Supreme Judicial Court Clarifies Evidentiary Burdens For Employment Discrimination Cases
Damian R. LaPlaca, Esq.
In employment discrimination cases, employers typically face an uphill battle in resolving cases on summary judgment. This is because the ultimate issue of discriminatory intent often is a hotly contested question of fact left to a jury. Consequently, employers attempting to dismiss claims before trial frequently challenge the sufficiency of plaintiffs’ evidence.
In such cases, a plaintiff may survive a motion for summary judgment by providing either direct evidence of discrimination, or circumstantial evidence under the three-stage paradigm outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In the first stage of the paradigm, a plaintiff may make aprima facie case of discrimination by providing evidence he or she (1) is a member of a protected class, (2) performed the job at an acceptable level, and (3) was terminated. At the second stage, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the termination in order to rebut the presumption of discrimination. At the third stage, the burden then shifts back to the plaintiff to provide evidence that the employer’s articulated justification for termination is a pretext.
In a recent decision, Bulwer v. Mount Auburn Hospital, SJC-11875 (Mass. Feb. 29, 2016), the Supreme Judicial Court clarified the evidentiary burdens contained within the third stage of the McDonnell Douglas paradigm. First, the Court clarified that Massachusetts law requires a plaintiff only to present evidence that an employer’s articulated justification is false. In doing so, the Court rejected the hospital’s contention that the plaintiff must also show the justification concealed a discriminatory purpose. Second, the Court clarified that while McDonnell Douglas required plaintiffs to provide evidence of a pretext, this does not mean they bear the burden of persuasion on summary judgment. The Court reiterated that the burden of demonstrating the absence of a genuine issue of material fact rests with the employer, as the moving party, in such cases.
Bulwer v. Mount Auburn Hospital also illustrates a possible missed opportunity by the hospital when it conceded that Bulwer made a prima facie case for discrimination and bypassed the first stage of the McDonnell Douglasparadigm. Bulwer was enrolled in the first year of the hospital’s medical residency program. During that year, Bulwer received polarizing performance reviews as to his competency and professionalism. The hospital initially refused to renew Bulwer’s contract, citing unfavorable reviews, but then terminated him immediately citing concerns for patient safety. Bulwer claimed he was terminated based on his race and national origin. When it conceded the first stage of the McDonnell Douglas paradigm the hospital effectively absolved Bulwer of showing he performed his job at an acceptable level, and focused the Courts’ inquiry on whether the hospital’s articulated justification was truthful.
This decision serves as a reminder that whether to challenge an employee’sprima facie case is an important strategy decision that deserves careful attention to employers in employment discrimination lawsuits.