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Bulwer v. Mount Auburn Hospital

Supreme Judicial Court of Massachusetts, Middlesex

February 29, 2016

Bernard E. Bulwer
Mount Auburn Hospital & others. [1]

         Argued November 3, 2015

          Civil action commenced in the Superior Court Department on February 22, 2008.

Page 673

         The case was heard by S. Jane Haggerty, J., on a motion for summary judgment.

         After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

          Robert R. Hamel, Jr. ( Megan E. Kures with him) for the defendants.

          Denzil D. McKenzie ( James E. Clancy, IV, with him) for the plaintiff.

          James A.W. Shaw, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.


          [46 N.E.3d 27] Lenk, J.

          Massachusetts law prohibits employers from discriminating against their employees on the basis of, among other things, race or national origin. See G. L. c. 151B, § 4. Because direct proof of such discrimination is rarely available, employees filing claims under G. L. c. 151B, § 4, are permitted to prove discrimination without direct evidence of discriminatory intent, by relying on evidence that their employers gave a " false reason," [2] or pretext, for terminating their employment. In this case, we address whether the plaintiff has produced sufficient evidence of pretext to survive his former employer's motion for summary judgment. In doing so, we clarify the evidentiary burdens each party faces after one party has moved for summary judgment. We address, in particular, three concerns: whether the evidence on which an employee relies to survive a defendant's motion for summary judgment need show not only that the defendant's stated reason was false, but also that it concealed a discriminatory purpose; whether it is the plaintiff's burden to persuade the motion judge based on that evidence that there is an issue of material fact appropriate for trial; and, finally, whether, in discerning the existence

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of an issue of material fact, the motion judge may weigh or otherwise evaluate the evidence.

         The plaintiff, Bernard E. Bulwer, is a black male of African descent who is originally from the Central American country of Belize. The plaintiff has a medical degree from the University of the West Indies, and practiced medicine outside the United States until 2002, when he came to this country. In order to become certified [46 N.E.3d 28] to practice medicine in the United States, he was required to complete a residency program here. During the first year of his residency at the defendant Mount Auburn Hospital (hospital), the plaintiff received diametrically opposing reviews from supervising physicians, some laudatory and others deeply critical, after which the hospital terminated his employment. The plaintiff filed a ten-count complaint in the Superior Court against the hospital and three physicians who supervised his work, asserting, among other things, employment discrimination under G. L. c. 151B, § 4, and breach of contract.[3] Concluding that the plaintiff had not produced sufficient evidence of the defendants' discriminatory intent, a Superior Court judge allowed the defendants' motion for summary judgment on all claims. The plaintiff appealed, and a divided Appeals Court reversed the judgment as to the discrimination and breach of contract claims, while affirming the decision on all of the other claims. We allowed the defendants' application for further appellate review, limited to the claims for discrimination under G. L. c. 151B, § 4, and breach of contract. We conclude that the defendants were not entitled to summary judgment and that the plaintiff has presented evidence sufficient to allow a jury to hear his claims.

         1. Background.

         We summarize facts drawn from the summary judgment record, reserving certain details for later discussion. See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318, 974 N.E.2d 34 (2012) ( LeBlanc ). The plaintiff, in addition to his medical degree, has postgraduate training in a number of fields, including cardiovascular disease. He practiced medicine in Trinidad, Belize, and the United Kingdom from 1989 through 2002. In 2002, the plaintiff came to the United States as a research associate and fellow in a subresidency cardiology program at another hospital in Boston, where he worked until 2005.

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          In the spring of 2005, hoping to obtain a medical license to practice in the United States, the plaintiff contacted the defendant Dr. Eric Flint, director of the internal medicine residency program at the hospital. In June, 2005, after an interview with Flint, the plaintiff was offered a residency at the hospital. Because of delays in the processing of his visa, he began his residency in September, 2005, two months later than the other residents in his cohort.

         In August, 2005, the plaintiff signed the hospital's standard medical resident agreement (agreement), setting forth the terms and conditions of his employment. The agreement was for a one-year term, renewable for an additional two years upon satisfactory completion of the first-year program.

         The agreement stated that the hospital and its residency program would comply with the requirements promulgated by the national Accreditation Council for Graduate Medical Education (ACGME). ACGME requires, among other things, that member programs not discriminate against residents on grounds including race and national origin. It also requires that programs provide residents with written procedures that must be followed in the event a program seeks " academic or other disciplinary action" against a resident.

         The hospital's written procedures state that, should a resident's supervisors decide to terminate a resident's employment, a [46 N.E.3d 29] resident has the right to convene an ad hoc committee[4] consisting of the heads of various departments, the resident at issue, and another resident to be chosen by mutual agreement. Such a committee would then be empowered to conduct an independent review of the employment decisions made by the resident's supervisors. The procedures provide further that

" [t]he resident is assured of the fundamental aspects of a fair hearing including written statement of the specific issues from the Department Chair, at least [five] days notice of the Due Process Committee meeting, the opportunity to be present and to rebut the evidence, and the opportunity to present any other information.
" ...
" All matters upon which any decision is based must be introduced into evidence at the proceeding before the Ad Hoc Due Process Committee in the presence of the resident."

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          Residents may then appeal the committee's decision to the " President of the Medical Staff."

         After signing the agreement, the plaintiff began his residency in September, 2005. The first-year program consisted of twelve one-month rotations in a number of different " services" throughout the hospital. The plaintiff's performance was to be evaluated by attending physicians and resident supervisors in each of the services where he worked. The evaluating physicians were to fill out evaluation forms, which called for numerical ratings of various aspects of the plaintiff's performance, as well as for written comments. These evaluations in turn would be given to the clinical competence committee (CCC), a panel of thirteen physicians who met regularly to discuss the progress of all of the residents. The plaintiff was also assigned a mentor, the defendant Dr. Lori Balestrero.

         The plaintiff's first rotation in September was in the hospital's emergency department. The plaintiff received strongly positive evaluations in that department. Two physicians rated him as " outstanding," and five others rated him " above average." They described him as knowledgeable, mature, and pleasant to work with. Dr. Gary Setnik, head of the emergency department, provided a more lengthy written evaluation:

         " Dr. Bulwer is universally held in high regard by the staff I polled and by myself. He has been totally reliable, coming in early, and staying late on most shifts. He aggressively works to see as many patients as possible. His presentations are complete, his management plans appropriate, and his procedural skills very good."

         The next month, the plaintiff rotated into the medical intensive care unit (MICU). There, he received mixed evaluations. In an October, 2005, electronic mail message to a colleague, Dr. Soon-Il Song wrote positively that

" [the plaintiff] had procedural skills and knowledge base well above someone at an intern level. He also was pleasant to work with. He had a good sense of his own limitations, and asked questions often in order to clarify issues. I think his ability to gather information in history taking was quite good and thorough. Above all, he maintained composure and a good attitude, despite the fact that we had an especially difficult night of no sleep and challenging patients requiring multiple attending input in the middle of the night."

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          [46 N.E.3d 30] Other physicians, however, viewed the plaintiff's performance negatively. One wrote that the plaintiff " [m]ade drastic and potentially dangerous/life threatening decisions about [patient] care [without] consulting [the] attending [physician]. ... [He is] [t]oo confident for his own good and [the patient's] own good without showing any proof of capability to perform at the level of an intern or resident yet." Another commented that the plaintiff was " eager to learn" but that " [h]e does not seem to be aware of his responsibilities as an intern despite being told them repeatedly." In response, the plaintiff sent an electronic mail message to Flint stating that he did not believe these negative reviews were objective, and asking Flint to obtain evaluations from four named physicians with whom the plaintiff had seen patients. Flint did not do so.

         Setnik reported that both he and other members of his department received harsh comments from members of the MICU staff for his positive evaluations of the plaintiff. He described this as " [a]n experience that I hadn't previously had at Mount Auburn."

         In November, 2005, Balestrero, the plaintiff's mentor, met with the plaintiff to discuss the negative feedback. The plaintiff told her that he thought the negative impressions were inaccurate. Balestrero then met with the CCC to discuss ways in which the plaintiff could improve. Following this meeting, Balestrero presented the plaintiff with a plan for improvement that she had developed together with the CCC. The plan included a provision for weekly meetings with Balestrero and a follow-up meeting, to be held after evaluations from the December rotation were received, with the plaintiff, Balestrero, and a CCC representative. Neither the weekly meetings nor the follow-up meeting took place.[5]

         During November and December of 2005, the plaintiff was assigned a " wards" rotation in which he provided general internal medicine care for patients who had been admitted to the hospital. The three evaluations from that rotation that appear in the record were positive, with one evaluator noting " much improvement," and another stating that the plaintiff was " [o]verall ... pretty good." The third evaluator assigned a passing grade, but stated that the plaintiff needed improvement in " practice-based learning, "

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professionalism, and organization of notes charting patients' progress.

         In January, 2006, the plaintiff rotated into the cardiology department. He received three evaluations of his work on that service. One rated him as failing in five of six competencies, but another gave him high marks in all competencies, and the third described his presentations as " very commendable" and his knowledge as " excellent." In mid-January, 2006, the plaintiff met with Balestrero, who told him that he had received positive evaluations and that " the past [was] behind [him]."

         In February, 2006, the plaintiff rotated again into the wards service. One evaluator there rated him positively, while the other, Dr. Erica Bial, wrote a lengthy and negative evaluation in which she described her experience with the plaintiff as " horrendous." She stated that " [t]here is no aspect of the central competencies in which [the plaintiff] is even modestly competent." She described him as " less-than-fully-honest" and as having " a difficult time being appropriate with ... women in the professional environment," and recommended [46 N.E.3d 31] that the plaintiff be expelled from the residency program. During this period, Bial " berated" the plaintiff publicly in a manner that a witness, Song, described as not " appropriate," and as unprecedented in his experience with Bial. Song also reported that Bial spoke negatively to other residents about the plaintiff, outside of the plaintiff's presence.

         In March, 2006, the CCC discussed the plaintiff's mixed evaluations. On April 5, 2006, the CCC sent the plaintiff a letter stating that it would not renew his contract because of concerns about his ability to analyze complex information, his inability to " build effective therapeutic relationships," and his difficulty presenting information to other members of his teams. The letter stated also that the plaintiff could finish his first year of residency, working until the end of ...

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