I represent Mark Adams,
and are here to request a jury trial on his claim
of age discrimination against Schneider Electric.
In January, 2017, Mr. Adams,
who was part of the R&D department,
was terminated as part of a reduction in force
that affected only people age 54 and over.
We have strong and compelling evidence
of age discrimination, and ongoing corporate direction
to get rid of older workers,
(person clears throat)
many layers of pretext, strong prima facie case,
statistical proof of age bias.
In one very dramatic bit of testimony,
while Mr. Colby alleged that he was not counseled
on how to institute a RIF and no one suggested age,
Michelle Gautreau said,
"That she met with him in connection with the RIF."
She said, "You can evident information about age.
It's gonna be helpful for you to make a decision."
And she literally gave him a spreadsheet.
-: I found that, that kind of interesting 'cause
(person clears throat)
that can also be trying
to help avoid age discrimination, right?
Having the benefit of that.
She's not saying, "Target the old people."
She's saying, "You should know age discriminate."
I mean, I don't even know if she says this.
Age discrimination is out there.
You should be conscious
of who you're laying people off, right?
I mean, we don't know what that means, do we?
-: Literally.
-: I mean there were other things that may support your
argument, but I found that one particularly weak,
that she gives out.
And is she required by law to do that?
Is she required by law to do that?
-: No, she's not, no, she's not.
At the time they understood,
they considered age diversity to be an important factor.
And in their minds at that point,
the desire for age diversity to them meant
we need to get younger.
And in fact, the case law on these anti-discrimination
statutes say that your decisions should be age neutral.
So the idea that you're giving out ages of people
when you're making termination decisions,
shows you're not being age neutral.
-: All right, I think that's a little tricky, but.
(papers shuffling)
-: Isn't the HR director supposed to actually,
I guess, make sure that everyone's cognizant of age?
-: No, if anything, she should be saying,
"Age should be irrelevant to your decision.
Do not look at people's ages."
That's what she.
-: But if she's not cognizant of age at all,
then eventually you're gonna be dealing with litigation
perhaps over pretext.
Don't you have to worry
about disparate impact too?
-: For example, if this were a race discrimination case,
and the HR director said, "Okay, layoff people,
I'm gonna give you important factors
that would help you make your decision,
and I'm gonna give you the races
of all the people under you",
we would consider that as evidence
that race was a factor in these decisions.
And this is exactly the same.
-: Counselor, you're not asking for summary judgment,
you're just asking to go to trial, right?
-: Correct.
-: Okay.
-: Correct, and.
-: And along those.
-: So any inferences, you know, are in your favor, right?
-: That's correct.
-: Okay.
-: And along those lines, if we can just,
tell me if I'm wrong,
we can just put this Reeves issue,
and this debate in the appeals court aside
about what you do
with unimpeached testimony of an employee.
First of all, dealing with what that means,
in any case, never mind an age discrimination case
with pretext and burdens,
doesn't seem to make sense,
but along the lines of what Justice Wendlandr
just asked you, you just have to show
that there's a genuine issue of material fact
as it relates to one pretext.
-: Exactly.
And we have seven or eight instances of pretext here,
including the Gautreau.
-: So what Colby's unimpeached testimony
means in all of this, and Reeves means
really not what we need to focus on, is it?
-: That's true.
You don't need to reach that issue.
However, it's very, very helpful.
In Bulwer, this court has said that the JNOV standard
is the same as the summary judgment standard.
And the JNOV standard says you disregard the evidence
of the opposing party in this case, the employer.
-: You don't disregard the evidence,
you look at whether there's a genuine issue
of material fact from the evidence, you know,
and say, "I don't like that evidence,
so I'll disregard it."
I just don't think it's a big deal in this case,
and more importantly, especially in a discrimination case,
with shifting burdens.
-: For example, I think that's a valid point.
And here we just need to prove one example of pretext.
Now Mr. Colby says, "I made the decision."
But at the time of the termination,
he tells Mr. Adams, "I didn't make this decision at all."
(person clears throat)
"It was HR that made this decision."
Then Mr. Colby says, "I made this decision alone."
But we know that's false,
because Mr. Sharma was there and he had authority,
and he literally vetoed one of Colby's decisions.
And, Mr. Sharma was identified as the person
with authority in terms of the decisional unit.
-: The person he saved was how old?
-: Excuse me?
-: The person Mr. Sharma saved was how old?
-: 66.
-: Interesting.
Interesting that you saved some,
the oldest person in the mix, right?
This thing's a little,
it's a difficult employment case, right?
-: But that person was gone within months,
and that person was experiencing a.
-: Is that in our record?
-: Yes.
-: That she's gone within months?
-: Yes.
-: Okay.
-: Yes, so.
-: How do we, we've got a couple of things here
that are sort of unusual.
You're reading back in time what?
Your most compelling evidence
that there is a sort of an ageist attitude out there
is all based on things that almost all of it's
based on things that happened afterwards, right?
Are there a number of cases that do that, look backwards?
Statements you made after the layoff,
to interpret how you were thinking during the layoff?
-: There, the Lynch versus Crawford case,
which we've given you,
but there's like four or five pieces of evidence
that I'd like to go through that reference the time,
the specific time.
First, there's a statement in July, 2017,
which is six months after, which says,
"We have this ongoing strategy
to get rid of older people in favor of younger people."
And, as an example of that,
they refer to the Adams termination.
-: I thought that was the most interesting example.
Although again, you're oversimplifying what they said.
They didn't quite say, "We're dumping old people,
for young people."
They're, but I get your point,
that they can make the connection backwards
and reference Adams in that, okay.
There's a few other instances, if I may.
In September, 2016, they issue a policy statement saying,
"Age demographics is an opportunity."
This is just a few months before the
-: Can I ask you about that? -: termination.
'Cause that's the head of IT, right?
-: Yes.
-: Is he the, where does he fit in relation to,
is R&D within IT?
-: Yes.
-: Or is he just a totally separate manager, that person?
-: No, this is, so.
-: I remember his name.
He's the head of the IT group,
and I just didn't understand,
is the R&D a part of the IT group,
or is it a totally separate branch of, in that company?
-: It's, ITD is below all of these.
But this is in a document in which Arria, HR lead,
is emailing it to Gautreau, who's also an HR Director.
And what they're saying is,
"Age demographics is an opportunity."
-: Hold on a second, let's be specific.
The thing you're referencing,
from what I understand,
begins with a statement from the head of IT,
saying something and then, she responds to that.
But you're, the ages comment in that example,
comes from, is he in, does Colby, in any way,
report up to this guy or is this guy somebody
in a totally different department,
and fitting in more than the stray comments
kind of stuff that?
-: You are referring to a different document.
-: Okay.
Cermack, who is Arria's superior,
that's the initial discussion where they say,
"Oh, we have to make room for younger workers."
And then, Arria sends that off to Sharma and saying,
"You know, let's talk about this,
let's brainstorm about this."
So Sharma is directly brought in,
Colby is under Sharma.
Colby testifies, "It's my job
to do what Mr. Sharma wants me to do."
But going back to the September, 2016 document,
age demographics is an opportunity.
Later, we learn in the record 711 to 713,
that that's part of a strategy.
Meaning they need to make room for early career hires.
How are they gonna do that?
They say, "We're gonna restructure and reorganize."
Then they say, "How are we gonna do that?"
Then the next page is opportunities.
"Let's look at people who are performing poorly,
and people with long seniority."
The older people are lumped in
with people with poor performance.
So, in September, 2016, when they say,
"Age demographics is an opportunity",
that's what they're talking about.
Then after that, Arria meets with Gautreau
and says, "Look, Colby is going to be doing this RIF.
I am sending you to go counsel him on this RIF."
And in the notes of that meeting,
it says, "Deeper cuts for college grads."
That's the instruction she was sent off
to go speak to Colby about.
Then, when she meets with Colby, she says,
"Consider age, age is gonna be helpful,
here's your data.
-: One thing, when I check your cites,
I find that you're kind of filling in gaps here.
Where is this point about deeper cuts for college grads,
and how, and that's (equipment moving) directly connected?
So, when we go back and read these record cites,
I just want to be careful with you,
we're gonna find that she says right before she talks to
Colby, she says, 'Go tell Colby to,
we want deeper cuts for college grads."
Or, are you just connecting different pieces of paper
that have nothing to do with each other?
"Cause I want you to be careful here,
'cause again, I actually tracked some of your things,
and I didn't find they added up that directly.
-: These are written notes.
-: They're written notes for that Arria is directing
Gautreau to tell Colby that,
'cause that's kind of compelling stuff.
Is that really gonna show up?
What page is that on in the record appendix?
-: July 6th, 2017 I think.
Is what the conversation you're talking about.
(papers shuffling)
-: So that's page 378.
-: To make room for new hires?
-: It says, "Deeper cuts for college grads."
-: How does that connect to what she said to Colby?
Is that, does she, is there something,
I don't have this in front of me.
On page 378 where Gautreau,
Arria tells Gautreau, "Tell Colby,
deeper cuts for college grads."
Are you just making connections between different
documents and different things happening out there?
-: No, at this meeting, Arria is telling Gautreau,
"Go coach Colby."
Okay, they mention restructuring,
and then, there's a statement,
"Deeper cuts for college grads."
So reasonable inference is,
is that is relevant to the coaching that
Gautreau is instructed to go off and do.
And it dovetails with the fact
that she actually goes to Colby and says,
"Consider age, this is gonna be helpful."
-: How does this fit into the big picture,
at least from the appellee's point of view,
that they say, that your client unequivocally said,
"That Colby didn't discriminate"?
And that the testimony is that, not these words,
but he was an island.
It was his decision, and his decision only.
He was an island and that all of this other evidence,
and quote unquote stray remarks are okay.
But, with the genuine issue material fact
as to pretext when the plaintiff is admitting
that Colby didn't discriminate,
would he get the genuine issue material fact
as to pretext in that context?
-: Okay, so the plaintiff never admitted that
(person clears throat)
Colby never discriminated.
What he did say is,
"That he hadn't alleged it in a document", okay?
What Schneider has done is they had a uncited title
in their statement of facts,
to which there was no response required.
And then, they said, "That the plaintiff
admitted to that title."
And so, there was no admission.
Now going to the island,
there are many cases in which courts have rejected
the island assertion including the Finney case,
Flint versus Boston, and, and the Walton case,
which is cited in our brief and MELA's brief,
It's a question of fact.
And the whole purpose of the McDonnell Douglass standard,
is that the plaintiff is not an eyewitness
to the subjective decision making.
So what McDonnell Douglass says is,
"Let's consider objective evidence that is viewed
from the perspective of an outsider, the statistics,
the comparator evidence, pretext, things like that."
And what Schneider is saying is,
"That's not relevant,
because we say it's not relevant
based on our description of what happens
in our secret meetings,
and that the courts don't follow that."
So I see my time is up and without any extra questions,
I'll rest on my briefs.
-: Okay, thank you.
Okay, Attorney Solowey,
How do you say your name?
May it please the court?
Dawn Reddy Soloway -: All right.
-: from Seyfarth Shaw.
I'm here with my colleague, Chris Kelleher,
on behalf of the appellee, Schneider Electric.
Your Honors, we're asking that you affirm summary judgment
for Schneider on all counts.
Like to just remind the court that there's one count here
for disparate treatment age discrimination.
And so the question before the court,
is whether the plaintiff can get to a jury
on the question of whether Colby selected Adams
for the 2017 RIF because of his age?
And on the undisputed facts, the unrebutted evidence,
that this court can and must consider under Rule 56.
-: I don't know, there's a lot,
there's a lot of troublesome, you know,
corporate speak out there on this.
And they've targeted this group,
for a pretty substantial cost savings.
There's other groups they can pick,
but they pick this group and they want,
and this group has got a lot of sort of elderly,
or I don't know if it's the right word,
given they're all younger than I am,
but people in their 50s and 60s working there.
And, and you've got these kind of age diversity comments.
Isn't that enough to survive summary judgment,
particularly when Mr. Colby has some inconsistencies too?
He does meet with Gautreau, she talks about age.
It's not clear why she's talking about age.
It may be in a salutatory way,
it may be in an age diversity way.
But there's a lot here.
And then, there's that document,
where they talk about age diversity,
and then they reference back to the plaintiff here.
Isn't that enough to raise pretext?
-: Add to that, because it really stuck out with me,
that I think it's Granato wants to hire,
wants to hire Adams.
He doesn't want him to be laid off.
They need him in the area of field quality.
That seems to be a pretty important issue too.
-: Happy to address all of those issues, Your Honors.
So I think what's important here,
is that the business reasons for the layoff
are unrebutted and undisputed.
So we know that this business had been flat
for four years, that's undisputed.
And that they needed to have budget cuts of 22%.
And so we also know, because it's undisputed.
-: There's another group of engineers in India, right?
There's another group, are they also,
don't they have the same, this is one big company.
It's not, we don't look at this as division by division.
-: So Your Honor, there,
India also was subject to budget cuts.
-: Much smaller, right?
-: But they were able to.
-: What was their percentage?
-: I don't recall their percentage.
-: But it's like a single digit percentage versus a 22%?
-: But Your Honor, I would suggest to the court that,
the court is not to sit here
as a super personnel department deciding whether.
-: I'm not here, I'm not sitting
as a super personnel.
-: But we need to apply
the motion for summary judgment standard.
And it -: Absolutely.
-: seems to me what Justice Kafker and Justice Lowy
are suggesting is that there's enough going on here
to take it to the jury.
-: So.
-: And so why is that not the case?
-: Absolutely, Your Honor.
So I think here it's undisputed
that Colby is the person who made the selections.
(person clears throat)
That he was given this instruction,
that they had to cut by 22%.
-: And he's also given the age -: He makes this decision.
-: demographics and there's all this ambience,
not just stray remarks,
but remarks by people in positions to make decisions.
One of whom he reports to, Colby reports to,
you know, enough here.
I'm not saying Colby discriminated against the plaintiff,
because of age, but the point is,
you haven't shown that there isn't a genuine issue
of material fact given all of these things.
-: Your Honor, I think, there's nothing in the record
that suggests that this department was targeted,
because of age.
There's just no evidence about that at all.
So, what we do know is that, -: But again, what we look at
is we look at the whole picture, right?
-: Yes.
-: And we look at the fact, how many people are laid off?
Every single one of them is in their 50s, and.
-: Your Honor, as the dissent pointed out below,
this group was old before the RIF,
and they were old after the RIF.
-: But then, the question is that why this group
is getting a 22% cut,
when we're looking for,
I mean we're the bigger, the head of HR,
and some high level executives are talking about,
we've got, we need age diversity.
Can I ask one other little fact?
-: Yes.
-: Is recruitment limitation,
we're not gonna recruit anyone over 58.
Is that legal?
Is there some legal basis for doing that?
Because I've never heard of that before.
-: Your Honor, there is one citation in the plaintiff's brief
to a reference in a deposition to that document.
The document itself is not in the record.
There's nothing developed about that document.
But we do know is that document
had nothing to do with RIFs, or terminations.
-: But if you're not, -: And again, it's Colby,
-: but again, it's atmospherics.
And again, I understand stray comments.
You got some foreman out there,
making some stupid remark, we ignore it.
But when we've got the head of HR,
and other significant players talking this way.
-: (clear throat) But Your Honor,
I would focus the court back on what's undisputed.
-: And by the way, again,
that you're telling us we can't consider
this issue about not hiring someone over 58?
That's, there's, -: There's nothing in
the record.
-: that's not properly for us to consider?
It's a statement and this is a summary judgment, right?
-: So Your Honor, what I'm saying,
is that there's nothing in the record about that document,
about the context -: In the deposition.
-: for that document.
There's a basically a single question about that document.
And Arria said, "I don't really recognize this document."
That's all that's in the record.
But we do know that the document, on its face,
does not say anything about terminations,
or about RIFs, and I.
-: But if we're not hiring elderly people,
again, people younger than me.
So we're not hiring people in their late 50s,
that doesn't, and we want age diversity,
and we're restructuring and we list the plaintiff
in a document about restructuring to make
room for younger people, again.
-: Your Honor, what I would say is that
I think what the plaintiff is trying to do,
is to distract the court from the core undisputed facts
of this case with these stray remarks
that have nothing to do with the decision,
nothing to do with Ken Colby,
nothing to do with the relevant time period.
And if look at the undisputed record,
Colby made these decisions by himself.
-: But he told the plaintiff -: That's what the
record shows.
-: that it wasn't his decision to make.
-: No, Your Honor, he didn't.
-: He didn't.
-: If you look at the actual testimony,
and I agree that the plaintiff has taken
quite a few liberties with the record.
If you look at that actual testimony,
what Adam says is, "I speculate that HR
must have been involved,
because that's my perception of how companies work."
He never said that anything
about HR actually being involved.
And in fact, -: Is there in the record that
we know that HR was not involved.
-: Gautreau gave Colby the ages of the people
who are up for termination?
-: What's established in the record, Your Honor,
is that she gave him general files,
which contained all of the demographics, including age.
There's absolutely no evidence in the record
that she told him to consider age.
In fact, Colby testified and she testified
that they did not.
That Colby made these selections by himself.
-: Just gave him personnel files that happened
to contain the ages?
-: Yes, Your Honor.
And, in fact, Gautreau is the -: And by the way,
-: person who.
-: that again, again, I haven't read 378.
Is he misrepresenting what's on page 378?
-: I'll see if my colleague can find 378,
and then I'll be able to answer that, Your Honor.
But, I think it's also important to know
that Gautreau is the person
who does the disparate impact analysis, thank you.
And so, she's the one who's actually charged
with making sure that there is no disparate impact.
And we know that there, in fact,
was not a disparate impact in this case.
In fact, -: I'm not sure of that.
-: we know that.
We know that.
-: To me, that I find the fact that, I mean,
it's rare that everybody terminated (chuckles)
is in their 50s, that's a sort of a.
-: Your Honor, the experts agree
that there was no disparate impact for people over 40.
(equipment moving)
And I think it's important, -: But we're talking, but they
disagree about over 50,
and isn't he 54 or something?
So I'm just, I don't get
why over 40 matters, when he's.
-: Because that's the statute, and so.
-: I understand they're protected by the statute.
-: And remember that, -: But if you're discriminating
against the elderly part of that group,
isn't that discrimination?
-: Your Honor, it's undisputed
that if you look at the actual statistics
that are unrebutted and undisputed,
Ken Colby capped the five oldest people in his group,
people who are 62 years and over.
-: So I can fire a black person,
because they're black because I ended up
keeping up, keeping three other black people?
-: No, Your Honor, what the issue here,
is whether he was acting with animus,
and it's impossible to say.
-: Right, but we're a pretext only jurisdiction.
At this stage, I'm not saying that your client
discriminated on the basis of age,
I'm just suggesting that you have not shown
that there isn't a genuine issue of material fact.
-: Your Honor, I think what's important
is that this is a, because it's a disparate treatment case,
the question is whether Ken Colby acted with animus.
And it's impossible to say that he was discriminating
against old people when he chose to keep the five
oldest people in his group who are 62 years and over.
-: Why is that?
Why is that the case?
-: Because it shows that.
-: I mean, go back to the race.
Let's say I had to fire somebody because they're black,
but I still have three black people on my staff.
Is it impossible for me to have discriminated
on the basis of race?
-: Your Honor, we need to look at the whole record, right?
And so we know that he, that Colby was charged
with doing a 22% reduction.
We know that he used these three business factors,
which were basically all about whether the person was
central to R&D.
We know that Adams was not central to R&D.
He admits that, he worked mostly on battery quality.
And so he was a logical choice for this RIF.
And we know that they were longtime friends.
We know that the plaintiff admitted under oath,
that he did not act with animus.
And the plaintiff is trying to run away
from that admission now,
but it is clear in the record that he was asked,
"Do you have any reason to believe
that he acted
-: And I read that, -: with animus?"
And, he said, "No."
-: I read that and I think you're giving it a fair reading,
but how about the cat's paw issue,
which is, what I find the most troubling here
is the targeting of, this group is a sort of,
and also isn't there an a document
that says the Andover Group is old,
or something to that effect?
-: I don't believe so, Your Honor.
-: Now, I bet you there is, but.
-: I thought there's an -: We have to focus on.
-: October, 2015 statement, "That Boston needs age diversity,
stocking team with young talent would be a good idea."
Is that not in the record?
-: So I wanna get to both cat's paw,
to make sure I address your question,
but also to talk generally about the stray remark.
-: But that's the cat's paw.
That's what, that's what I'm focused on,
because I think you're gonna have a very strong case
at trial, that Mr. Colby's buddies with this guy,
he is not targeting him personally,
but (chuckles) the business has got this age diversity
focus and they're focused on this group,
and there are other R&D groups that there's no focus on.
Isn't, again, for summary judgment purposes,
don't we have the cat's paw out here?
-: So, Your Honor, a couple of points on that.
One, is that this is not the case
to adopt the cat's paw theory for the first time.
The SJC has never actually adopted that theory.
-: It may be the perfect case
to deal with this kind of problem, which is.
-: I don't believe so, Your Honor,
because there's no evidence
that Colby was acting as the cat, right?
As the doer.
-: He may be acting as the paw.
(equipment moving)
That the cat is telling him,
"I want you to, you need to lay people off in your group."
And the big shots, wherever they are are saying,
"That group is elderly and we want a bunch of",
what are the words they keep using,
"energetic college grads?"
You know, they're looking for a different group of people.
Isn't this, he may be the paw and not the cat,
but it's the same theory, right?
-: Your Honor, there's no evidence in this record
that there was anyone saying,
"We need to get rid of old people."
That is just not in this record.
-: But people, smart HR people don't talk like that.
They, they talk in a different way.
I just don't know, is age diversity legal?
Is that a legal concept?
-: Your Honor, what they were referring to
with age diversity, sort of falls
into four buckets, okay?
So one is succession planning,
which is key to any organization.
And even the plaintiff admits,
"Yes, succession planning is legal."
If you're going to have people move up in the organization,
and as people retire, you're gonna retain the abilities
within the organization, succession planning is essential.
The second bucket is university recruiting.
And so it was essential for technology purposes
to work with these universities,
not only to train the existing employees,
but also to bring in people who had specialized skills.
There's nothing pretextual or discriminatory about that.
-: Totally agree.
-: The third bucket is early retirement programs,
which they considered, didn't actually adopt.
-: The problem is that they connect the points,
and use sort of words that we discourage, you know,
-: But Your Honor, there's no -: the unenergetic.
-: evidence that this group was selected
for budget cuts because of their age.
-: But again, on summary judgment, we don't,
but there is, as Justice Wendlandr wrote you,
some discussion about this group being old,
(equipment moving)
and it's, again, this is summary judgment.
-: There's nothing in the record to suggest
that this group was targeted because of their age.
That these were, there were reductions in other groups,
nothing to connect that.
And, we know that Colby made these decisions
for business reasons.
He looked at who was essential to R&D.
That's who he kept.
And Your Honor, I wanted to address
your question about Granato.
So we know it's undisputed
that Colby went and tried to actually save Adam's job.
He went to Kabai, who was the logical person
that Adams did most of his work with.
He went to him twice, so not consistent with age animus,
and tried to get him a new role,
and, unfortunately, he didn't have the budget for that.
Granato was traveling out of the country at the time.
When he comes back, Granato sort of raises with Colby,
"Would it be possible to hire him back?"
There's nothing in that scenario,
in the record, that suggests that there was anything
discriminatory about that.
In fact, we know that he tried to save his job.
-: But, he doesn't want Adams be hired for field quality.
Granato wants him to be hired and Colby decides,
"No, we can't do that."
-: Your Honor, Colby doesn't decide, "No."
What he does is tell Granato two facts.
But he tells him that, "In general,
there's a practice of not rehiring people
within the first six months after a RIF,
because there are issues with the severance agreements."
That's just a fact, There's nothing to do with age.
And he also tells him that, "There may be HR issues,
because Adams had been arrested for domestic violence,
for refusing to give up a gun collection,
and that that may pose complications."
Neither of those has anything to do with animus.
And we know that Colby didn't have animus,
because the plaintiff admitted that.
In fact, not only did he admit it in his deposition
under oath, but when we posed a statement of undisputed
facts at summary judgment, he admitted that fact.
This is a discrimination case,
and he admitted that there was no age animus.
And so, when you look at the full record,
the fact that he was using
-: They say that's not what -: business factors.
-: he said in the deposition.
-: I'm sorry, Your Honor.
-: They said that's not what he said in the deposition.
-: Your Honor, I invite you to look at the record,
because he was asked that direct question.
And again, at summary judgment,
we said that he admitted that there was no animus,
and in our statement of facts and he said, "Admits."
It's right there in the record.
He's trying to run away from that now,
because it's fatal for his case.
But we invite the court to look directly at the record.
There are many liberties that have been taken
as the dissent pointed out below.
I did wanna address the Reeves issue,
because I do think it's important for this court
to reestablish the summary judgment standard
-: Very briefly, -: in the Commonwealth.
-: if you don't mind.
-: I'm sorry? -: Briefly.
-: Yes. (chuckles)
So it's clear under Rule 56 and longstanding precedent
of the court, that the court can and must
consider unrebutted evidence.
And the theory that the plaintiff is arguing
based on Reeves, has been soundly rejected,
not only by the appeals court, not in this case,
but in another case called Campos,
and in the First Circuit,
in the District Court of Massachusetts.
And because the appeals court,
in our view got that wrong,
it's important for this court to reestablish that
because otherwise it's really the end of summary judgment
in civil cases in the Commonwealth,
and certainly in employment cases where the witnesses
almost always work for the employer.
-: Okay.
-: Thank you, Your Honor, we'll rest on our briefs.
-: Thank you.