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"COMMONWEALTH OF MASSACHUSETTS
DEPARTMENT OF THE TRIAL COURT
MIDDLESEX, ss. SUPERIOR. COURT. :
ALICIA CRINITI,
Plaintiff,
C.A. NO: 2181CV00466
Vv,
F.W. WEBB COMPANY,
ROBERT MUCCIARONE and INTHE
BRENDAN MONAGHAN. POR THE CAL.ity 9 US
doen ENN
FEB 1 3 2024
Defendants.
PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTI
(“TO LIMIT STRAY REMARKS ”)
The instant motion badly misstates the “stray remark” doctrine—particularly as it exists
today in Massachusetts. As explained below, it is now well settled that “any ageist, sexist, or
racist remarks by those involved in the decisional process may be considered probative of
discrimination against a particular plaintiff.” Adams v. Schneider Elec. USA, 492 Mass. 271, 283
(2023). Applying that standard here, Defendants’ motion is completely meritless and must be
denied.
I Background
The seminal treatise on the “stray remarks doctrine” is Judge Gertner’s opinion in Diaz v.
Jiten Hotel Mgmt., Inc., 762 F. Supp. 2d 319, 333-35 (D. Mass. 2011). Tracing the doctrine from
its humble roots in a concurring opinion from Justice Sandra Day O’Connor, Judge Gertner
demonstrated that some courts have extended the doctrine in ways that are completely untethered
from its logical mooring and, in Judge Gertner’s words, is “deeply troubling.” Id.
4
7
oo Fortunately, the Massachusetts Supreme Judicial Court had occasion to revisit the
doctrine just last year in Adams v. Schneider Elec. USA, 492 Mass. 271, 287 (2023). That case
came to the SJC for further appellate review of a decision by a divided panel of the Appeals
Court. Application of the “stray remarks doctrine” was one of the issues upon which the Appeals
Court panel had split, with the majority holding that “[s]tatements made by those who have
power to make employment decisions...are not stray remarks” and agreeing with Judge Gertner
that such remarks can be “a window into the souls of the decision makers.” Adams v. Schneider
Elec. USA, 101 Mass. App. Ct. 516, 529, review granted, 490 Mass. 1108, 197 N.E.3d 862
(2022), and aff'd, 492 Mass. 271, 210 N.E.3d 917 (2023). The dissenting Justice disagreed,
noting that if the “stray remarks” doctrine were to be “retired,” it would be for the SJC—not the
Appeals Court—to do so. Id. at 535 n. 7.
In its decision affirming the Appeals Court’s majority decision, the SJC stated:
As suggested by the Appeals Court dissent, Adams, 101 Mass. App. Ct. at 535
n.7, 194 N.E.3d 1247 (Meade, J., dissenting), we take this opportunity to clarify
that any ageist, sexist, or racist remarks by those involved in the decisional
process may be considered probative of discrimination against a particular
plaintiff.
Adams, 492 Mass. at 283 n. 7.
IL. Discussion
Defendants’ motion is largely aimed at sexist remarks made by Mr. Mucciarone and Mr.
Monaghan.:As the evidence will show that both of these individuals were “involved in the
decisional process,” none of these can be considered “stray remarks” and, therefore, should not
be excluded. Id.
As for the other “remar! ” identified in Defendants’ motion:
« .Mr. Michaud’s statement:sbout “chicks, broads and bitches” is relevantté .
establishing (1) that Plaintiff “reasonably and in good faith believed that [Webb]
was engaged in wrongful discrimination” and (2).“that [she] acted reasonably in~
response to [her] belief.” Abramian v. President & Fellows of Harvard Coll., 432
Mass. 107, 121 (2000). Specifically, the evidence will show that Mr. Michaud’s
statement was shared with Plaintiff prior to lodging her complaints and that it
played a significant role in her decision to do so.
Ms. Carzo’s testimony about Mr. Monaghan’s drunkenness is relevant because
Defendants are expected to claim at trial that Plaintiff was terminated for making
false claims about Mr. Monaghan being a problem drinker. Accordingly, Ms.
Carzo’s testimony is relevant to establish pretext.
e Plaintiff does not intend to offer evidence concerning Mr. Monaghan Nazi gesture
or his ridiculing an employee’s accent.
For the foregoing reasons, Plaintiff respectfully requests that Defendants’ Motion in
Limine No. 4 (“To Limit Stray Remarks”), be denied.
Respectfully submitted, .
Plaintiff Alicia Criniti,
By her attorneys,
¢s/ Patrick J. Hannon
Patrick J. Hannon, BBO# 664958
Hartley Michon Robb Hannon LLP
101 Federal Street, Suite 1810
Boston, MA 02110 P:
(617) 723-8000
phannon@hmrhlaw.com
CERTIFICATE OF SERVICE
I, Patrick J. Hannon, hereby certify that I served a copy of the foregoing document upon
all counsel of record, via E-Mail, on February 7, 2024.
/s/ Patrick J. Hannon
Patrick J. Hannon
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FF 3 "COMMONWEALTH OF MASSACHUSETTS DEPARTMENT OF THE TRIAL COURT MIDDLESEX, ss. SUPERIOR. COURT. : ALICIA CRINITI, Plaintiff, C.A. NO: 2181CV00466 Vv, F.W. WEBB COMPANY, ROBERT MUCCIARONE and INTHE BRENDAN MONAGHAN. POR THE CAL.ity 9 US doen ENN FEB 1 3 2024 Defendants. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTI (“TO LIMIT STRAY REMARKS ”) The instant motion badly misstates the “stray remark” doctrine—particularly as it exists today in Massachusetts. As explained below, it is now well settled that “any ageist, sexist, or racist remarks by those involved in the decisional process may be considered probative of discrimination against a particular plaintiff.” Adams v. Schneider Elec. USA, 492 Mass. 271, 283 (2023). Applying that standard here, Defendants’ motion is completely meritless and must be denied. I Background The seminal treatise on the “stray remarks doctrine” is Judge Gertner’s opinion in Diaz v. Jiten Hotel Mgmt., Inc., 762 F. Supp. 2d 319, 333-35 (D. Mass. 2011). Tracing the doctrine from its humble roots in a concurring opinion from Justice Sandra Day O’Connor, Judge Gertner demonstrated that some courts have extended the doctrine in ways that are completely untethered from its logical mooring and, in Judge Gertner’s words, is “deeply troubling.” Id. 4 7 oo Fortunately, the Massachusetts Supreme Judicial Court had occasion to revisit the doctrine just last year in Adams v. Schneider Elec. USA, 492 Mass. 271, 287 (2023). That case came to the SJC for further appellate review of a decision by a divided panel of the Appeals Court. Application of the “stray remarks doctrine” was one of the issues upon which the Appeals Court panel had split, with the majority holding that “[s]tatements made by those who have power to make employment decisions...are not stray remarks” and agreeing with Judge Gertner that such remarks can be “a window into the souls of the decision makers.” Adams v. Schneider Elec. USA, 101 Mass. App. Ct. 516, 529, review granted, 490 Mass. 1108, 197 N.E.3d 862 (2022), and aff'd, 492 Mass. 271, 210 N.E.3d 917 (2023). The dissenting Justice disagreed, noting that if the “stray remarks” doctrine were to be “retired,” it would be for the SJC—not the Appeals Court—to do so. Id. at 535 n. 7. In its decision affirming the Appeals Court’s majority decision, the SJC stated: As suggested by the Appeals Court dissent, Adams, 101 Mass. App. Ct. at 535 n.7, 194 N.E.3d 1247 (Meade, J., dissenting), we take this opportunity to clarify that any ageist, sexist, or racist remarks by those involved in the decisional process may be considered probative of discrimination against a particular plaintiff. Adams, 492 Mass. at 283 n. 7. IL. Discussion Defendants’ motion is largely aimed at sexist remarks made by Mr. Mucciarone and Mr. Monaghan.:As the evidence will show that both of these individuals were “involved in the decisional process,” none of these can be considered “stray remarks” and, therefore, should not be excluded. Id. As for the other “remar! ” identified in Defendants’ motion: « .Mr. Michaud’s statement:sbout “chicks, broads and bitches” is relevantté . establishing (1) that Plaintiff “reasonably and in good faith believed that [Webb] was engaged in wrongful discrimination” and (2).“that [she] acted reasonably in~ response to [her] belief.” Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107, 121 (2000). Specifically, the evidence will show that Mr. Michaud’s statement was shared with Plaintiff prior to lodging her complaints and that it played a significant role in her decision to do so. Ms. Carzo’s testimony about Mr. Monaghan’s drunkenness is relevant because Defendants are expected to claim at trial that Plaintiff was terminated for making false claims about Mr. Monaghan being a problem drinker. Accordingly, Ms. Carzo’s testimony is relevant to establish pretext. e Plaintiff does not intend to offer evidence concerning Mr. Monaghan Nazi gesture or his ridiculing an employee’s accent. For the foregoing reasons, Plaintiff respectfully requests that Defendants’ Motion in Limine No. 4 (“To Limit Stray Remarks”), be denied. Respectfully submitted, . Plaintiff Alicia Criniti, By her attorneys, ¢s/ Patrick J. Hannon Patrick J. Hannon, BBO# 664958 Hartley Michon Robb Hannon LLP 101 Federal Street, Suite 1810 Boston, MA 02110 P: (617) 723-8000 phannon@hmrhlaw.com CERTIFICATE OF SERVICE I, Patrick J. Hannon, hereby certify that I served a copy of the foregoing document upon all counsel of record, via E-Mail, on February 7, 2024. /s/ Patrick J. Hannon Patrick J. Hannon