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March 7, 2016

Legal Update
Christine M. Netski

Employment Law Alert: Bulwer v. Mount Auburn Hospital

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In a decision published on February 29, 2016, Bulwer v. Mount Auburn Hospital (473 Mass 672), the Massachusetts Supreme Judicial Court clarified the evidentiary burden a plaintiff must meet to overcome a motion for summary judgment in an employment discrimination claim under Mass. Gen. Laws ch. 151B, § 4. The Court held that where a reasonable jury could infer from evidence presented by a plaintiff that an employer’s justification for terminating the plaintiff was false, the question of whether the given justification was a pretext for discrimination must be presented to a jury.

The plaintiff in Bulwer, a black male from Belize who held a medical degree from a foreign medical school, practiced medicine outside the United States for thirteen years. Plaintiff came to Mr. Auburn Hospital to complete a residency program so that he could practice in the United States. The residency agreement was for a one-year term, renewable for an additional two years upon satisfactory completion of the first-year program. During the first year of his residency, the plaintiff received conflicting reviews from supervising physicians — some laudatory and others deeply critical. Plaintiff questioned the objectivity of some of the negative reviews and requested that the director of the residency program obtain evaluations from four other physicians with whom plaintiff had worked. The requested additional evaluations were not sought by the director.

Nine months into his first year of the program, the hospital decided not to renew plaintiff’s contract and then terminated plaintiff before the expiration of the one-year term purportedly based upon patient safety concerns. The hospital identified the reasons for its actions as plaintiff’s (1) inability to adequately analyze clinical data; (2) inability to consistently build therapeutic relationships; (3) inability to gain insight into the feedback that is offered; (4) failure to document and comply with stated expectations about chart notes; and (5) failure to call for help with severely injured patients. Plaintiff filed a charge of discrimination against the hospital and three supervising physicians with the Massachusetts Commission Against Discrimination and subsequently filed his complaint in the Superior Court. After the close of discovery, defendants sought summary judgment. The Superior Court granted summary judgment for defendants on plaintiff’s race discrimination claim and related breach of contract claim and the Appeals Court reversed. The Supreme Judicial Court took the case for further appellate review.

On review, the Court noted that because plaintiff did not have direct evidence of discriminatory animus, he was instead relying on indirect or circumstantial evidence under the well-established three stage burden shifting paradigm laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). At issue was the third stage of the paradigm, which places the burden on a plaintiff to provide evidence that the employer’s articulated justification for its adverse employment action was a pretext for discrimination. In undertaking its analysis, the SJC clarified that to overcome summary judgment a plaintiff must merely provide evidence from which it could be inferred that the employer gave a false reason for the adverse employment action. The SJC recited five categories of evidence in the record from which a jury might infer that the stated reasons for plaintiff’s termination were not the real reasons: (1) inconsistent performance evaluations; (2) evidence that similarly situated non-black employees were treated differently than plaintiff; (3) testimony from a colleague regarding three instances where she and other staff members noticed and reported deficient performance by Caucasian doctors who received more favorable disciplinary action than plaintiff; (4) statements made by plaintiff’s evaluators which, when viewed in light of other evidence of disparate treatment, could be interpreted as broad generalizations based in racial bias; and (5) defendants’ failure to follow their own procedures in deciding to terminate plaintiff.

Though defendants argued that their actions, even if harsh, were motivated by professional judgment rather than racial animus, the Court reasoned that it could not credit the defendants’ version of events without assessing credibility or weighing the evidence, which the Court stated would be inappropriate at the summary judgment stage. The Court emphasized that summary judgment remains a disfavored remedy in discrimination cases because the ultimate issue of discriminatory intent is a factual question that often requires a jury to weigh the credibility of an employer’s explanations for its actions. In light of the disfavored status of summary judgment in the discrimination context and the fact that the plaintiff did present evidence from which a reasonable jury could infer that the hospital’s stated justifications for the termination were false, the SJC vacated the judgment in favor of the defendants and remanded the case to the Superior Court.

Three takeaways from the Bulwer decision for employers:

1. The Court identified conflicting performance reviews as evidence from which it could be inferred that the reasons given for the termination were not the real reasons. Prior to any termination decision, employers should make a good faith effort to assess conflicting performance evaluations with a view toward harmonizing any inconsistencies in a manner that gives a fair and accurate picture of the employee’s overall performance. Merely pointing to the negative reviews as the justification for a termination decision without putting other positive feedback in context may leave an employer exposed to the inference that its stated reasons for the termination decision were not its real reasons.

2. The Court identified the employer’s failure to follow its own policies as evidence from which it could be inferred that the reasons given for the termination were not the real reasons. When employers depart from their standard policies and procedures when making termination decisions, even if for benign reasons, they open the door to an inference that their stated justifications for their actions were false.

3. The Court noted five categories of evidence from which, collectively, a jury could infer that the reasons given for termination were not the real reasons. In some cases, however, a plaintiff is unable to come forward with evidence sufficient to reasonably cast doubt on the employer’s stated justification for its action and, in those cases, summary judgment is still a strategy employers should consider.

To read the SJC’s decision, please click here.

For questions regarding the information contained in this Alert, contact Christine M. Netski, Gwen Nolan King, or your attorney.

This Alert was prepared for the clients and colleagues of Sugarman, Rogers, Barshak & Cohen, P.C. It is provided for educational and informational purposes only and is not a substitute for professional advice on your specific legal situation.