On February 29, 2016, the Massachusetts Supreme Judicial Court (“SJC”) issued an important decision articulating the type of evidence required for a plaintiff to survive summary judgment in an employment discrimination case. Bulwer v. Mount Auburn Hospital, 2015 WL 10376073 (2016). For years, courts have grappled with this issue in discrimination cases where there is rarely a “smoking gun,” or direct evidence of discrimination. In Bulwer, the SJC makes clear that under Massachusetts law, specific evidence of discriminatory intent is not necessary for a case to proceed to trial.
The plaintiff in Bulwer, is a black man of African descent who had practiced medicine for 13 years in three different countries before relocating to the United States. In order to practice in the United States, however, Mr. Bulwer needed to complete a residency program. In 2005, he was accepted to and enrolled in a program at Mount Auburn Hospital. In his first few months of the program, Mr. Bulwer received widely differing reviews: some evaluators considered him “excellent” and others evaluated him as “horrendous.” After considering the disparate evaluations, the hospital’s residency review board decided not to extend Mr. Bulwer’s residency contract beyond the first year. Mr. Bulwer challenged this determination and a review committee was convened. After three days of evidence and deliberation, the review committee upheld the review board’s decision. Immediately following the decision, the hospital terminated Mr. Bulwer, citing patient safety.
In its decision, the SJC explained that a plaintiff can establish pretext by presenting evidence that the employer gave a false reason for termination, regardless of whether the plaintiff is ultimately able to show that the false reason is discriminatory. At summary judgment, the motion judge cannot weigh or evaluate the evidence. In Bulwer, the fact that the plaintiff had received widely differing evaluations, the subjectivity of some of the negative ones, the failure to follow its own review procedures, and the failure to provide remediation opportunities granted to non-minorities, was sufficient for the Court to conclude that the case should proceed to trial.
The SJC’s decision affirmed the decision of a split 3-2 Appeals Court which had a thorough and vigorous dissent. With this decision, the bar for employment discrimination lawsuits has certainly been lowered. Also significant is the Court’s treatment of performance evaluations, which suggests that significant variations in evaluations can be evidence of pretext.
