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

22-P-861

WILLIAM T. DOWNEY

vs.

MASSACHUSETTS DEPARTMENT OF ENERGY RESOURCES.

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

The plaintiff, William T. Downey, appeals from the grant of 

summary judgment in favor of the defendant, Massachusetts 

Department of Energy Resources (DOER), on Downey's age 

discrimination claim under G. L. c. 151B. Downey applied for a 

newly created position of director of emerging technology in 

response to DOER's job posting. He was sixty-three years old at 

the time of his application. DOER did not grant Downey an 

interview, and, after interviewing three candidates, offered the 

position to a younger applicant. Concluding that Downey has 

demonstrated a genuine issue of material fact regarding whether 

DOER's proffered reasons for not offering him an interview were

pretextual, we reverse the grant of summary judgment for the 

defendant and remand for further proceedings.
2

Background. We summarize the basic facts in the light most 

favorable to Downey, drawing all reasonable inferences in his

favor, and reserving certain facts -- disputed and undisputed --

for later discussion. See Bulwer v. Mount Auburn Hosp., 473 

Mass. 672, 680 (2016). In 2015, the Commissioner of DOER, 

Judith Judson (commissioner), created the director of emerging 

technology position to head a new division within DOER. The job 

was publicly posted on the Commonwealth's MassCareers online 

database with a narrative job description. The position was 

classified as a program manager level VIII, which carried

minimum entrance requirements of "five years of full-time, or 

equivalent part-time, supervisory or managerial experience in 

business administration, business management or public 

administration[,] of which at least two years [were] in a 

managerial capacity." In addition, DOER staff, in consultation 

with the commissioner, drafted a management questionnaire (MQ)

that served as the official internal description of the position 

identifying the minimum job requirements as five years in a 

"supervisory capacity" and seven years in "energy and emerging 

technology field." Although the Massachusetts Executive Office 

of Energy and Environmental Affairs (EEA) department of human 

resources typically does an initial screen of applications 

submitted through the MassCareers system before electronically 

passing them to DOER's hiring manager, EEA did not screen 
3

candidates because the commissioner had indicated she wanted the

applications sent directly to her.

Downey submitted a cover letter, a one-page resume, a 

professional biography containing a list of his consulting 

assignments and professional experience, a publications list,

and later a "DropBox" link to a book he had recently authored on 

the technology of electric vehicles. He was not offered an 

interview. Three candidates were selected to be interviewed. 

Two of the candidates were under consideration prior to the job 

being posted publicly -- one who worked for a quasi public 

agency that works with DOER, and another who was an internal 

DOER candidate. Ultimately, the third candidate was hired.

Discussion. "Our review on summary judgment is de novo."

Yee v. Massachusetts State Police, 481 Mass. 290, 294 (2019). 

"In considering a motion for summary judgment, we review the 

evidence and draw all reasonable inferences in the light most 

favorable to the nonmoving party." Verdrager v. Mintz, Levin, 

Cohn, Ferris, Glovsky & Popeo, P.C., 474 Mass. 382, 395 (2016), 

quoting Drakopoulos v. U.S. Bank Nat'l Ass'n, 465 Mass. 775, 777 

(2013). DOER, as the moving party, has "the burden of 

establishing that there is no genuine issue as to any material 

fact and that [it is] entitled to judgment as a matter of law"

(citation omitted). Id.
4

In an employment discrimination case, a plaintiff "may 

survive a motion for summary judgment by providing [d]irect 

evidence of [the] elements of discriminatory animus and 

causation" (quotation and citation omitted). Bulwer, 473 Mass. 

at 680. "Because direct evidence 'rarely exists,' however, [a]

plaintiff may also survive such a motion by providing 'indirect 

or circumstantial evidence [of discriminatory animus and 

causation] using the familiar three-stage, burden-shifting 

paradigm first set out in McDonnell Douglas Corp. v. Green, 411 

U.S. 792, 802-805 (1973)'" (citation omitted). Id. at 680-681. 

Here, the parties properly focus their arguments on the third 

stage of McDonnell Douglas, which requires a plaintiff to

produce evidence from which a jury could find that at least one 

of the employer's articulated reasons for the adverse employment 

decision was not true. See Bulwer, supra at 681. "To survive a 

motion for summary judgment, the plaintiff need only present 

evidence from which a reasonable jury could infer that the 

respondent's facially proper reasons given for its action 

against him were not the real reasons for that action"

(quotation and citation omitted). Id. at 682.

In essence, DOER asserted that Downey was not offered an 

interview because his resume did not reflect emerging technology 
5

experience, as opposed to broad energy experience.1 More 

specifically, DOER explained that it decided not to interview 

Downey because the projects he listed on his resume "[bore] no 

relation whatsoever to energy storage, resiliency, microgrids, 

or other related emerging energy technologies" and his resume

was "entirely devoid of any reference to the energy storage 

experience required in a candidate as outlined by the Program 

Manager job posting."

Among the documents submitted in his opposition to DOER's 

motion for summary judgment, Downey included an affidavit 

detailing the entries listed on his resume and their 

relationship to the policy areas identified by DOER. In 

particular, he cited a project "concerning rural 

electrification, grid development, and small hydro [that]

related to energy storage, microgrids, and resiliency," as well 

as experience "supervis[ing] installation of commercial [and] 

residential solar heating systems [and] small wind turbines." 

Downey further stated that his submission contained references 

to several of his "publications relating to emerging energy 

technologies, including solar and wind." DOER argues that 

Downey's experience was dated and thus not applicable. These 

1 We note that DOER initially stated that the commissioner did 

not remember reviewing Downey's resume. DOER's explanations for 

not offering Downey an interview all came after the commissioner 

became aware of Downey's age discrimination complaint.
6

conflicting positions reflect a factual dispute that relies on 

credibility determinations. We are satisfied that the evidence 

provided by Downey was sufficient for a juror to infer that

DOER's stated reasons for not interviewing Downing were

pretextual.

DOER also indicated that the successful candidate's resume, 

in contrast to Downey's, "stood out . . . because the experience 

detailed therein aligned with the specific background [the 

commissioner] sought for the [p]osition." Downey contends that 

the commissioner was so focused on hiring a younger candidate 

that she "disregarded the minimum levels of experience that the 

position demanded." Although DOER asserts that it "believed 

[the candidate who ultimately was hired] met the minimum 

required qualifications," the commissioner testified in her 

deposition that she was unaware the requirements existed. That 

candidate met neither the publicly posted requirement of five 

years of management experience (the candidate had only four at 

the time) nor the internal MQ minimum qualification of seven 

years in energy and emerging technology (the candidate had been 

working in energy technology for thirty-three months). The 

issue is further complicated by the commissioner's decision to 

bypass EEA screening, which Downing contends would have resulted 

in the successful candidate's resume being screened out. On 

this record, we are further persuaded that Downey has supplied 
7

facts that call into question the truthfulness of DOER's claim 

that age played no role in its decision to interview and 

ultimately hire the successful candidate.

Downey argues that additional evidence of pretext can be 

found in the "shifting nature" of the description of the 

criteria DOER claims it used to evaluate candidates at various 

stages of the hiring process and this litigation. DOER counters 

that the criteria remained consistent, and that any 

inconsistencies reflect the commissioner's focus at various 

times on specific areas within those criteria. On our review of 

the summary judgment record, we agree with Downey that there are 

sufficient substantive differences between the description of 

the job requirements in the public job posting, DOER's position 

statement to the Massachusetts Commission Against 

Discrimination, DOER's interrogatory response, and the 

commissioner's deposition testimony to support a reasonable 

inference of pretext.

Finally, Downey contends that DOER's failure to follow 

established Massachusetts State agency hiring procedures alone 

may give rise to an inference of discrimination. Although DOER 

does not deny its failure to adhere to established practices 

contained in a "model hiring guidelines" promulgated by the 

executive branch's human resources division, it asserts that 

they were not mandatory. Here there was evidence that DOER 
8

deviated from guidelines that were provided to all managers in 

executive branch agencies, and that DOER acknowledged using in 

most other hiring decisions, by declining to (1) develop and 

apply screening criteria to select candidates to be interviewed; 

(2) involve the agency's diversity officer at various stages of 

the hiring process; (3) establish standard questions in advance 

of interviews and distribute them to an interview panel; (4)

create objective written criteria for evaluating candidates 

based on their interviews; and (5) retain documentation of 

scoring candidates during the interview process. We conclude 

that this evidence adequately supported an inference of DOER's 

discriminatory intent. See Bulwer, 473 Mass. at 687 (failure to 

follow established procedures or criteria may support reasonable 

inference of intentional discrimination).

The judgment dated July 20, 

2022, is reversed, and the 

matter is remanded for 

further proceedings 

consistent with this 

memorandum and order.

By the Court (Meade, Blake & 

Brennan, JJ.2),

Clerk

Entered: July 7, 2023.

2 The panelists are listed in order of seniority.