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.