KATHARINE WHITE vs. THE UNIVERSITY OF MASSACHUSETTS AT BOSTON & another. [Note 1]

LIACOS, C.J. On October 18, 1988, the plaintiff, Katharine White, initiated this action against the defendants, The University of Massachusetts at Boston (University) and Alan Clarke, executive director of the Department of Educational Support Programs at the University. White's complaint alleged gender discrimination in violation of G. L. c. 151B, Section 4

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(1988 ed.), [Note 2] and 42 U.S.C. Section 2000e-2 (1990). [Note 3] She alleged further that she was wrongfully terminated from a full-time teaching position at the University because of her sex; that there was retaliatory termination due to her filing discrimination charges with the University and with the Massachusetts Commission Against Discrimination (MCAD); that termination of her employment by the University was in bad faith; and that Clarke maliciously interfered with her advantageous employment relations and violated her civil rights. White sought reinstatement in her teaching and counselling position at the University, compensatory damages, and related injunctive relief.

On September 12, 1989, the defendants submitted a motion for summary judgment pursuant to Mass. R. Civ. P. 56 (b), 365 Mass. 824 (1974). A judge in the Superior Court granted the motion for summary judgment on all counts and ordered the complaint dismissed. The plaintiff appeals the grant of summary judgment as to the counts of discrimination in employment and retaliation by the University and Clarke, and malicious interference with advantageous employment relations by Clarke. We transferred the appeal to this court on our own motion. We affirm.

Facts. The following facts are not in dispute. In 1979, White began working as an English teacher and counselor in

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the University's Veterans Education and Training Program (VET Program). When White learned that she was pregnant, in December, 1986, she notified the supervisor of the VET Program, Charles Diggs, and his supervisor, Kevin Bowen, co-director of the University's Joiner Center for War and Social Consequences. Although the standard period allowed under University policy for maternity leave was eight weeks, White was able to arrange an eight-month leave, during the spring and summer semesters of 1987. [Note 4] White's then-existing employment contract would expire at the end of the leave of absence, on August 31, 1987.

On May 29, 1987, Alan Clarke notified White by letter that he did "not intend to recommend that [her] contract be renewed in its present form" in order "to provide the University with sufficient flexibility to implement the best possible program design." The notice also provided that White would be "accorded preferential treatment in the filling of whatever positions emerge[d]." In July, White requested a further extension of her leave of absence or, alternatively, a part-time teaching position, through the fall semester, 1987. [Note 5] White's supervisor approved the request, with reservations, in a letter addressed to Clarke dated August 11, 1987. [Note 6] Clarke responded to White's request by a letter dated August 14, 1987. In the letter, Clarke denied the request for part-time employment, [Note 7] but stated that he "look[ed] forward to having

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[White] rejoin the staff of the Veterans Educational Training Program on a full-time basis." [Note 8] Unable to arrange for her child's care prior to September 1, 1987, White did not return to work for the fall semester.

In November, 1987, White filed a grievance with the University's affirmative action office seeking clarification of her job status. On January 11, 1988, White filed a charge of gender discrimination with the Massachusetts Commission Against Discrimination (MCAD) alleging, inter alia, that in June, 1987, Clarke terminated her position without cause or notice. In a letter dated February 25, 1988, Clarke denied ever having terminated White's position, stating that he offered to renew White's full-time contract beginning in September, 1987, but she turned the offer down. Clarke's letter further provided: "To the best of my knowledge, you have no employment status at the University." Subsequently, White amended her discrimination charge with the MCAD to include a charge of retaliation, alleging that Clarke, by the February 25 letter, terminated her employment at the University because she had filed discrimination charges with the University and the MCAD. [Note 9]

Motion for summary judgment. Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). On appeal, an "order granting summary judgment against [the non-moving party] thus will be upheld if certain factors converge to convince us that the trial judge was ruling in this case on undisputed facts and, of course, that his rulings were correct as matter of law." Community

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Nat'l Bank v. Dawes, 369 Mass. 550, 556 (1976). We view the evidence and the inferences to be drawn therefrom in the light most favorable to the opposing party. Id. at 559 n.8.

The pivotal element of each claim asserted by White is the allegation that she was terminated. White's first claim, on appeal, is that she was discriminated against on the basis of her sex and because she had recently been pregnant, and that the discrimination resulted in the termination of her employment at the University. The analysis of a discrimination claim is essentially the same under the State and Federal statutes. See Wheelock College v. Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 135 & n.5 (1976); Radvilas v. Stop & Shop, Inc., 18 Mass. App. Ct. 431, 438-439 (1984). In order to establish a prima facie case of sex discrimination resulting in termination of employment, White must establish that (1) she is a member of a protected group; (2) she performed her job at an acceptable level; (3) she was terminated; and (4) her employer sought a replacement with similar qualifications. See Duke v. Uniroyal Inc., 928 F.2d 1413 (4th Cir. 1991) (standard applied in challenge of termination on basis of age discrimination). See also Wheelock College, supra at 135 n.5, citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 n.13 (1973) (facts necessary to establish prima facie case of discrimination will vary depending on situation).

Asserting a claim based on sex discrimination as a pregnant woman, White is a member of a protected group. See Massachusetts Elec. Co. v. Massachusetts Comm'n Against Discrimination, 375 Mass. 160, 167 (1978), citing General Elec. Co. v. Gilbert, 429 U.S. 125, 149 (1976) (Brennan, J., dissenting) (classification relying on pregnancy is distinction based on sex). There was also evidence that she performed her job at an acceptable level, prior to her extended leave of absence beginning in February, 1987. There is no evidence, however, that White was terminated from her position. [Note 10] In

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fact, the parties agree that in Clarke's August 14, 1987, letter he offered to renew White's full-time contract beginning September 1, 1987. [Note 11] White argues that Clarke's offer was not a genuine offer but, rather, a ruse. White alleges that Clarke knew she could not obtain day care for her child on such short notice, having received the offer only eleven days before the new contract was to begin. While we acknowledge that inferences which may be drawn from uncontested facts are to be drawn in favor of the opposing party, the application of this principle "is predicated on the clear averment by the opposing party of subsidiary facts in [her sworn] pleadings or affidavits." Community Nat'l Bank, supra at 559 n.8. White offered no specific facts to demonstrate that Clarke's offer was a ploy to terminate her. Many of her statements in her affidavit were on information and belief (the motion judge characterized them as "opinion") and, thus, are not sufficient under rule 56. See McKenzie v. Brigham & Women's Hosp., 405 Mass. 432, 437-438 (1989). The only other evidence remotely on point is from the deposition testimony of the co-director of the Joiner Center, Kevin Bowen. Bowen testified that Clarke said "he had gotten rid of Kate [White]." [Note 12] We do not consider this a clear averment permitting the inference, without more, that the offer of employment was a ruse.

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The facts of record do not permit the conclusion that White was terminated. Thus, she failed to establish a prima facie case of sex discrimination, and summary judgment for the defendants was properly entered. White's claim of retaliation also must fail because this claim also is premised on the fact that she was terminated. As we have indicated, and as the Superior Court judge ruled, she was not terminated. White chose not to accept Clarke's offer of employment. There can be no claim of retaliatory termination when there has not been a termination. [Note 13]

Finally, White's claim that Clarke intentionally interfered with her advantageous relations with the University also is premised on her claim that she was terminated. There having been no termination, White cannot establish a prima facie case.

Judgment affirmed.