*Of the Sixth Circuit Court of Appeals, sitting by

designation.

United States Court of Appeals

For the First Circuit

No. 02-2199

JOHN R. CARIGLIA,

Plaintiff, Appellant,

v.

HERTZ EQUIPMENT RENTAL CORPORATION and JAMES HEARD,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Reginald C. Lindsay, U.S. District Judge]

Before

 Lynch, Circuit Judge,

Siler, Senior Circuit Judge,

*

and Lipez, Circuit Judge.

Herbert L. Holtz, with whom Thomas P. Smith, Caffrey & Smith,

P.C., were on brief for appellant.

Barry A. Guryan, with whom Christopher Novello, Epstein Becker

& Green, P.C., were on brief for appellees.

April 5, 2004
1The statute provides, in pertinent part, that

[i]t shall be an unlawful practice . . . [f]or

an employer in the private sector, by himself

or his agent, because of the age of any

individual, . . . to discharge from employment

. . . unless based upon a bona fide

occupational qualification.

Mass. Gen. Laws ch. 151B §4.

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LIPEZ, Circuit Judge. This case requires us to explore

an important question related to corporate liability in an age

discrimination case: whether a corporation can be held liable for

discrimination when neutral decisionmakers, free of any age-based

animus, rely on information that is manipulated by another employee

who harbors age-based discriminatory animus.

Here, the plaintiff, John Cariglia, brought suit against

the Hertz Equipment Rental Corporation for terminating him because

of his age in violation of Mass. Gen. L. ch. 151B1 and against his

supervisor, James Heard, for intentionally interfering with his

advantageous relationship with Hertz. Following a bench trial, the

district court entered judgment for defendants on both counts.

After a careful review of the arguments and the record, we vacate

and remand.

I.

Cariglia was first hired to work for Hertz in 1980 as the

Boston Branch Manager. By 1992, after three promotions, Cariglia

held the position of National Equipment Sales Manager. In 1992,
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however, that position was eliminated and Hertz President Daniel

Kaplan asked Cariglia to return to Boston to revive that branch

financially. Cariglia expressed reservations about assuming the

administrative paperwork required of a branch manager, and he also

was concerned that returning to a branch manager position would be

"a step back" for him. Kaplan proposed to appoint Bill Simmons, a

salesman at the Boston branch, to serve as Cariglia's assistant

branch manager and to handle those administrative tasks.

Additionally, Kaplan and Cariglia agreed that Cariglia's

compensation would be no lower than it was in his position as

National Equipment Sales Manager. Under these terms, Cariglia

agreed to return to Boston as branch manager.

From 1992 to 1996, Cariglia significantly improved the

financial condition of the Boston branch. While the branch had

suffered losses for at least the three previous years, it showed

pre-tax income of $581,000 in 1993 and $1.4 million in 1994. The

branch's gross profits grew to $2.3 million in 1995 and was on pace

for $2.6 million in 1996, the year in which Cariglia was

terminated. Every year the branch exceeded its pre-tax profit

goals by a considerable percentage, and the Boston branch became

the most profitable in the northeast. Not surprisingly, this

financial turnaround earned Cariglia commendation from Hertz,

including letters of praise from Kaplan and Gerry Plescia, Hertz's

vice-president of operations. Cariglia's direct supervisor during
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this time was defendant James Heard, Hertz's division vicepresident for the northeast region. Heard gave Cariglia aboveaverage overall rates on three successive performance evaluations

from 1993 to 1995. 

At the end of 1994, which was a profitable year, Heard

told Cariglia that Hertz wanted to mitigate tax liability by

incurring expenses to offset some of the branch's profit. The men

discussed expending between $25,000 and $30,000 to paint large

lifts, called "booms," that the company eventually planned to sell.

However, Cariglia testified that he told Heard that booms could not

be painted immediately since they were being rented to customers,

and Heard responded that he did not care when the booms were

actually painted so long as the painting was expensed for the 1994

tax year. As the district court noted, Heard did not contradict

this testimony. In his testimony, Heard agreed that "it is general

practice to only paint rental booms before resale . . . [and] that

it was within Mr. Cariglia’s discretion as branch manager to keep

the booms out on rent earning money and satisfying customers rather

than being painted." Heard also testified that he expected the

booms to be painted as they became available. Ultimately, the

booms were not painted by the time Cariglia was fired in September

1996.

During Cariglia's tenure at the Boston branch, several

witnesses testified that Heard denigrated Cariglia, who was born in
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1934, because of his age. The district court found that "evidence

shows that Heard, Cariglia's supervisor, made statements rife with

discriminatory animus." The district court also found that in June

1996, Heard ordered an audit of the Boston branch "motivated not by

sound business reasons, but by a desire on the part of Heard to

'get the goods' on Cariglia because Heard believed Cariglia was

'over the hill,' 'not our kind' and 'should not be here.'"

This audit, conducted by Ken Eyerman, Hertz's northeast

regional controller, was atypical in four regards. First, Eyerman

usually scheduled branch audits himself, and this audit of the

Boston branch was the only time Heard had directed him to conduct

an audit. Second, according to Eyerman, whose testimony the

district court credited, Heard told him to "go up to Boston and get

the goods on Mr. Cariglia so he could get him out of there."

Third, while the scope of a typical audit usually covered the

preceding ninety days, Eyerman went back eighteen to twenty-four

months because, according to his testimony, "[a]fter completing the

audit guidelines, Mr. Heard said keep digging, dig deeper. He said

just keep looking. Find it. Find something. He asked me to . .

. see if I could get any more information about . . . anything that

was going on at the branch so that we could try to get rid of Mr.

Cariglia." Fourth, Eyerman spent three weeks performing the Boston

audit, in contrast to the usual three to five days. 
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The result of the extended audit was a "poor" rating for

the Boston branch. Five items were specifically mentioned, all

related to internal controls: "(1) missing control copies of

billing documents; (2) improper check acceptance and credit

approvals; (3) inadequate safeguarding of equipment; (4) failure to

follow purchasing procedures completely; and (5) missing documents

from personnel files." Eyerman testified that the audit was

accurate and contained his independent conclusions. After Simmons,

the assistant branch manager who was directly responsible for the

branch's paperwork, wrote a response memo to Eyerman, a plan was

put in place to correct these internal control issues. However,

Eyerman also took the unusual step of including with the audit a

note to Plescia, vice-president of operations, stating that "I

think there is more going on [at] this branch than can be detected

through paper trails [and] internal control weaknesses."

Around the same time, Plescia received a copy of a letter

from the attorney of Boston branch employee, George Harrington.

This letter alleged improper business practices at the Boston

branch, including equipment rented without proper rental

agreements, money offered in exchange for ignoring improper

rentals, equipment leased to customers without accounts, and

equipment rented to customers but returned by others.

The Harrington letter, in conjunction with the Eyerman

audit results, spurred Plescia, Kaplan, and vice-president of
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employee relations Don Steele to request an internal corporate

security investigation. Hertz's local investigator, Graham Morgan,

conducted the investigation. Morgan interviewed Harrington and

four other Boston branch employees in the course of preparing his

report. He was unable to substantiate Harrington's allegations,

writing in his report that

[n]one of the others interviewed has any proof

that equipment is leaving the yard without

rental contracts. No one interviewed was ever

told to look the other way or offered money to

look the other way to enable a piece of

equipment to leave the yard. . . . Concerning

equipment that is rented by one company and

returned by another, not one of the

individuals could provide a concrete example

of activity in this regard. . . . None of the

people interviewed could accurately provide[]

any information that would substantiate

suspicion that John Cariglia . . . [is] taking

kickbacks.

Morgan's report did, however, identify five areas of

concern that emerged as a result of the interviews: "slipshod"

internal controls; "[b]ooms that were to be painted by a vendor

named New England Truck were never completed after money was paid

to have this work done;" Cariglia's failure to forward a low bid to

rehabilitate the branch site; favoritism in assigning Saturday

overtime work; and a "hostile environment created primarily by the

Branch manager." Morgan's report, dated August 23, 1996, was

forwarded to both Steele and Heard.
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On September 4, Plescia, Kaplan, and three other members

of Hertz senior management decided that Morgan and Eyerman should

interview Cariglia regarding the outstanding issues and conduct a

follow-up audit. Morgan asked Cariglia about each of the five

areas of concern he had identified in his August 23 report.

Cariglia essentially denied the substance of each item, with the

exception of the painting of the booms. Morgan wrote that in

response to that issue, Cariglia said that "Bob Zechello handles

the scheduling of the booms to be painted. Records in his office

and elsewhere are available for review in this matter." Cariglia

agrees that he made these statements, but he testified that Morgan

neglected to mention that Cariglia told him that the booms had not

been painted. Plescia and Heard received Morgan's second report.

Eyerman's follow-up audit concentrated on the vendor

files related to New England Truck, the company that had been paid

to paint the booms. After reviewing the relevant paperwork, he

concluded that the booms had been out on rental and not available

for painting. Eyerman sent the results of the follow-up audit to

Heard. There is no indication in the record that any other party

received a copy of this follow-up audit.

On September 19, Plescia and Steele instructed Heard to

go to the Boston branch and ask Cariglia about the booms. The next

day, Heard met with Cariglia in Boston and asked him if he had

forgotten to paint the booms. Cariglia told him that his "plans
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were to, as they had always been, to paint [the booms] when I got

ready to sell them." Heard then told Cariglia that he, Heard,

needed to call his supervisors and asked if Cariglia wanted to add

anything to what he had said. Cariglia declined, and Heard called

Plescia and Steele. According to Plescia, Heard informed them that

"the booms were not painted, and that there was no accountability

for the money that was paid." Plescia, Steele, and Kaplan then

decided to terminate Cariglia and directed Heard to inform Cariglia

that he was to be terminated for "gross misconduct." The district

found as a factual matter that Plescia, Steele, and Kaplan were

free of any personal age-based animus towards Cariglia when they

made this decision.

After his conversation with the three executives, Heard

called Cariglia back into the office and informed him that he was

fired for "gross misconduct." When Cariglia asked him what "gross

misconduct" meant, Heard did not provide an answer. Heard replaced

Cariglia with Benjamin Robin, who was under 40 years of age at the

time and had been the manager of Hertz's Newark branch.

Cariglia subsequently filed suit against Hertz and Heard

in Massachusetts Superior Court. The case was removed to federal

court. Following a five-day bench trial, the district court ruled

in favor of both defendants. Cariglia's appeal followed.
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II.

On appeal, Cariglia urges that the district court made

three errors: finding that Heard was not a decisionmaker, declining

to impose liability on Hertz for Heard's animus under Mass. Gen. L.

ch. 151B, and denying his intentional interference with

advantageous relations claim against Heard because his termination

was not a result of Heard's actions. We review the district

court's legal conclusions de novo and its factual findings for

clear error. Kinan v. Cohen, 268 F.3d 27, 32 (1st Cir. 2001).

A. Heard as a Decisionmaker

As noted, the district court found that Heard's desire to

terminate Cariglia as a Hertz employee was motivated by age-based

animus. In Cariglia's view, this finding alone means that Hertz

itself was motivated by age-based animus because Hertz's response

to an interrogatory constitutes an admission that Heard was a

decisionmaker, having caused or participated in the decision to

fire Cariglia. Cariglia also claims that Heard agreed with and

adopted questions explicitly identifying him as a decisionmaker

throughout the trial. Because neither Hertz nor Heard disputed the

premise of these questions--that Heard "made, ordered, caused or

participated in" the decision to fire him--Cariglia reasons that

the district court was required to find that Heard was a

decisionmaker.
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A close reading of the interrogatory and questions posed

at trial reveal that the defendants did not admit or acquiesce to

statements implying that it was Heard who made the decision to

terminate Cariglia. The interrogatories asked, inter alia, whether

Heard "participated in" Cariglia's termination, and the defendants

never denied that he did. Instead, they argued, and the district

court found, that Heard fired Cariglia pursuant to the instructions

of Plescia, Steele, and Kaplan. Therefore, the district court did

not clearly err in finding that the ultimate decision to terminate

Cariglia was made by Heard's supervisors, and not by Heard.

B. Hertz's Liability Under Mass. Gen. L. ch. 151B

Even Though Heard Was Not a Decisionmaker

Cariglia argues that even if Heard is not deemed a

decisionmaker, his animus impermissibly tainted the decisionmaking

process when he withheld from Plescia, Steele, and Kaplan

exculpatory information regarding the circumstances surrounding the

painting of the booms. Indeed, this alternative basis for

liability is the critical issue in this case: whether corporate

liability can attach if neutral decisionmakers, when deciding to

terminate an employee, rely on information that is inaccurate,

misleading, or incomplete because of another employee's

discriminatory animus.

Cariglia summarized his argument to the district court as

follows:
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Defendants cannot "launder" the decision to

terminate Mr. Cariglia by attempting to remove

Heard completely from the termination

decision. . . . [Hertz] regional vice

president Heard orchestrated the termination

and caused it by admittedly failing to inform

Gerry Plescia, his superior, that Mr. Cariglia

had been instructed by Heard to pay for

painting the booms upon the end of 1994, that

it was customary to only paint booms upon

resale, that it was within the branch

manager's discretion to keep the booms out on

rent rather than pulling them out of

productive use for repainting. Thus, Heard

presented (or intentionally let stand) a

completely false and misleading impression

that Cariglia had somehow engaged in financial

misconduct. . . .

As a legal proposition, this argument has merit under First Circuit

precedent and persuasive case law from other circuits. It is also

faithful to the Massachusetts Supreme Judicial Court's instruction

that the "primary purposes" of Mass. Gen. L. ch. 151B §4 "are to

protect citizens of the Commonwealth from adverse employment

decisions based on their age . . . and to discourage, and punish,

unlawful discrimination in the work place." Knight v. Avon

Products, 438 Mass. 413, 424 n.6 (2003)(citations omitted).

However, as we will explain infra, the district court did not

address this alternative basis for Hertz's liability. As a result,

it did not make a factual finding that is critical to the

applicability of this corporate liability doctrine.

Massachusetts General Law 151B "sets out four elements:

membership in a protected class, harm, discriminatory animus, and
2The district court analyzed this as a circumstantial evidence

case, an approach that Cariglia argued in his district court

pleadings and does not challenge on appeal. We do not necessarily

agree with this characterization because of the substantial

quantity of direct evidence regarding Heard's explicit

discriminatory animus. "Typically, direct evidence consists of

statements of discriminatory intent attributable to an employer."

Chief Justice for Admin. and Management of Trial Court v.

Massachusetts Comm'n Against Discrimination, 439 Mass. 729, 733

(2003). “Direct evidence in this context is evidence that 'if

believed, results in an inescapable, or at least highly probable,

inference that a forbidden bias was present in the workplace.'"

Wynn & Wynn, P.C. v. Mass. Comm'n Against Discrimination, 431 Mass.

655, 667 (2000).

Analyzing this case under the circumstantial evidence line of

cases works to Cariglia's detriment under Massachusetts law. Under

the more plaintiff-friendly direct evidence framework, once the

plaintiff has "demonstrated with a high degree of assurance that

the employment decision of which [he] complains 'was the product of

a mixture of legitimate and illegitimate motives,'" "the burden of

persuasion shifts to the defendant who 'may avoid a finding of

liability only by proving that it would have made the same

decision' even without the illegitimate motive." Wynn & Wynn, P.C.

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causation." Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001).

Here, there is no question that Cariglia was a member of a

protected class because of his age, that his termination

constituted harm, and that discriminatory animus was present in the

workplace. The appropriate focus, then, is on the causation issue:

whether his termination was "because of" discrimination. As the

district court noted, when assessing whether a plaintiff has

established causation, "[f]or cases brought under Mass. Gen. Laws

ch. 151B that are based on circumstantial evidence, the [Supreme

Judicial Court] has adopted the three-stage burden shifting

framework established by the United States Supreme Court under the

anti-discrimination provisions of Title VII."2 The plaintiff must
v. Mass. Comm'n Against Discrimination, 431 Mass. 655, 666, 669-70

(2000)(citation omitted).

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establish a prima facie case of age discrimination by showing that

“(1) he is a member of a class protected by G.L. c. 151B; (2) he

performed his job at an acceptable level; (3) he was terminated;

and (4) his employer sought to fill the plaintiff's position by

hiring another individual with qualifications similar to the

plaintiff's." Blare, 419 Mass. at 441. This prima facie case

creates a presumption of discrimination. Id. "In the second

stage, the employer can rebut the presumption created by the prima

facie case by articulating a legitimate, nondiscriminatory reason

for its hiring decision." Id. We agree with the district court

that the parties addressed the requirements of the first and second

stages.

At the third stage, "the presumption created by the prima

facie case drops from the case" and "the employee must show that

the basis of the employer's decision was unlawful discrimination."

Abramian v. President & Fellows of Harvard Coll., 432 Mass. 107,

117 (2000). The district court found that "Cariglia's case

founders" at the third stage, holding that his termination was not

"because of" discrimination. The Massachusetts Supreme Judicial

Court summarized in Lipchitz v. Raytheon, 434 Mass. 493 (2001), the

various formulations that court has used when discussing the

"because of" causation requirement in Mass. G. L. ch. 151B.
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Our decisions have described the causal

element in various ways, which essentially

have been the proximate or determinative cause

standard used in negligence cases. . . . [T]he

plaintiff must prove by a preponderance of the

credible evidence that the defendant’s

discriminatory animus contributed

significantly to that action, that it was a

material and important ingredient in causing

it to happen. That a defendant’s

discriminatory intent, motive or state of mind

is "the determinative cause" does not imply

the discriminatory animus was the only cause

of that action. See Dartt v. Browning-Ferris

Indus., Inc. (Mass.) supra at 7-9, 691 N.E.2d

526 ("because of" does not mean "solely

because of").

Lipchitz, 434 Mass. at 506, n.19 (internal citation omitted). 

Citing Lipchitz, the district court held that Cariglia

did not establish that "discrimination was a determinative factor

in his termination in the sense that but for discrimination the

termination would not have occurred." Specifically, it held that

"the decision to terminate Cariglia was independent of any

discriminatory animus that underlay Heard’s derogatory, age-based

remarks" because "[t]here is no evidence in this case that any of

Plescia, Steele or Kaplan was motivated by discriminatory animus.

There is no evidence that Heard ever discussed or otherwise

infected Plescia, Steele or Kaplan with his age-based bias against

Cariglia." This focus on whether Heard’s animus infected people

(the decisionmakers) rather than the process (manipulating the

information relied upon by the decisionmakers) was erroneous.
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Although we have not been presented before with the same

fact pattern we face here, we have held that "evidence of corporate

state-of-mind or discriminatory atmosphere is not rendered

irrelevant by its failure to coincide precisely with the particular

actors or time frame involved in the specific events that generated

a claim of discriminatory treatment." Conway v. Electro Switch

Corp., 825 F.2d 593, 597 (1st Cir. 1987)(emphasis added). See also

Cummings v. Standard Register Co., 265 F.3d 56 (1st Cir.

2001)(same). Similarly, in Freeman v. Package Machinery Co., 865

F.2d 1331, 1342 (1st Cir. 1988), we rejected a defense that the

decisionmaker personally lacked animus and held that "[t]he inquiry

into a corporation's motives need not artificially be limited to

the particular officer who carried out the action." In MedinaMunoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 10 (1st Cir. 1990),

we held that the "biases of one who neither makes nor influences

the challenged personnel decision are not probative in an

employment discrimination case," implying that the biases of those

who do make or influence the employment decision are probative.

Other circuits have reached similar conclusions. The

District of Columbia Circuit Court of Appeals ruled that "[a]n

unfavorable employment decision resulting from inaccurate,

discriminatorily-motivated evaluations by the employee's

supervisors violates Title VII," even though the decisionmaker was

completely free of animus. Stoller v. Marsh, 682 F.2d 971, 972
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(D.C. Cir. 1982). "When a supervisor . . . deliberately places an

inaccurate, discriminatory evaluation into an employee's file, he

intends to cause harm to the employee. . . . [T]he employer--that

is, the organization as a whole--cannot escape Title VII liability

simply because the final decisionmaker was not personally motivated

by discrimination." Id. at 977. Similarly, the Fifth Circuit has

held that "the discriminatory animus of a manager can be imputed to

the ultimate decisionmaker if the [manager] . . . had influence or

leverage over" the decisionmaking. Laxton v. Gap Inc., 333 F.3d

572, 584 (5th Cir. 2003). See also Russell v. McKinney Hosp.

Venture, 235 F.3d 219, 226 (5th Cir. 2000)("If the employee can

demonstrate that others had influence or leverage over the official

decisionmaker, and thus were not ordinary coworkers, it is proper

to impute their discriminatory attitudes to the formal

decisionmaker."); Abramson v. William Paterson Coll., 260 F.3d 265,

285-86 (3d Cir. 2001)("Under our case law, it is sufficient if

those exhibiting discriminatory animus influenced or participated

in the decision to terminate.").

The Seventh Circuit has held that "[a]n employer cannot

escape responsibility for wilful discrimination by multiple layers

of paper review, when the facts on which the reviewers rely have

been filtered by a manager determined to purge the labor force of

older workers." Gusman v. Unisys Corp., 986 F.2d 1146, 1147 (7th

Cir. 1993). More recently, the same court held that 
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[t]here is only one situation in which the

prejudices of an employee . . . are imputed to

the employee who has formal authority of the

plaintiff’s job. That is where the

subordinate, by concealing relevant

information from the decisionmaking employee

or feeding false information to him, is able

to influence the decision. In such a case,

the discriminatory motive of the other

employee, not the autonomous judgment of the

nondiscriminating decision-maker, is the real

cause of the adverse employment action.

Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1400 (7th Cir.

1997)(citations omitted). See also Kientzy v. McDonnell Douglas

Corp., 990 F,2d 1051, 1057 (8th Cir. 1993); Stacks v. Southwestern

Bell Yellow Pages, 27 F.3d 1316, 1323 (8th Cir. 1994).

Here, the district court found as matters of fact (1)

that Heard directed illegal, age-based animus at Cariglia and

wanted to "get the goods" on Cariglia to justify a termination

decision; (2) that Heard at least authorized if not requested

Cariglia to expense painting the booms with the understanding that

they would not be painted while they were rented out to customers;

and (3) that the booms issue was "at the heart of the termination"

and was a "pivotal consideration" in Plescia, Steele, and Kaplan’s

decision to terminate Cariglia. Regarding this last finding, the

district court wrote that

[w]hat seemed most to disturb Plescia, Steele,

and Kaplan, however was the fact that Cariglia

had failed to get the booms painted after

having paid for that work. . . . It appears

that it was Cariglia’s failure to paint the

booms and to offer to his national bosses a

satisfactory explanation for this failure that
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was a straw that broke the camel’s back. It

is surprising that such a trivial deficiency

should be at the heart of Cariglia’s

termination. . . . [M]y judgment that the

failure to paint the booms should not have

loomed so large in the decision to terminate

Cariglia does not matter here. . . . For

better or worse, I believe it to be the case

that Cariglia’s payment for the painting of

the booms and his neglect to see that work

done was in fact a pivotal consideration in

the decision to fire him.

Also, the district court emphasized the role the boom issue played

in the termination decision when it wrote that

Cariglia was not terminated immediately after

these national officers received the Eyerman

audit and Harrington letter; he was not

terminated even after they received Morgan's

report. Rather, he was terminated following

Morgan's September 9 interview with Cariglia

concerning the booms and following the report

of Heard, who was given by Plescia and Steele

the specific task of going to Boston to

discuss with Cariglia the matter of painting

the booms.

Despite these factual findings, the district court did

not address the critical legal issue of whether corporate liability

can attach when neutral decisionmakers rely on information that is

manipulated by another employee who harbors illegitimate animus.

The crucial factual finding necessary to complete this legal

analysis is whether Heard withheld from Plescia, Steele, and Kaplan

exculpatory information about Cariglia's failure to paint the

booms--namely, that Heard instructed or authorized Cariglia to pay

for painting the booms at the end of 1994, that Heard knew at the

time that the booms were not going to be painted immediately, that
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he told Cariglia that he did not care when the booms were painted,

that the branches typically only painted equipment prior to resale,

and that it was within a branch manager's discretion to keep the

booms rented rather than taking them out of use to repaint them.

There is a strong suggestion in the district court's

findings that Heard, motivated by his desire to get rid of Cariglia

because of his age, did indeed withhold this information from the

decisionmakers. We base this observation on the district court's

findings that "Heard approved the decision to spend the money to

paint the booms," and, "[a]ccording to Cariglia, Heard said that he

did not care when the booms were painted, so long as the painting

was expensed at that time. Heard did not contradict this

testimony, but stated that he expected the booms to be painted as

they became available for resale." The court also observed that

"Plescia testified that he learned from his and Steele's

conversation with Heard that 'the booms were not painted, and that

there was no accountability for the money that was paid.'"

Furthermore, Plescia admitted at trial that he was "not aware that

Jim Heard told John Cariglia to spend [$]25 to 30,000 before the

end of the year[.]" Since the district court opinion credited

Plescia's testimony in every instance, we see no reason why this

portion of his testimony would not also be credible. Finally, from

our read of the trial record, Hertz never argues that Plescia,
3We leave it to the district court to decide whether it can

make the necessary finding on the basis of the existing record or

whether it wishes to permit the introduction of additional

evidence. Also, we recognize that the district court, asked to

focus on the information that Heard communicated to the

decisionmakers about Cariglia's handling of the booms, may reach a

conclusion contrary to the strong suggestion we see in the court's

present findings. We do not preclude any such finding with our

analysis here.

4If Cariglia had been afforded a meaningful chance to address

the allegations against him regarding the boom issue–-to inform the

Hertz executives that Heard instructed him to expense the painting

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Steele, and Kaplan actually knew the full story surrounding the

booms when they decided to terminate Cariglia.

Although the district court's explicit findings approach

an implicit finding that Heard never divulged to Plescia, Steele,

and Kaplan all of the circumstances surrounding the booms issue, we

are reluctant to rely on an implicit finding on this critical

issue. Accordingly, we remand to the district court so that it can

address whether Heard did indeed fail to provide Plescia, Steele,

and Kaplan with the full story regarding the booms.3 If the court

so finds, then, as in Wallace, "the subordinate [Heard], by

concealing relevant information from the decisionmaking employee[s

Plescia, Steele, and Kaplan,] or feeding false information to

[them], is able to influence the decision." Wallace, 103 F.3d at

1400. This influence makes Heard's animus "probative in an

employment discrimination case . . . ." Medina-Munoz, 896 F.2d at

10. Under the relevant law, the issue of the booms as grounds for

termination would be impermissibly tainted with Heard's animus.4
when he did, the money remained on account with the vendor, and, as

was the common practice, he always intended to paint the booms just

prior to their resale–-we might have reached a different result in

this case. See Conn v. GATX Terminals Corp., 18 F.3d 417, 420 (7th

Cir. 1994)(holding that a non-decisionmaker’s animus did not infect

the decisionmaking process when the plaintiff was able to appear

before the decisionmaker and present his side of the story).

5Cariglia argued to the district court that the other four

alleged reasons for his termination were infected with Heard’s

animus, remedied prior to the termination decision, and/or the

responsibility of the assistant manager, who, instead of being

reprimanded, was promoted to fill Cariglia’s position. On appeal,

Cariglia focused more closely on the boom issue. Assuming Heard

withheld exculpatory information about the booms, the primary

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We are aware that the district court said that it "[did]

not discount that Plescia, Steele and Kaplan were also influenced

in their decision to terminate Cariglia by the other deficiencies

in the Boston branch found by Morgan." This finding does not alter

our conclusion that the "because of" standard articulated in

Lipchitz would be met by the booms issue alone. Cariglia need not

show that his termination was "solely because of" the booms. Dartt

v. Browning-Ferris Indus., Inc., 427 Mass. 1, 7-9 (1998). Rather,

he need only show that the boom issue "contributed significantly to

[his termination], that it was a material and important ingredient

in causing it to happen." Lipchitz, 434 Mass. at 506 n.19. He has

done so: the district court found as a matter of fact that the boom

issue was "at the heart of the termination" and was a "pivotal

consideration." If the district court finds that Heard withheld

exculpatory information about the booms and thus impermissibly

tainted the decisionmaking process with his animus,5 Cariglia has
reason for Cariglia’s termination, there is no need to address

whether Heard’s animus further infected the decision making process

by manipulating information regarding the four other items

mentioned in the security report.

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shown that "[Heard's] discriminatory animus contributed

significantly to [Cariglia's termination], that it was a material

and important ingredient in causing it to happen." Lipchitz, 434

Mass. at 506 n.19. Put more dispositively, Cariglia will have

proved that his termination was "because of" Heard's unlawful agebased discrimination, and he would be entitled to a judgment in his

favor on the ch. 151B claim.

C. Intentional Interference With Advantageous Relations

"In an action for intentional interference with

advantageous relations, an employee must prove that (1) she had an

advantageous employment relationship with her employer; (2) the

defendant knowingly induced the employer to break that

relationship; (3) the defendant's interference, in addition to

being intentional, was improper in motive or means; and (4) the

employee was harmed by the defendant's actions." Weber v. Cmty.

Teamwork, Inc., 434 Mass. 761, 781 (2001). When this action is

brought against the plaintiff's supervisor, as it is here, the

"supervisor who discharges or recommends discharge of an employee

is not liable for interference with the employee's contract or

business relations unless the supervisor's actions were motivated

by actual malice." Galdauckas v. Interstate Hotels Corp. No. 16.,
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901 F.Supp. 454, 465 (D. Mass. 1995). In this context, "actual

malice" is a "spiteful, malignant purpose, unrelated to the

legitimate corporate interest." Shea v. Emmanuel College, 425

Mass. 761, 764 (1997).

Cariglia argues on appeal that the district court

committed an error of law when, after finding that Heard harbored

age-based animus against Cariglia and ordered the audit because of

his animus-based desire to "get rid" of Cariglia, it held that

Heard's actions did not interfere with Cariglia's employment

relationship with Hertz. The district court dispensed with this

claim briefly: "Any harm claimed by Cariglia from conduct on the

part of Heard would have to be the termination of Cariglia's

employment. But as we have discussed above, Cariglia's employment

was terminated for reasons independent of any conduct of Heard."

The district court apparently applied the causation standard from

Lipchitz in finding that Cariglia failed to prove that he was

harmed by Heard's actions. In light of our explanation of why the

district court's concept of "independent" was too limited, as well

as Lipchitz's explanation that "because of" does not mean "solely

because of," the district court must also reconsider its ruling on

the intentional interference claim against Heard.

III.
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For the reasons set forth, the judgment of the district

court is VACATED. We REMAND for proceedings consistent with this

opinion. The parties shall bear their own costs.

SO ORDERED.