SUSAN A. OLIVEIRA v. FIRST CITIZENS FEDERAL CREDIT UNION & Others.

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule
23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28,
as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties
and, therefore, may not fully address the facts of the case or the panel's
decisional rationale. Moreover, such decisions are not circulated to the entire
court and, therefore, represent only the views of the panel that decided the case.
A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25,
2008, may be cited for its persuasive value but, because of the limitations noted
above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260
n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

25-P-583

SUSAN A. OLIVEIRA

vs.

FIRST CITIZENS FEDERAL CREDIT UNION & others.1

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, Susan A. Oliveira, brought this action

against her former employer, First Citizens Federal Credit Union

(First Citizens), and the company's chief executive officer,

Christopher Howard. Her complaint alleged that First Citizens

unlawfully terminated her employment because of age

discrimination under G. L. c. 151B and that Howard interfered

with her employment contract.2 A judge of the Superior Court

allowed Howard's motion for summary judgment on the interference

1 Christopher Howard and Wendy Ferreira.

2The complaint also alleged that Wendy Ferreira interfered
with Oliveira's employment contract, but the parties voluntarily
dismissed Ferreira as a defendant with prejudice via joint
stipulation.
with contract claim but denied First Citizens' motion for

summary judgment on the age discrimination claim. That claim

proceeded to a three-day jury trial, and the jury returned a

verdict in First Citizens' favor. Oliveira moved for a new

trial pursuant to Mass. R. Civ. P. 59 (a), 365 Mass. 827 (1974),

and the same judge denied her motion. On appeal, Oliveira

argues she was denied a fair trial because First Citizens

disclosed grounds for her termination at trial that were not

disclosed in discovery, resulting in a trial by ambush. She

also claims the judge allowed Howard's summary judgment motion

in error because genuine issues of material fact existed. We

affirm the judgments3 and the order denying the motion for a new

trial.

Discussion. 1. Motion for new trial. "[A] new trial

should be granted only when 'on a survey of the whole case it

appears to the judge that otherwise a miscarriage of justice

would result.'" Fitzpatrick v. Wendy's Old Fashioned Hamburgers

of N.Y., Inc., 487 Mass. 507, 514 (2021), quoting Wojcicki v.

Caragher, 447 Mass. 200, 216 (2006). "We review the denial of a

motion for a new trial for an abuse of discretion" (citation

omitted). Doull v. Foster, 487 Mass. 1, 5 (2021).

3 Separate judgments entered on October 31, 2024, disposing
of both claims.

2
Oliveira's theory of wrongful termination was that she was

terminated as a result of age discrimination in violation of

G. L. c. 151B. First Citizens' defense was that her employment

was terminated because First Citizens had eliminated her role in

a corporate restructuring. "Under the McDonnell Douglas

formulation, [Oliveira] [bore] the initial burden of

establishing by a preponderance of the evidence a prima facie

case of discrimination." Sullivan v. Liberty Mut. Ins. Co., 444

Mass. 34, 40 (2005), citing McDonnell Douglas Corp. v. Green,

411 U.S. 792, 802–805, (1973). In a "reduction in force case,"

where an employer reorganizes its workforce, the plaintiff must

demonstrate the following: (1) membership in a protected class;

(2) performance of the job at "an acceptable level";

(3) termination; and (4) the layoff occurred in circumstances

that raise a "reasonable inference of unlawful discrimination."

Sullivan, supra at 41, 45. If the plaintiff makes such a

showing, a presumption of discrimination arises, i.e., a prima

facie case is made.4 See Blare v. Husky Injection Molding Sys.

Boston, Inc., 419 Mass. 437, 441 (1995). The employer may rebut

this presumption by articulating a legitimate, nondiscriminatory

reason for its decision. See id. The burden then shifts back

4 Although First Citizens argued in its summary judgment
motion that Oliveira failed to establish her prima facie case,
it is not at issue on appeal.

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to the plaintiff to produce evidence that the employer's

articulated reason for its decision is "not true but a pretext."

Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 681 (2016), quoting

Blare, supra at 443.

During pretrial litigation, First Citizens consistently

maintained that Oliveira was terminated because her position was

eliminated. Oliveira claims, however, that Howard's trial

testimony unfairly introduced a new reason for the employment

decision, namely that she was fired for poor performance. There

are several flaws in this argument. First, Oliveira did not

object to the testimony in question when it was given, and

therefore the issue is likely waived. See Freyermuth v. Lutfy,

376 Mass. 612, 616 (1978). Indeed, rather than objecting and

giving the judge an opportunity to issue a curative instruction

if one was necessary, Oliveira used the testimony to her

advantage to impeach Howard on cross-examination.

Next, even were we to put aside the issue of waiver, we are

unpersuaded by Oliveira's argument that she was subjected to a

"trial by ambush" in violation of her due process rights. When

Howard said that Oliveira was not "effectively managing the

department," he was responding to a question that asked what

conclusions he drew from a review of Oliveira's department. The

fact that Howard was unsatisfied with her performance is not

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incompatible with First Citizens' articulated position that

Oliveira was terminated because it was eliminating her role. We

have reviewed the trial transcript and the transcript of

Howard's deposition taken pursuant to Mass. R. Civ. P.

30 (b) (6), as appearing in 489 Mass. 1401 (2022), and we

conclude nothing about the trial testimony contradicts the

deposition.5 Howard consistently maintained during both the

deposition and the trial that Oliveira's position was

eliminated. To the extent Oliveira now claims that the

testimony unfairly prejudiced her in the eyes of the jury, she

failed to object, and the issue is again waived.

In sum, we discern no miscarriage of justice in the trial

and therefore no abuse of discretion in the denial of Olivera's

motion for a new trial.

2. Summary judgment. The judge granted Howard's motion

for summary judgment as to Oliveira's interference with contract

claim because she did not offer evidence creating a genuine

dispute as to an essential element, namely a malicious reason

5 Oliveira also argues that the fact that First Citizens
called Linda Cosme to testify about the decision to eliminate
Oliveira's role amounted to trial by ambush because Howard
indicated in his deposition that the decision was his. But
Howard did not testify in his deposition that no other employees
were part of the decision-making process. Furthermore, First
Citizens identified Cosme as a person with knowledge of the
restructuring in response to Oliveira's interrogatory.

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attributable to Howard, separate from First Citizens' alleged

age discrimination. Oliveira argues this was error because the

Supreme Judicial Court has held that age discrimination can

satisfy the "willful act" element of the interference with

contract tort. See Comey v. Hill, 387 Mass. 11, 19-20 (1982).

"We review a decision to grant summary judgment de novo."

Adams v. Schneider Elec. USA, 492 Mass. 271, 280 (2023).

"Summary judgment is appropriate where there is no material

issue of fact in dispute and the moving party is entitled to

judgment as a matter of law" (citation omitted). Id. "We

review the evidence in the light most favorable to the party

against whom summary judgment entered," in this case, Oliveira

(citation omitted). Le Fort Enters., Inc. v. Lantern 18, LLC,

491 Mass. 144, 149 (2023).

To succeed on a claim for interference with contract, a

plaintiff must show that "(1) [s]he had a contract with a third

party; (2) the defendant knowingly induced the third party to

break that contract; (3) the defendant's interference, in

addition to being intentional, was improper in motive or means;

and (4) the plaintiff was harmed by the defendant's actions"

(citation omitted). Weiler v. PortfolioScope, Inc., 469 Mass.

75, 84 (2014). Where the defendant "is a corporate official

acting in the scope of his corporate responsibilities, a

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plaintiff has a heightened burden of showing the improper motive

or means constituted 'actual malice,' that is, a spiteful,

malignant purpose, unrelated to the legitimate corporate

interest" (quotation and citation omitted). Id. "The malice

must be the 'controlling factor' in the defendant's conduct."

Kelleher v. Lowell Gen. Hosp., 98 Mass. App. Ct. 49, 55 (2020),

quoting Blackstone v. Cashman, 448 Mass. 255, 270 (2007).

Here, Oliveira failed to put forward any evidence in the

summary judgment record that plausibly suggests Howard acted

with "actual malice" in terminating her employment. Actual

malice "must rise to the level of unjustified personal hostility

or ill will 'exceeding personal dislike.'" Bresler v. Muster,

496 Mass. 111, 121 (2025), quoting Falcon v. Leger, 62 Mass.

App. Ct. 352, 362 (2004). Oliveira testified in her deposition

that she believed Howard did not like her, but that she did not

think he would let her go for that reason. In responses to the

defendants' interrogatories, Oliveira claimed Howard treated her

differently from other employees. Specifically, she alleged

that he would not respond to her when she said good morning to

him and reacted negatively when she said the word "stuff."

Olivera also noted her belief that she was terminated due to her

age and "hostility from the defendants." Even viewed in the

light most favorable to Oliveira, this evidence would not allow

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a reasonable jury to find that Howard acted with unjustified ill

will that exceeds "personal dislike." Bresler, supra, quoting

Falcon, supra. Furthermore, Oliveira's reliance on Comey v.

Hill is inapposite because that case did not concern a corporate

official acting within the scope of his corporate

responsibilities. See Comey, 387 Mass. at 13-14.6

Judgments entered October 31,
2024, affirmed.

Order denying motion for new
trial affirmed.

By the Court (Shin, Walsh &
Allen, JJ.7),

Clerk

Entered: April 17, 2026.

6 First Citizens' and Howard's request for attorney's fees
and costs is denied.

7 The panelists are listed in order of seniority.

8