Bulwer v. Mount Auburn Hospital

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SJC-11875

BERNARD E. BULWER vs. MOUNT AUBURN HOSPITAL & others.1

Middlesex. November 3, 2015. - February 29, 2016.

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

JJ.

Hospital, Appointment to staff. Anti-Discrimination Law, Race,

Employment. Employment, Discrimination. Contract,

Employment, With hospital, Performance and breach.

Practice, Civil, Summary judgment.

Civil action commenced in the Superior Court Department on

February 22, 2008.

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.

1

Eric Flint, Ricardo Wellisch, and Lori Balestrero.

2

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

2

A "false reason" is one that is not the real reason for

terminating an individual's employment, regardless whether the

false reason is factually accurate. See Lipchitz v. Raytheon

Co., 434 Mass. 493, 502 (2001) (Lipchitz); Wheelock College v.

Massachusetts Comm'n Against Discrimination, 371 Mass. 130, 139

(1976).

3

the existence 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 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

3

The plaintiff also alleged retaliation in violation of

G. L. c. 151B, § 4; breach of a health insurance obligation in

violation of G. L. c. 175, § 110D; defamation; intentional

infliction of emotional distress; negligent infliction of

emotional distress; and three counts of tortious interference

with a contractual relationship.

4

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

(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.

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

5

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 resident has the right to convene an ad hoc

committee4 consisting of the heads of various departments, the

resident at issue, and another resident to be chosen by mutual

4

The hospital's rules refer to this committee variously as

the "ad hoc committee," the "due process committee," and the "ad

hoc due process committee."

6

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."

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

7

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

8

that we had an especially difficult night of no sleep and

challenging patients requiring multiple attending input in

the middle of the night."

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

9

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," 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

5

The plaintiff states that these meetings did not occur

because of Balestrero's schedule, while the defendants contend

that it was the plaintiff's schedule that prevented the meetings

from taking place.

10

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 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

11

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 his

contract term in August, 2006. The letter was signed by Flint

and by the defendant Dr. Ricardo Wellisch, chair of the CCC.

The plaintiff invoked his right to convene an ad hoc

committee pursuant to the hospital's "due process" policy.

Although the committee consisted of most of the individuals

specified in that written policy, no resident was seated on it,

as required by the policy. Further, of the committee's three

meetings, the plaintiff was invited to attend only the first

one, which took place on April 24, 2006. At that first meeting,

as well as at the second, on May 2, 2006, the committee heard

testimony from physicians who had previously evaluated the

plaintiff during his rotations. The transcripts of these

meetings do not reflect discussion of the possibility that the

plaintiff's contract would be terminated immediately, and the

plaintiff did not receive any notice to that effect.6 He

requested that the committee forward to him any materials

6

The record does not contain a transcript of the third

meeting on May 9, 2006, at which the committee apparently

deliberated and reached a decision.

12

considered during the meetings he did not attend; those requests

were not answered.

On May 9, 2006, the committee sent a letter to Dr. Stephen

Zinner, chair of the department of medicine, stating that it

would affirm the decision of the CCC not to renew the

plaintiff's contract. On May 17, 2006, Zinner informed the

plaintiff verbally that, because of "serious additional

concerns" for "patient safety" that had arisen "in the past

[three] weeks," the plaintiff would "be immediately relieved of

his responsibilities."

The plaintiff sent a letter dated May 18, 2006, to the

president and chief executive officer of the hospital stating

his desire to appeal, as provided in the due process policy,

from the committee's decision not to renew his contract and to

terminate his employment immediately. The president responded

with a certified letter, return receipt requested, saying that

she would convene such a committee. The plaintiff did not

retrieve the letter from the postal service, which attempted

delivery three times, and did not pursue the appeal.

In August, 2006, the plaintiff filed a charge of

discrimination against the hospital with the Massachusetts

Commission Against Discrimination. In February, 2008, the

plaintiff filed his complaint in the Superior Court, naming the

hospital, Balestrero, Flint, and Wellisch as defendants. During

13

discovery, depositions were taken of various doctors who had

worked with the plaintiff, including Dr. Ramona Dvorak, an

African-American internist and psychiatrist formerly employed at

the hospital, who described what she believed to have been

incidents of racism she experienced during her employment.

Following discovery, in December, 2010, the defendants sought

summary judgment on all counts; in June, 2011, their motion was

allowed.

2. Discussion. The plaintiff contends that the motion

judge erred in allowing the defendants' motion for summary

judgment on his claim for employment discrimination on the basis

of his race and national origin, in violation of G. L. c. 151B,

§ 4, and on his breach of contract claim based on his

termination in violation of the procedures set forth in the

medical resident agreement. The plaintiff maintains that there

were disputed issues of material fact as to both claims, and the

matter should proceed to trial.

a. Standard of review. A motion for summary judgment

under Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404

(2002), is appropriate where "the moving party . . . 'show[s]

that there is no genuine issue as to any material fact and that

the moving party is entitled to a judgment as a matter of law'

based on the undisputed facts." Premier Capital, LLC v. KMZ,

Inc., 464 Mass. 467, 474 (2013), quoting Mass. R. Civ.

14

P. 56 (c). "In reviewing the . . . grant of a motion for

summary judgment, we conduct a de novo examination of the

evidence in the summary judgment record . . . and view the

evidence in the light most favorable to the part[y] opposing

summary judgment" (citation omitted)," LeBlanc, supra at 318,

"drawing all reasonable inferences in [the nonmoving party's]

favor." Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38

(2005) (Sullivan).

b. Discrimination claim. i. Evidentiary burdens.

General Laws c. 151B, § 4, provides that "[i]t shall be an

unlawful practice . . . [f]or an employer . . . because of the

race, color, . . . [or] national origin . . . of any

individual . . . to discharge from employment such individual or

to discriminate against such individual in compensation or in

terms, conditions or privileges of employment." In order to

prevail at trial, an employee bringing a complaint under G. L.

c. 151B, § 4, must demonstrate four things: that he or she is a

member of a protected class; that he or she was subject to an

adverse employment action; that the employer bore

"discriminatory animus" in taking that action; and that that

animus was the reason for the action (causation). See Lipchitz

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

question here is whether the plaintiff provided evidence from

which a reasonable jury could infer the presence of the latter

15

two elements, i.e., that the defendants bore discriminatory

animus and that the animus was the reason the defendants

terminated the plaintiff's employment.

In the pretrial context, an employee asserting a

discrimination claim under G. L. c. 151B, § 4, may survive a

motion for summary judgment by providing "[d]irect evidence of

[the] elements" of discriminatory animus and causation.

Sullivan, supra at 39. Because such direct evidence "rarely

exists," however, an employee plaintiff may also survive such a

motion by providing "indirect or circumstantial evidence [of

discriminatory animus and causation] using the familiar three-

stage, burden-shifting paradigm first set out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792, 802–805 (1973) (McDonnell

Douglas)." Sullivan, supra at 39-40.

"In the first stage [of this paradigm], the plaintiff has

the burden to show . . . a prima facie case of discrimination."

Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.

437, 441 (1995) (Blare). To do so, a plaintiff must provide

"evidence that: (1) he [or she] is a member of a class

protected by G. L. c. 151B; (2) he [or she] performed his [or

her] job at an acceptable level; [and] (3) he [or she] was

terminated." 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 [employment]

16

decision." Id. In the third stage, the burden of production7

shifts back to the plaintiff employee, requiring the employee to

provide evidence that "the employer's articulated justification

[for the termination] is not true but a pretext." Id. at 443.

The defendants contend that, at this third stage, the

plaintiff must present evidence that the "[hospital]'s reason

for termination constituted a pretext concealing a

discriminatory purpose" (emphasis supplied). Bulwer v. Mount

Auburn Hosp., 86 Mass. App. Ct. 316, 347 (2014) (Sikora, J.,

dissenting) (Bulwer). See id. at 355 (Sikora, J., dissenting)

(taking position that claim fails because plaintiff did not show

"invidious intent"). This formulation, however, overstates the

plaintiff's burden at the summary judgment stage because

"Massachusetts is a pretext only jurisdiction." Blare, supra at

443. See Abramian v. President & Fellows of Harvard College,

432 Mass. 107, 114-115 (2000). As we explained in Lipchitz,

supra at 500-501:

"The phrase 'pretext for discrimination' implies that

the plaintiff must prove not only that a reason given by

the employer for the adverse decision was false, but that

the reason was given to cover a discriminatory animus. Our

7

The "burden of production" refers to "a party's obligation

to come forward with evidence to support its claim." Director,

Office of Workers' Compensation Programs, Dep't of Labor v.

Greenwich Collieries, 512 U.S. 267, 272 (1994) (Greenwich).

This is distinct from the burden of persuasion, often called the

"burden of proof," which refers to "the notion that if the

evidence is evenly balanced, the party that bears the burden of

persuasion must lose." Id.

17

decisions do not require this. . . . If the employee were

able to prove by direct evidence that discriminatory animus

motivated the decision, [he] would not have to rely on the

indirect method of proving animus by disproving at least

one of the employer's articulated, nondiscriminatory

reasons" (citations omitted).

To survive a motion for summary judgment, the plaintiff

need only present evidence from which a reasonable jury could

infer that "the respondent's facially proper reasons given for

its action against him were not the real reasons for that

action." Wheelock College v. Massachusetts Comm'n Against

Discrimination, 371 Mass. 130, 139 (1976) (Wheelock College).

The case can then proceed to trial, at which point, "if the fact

finder is persuaded that one or more of the employer's reasons

is false, it may (but need not) infer that the employer is

covering up a discriminatory intent, motive or state of mind."8

Lipchitz, supra at 501. In other words, a fact finder at trial

may infer that, "[c]ombined with establishment of a prima facie

case . . . , a showing of pretext eliminates any legitimate

8

While Lipchitz, supra, involved a motion for judgment

notwithstanding the verdict, see Mass. R. Civ. P. 50 (b), as

amended, 428 Mass. 1402 (1998), rather than a motion for summary

judgment, "[t]he standard for obtaining a judgment

notwithstanding a verdict in Massachusetts is the same as the

summary judgment standard." Sarro v. Philip Morris USA Inc.,

857 F. Supp. 2d 182, 189 (D. Mass. 2012). See Cahaly v.

Benistar Prop. Exch. Trust Co., 451 Mass. 343, 350 (2008), cert.

denied, 555 U.S. 1047 (2008), quoting Phelan v. May Dep't Stores

Co., 443 Mass. 52, 55 (2004) ("We ask whether, construing the

evidence most favorably to the plaintiff, and 'without weighing

the credibility of the witnesses or otherwise considering the

weight of the evidence, the jury reasonably could have returned

a verdict for the plaintiff'").

18

explanation for the adverse hiring decision and warrants a

determination that the plaintiff was the victim of unlawful

discrimination."9 Blare, supra at 446.

The defendants also argue that, at this third stage, the

burden of persuasion is on the "the plaintiff . . . to

demonstrate that there is a genuine issue of material fact

whether the defendants' proffered reason is a pretext" (emphasis

in original).10 Bulwer, supra at 347 (Sikora, J., dissenting).

See id. at 348 (Sikora, J., dissenting) ("plaintiff must

substantiate a genuine issue of" material fact). While the

plaintiff does bear "the burden of producing evidence" that the

employer's reasons are pretextual, see Matthews v. Ocean Spray

9

We nonetheless reiterate that, at trial,

"[p]ermitting the fact finder to infer discriminatory

animus from proof that the employer has advanced a false

reason does not . . . eliminate the plaintiff's burden to

prove this essential element. . . . Stated differently,

the 'indirect evidence' moniker derives from the type of

evidence (pretext) that may establish one or both statutory

elements (discriminatory animus and causation)" (citation

omitted).

Lipchitz, supra at 502.

10

This burden is described as requiring the plaintiff to

demonstrate that the "the employer's articulated reason lack[s]

reasonable support in evidence or is . . . wholly

disbelievable." Bulwer v. Mount Auburn Hosp., 86 Mass. App. Ct.

316, 347 (2014) (Bulwer) (Sikora, J., dissenting), quoting Lewis

v. Area II Homecare for Senior Citizens, Inc., 397 Mass. 761,

765 (1986) (Lewis). This language, drawn from Lewis, supra,

described the plaintiff's burden at trial and not, as here, at

summary judgment. See id. at 765 ("judge found [after bench

trial] . . . that the plaintiff failed to prove pretext").

19

Cranberries, Inc., 426 Mass. 122, 127 (1997) (Matthews), the

burden of persuasion at summary judgment remains with the

defendants, who, "as the moving part[ies], 'ha[ve] the burden of

affirmatively demonstrating the absence of a genuine issue of

material fact on every relevant issue, even if [they] would not

have the burden on an issue if the case were to go to trial.'"

Sullivan, supra at 39, quoting Matthews, supra.

ii. Questions of material fact. In opposing the

defendants' motion for summary judgment, the plaintiff relies on

indirect evidence of discrimination, which we analyze using the

McDonnell Douglas three-stage paradigm. The defendants concede,

with regard to the first stage, that the plaintiff has satisfied

his obligation to make out a prima facie case of

discrimination.11 With regard to the second stage, the

defendants assert that the plaintiff's employment was terminated

based on his poor performance evaluations, included in the

record, that express doubts about his abilities and raise

concerns for patient safety. This satisfies the defendants'

obligation to produce both "lawful . . . reasons for [their]

employment decision" and "credible evidence to show that

11

The defendants' concession that the plaintiff "could

establish a prima facie case" is "for summary judgment purposes

only."

20

the . . . reasons advanced were the real reasons."12 See Blare,

supra at 442, quoting Wheelock College, supra at 138. We

therefore move to the third stage, and consider whether the

plaintiff has provided evidence sufficient to allow a reasonable

jury to infer that "the employer's articulated justification is

not true but a pretext." Blare, supra at 443.

We begin by reciting more specifically the reasons provided

by the hospital for terminating the plaintiff's employment. In

April, 2006, Wellisch and Flint sent a letter to the plaintiff

citing his "inability to adequately analyze clinical data in

complex cases," "inability to consistently build effective

therapeutic relationships," and "inability to gain insight into

feedback that is offered." In May, 2006, Zinner decided to

terminate the plaintiff's employment immediately due to asserted

"additional clinical errors, failures to document or comply with

our clearly stated expectations about chart notes, and failures

to call for appropriate help with severely ill patients."

The record contains at least five categories of evidence

from which a jury might infer that these stated reasons were not

the real reasons that the plaintiff's employment was terminated.

When "taken as a whole rather than viewed in isolation," such

12

As the Appeals Court noted, the plaintiff "does not

seriously argue that the hospital failed to meet its non-onerous

burden of articulating a legitimate reason for his termination."

Bulwer, supra at 329-330.

21

evidence could lead a rational jury to conclude that the reasons

for the plaintiff's discharge were pretextual. See Dorman v.

Norton Co., 64 Mass. App. Ct. 1, 9-10 (2005).

First, while the record plainly contains negative

evaluations tending to support the aforementioned criticisms,

the record also contains numerous evaluations inconsistent with

these criticisms. See Cole v. Ruidoso Mun. Schs., 43 F.3d 1373,

1380 (10th Cir. 1994) (reversing summary judgment for employer

where conflicting evaluations raised fact questions about true

reasons for adverse employment action). See also Bonefont-

Igaravidez v. International Shipping Corp., 659 F.3d 120, 124

(1st Cir. 2011), quoting Gómez–González v. Rural Opportunities,

Inc., 626 F.3d 654, 662–663 (1st Cir. 2010) ("pretext can be

established by showing . . . 'weaknesses [or] implausibilities

. . . in the employer's offered reasons'"); 59 Causes of Action

2d, Cause of Action under Age Discrimination in Employment Act

§ 24 (2013) ("evidence of satisfactory or superior performance

evaluations . . . may tend to show . . . the illegitimate nature

of the defendant's articulated reason").

For example, some evaluators wrote of the plaintiff's

"excellent" "ability to interpret and analyze clinical data, and

formulat[e] a plan of management," even as the plaintiff was

dismissed ostensibly because he could not "adequately analyze

clinical data in complex cases." Similarly, some evaluators

22

praised the plaintiff's "progress notes" as "very detailed and

informative," "very thorough," and "generally well thought out,"

while others criticized him for "fail[ing] to document or comply

with . . . expectations about chart notes." Moreover,

evaluations noting that "several patients have commented on [the

plaintiff's] thoroughness and humanistic qualities" and that

"patients' family members told [the evaluator] several times how

helpful he had been during an emotionally difficult time" are in

some tension with the view that the plaintiff evinced an

"inability to consistently build effective therapeutic

relationships." The record also contains evaluations noting

that the plaintiff "had a good sense of his own limitations" and

that he took "in feedback well."13 These disparate evaluations

prompted the chair of the ad hoc committee to note that "it is

13

Two other points along these lines are noteworthy.

First, the plaintiff received contradictory advice from

evaluators. While one evaluator criticized him for making

"drastic" decisions on his own, another suggested, only one

month earlier, that the plaintiff "work on his independence and

self-initiative, mainly in terms of seeing patients primarily on

his own and getting out of a 'shadowing' mode." Second, a

letter from the hospital to the Board of Registration in

Medicine, sent pursuant to G. L. c. 111, § 53B, explained that

the plaintiff's employment had been terminated immediately

because he "[f]ail[ed] to make appropriate progress in

processing and applying evaluations and other constructive

criticism and feedback to patient care responsibilities." The

plaintiff himself was told, however, that the immediate

termination was not because of delays in his progress, but

rather because of an immediate "risk to patient safety."

Although these statements might be reconcilable, a jury could

find in them inconsistency suggestive of the pretextual nature

of the proffered reasons.

23

interesting how one set of behaviors can elicit such different

perception."

There is, secondly, evidence that the plaintiff was treated

differently from similarly situated interns who are not black.

See Matthews, supra at 129 ("The most probative means of

establishing that the plaintiff's termination was a pretext for

racial discrimination is to demonstrate that similarly situated

white employees were treated differently"). For example, Song

named two foreign interns (one white and one apparently Asian)

who experienced "similar issues" but who, unlike the plaintiff,

"were given opportunities to remediate or repeat rotations."14

The plaintiff identified a third.15 The suggestion that the

plaintiff was treated differently from these individuals based

on his race also finds support in Setnik's statement that "[i]t

is hard to understand the underlying basis for [the negative]

perceptions of [the plaintiff's] work."

14

The defendants argue that Dr. Soon-Il Song's testimony is

"inadmissible as opinion testimony." We discern no basis for

this argument, given that Song can testify about the treatment

of these two interns from "personal knowledge." See Mass. G.

Evid. § 602 (2016) (witness may testify if he or she "has

personal knowledge of the matter"; evidence of that knowledge

"may consist of the witness's own testimony").

15

There was only one other intern not promoted from among

the first-year residents in the plaintiff's cohort; that

individual was black and from Uganda. He was forced to leave

the residency program when, following a poor evaluation from the

hospital, his medical license was not renewed.

24

Third, Dvorak, an African-American internist and

psychiatrist, described three separate instances of Caucasian

doctors whose deficient performances she and other staff members

noticed and brought to the attention of hospital administrators,

but who were not subject to disciplinary action until months or

years after the complaints were made -- and then only because of

pressure from patients and other hospitals. Dvorak also noted

an incident in which she found "white supremacist" literature in

the break room. Although she told administrators "how upsetting

[this] was, particularly [to her] as a[n] African-American," she

maintains that the administrators rejected requests to

discipline employees who displayed such literature in the

workplace.16

Fourth, a reasonable jury could interpret a number of

comments by the plaintiff's evaluators and supervisors as

reflecting "[s]tereotypical thinking . . . categorizing people

on the basis of broad generalizations." Lipchitz, supra at 503

16

The defendants contend that the entirety of Dr. Ramona

Dvorak's testimony is inadmissible because it is "opinion

testimony." To the extent that Dvorak points to specific

incidents and individuals of which she had personal knowledge,

however, we discern no basis on which to exclude it. See Mass.

G. Evid. § 602. That being said, the admissibility of any

proffered evidence at trial is for the judge to determine. See

Commonwealth v. Drayton, 473 Mass. 23, 38 (2015) ("In

identifying these elements that arguably may support"

plaintiff's case, "we do not in any way suggest that the

[evidence] ultimately is admissible"). See also Commonwealth v.

Alcide, 472 Mass. 150, 162 n.14 (2015).

25

n.16. Although such statements in isolation would not be

adequate to support a finding of discrimination, when considered

with evidence of disparate or unfair treatment in the evaluation

process, they may lend support to such a finding. See Conway v.

Electro Switch Corp., 825 F.2d 593, 597 (1st Cir. 1987) ("While

evidence of a discriminatory atmosphere may not be conclusive

proof of discrimination against an individual plaintiff, such

evidence does tend to add 'color' to the employer's

decisionmaking processes and to the influences behind the

actions taken with respect to the individual plaintiff").

For instance, one evaluator criticized the plaintiff for

being "too confident for his own good." Another said that

someone in the plaintiff's position as an "intern is not

supposed to be smart" and "[t]hat is why all of this [criticism]

is happening." Yet another, Bial, stated that the plaintiff was

"the least respectful person with whom [she had] ever worked"

and that he "has no capacity whatsoever for self-assessment."

Bial also spoke negatively to other residents and interns about

the plaintiff outside of the plaintiff's presence and "berated

him" publicly in a manner that a witness identified as both not

"appropriate" and unprecedented in his experience with Bial.

Additionally, in informing the plaintiff of the decision not to

promote him, Zinner noted that the plaintiff "is not well suited

for a career in internal medicine in this country." These kinds

26

of comments can, of course, admit of different interpretations

by a jury, including ones reflecting only untainted professional

judgment. One interpretation that a jury could make of such

comments, however, is that, combined with Bial's behavior, they

reflect a subconscious sense that the plaintiff, as a black man

and a foreigner, did not "know his place."17 See Ash v. Tyson

Foods, Inc., 546 U.S. 454, 456 (2006) (judgment as matter of law

for employer inappropriate where employer used ambiguous term

that, though "not always . . . evidence of racial animus," is

not "always benign").

Fifth, there is evidence that the defendants did not follow

their written procedures in deciding to terminate the

17

In addition to these comments, which were made by the

plaintiff's evaluators, some comments made during a meeting of

the ad hoc committee might suggest that the plaintiff was

evaluated critically in part because of his race. Specifically,

the doctors compared the plaintiff to a trainee from fifteen

years earlier, whom they identified as a "woman of color from

Washington" and who, like the plaintiff, had difficulty with

"interpersonal skills, communication skills, [and]

professionalism." They said that this trainee "would have

flunked on a number of those [more subjective] competencies" in

which the plaintiff was deficient, despite the fact that she had

no deficiencies in "intelligence and IQ." A jury might see

these comments as reflecting a tendency to evaluate black

trainees unfavorably in subjective areas like interpersonal

communication, even when those trainees perform well in

objectively measurable areas like intelligence and medical

knowledge. See Douglas v. J.C. Penney Co., 474 F.3d 10, 14

(2007) (evidence of racial animus inferred from "disparities in

subjective performance evaluations between employees of

different races" when those subjective evaluations "did not

correlate with the individualized objective performance factors

for those employees").

27

plaintiff's employment. A "'failure to follow established

procedures or criteria' . . . [may] support a reasonable

inference of intentional discrimination." Nesbitt v. Holder,

966 F. Supp. 2d 52, 56 (D.D.C. 2013), quoting Brady v. Office of

the Sergeant at Arms, 520 F.3d 490, 495 (D.C. Cir. 2008). See

1 A. Larson, Employment Discrimination § 8.04, at 8-81 to 8-82

(rev. ed. 2015) ("pretext can be shown by demonstrating . . .

irregularities in . . . the procedures for discharge").

Here, the defendants departed from their written due

process policy by failing to include a resident on the ad hoc

committee, by not allowing the plaintiff to attend two of the

three meetings of that committee, and by failing to heed the

plaintiff's request for materials from those meetings. The

defendants further departed from this policy when they

immediately terminated the plaintiff's employment without having

informed him, either before or after the ad hoc committee

meeting, that this step was being considered.

The defendants argue that these five categories of evidence

do not suffice to raise a question of material fact. They note

that, even if all of the inferences drawn by the plaintiff from

the above evidence were reasonable, the ad hoc committee

conducted "an expanded review" of the CCC's decision to

terminate his employment and "concluded that the [plaintiff's]

deficiencies remained serious." Bulwer, supra at 355 (Sikora,

28

J., dissenting). A "third [party]'s independent decision to

take adverse action," they argue, "breaks the causal connection

between [any] retaliatory or discriminatory animus [harbored by

the plaintiff's evaluators] and the adverse action." Mole v.

University of Mass., 442 Mass. 582, 598 (2004). This argument

is unavailing.

In addition to input from the plaintiff, the ad hoc

committee based its conclusions on the evaluations relied on by

the CCC, as well as on testimony from the physicians who wrote

those evaluations and on statements and memoranda from the CCC

itself. Where "the decision makers relied on the

recommendations of supervisors [whose motives have been

impugned], the motives of the supervisors should be treated as

the motives for the decision. . . . An employer [may not]

insulate its decision by interposing an intermediate level of

persons in the hierarchy of decision, and asserting that the

ultimate decision makers acted only on recommendation" (citation

omitted). Trustees of Forbes Library v. Labor Relations Comm'n,

384 Mass. 559, 569-570 (1981). See Cariglia v. Hertz Equip.

Rental Corp., 363 F.3d 77, 83 (1st Cir. 2004) ("liability can

attach if neutral decision makers, when deciding to terminate an

employee, rely on information that is inaccurate, misleading, or

incomplete because of another employee's discriminatory

animus").

29

The defendants also argue, in essence, that criticisms of

the plaintiff's performance, even if harsh, are best read to

reflect "professional" judgment rather than racial animus.

Bulwer, supra at 350 (Sikora, J., dissenting). Even assuming

the defendants are correct such that they could prevail on this

point at trial, at the summary judgment stage "a court does not

resolve issues of material fact, assess credibility, or weigh

evidence." Kernan v. Morse, 69 Mass. App. Ct. 378, 382 (2007).

The question of whose interpretation of the evidence is more

believable, "raised by the [parties'] conflicting evidence as to

the defendant[s'] motive, is not for a court to decide on the

basis of [briefs and transcripts], but is for the fact finder

after weighing the circumstantial evidence and assessing the

credibility of the witnesses."18 Lipchitz, supra at 499, quoting

Blare, supra at 445.

18

Our decision in Sullivan v. Liberty Mut. Ins. Co., 444

Mass. 34 (2005), is not to the contrary. In affirming summary

judgment for the employer, we noted that the plaintiff there

essentially conceded that the adverse employment action was

motivated by her supervisor's perception of her performance as

poor, as evidenced by the fact that she "[did] not challenge

whether [the defendant] truly believed that her mishandling" of

certain matters warranted her discharge. Id. at 57 (plaintiff

did not present any "evidence . . . that [the defendant]

selected her for layoff for any reason other than her own

performance" and "[t]here [was] ample, uncontroverted evidence

that the negative impression [plaintiff's supervisors] had

formed of [plaintiff]'s abilities was a primary reason she was

selected for layoff").

30

In this regard, summary judgment remains "a disfavored

remedy in the context of discrimination cases based on disparate

treatment . . . because the ultimate issue of discriminatory

intent is a factual question" (citations omitted).19 Blare,

supra at 439. A defendant's motive "is elusive and rarely is

established by other than circumstantial evidence," therefore

"requir[ing] [a] jury to weigh the credibility of conflicting

20

explanations of the adverse hiring decision." Id. at 439-440.

c. Breach of contract claim. To prevail on a claim for

breach of contract, a plaintiff must demonstrate that there was

an agreement between the parties; the agreement was supported by

consideration; the plaintiff was ready, willing, and able to

perform his or her part of the contract; the defendant committed

a breach of the contract; and the plaintiff suffered harm as a

19

Because the plaintiff questions the legitimacy of his

employer's motive in terminating his employment, "[t]his is a

disparate treatment case[,] not a disparate impact case." See

Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.

437, 439 n.3 (1995). See also Cox v. New England Tel. & Tel.

Co., 414 Mass. 375, 384-385 (1993).

20

See Clermont and Schwab, Employment Discrimination

Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. &

Pol'y Rev. 103, 128 (2009) ("pretrial adjudication particularly

disfavors employment discrimination plaintiffs"). See also

Donald and Pardue, Bringing Back Reasonable Inferences: A

Short, Simple Suggestion for Addressing Some Problems at the

Intersection of Employment Discrimination and Summary Judgment,

57 N.Y.L. Sch. L. Rev. 749, 752 (2012-2013) ("Federal Judicial

Center has noted that '[s]ummary judgment motions by defendants

are more common in [employment discrimination] cases [than in

other civil actions], are more likely to be granted, and [are]

more likely to terminate the litigation'").

31

result. Singarella v. Boston, 342 Mass. 385, 387 (1961). At

issue here is the fourth element, i.e., whether the defendants

committed a breach of the contract embodied in the medical

resident agreement.

The plaintiff maintains that the defendants committed such

a breach in five ways: by failing to comply with the ACGME's

nondiscrimination policy; by failing to include a resident on

the ad hoc committee as required by the hospital's written

procedures; by failing to advise the plaintiff, in advance, of

certain items to be discussed by the ad hoc committee; by

failing to provide him with the resources and supervision

necessary to perform his job; and by failing to offer him an

opportunity to appeal from the decision of the ad hoc

committee.21 To prevail on a motion for summary judgment on

these claims, the defendants must demonstrate that "there are no

material facts in dispute." Somerset Sav. Bank v. Chicago Title

Ins. Co., 420 Mass. 422, 426 (1995).

21

Although the complaint contained a general breach of

contract claim, the motion judge declined to address directly

any of these particular assertions because the specific grounds

mentioned were first identified in the plaintiff's opposition to

the summary judgment motion. In its de novo review, the Appeals

Court nonetheless addressed these claims, see Bulwer, supra at

333-334, apparently concluding that they were properly before

the motion judge. The Appeals Court noted, however, that the

evidence does not support the plaintiff's contention that the

defendants failed to offer him an opportunity to appeal from the

ad hoc committee's decision. See Bulwer, supra at 334 n.16. We

do not disagree.

32

With regard to the first allegation, the defendants were

bound by the ACGME's nondiscrimination policy prohibiting

discrimination based on race or national origin. This policy

was incorporated by reference in the medical resident agreement.

See Chicopee Concrete Serv., Inc. v. Hart Eng'g Co., 398 Mass.

476, 478 (1986) ("incorporation by a clearly stated general

reference will suffice"). Whether the defendants violated this

policy requires analysis of much the same evidence noted in our

discussion of the plaintiff's discrimination claim. For similar

reasons, we conclude that the defendants have failed to

establish the absence of any issue of material fact with regard

to the assertion of a violation of the ACGME's nondiscrimination

policy.

Turning to the second allegation -- failure to include a

resident on the ad hoc committee -- it is undisputed that the ad

hoc committee did not include a resident. The inclusion of a

resident was required by the hospital's grievance policy, which

the hospital was to follow under the terms of the ACGME

requirements and thereby under the medical resident agreement as

well. Although the defendants claim that the plaintiff was not

harmed by this failure to comply with the medical resident

agreement, that is a question of fact for the jury.

It is also undisputed that the plaintiff was not invited to

the latter two meetings of the ad hoc committee and that the

33

defendants failed to notify the plaintiff, in advance of those

meetings, that they were considering immediately terminating his

employment. There is also no indication in the record that the

plaintiff was ever given any information about "additional"

concerns cited by the committee regarding patient safety

notwithstanding the plaintiff's request for pertinent

information. The hospital's grievance policy, however, requires

that a resident receive from the department chair in advance of

the meeting a "written statement of the specific issues [to be

discussed at the meeting]."22 Although the defendants gave the

plaintiff an opportunity to submit written rebuttal evidence, a

reasonable jury could find that this was not equivalent to an

opportunity to participate fully in the initial proceedings.

They could also find that the plaintiff's lack of notice and

diminished participation in the meetings reduced the

effectiveness of his participation in those meetings and,

accordingly, affected the outcome of the committee's

deliberations.

The plaintiff contends further that the defendants failed

to provide him, as required by the ACGME, with the "appropriate

supervision" and "resources" necessary to perform his work. In

22

The policy also requires that all bases for the

committee's decision "be introduced into evidence at the

proceeding" and, more generally, that the resident will receive

"a fair hearing."

34

this regard, the plaintiff has proffered evidence that his

mentor did not hold weekly meetings with him as outlined in his

remediation plan. More generally, he points to evidence,

detailed earlier, that he was not offered the same remediation

opportunities as similarly situated peers, which could be

construed as a failure to provide "appropriate supervision."23

3. Conclusion. The judgments in favor of the defendants

on the plaintiff's claims for employment discrimination under

G. L. c. 151B, § 4, and breach of contract are vacated and set

aside. The matter is remanded to the Superior Court for further

proceedings consistent with this opinion.

So ordered.

23

A jury could find that the plaintiff's lack of

familiarity with hospital procedures, mentioned by Song in his

deposition, could have resulted from the absence of close

mentoring or supervision.