Massachusetts law prohibits employment discrimination based on race, among other things. It is often difficult for plaintiffs to produce direct evidence of discrimination (i.e., the “smoking gun”), so Massachusetts law allows plaintiffs to prove discriminatory intent by producing evidence showing an employer’s adverse employment decision was merely a pretext. In a very recent opinion, Bulwer v. Mount Auburn Hospital et al., the Massachusetts Supreme Judicial Court clarified the burdens of proof faced by each party after a motion for summary judgment. A summary judgment motion is granted when the moving party shows there is no genuine issue of disputed fact, and thus the moving party is entitled to a judgment as a matter of law, avoiding the need for a trial.
The plaintiff in Bulwer is a black man of African descent, pursuing a license to practice medicine. Mr. Bulwer earned a medical degree abroad, and to practice medicine in the United States he needed to complete a residency program that he began at Mount Auburn Hospital. During Mr. Bulwer’s first year of residency, he received several opposing reviews, some deeply critical and others quite favorable. After receiving such reviews, Mount Auburn Hospital terminated his employment, and he filed suit thereafter, alleging, among other things, employment discrimination. After discovery, the defendants moved for summary judgment. The Superior Court judge allowed the motion.
Per the seminal 1973 Supreme Court decision, McDonnell Douglas Corp. v. Green, Massachusetts courts employ a three-stage, burden-shifting paradigm:
“In the first stage [of this paradigm], the plaintiff has the burden to show. . . a prima facie case of discrimination. 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.” “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] decision.” In the third stage, the burden of production 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.”” (citations and footnotes omitted).
Here, the defendants argued that at the third stage of inquiry, the plaintiff had to present evidence that the defendant’s reasons for termination constituted a pretext hiding a discriminatory purpose. The Court disagreed, finding that Massachusetts law does not require so great a burden at this stage, which would be akin to requiring the plaintiff to produce direct evidence of discriminatory animus. To survive a summary judgment motion, the plaintiff must present evidence from which a reasonable jury could infer that the defendants’ stated reasons for its action were not the real reasons. If the plaintiff can do so, the case should proceed to trial, at which time a jury can decide if a defendant’s reason for an action is false, and if so, if that falsity is in fact hiding a discriminatory motive. Here, Mr. Bulwer produced “five categories” of evidence from which a jury might infer that the defendants’ stated reasons for terminating the plaintiff’s employment were a pretext. That was sufficient, as the purpose of a summary judgment motion is neither resolving issues of material fact nor weighing the credibility of the evidence.
This is an important clarification. If the defendants’ argument carried the day, plaintiffs would have greater difficulty even getting to a trial, given the scarcity of direct evidence in these sorts of cases. The court went on to remind the litigants that at the summary judgment phase, the burden of persuasion rests with the moving party, in this case the defendants. The plaintiff has an obligation to produce evidence, and ultimately bears the burden of persuasion at trial. However, summary judgment is not trial. Summary judgment is an important tool in litigation, but in preparing to file such a motion, parties must be cognizant of each party’s obligations. Competent Massachusetts employment lawyers can evaluate the evidence to determine if summary judgment is appropriate.