The Massachusetts Supreme Judicial Court (SJC) recently clarified the plaintiff’s evidentiary burden at the summary judgment stage of an employment discrimination case, in a decision which likely will make it easier for employees to get discrimination cases to a jury.
In Bulwer v. Mt. Auburn Hospital, 46 N.E.3d 24 (Mass. 2016), the SJC held that, in order to survive a summary judgment motion, an employee who alleged that his termination from Mount Auburn Hospital was racially motivated did not need to provide evidence that the hospital’s reason for terminating him concealed a discriminatory motive. Rather, the court held, to get his case to a jury, the employee needed only to present evidence that the hospital’s stated reason for his termination was false.
The plaintiff in Bulwer, a black male of African descent from Belize, practiced medicine outside the United States until 2002, when he came to this country. In order to become certified to practice medicine in the United States, he was required to complete a residency program here.
During the first year of his residency at Mount Auburn Hospital, the plaintiff received what the SJC described as “diametrically opposing reviews from supervising physicians, some laudatory and others deeply critical.” After considering the plaintiff’s mixed evaluations, the hospital terminated his employment. The plaintiff filed suit against the hospital and three physicians who supervised his work, asserting, among other things, employment discrimination under G.L. c. 151B, § 4. Concluding that the plaintiff had not produced sufficient evidence of the defendants’ discriminatory intent, a Superior Court judge allowed the defendants’ motion for summary judgment on all claims. The plaintiff appealed, and a divided Appeals Court reversed the judgment as to the plaintiff’s discrimination claims. Upon further review, the SJC held that the defendants were not entitled to summary judgment on the discrimination claims and that the plaintiff had presented evidence sufficient to allow a jury to hear those claims at trial.
This case came before the SJC at the summary judgment phase of the litigation – after the completion of discovery, but before trial. In moving for summary judgment, the defendants contended that the evidence, viewed in the light most favorable to the plaintiff, was insufficient to allow a reasonable jury to conclude that the plaintiff had proved his case.
The SJC analyzed the defendants’ motion for summary judgment using a burden-shifting framework frequently applied in employment discrimination cases, which is intended to allow the plaintiff to overcome summary judgment in the absence of direct evidence of discrimination (which rarely exists).
In the first stage of the burden-shifting framework, the plaintiff has the burden to show a prima facie case of discrimination – i.e. (1) that he or she is a member of a protected class; (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, which was the focus of the court’s decision in Bulwer, 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 (i.e. a false reason).
In Bulwer, the defendants made the legal argument that at the third stage of the burden-shifting framework, the plaintiff was required to present evidence that the hospital’s reason for his termination constituted a pretext concealing a discriminatory purpose. (Put otherwise, the defendants asserted that the plaintiff must put forth some evidence of “invidious intent”). In the key holding of the case, the SJC determined that this formulation “overstates the plaintiff’s burden at the summary judgment stage.” Resolving some ambiguity in earlier decisions, the court held that in order to overcome a summary judgment motion, a plaintiff need not present evidence that the stated reason for his or her termination was given to cover a discriminatory animus. Rather, the court held, the plaintiff need only show that the employer’s stated reason was false – i.e. “the defendant’s facially proper reasons given for its action were not the real reasons for that action.”
Applying this standard, the SJC in Bulwer focused on inconsistencies in the plaintiff’s performance reviews, the hospital’s failure to follow its own policies, and evidence that the plaintiff was treated differently from similarly situated employees who were not black. Based on this evidence, the court determined that the plaintiff had met his summary judgment burden that the hospital’s stated reason for his termination was false, and remanded the case for trial.
From a practical standpoint, if the plaintiff in an employment discrimination case can produce sufficient evidence of pretext at the summary judgment stage, the case will proceed to trial. At trial, if the fact finder is persuaded that one or more of the employer’s stated reasons for the adverse employment action is false, it may (but need not) infer that the employer is covering up a discriminatory intent, motive or state of mind, and thus find that the plaintiff has been the subject of illegal discrimination.
Because the court’s ruling in Bulwer affirms a lighter evidentiary burden for the plaintiff on summary judgment, the decision would appear to make it easier for aggrieved employees, who may lack direct evidence of discrimination, to get their claims to a jury. For employers, the lightened load for plaintiffs may open the door to more claims and lead to more protracted litigation.