Bulwer and Verdrager: The SJC speaks out on pretext in employment discrimination cases

Issue March/April 2017 By Ellen J. Messing

How does the legal system determine whether an employer's adverse decision, allegedly resulting from neutral factors, might actually represent discrimination illegal under G.L.c. 151B? Will a jury decide the question or will it be resolved via summary judgment? And at summary judgment, is it the employer or the employee who has the burden of showing that the employer's assertedly neutral justifications for its adverse action are/are not truly the real reasons? In a three-month stretch of 2016, the Supreme Judicial Court grappled with these fundamental questions in a pair of decisions that offer practitioners a primer on procedure and substance in the proof of pretext in Massachusetts employment discrimination cases. In so doing, the SJC reminds us of the many insidious forms that discrimination can take in the workplace.

For decades, plaintiffs whose cases have lacked direct, explicit evidence of discrimination have survived summary judgment under the familiar McDonnell Douglas Corp. v. Green burden-shifting paradigm: If an employee is a member of a protected class, performs her job at an acceptable level, and experiences an adverse job action, and the employer articulates a legitimate, non-discriminatory reason for the adverse action, the employee can defeat summary judgment by producing evidence that the employer's claimed reason(s) are "pretexts." Questions that have dogged the lower courts under this formula include: What sort of evidence suffices to show pretext? At summary judgment, which party has the burden of making the requisite showing under Mass.R.Civ.P. 56? Does the non-moving party, normally the plaintiff, have the burden of showing a disputed issue of material fact on the question of pretext, or does defendant have the burden of showing its absence?

In a wide-ranging and in-depth opinion, the SJC in Bulwer v. Mount Auburn Hospital addressed these questions in the context of a race/national origin discrimination claim brought by a black man of African descent from Belize. The plaintiff held a non-U.S. medical degree and had 13 years' experience practicing medicine internationally, but to obtain a U.S. medical license, he needed to complete an American residency program. Accordingly, he enrolled at Mount Auburn Hospital, initially for a one-year term, and went through a series of rotations among different departments whose physicians gave him written evaluations. After nine months, he was terminated from the program and sued.

Analyzing Bulwer's claims, the SJC first made clear that summary judgment is a "disfavored remedy" in discrimination cases, given the challenges of establishing the defendant's motives and the need for a jury to weigh the conflicting explanations advanced by the parties for the employer's adverse decision. The court also made clear that evidence that an employer's asserted reason for its decision is false is adequate, without more, to establish pretext and thus defeat summary judgment. Furthermore, because it is the employer-defendant that holds the burden of persuasion at summary judgment as the Rule 56 moving party, it is the defendant that must demonstrate the absence of a genuine issue of material fact on the issue of pretext - even though plaintiff has the ultimate burden of proving discrimination at trial. Thus, if defendant cannot demonstrate the absence of a disputed issue of material fact as to whether the stated reasons for an employee's termination are false, the case will proceed to trial.

With those principles established, the court analyzed five categories of evidence advanced by Bulwer and determined they evidenced pretext. First, the hospital had weighed Bulwer's rotation evaluations inconsistently. Some of the evaluations were positive, some were mixed, and some negative, but the hospital more heavily weighted the negative ones, even though they evaluated the same characteristics for which other evaluations had rated him highly. Second, similarly-situated, non-black interns who had received similar criticisms had been permitted to repeat rotations or given a chance to improve and were not summarily dismissed. Third, complaints about poorly-performing Caucasian doctors had been ignored for extended periods, or permanently, in contrast to Bulwer's treatment (termination immediately after consideration of his reviews).

Fourth, the hospital failed to follow its own procedures for terminating members of its residency program. Finally, a number of statements in Bulwer's evaluations appeared to reflect stereotypical views that foreigners and black men should "know their place." These included such comments as Bulwer was "too confident for his own good," and "intern is not supposed to be smart." Because a jury could find that these factors rendered the evaluations either not believable, not the real reasons for the hospital's decision, or a product of illegal animus, the court held that summary judgment was precluded.

The SJC's decision in Verdrager v. Mintz, Levin, Cohn, Ferris, Glovsky & Popeo, P.C. relied heavily on its analysis in Bulwer, decided three months earlier, and extended it to claims of retaliation under G.L.c. 151B. In Verdrager, a law firm associate challenged a large law firm's decisions first to demote her and then to terminate her, alleging both gender discrimination and retaliation for complaints of gender discrimination. As in Bulwer, the court looked closely at the defendant's proffered legitimate, non-discriminatory reasons for its decisions (mixed performance evaluations; low utilization on a high billing rate by partners, including partners who would not work with her). As in Bulwer, plaintiff pointed to evidence that different evaluation standards were applied to employees inside and outside the protected class: Plaintiff was criticized for lack of availability for work, while male employees were permitted to take time off from work during the work day and leave earlier in the day than plaintiff. Also as in Bulwer, the court pointed to evidence that the criticisms advanced of the plaintiff reflected stereotyped thinking, pointing to comments made immediately after plaintiff announced her pregnancy that questioned her commitment to keep working and suggested she limit her work schedule.

The Verdrager court also pointed to types of pretext evidence not present in Bulwer. In one category, the court observed that after plaintiff complained about alleged sexual harassment from one of her supervisors, records of plaintiff's perceived performance deficiencies had multiplied and the supervisor had actively undermined her. In another category, the court looked more broadly at the overall atmosphere for women at the firm, including not only complaints about other instances of gender discrimination by plaintiff's supervisor, but also data gathered by a firm consultant on the treatment, job satisfaction, and promotion rates of male and female lawyers at the firm and especially in plaintiff's section.

The court also ruled that plaintiff had adduced sufficient evidence to go to the jury on the issue of whether her demotion was retaliatory. That was so even though she had been demoted two and a half years after she had engaged in the protected activity of making complaints against her supervisor. According to the court, the extensive history of disparate treatment she experienced that began right after she made her complaint could be viewed as a pattern of retaliation culminating in the later demotion.

Bulwer and Verdrager were certainly not written on a blank slate. In many previous cases, the SJC has outlined elements of proof of G.L.c. 151B claims. Past cases have discussed proof of pretext, including how evidence of stereotyped thinking helps prove pretext (e.g., Lipchitz v. Raytheon; Mass. Electric Co. v. MCAD), and how an employer's overall treatment of the protected class, or treatment of comparators outside the protected class, can also show pretext (e.g., Matthews v. Ocean Spray Cranberries, Inc. ). However, before 2016, the court had not previously laid out in painstaking detail the contours of an omnibus pretext analysis. It has now done so in Bulwer and Verdrager. These cases provide a road map for practitioners that illuminates many of the common forms pretext (and workplace bias) can take and allows us to sharpen our thinking - and plan our summary judgment practice - accordingly.

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