Supreme Judicial Court of Massachusetts, Middlesex
Bernard E. Bulwer
Mount Auburn Hospital & others. 
November 3, 2015
action commenced in the Superior Court Department on February
case was heard by S. Jane Haggerty, J., on a motion
for summary judgment.
review by the Appeals Court, the Supreme Judicial Court
granted leave to obtain further appellate review.
R. Hamel, Jr. ( Megan E. Kures with him) for the defendants.
D. McKenzie ( James E. Clancy, IV, with him) for the
A.W. Shaw, for Massachusetts Employment Lawyers Association,
amicus curiae, submitted a brief.
Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ.
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,"  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
of an issue of material fact, the motion judge may weigh or
otherwise evaluate the evidence.
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. 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.
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.
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.
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
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.
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 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."
Residents may then appeal the committee's decision to the
" President of the Medical Staff."
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.
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."
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
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.
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
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.
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
professionalism, and organization of notes charting
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
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.
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 ...