Last week, the Massachusetts Supreme Judicial Court issued a seminal ruling in Bulwer v. Mt. Auburn, which clarified the type of evidence an employment discrimination plaintiff needs to defeat a summary judgment motion. In doing so, the SJC lightened plaintiffs’ burden of proof concerning pre-textual terminations and may have changed the rules of the game for Massachusetts employers and employees alike.
Mr. Bulwer, the plaintiff in this case, is a doctor of African descent from Belize. Because he had a medical degree from a foreign medical school, to practice medicine in the United States, he needed to complete a residency in a U.S. hospital. Mt. Auburn Hospital accepted Mr. Bulwer into the hospital’s residency program for one year, with the option to complete the residency through two additional years upon successful completion of the first year.
During his time at Mt. Auburn, Mr. Bulwer’s reviews ran the gamut: some commended him in the most laudatory fashion, while others characterized his performance as “horrendous” and questioned his fitness to practice medicine in the U.S. Based on these reviews, Mt. Auburn’s residency review board did not renew Mr. Bulwer’s residency beyond the first year.
Mr. Bulwer filed suit against Mt. Auburn and certain hospital supervisors, alleging, among other things, discrimination on the basis of race and national origin. The trial court granted summary judgment to the defendants and the Massachusetts Court of Appeals reversed this ruling. The SJC took this case on further appellate review.
Mt. Auburn SJC Decision
The Mt. Auburn court recited the familiar burden-shifting paradigm applicable to discrimination cases as set forth by the U.S. Supreme Court in the McDonnell Douglas case: (1) the plaintiff first must provide evidence of a prima facie case of discrimination; (2) the employer then must present evidence of legitimate, non-discriminatory reasons for an employment action; and (3) the burden then shifts back to the plaintiff/employee to show that the employer’s proffered reasons for the employment action are false and a pretext for discrimination. The SJC focused on this third element as it applies to a discrimination plaintiff’s burden at summary judgment.
Critically, the SJC held that: (1) in establishing pretext for summary judgment purposes, the discrimination plaintiff need only present evidence that the employer’s reasons for an employment action were false—the plaintiff does not have to show that employer is covering up a discriminatory purpose; and (2) the burden of proving that there are no material facts concerning pretext remains with the defendant. Thus, at the summary judgment stage, so long as a plaintiff demonstrates a prima facie discrimination case coupled with false justifications from an employer, he or she will proceed to trial.
Applying this standard to the case-at-bar, the SJC looked prominently at the inconsistencies between Mr. Bulwer’s reviews and the proffered reasons for not renewing his residency, coupled with evidence that the hospital treated similarly situated non-black interns differently. The SJC thus held that the plaintiff had met his summary judgment burden concerning pretext and it remanded the case for trial.
- Massachusetts employment discrimination plaintiffs now have a lightened burden at summary judgment on the pretext element. This may increase the value of discrimination cases for plaintiffs with evidence of false justifications from their employers and could enhance these plaintiffs’ leverage if they make it to the summary judgment stage.
- Under the new Mt. Auburn standard, false reasons for a termination will help a plaintiff surmount summary judgment and get to a jury. Accordingly, employers should proceed with caution if they are soft-pedaling reasons for termination.
- Similarly, employers should undertake efforts to train reviewers so that reviewing metrics are applied similarly. They should also train reviewers to understand the importance of providing accurate reviews – ones that actually reflect the individual’s performance as compared to their peers. Managers who provide a more favorable review to an individual because they “feel bad” for the individual or that find it difficult to review anyone negatively are not only doing the employee a disservice, but they are doing a disservice to the company, as inconsistencies in the reviewing process may help a plaintiff proceed beyond summary judgment.