Karatihy v. Commonwealth Flats Development Corp. (Lawyers Weekly No. 11-114-13)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us       12‑P‑1353                                       Appeals Court   RACHID KARATIHY  vs.  COMMONWEALTH FLATS DEVELOPMENT CORP.[1]     No. 12‑P‑1353. Suffolk.     June 4, 2013.  ‑  September 18, 2013. Present:  Cypher, Graham, & Agnes, JJ.   Employment, Termination, Retaliation.  Practice, Civil, Prima facie case.       Civil action commenced in the Superior Court Department on November 24, 2009.   The case was heard by Geraldine S. Hines, J., on a motion for summary judgment, and a motion to reconsider was considered by her.     Scott Adams for the plaintiff. Andrew C. Pickett (Kevin M. Sibbernsen with him) for the defendant.     CYPHER, J.  A Superior Court judge granted summary judgment in favor of Commonwealth Flats Development Corp., doing business as Seaport Hotel and World Trade Center (hotel), after Rachid Karatihy filed a complaint alleging retaliation by the hotel.  Karatihy alleged that the hotel terminated him in retaliation for being a named plaintiff in a lawsuit claiming the hotel violated G. L. c. 149, §§ 148 & 150 (Wage Act), and c. 149, § 152A (Tips Act). The judge ruled in favor of the hotel because Karatihy did not meet his burden on causation, and thus would be unable at trial to prove an essential element of the retaliation claim.  Karatihy maintains that there are disputes of material fact and there was sufficient evidence for a jury to find a causal connection and pretext for his termination, and therefore summary judgment was not proper.  We disagree and affirm summary judgment for the hotel. Background.  We summarize the facts in the light most favorable to the nonmoving party, Karatihy, reserving some facts for later discussion.  See Chervin v. Travelers Ins. Co., 448 Mass. 95, 96 (2006). Karatihy worked as a banquet server at the hotel from 2000 until his termination in 2009.  As a server, his duties included setting up for events and serving food and beverages.  Because attendance is imperative to the job and efficiency is key in serving its customers, the hotel implemented an attendance policy.  Employees are required to “call-out” and notify the hotel at least four hours in advance if they will be late or will miss a shift so the hotel can find a replacement.  All of the “call-outs” are recorded and tracked for each employee.  The attendance policy also placed limits on the number of allowable absences in a given period.  This attendance […]

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