Breach of Contract Cases

Bernard E. Bulwer vs. Mount Auburn Hospital & others. Middlesex. November 3, 2015. February 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Hospital, Appointment to staff. Anti-Discrimination Law, Race, Employment. Employment, Discrimination. Contract, Employment, With hospital, Performance and breach. Practice, Civil, Summary judgment. Discussion of the standard of review applicable to a motion for summary judgment. [679-680] This court concluded that to survive a motion for summary judgment in a civil action alleging discrimination in employment based on race, in the third stage of the three-stage, burden-shifting paradigm for providing indirect or circumstantial evidence of discriminatory animus and causation, the plaintiff • employee need only present evidence from which a reasonable jury could infer that the defendant employer’s facially proper reasons given for its action against the plaintiff were not the real reasons for that action; further, although the plaintiff bears the burden of producing evidence that the defendant’s reasons are a pretext, the burden of persuasion at the summary judgment stage remains with the defendant, who, as the moving party, has the burden of affirmatively demonstrating the absence of a genuine issue of material fact on every relevant issue, even if the defendant would not have the burden on an issue if the case were to go to trial. [680-683] In a civil action alleging discrimination in employment based on race, the judge erred in granting summary judgment in favor of the defendants (a hospital and three physicians who supervised the plaintiff’s work), where the plaintiff provided at least five categories of evidence sufficient to allow a reasonable jury to infer that the defendants’ articulated justification for terminating the plaintiff’s employment was not true but a pretext, and where the question of whose interpretation of the evidence was more believable was for the fact finder after weighing the circumstantial evidence and assessing the credibility of the witnesses. [683-689] In a civil action in which the plaintiff employee alleged breach of his employment contract, the judge erred in granting summary judgment in favor of the defendants (a hospital and three physicians who supervised the plaintiff’s work), where the defendants failed to establish the absence of any issue of material fact with regard to the assertion of a violation of the nondiscrimination policy of a national accreditation council; where there was no dispute that the defendants’ ad hoc due process committee did not include a resident as required by its grievance policy; where there was no dispute that the plaintiff was not invited to the latter two meetings of that committee and that the defendants failed to notify the plaintiff, in advance of those meetings, that the defendants were considering terminating his employment immediately; and where the plaintiff proffered evidence in support of his contention that the defendants failed to provide him with the appropriate supervision and resources necessary to perform his work. [690-692] Civil action commenced in the Superior Court Department on February 22, 2008. The case was heard by S. Jane Haggerty, J., on a motion for summary judgment. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Robert R. Hamel, Jr. (Megan E. Kures with him) for the defendants. Denzil D. McKenzie (James E. Clancy, IV, with him) for the plaintiff. James A.W. Shaw, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. Eric Flint, Ricardo Wellisch, and Lori Balestrero. Lenk, J. Massachusetts law prohibits employers from discriminating against their employees on the basis of, among other things, race or national origin. See G. L. c. 151B, § 4. Because direct proof of such discrimination is rarely available, employees filing claims under G. L. c. 15IB, § 4, are permitted to prove discrimination without direct evidence of discriminatory intent, by relying on evidence that their employers gave a “false reason,” or pretext, for terminating their employment. In this case, we address whether the plaintiff has produced sufficient evidence of pretext to survive his former employer’s motion for summary judgment. In doing so, we clarify the evidentiary burdens each party faces after one party has moved for summary judgment. We address, in particular, three concerns: whether the evidence on which an employee relies to survive a defendant’s motion for summary judgment need show not only that the defendant’s stated reason was false, but also that it concealed a discriminatory purpose; whether it is the plaintiff’s burden to persuade the motion judge based on that evidence that there is an issue of material fact appropriate for trial; and, finally, whether, in discerning the existence of an issue of material fact, the motion judge may weigh or otherwise evaluate the evidence. The plaintiff, Bernard E. Bulwer, is a black male of African descent who is originally from the Central American country of Belize. The plaintiff has a medical degree from the University of the West Indies, and 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 the defendant Mount Auburn Hospital (hospital), the plaintiff received diametrically opposing reviews from supervising physicians, some laudatory and others deeply critical, after which the hospital terminated his employment. The plaintiff filed a ten-count complaint in the Superior Court against the hospital and three physicians who supervised his work, asserting, among other things, employment discrimination under G. L. c. 151B, § 4, and breach of contract. 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 discrimination and breach of contract claims, while affirming the decision on all of the other claims. We allowed the defendants’ application for further appellate review, limited to the claims for discrimination under G. L. c. 151B, § 4, and breach of contract. We conclude that the defendants were not entitled to summary judgment and that the plaintiff has presented evidence sufficient to allow a jury to hear his claims. 1. Background. We summarize facts drawn from the summary judgment record, reserving certain details for later discussion. See LeBlanc v. Logan Hilton Joint Venture, 463 Mass. 316, 318 (2012). The plaintiff, in addition to his medical degree, has postgraduate training in a number of fields, including cardiovascular disease. He practiced medicine in Trinidad, Belize, and the United Kingdom from 1989 through 2002. In 2002, the plaintiff came to the United States as a research associate and fellow in a subresidency cardiology program at another hospital in Boston, where he worked until 2005. In the spring of 2005, hoping to obtain a medical license to practice in the United States, the plaintiff contacted the defendant Dr. Eric Flint, director of the internal medicine residency program at the hospital. In June, 2005, after an interview with Flint, the plaintiff was offered a residency at the hospital. Because of delays in the processing of his visa, he began his residency in September, 2005, two months later than the other residents in his cohort. In August, 2005, the plaintiff signed the hospital’s standard medical resident agreement (agreement), setting forth the terms and conditions of his employment. The agreement was for a one-year term, renewable for an additional two years upon satisfactory completion of the first-year program. The agreement stated that the hospital and its residency program would comply with the requirements promulgated by the national Accreditation Council for Graduate Medical Education (ACGME). ACGME requires, among other things, that member programs not discriminate against residents on grounds including race and national origin. It also requires that programs provide residents with written procedures that must be followed in the event a program seeks “academic or other disciplinary action” against a resident. The hospital’s written procedures state that, should a resident’s supervisors decide to terminate a resident’s employment, a resident has the right to convene an ad hoc committee consisting of the heads of various departments, the resident at issue, and another resident to be chosen by mutual agreement. Such a committee would then be empowered to conduct an independent review of the employment decisions made by the resident’s supervisors. The procedures provide further that Residents may then appeal the committee’s decision to the “President of the Medical Staff.” “[t]he resident is assured of the fundamental aspects of a fan-hearing including written statement of the specific issues from the Department Chair, at least [five] days notice of the Due Process Committee meeting, the opportunity to be present and to rebut the evidence, and the opportunity to present any other information. “All matters upon which any decision is based must be introduced into evidence at the proceeding before the Ad Hoc Due Process Committee in the presence of the resident.” After signing the agreement, the plaintiff began his residency in September, 2005. The first-year program consisted of twelve one-month rotations in a number of different “services” throughout the hospital. The plaintiff’s performance was to be evaluated by attending physicians and resident supervisors in each of the services where he worked. The evaluating physicians were to fill out evaluation forms, which called for numerical ratings of various aspects of the plaintiff’s performance, as well as for written comments. These evaluations in turn would be given to the clinical competence committee (CCC), a panel of thirteen physicians who met regularly to discuss the progress of all of the residents. The plaintiff was also assigned a mentor, the defendant Dr. Lori Balestrero. The plaintiff’s first rotation in September was in the hospital’s emergency department. The plaintiff received strongly positive evaluations in that department. Two physicians rated him as “outstanding,” and five others rated him “above average.” They described him as knowledgeable, mature, and pleasant to work with. Dr. Gary Setnik, head of the emergency department, provided a more lengthy written evaluation: “Dr. Bulwer is universally held in high regard by the staff I polled and by myself. He has been totally reliable, coming in early, and staying late on most shifts. He aggressively works to see as many patients as possible. His presentations are complete, his management plans appropriate, and his procedural skills very good.” The next month, the plaintiff rotated into the medical intensive care unit (MICU). There, he received mixed evaluations. In an October, 2005, electronic mail message to a colleague, Dr. Soon-11 Song wrote positively that Other physicians, however, viewed the plaintiff’s performance negatively. One wrote that the plaintiff “[m]ade drastic and potentially dangerous/life threatening decisions about [patient] care [without] consulting [the] attending [physician]. . . . [He is] [t]oo confident for his own good and [the patient’s] own good without showing any proof of capability to perform at the level of an intern or resident yet.” Another commented that the plaintiff was “eager to learn” but that “[h]e does not seem to be aware of his responsibilities as an intern despite being told them repeatedly.” In response, the plaintiff sent an electronic mail message to Flint stating that he did not believe these negative reviews were objective, and asking Flint to obtain evaluations from four named physicians with whom the plaintiff had seen patients. Flint did not do so. “[the plaintiff] had procedural skills and knowledge base well above someone at an intern level. He also was pleasant to work with. He had a good sense of his own limitations, and asked questions often in order to clarify issues. I think his ability to gather information in history taking was quite good and thorough. Above all, he maintained composure and a good attitude, despite the fact that we had an especially difficult night of no sleep and challenging patients requiring multiple attending input in the middle of the night.” Setnik reported that both he and other members of his department received harsh comments from members of the MICU staff for his positive evaluations of the plaintiff. He described this as “[a]n experience that I hadn’t previously had at Mount Auburn.” In November, 2005, Balestrero, the plaintiff’s mentor, met with the plaintiff to discuss the negative feedback. The plaintiff told her that he thought the negative impressions were inaccurate. Balestrero then met with the CCC to discuss ways in which the plaintiff could improve. Following this meeting, Balestrero presented the plaintiff with a plan for improvement that she had developed together with the CCC. The plan included a provision for weekly meetings with Balestrero and a follow-up meeting, to be held after evaluations from the December rotation were received, with the plaintiff, Balestrero, and a CCC representative. Neither the weekly meetings nor the follow-up meeting took place. During November and December of 2005, the plaintiff was assigned a “wards” rotation in which he provided general internal medicine care for patients who had been admitted to the hospital. The three evaluations from that rotation that appear in the record were positive, with one evaluator noting “much improvement,” and another stating that the plaintiff was “[o]verall . . . pretty good.” The third evaluator assigned a passing grade, but stated that the plaintiff needed improvement in “practice-based leam-ing,” professionalism, and organization of notes charting patients’ progress. In January, 2006, the plaintiff rotated into the cardiology department. He received three evaluations of his work on that service. One rated him as failing in five of six competencies, but another gave him high marks in all competencies, and the third described his presentations as “very commendable” and his knowledge as “excellent.” In mid-January, 2006, the plaintiff met with Balestrero, who told him that he had received positive evaluations and that “the past [was] behind [him].” In February, 2006, the plaintiff rotated again into the wards service. One evaluator there rated him positively, while the other, Dr. Erica Bial, wrote a lengthy and negative evaluation in which she described her experience with the plaintiff as “horrendous.” She stated that “[t]here is no aspect of the central competencies in which [the plaintiff] is even modestly competent.” She described him as “less-than-fully-honest” and as having “a difficult time being appropriate with . . . women in the professional environment,” and recommended that the plaintiff be expelled from the residency program. During this period, Bial “berated” the plaintiff publicly in a manner that a witness, Song, described as not “appropriate,” and as unprecedented in his experience with Bial. Song also reported that Bial spoke negatively to other residents about the plaintiff, outside the plaintiff’s presence. In March, 2006, the CCC discussed the plaintiff’s mixed evaluations. On April 5,2006, the CCC sent the plaintiff a letter stating that it would not renew his contract because of concerns about his ability to analyze complex information, his inability to “build effective therapeutic relationships,” and his difficulty presenting information to other members of his teams. The letter stated also that the plaintiff could finish his first year of residency, working until the end of his contract term in August, 2006. The letter was signed by Flint and by the defendant Dr. Ricardo Wellisch, chair of the CCC. The plaintiff invoked his right to convene an ad hoc committee pursuant to the hospital’s “due process” policy. Although the committee consisted of most of the individuals specified in that written policy, no resident was seated on it, as required by the policy. Further, of the committee’s three meetings, the plaintiff was invited to attend only the first one, which took place on April 24, 2006. At that first meeting, as well as at the second, on May 2, 2006, the committee heard testimony from physicians who had previously evaluated the plaintiff during his rotations. The transcripts of these meetings do not reflect discussion of the possibility that the plaintiff’s contract would be terminated immediately, and the plaintiff did not receive any notice to that effect. He requested that the committee forward to him any materials considered during the meetings he did not attend; those requests were not answered. On May 9, 2006, the committee sent a letter to Dr. Stephen Zinner, chair of the department of medicine, stating that it would affirm the decision of the CCC not to renew the plaintiff’s contract. On May 17, 2006, Zinner informed the plaintiff verbally that, because of “serious additional concerns” for “patient safety” that had arisen “in the past [three] weeks,” the plaintiff would “be immediately relieved of his responsibilities.” The plaintiff sent a letter dated May 18, 2006, to the president and chief executive officer of the hospital stating his desire to appeal, as provided in the due process policy, from the committee’s decision not to renew his contract and to terminate his employment immediately. The president responded with a certified letter, return receipt requested, saying that she would convene such a committee. The plaintiff did not retrieve the letter from the postal service, which attempted delivery three times, and did not pursue the appeal. In August, 2006, the plaintiff filed a charge of discrimination against the hospital with the Massachusetts Commission Against Discrimination. In February, 2008, the plaintiff filed his complaint in the Superior Court, naming the hospital, Balestrero, Flint, and Wellisch as defendants. During discovery, depositions were taken of various doctors who had worked with the plaintiff, including Dr. Ramona Dvorak, an African-American internist and psychiatrist formerly employed at the hospital, who described what she believed to have been incidents of racism she experienced during her employment. Following discovery, in December, 2010, the defendants sought summary judgment on all counts; in June, 2011, their motion was allowed. 2. Discussion. The plaintiff contends that the motion judge erred in allowing the defendants’ motion for summary judgment on his claim for employment discrimination on the basis of his race and national origin, in violation of G. L. c. 15IB, § 4, and on his breach of contract claim based on his termination in violation of the procedures set forth in the medical resident agreement. The plaintiff maintains that there were disputed issues of material fact as to both claims, and the matter should proceed to trial. a. Standard of review. A motion for summary judgment under Mass. R. Civ. R 56 (c), as amended, 436 Mass. 1404 (2002), is appropriate where “the moving party ... ‘show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law’ based on the undisputed facts.” Premier Capital, LLC v. KMZ, Inc., 464 Mass. 467, 474 (2013), quoting Mass. R. Civ. P. 56 (c). “In reviewing the . . . grant of a motion for summary judgment, we conduct a de novo examination of the evidence in the summary judgment record ... and view the evidence in the light mos

EventMonitor, Inc. vs. Anthony Leness. Suffolk. November 3, 2015. February 4, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Employment, Termination. Contract, Employment, Performance and breach, Termination, Indemnity. Indemnity. Massachusetts Wage Act. Damages, Employment contract. In a civil action alleging breach of an employment agreement, the judge correctly concluded that, although the employee’s copying of the employer’s proprietary information to a third-party data storage system, not disclosing this action to the employer, and not returning the files stored with the third party upon the employee’s termination from employment without cause constituted a breach of the employment agreement, the breach was not material, where the employee did not knowingly disclose or knowingly use any of the employer’s information, and therefore, his breach did not endanger the confidentiality of the employer’s information [545-548]; further, the employee’s breach did not provide the employer grounds retroactively to convert his termination to one for cause, where the employee’s activities did not constitute defalcation within the meaning of the agreement, in that the employee’s secure storage of the information, in the absence of any disclosure or use by anyone other than the employer, did not undermine the employer’s exclusive use of its information [548-550]. In a civil action arising from a breach of an employment agreement, the judge correctly denied the employee’s counterclaim for indemnification by the employer of costs that the employee incurred in defending against the employer’s claims, where the commencement of the action was a direct result of the employee’s copying of the employer’s proprietary information to a third-party data storage system, undertaken in his personal capacity and not as an employee. [550-551] This court remanded a civil action for correction of a mathematical error in calculating damages for violations of the Massachusetts Wage Act, G. L. c. 149, § 148. [551-552] Civil action commenced in the Superior Court Department on April 30, 2008. The case was heard by Jeffrey A. Locke, J. The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court. Ronald W. Dunbar, Jr. (Andrew E. Goloboy with him) for the plaintiff. Shana I. Kaplan (James E. O’Connell, Jr., with her) for the defendant. David J. Fried, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. Before trial, Anthony Leness voluntarily dismissed all claims against third-party defendant Sheldon Chang, who plays no role in this appeal. Duffly, J. The plaintiff, EventMonitor, Inc. (EventMonitor), is a Delaware corporation, established in 2000, with headquarters in Boston. It develops and markets software for the financial industry. The defendant, Anthony Leness, was one of the early employees of the company. Leness was hired as EventMonitor’s vice-president for business affairs in June, 2001, upon his graduation from Harvard Business School. He served in that position for approximately six years, until he was terminated on December 5, 2007, two months after he had proposed a plan to restructure EventMonitor into two related entities, a proposal that Sheldon Chang, EventMonitor’s president and executive director, believed would undermine the future of the company. The termination was characterized as “without cause.” Under the terms of Leness’s employment contract, EventMonitor therefore was required to pay him one year’s salary and benefits, plus the value of any accrued but unused vacation time. Section 6(b) of the employment agreement provided that, upon termination, Leness was to return “all items containing or embodying Proprietary Information (including all copies).” Before his departure, Leness returned, among other things, a company laptop computer containing proprietary information that he had used in the course of his work at EventMonitor. Soon after Leness’s termination, through a forensic examination of the laptop computer, EventMonitor discovered that Leness had copied all of the data on the computer, including EventMonitor’s customer information and proprietary business plans, to a data backup and storage service accessed over the Internet. Leness had not informed EventMonitor about this backup before his termination was effective. To the contrary, Leness had paid the subscription for the data storage service with a personal credit card, and also had installed a “cleaning” program in an effort (ultimately unsuccessful) to delete from the laptop information related to the account subscription. EventMonitor deemed Leness’s actions to have been a defalcation of company assets. “Defalcation” was one of the only reasons in the employment contract that would have allowed EventMonitor to terminate Leness “for cause.” And, where a termination was for cause, the contract did not require Eventmonitor to make any severance payments. Retroactively characterizing the termination as having been for cause, in mid-February, 2008, approximately five weeks after Leness’s departure, Eventmonitor stopped paying Leness any severance payments, declined to pay him his accrued vacation, and filed a complaint in the Superior Court asserting, among other claims, breach of contract. Leness asserted twelve counterclaims, among them breach of contract; breach of the implied covenant of good faith and fair dealing; violations of the Massachusetts Wage Act, G. L. c. 149, § 148 (wage act); and indemnification under the terms of the employment contract. Leness argued that Event-Monitor had no valid basis for treating his termination as one “for cause,” and had committed a breach of the contract by refusing to pay his severance payments, as well as violated the wage act by refusing to pay him the value of his accrued and unused vacation. After a jury-waived trial, a Superior Court judge found that Leness had not engaged in defalcation of EventMonitor’s assets, and had not committed a material breach of the employment contract, and thus that his termination could not have been for cause. Judgment entered for Leness on EventMonitor’s claims for breach of contract, breach of the covenant of good faith and fair dealing, and breach of fiduciary duty. The judge also entered judgment for Leness on his counterclaims for breach of contract, breach of the covenant of good faith and fair dealing, and violations of the wage act, but entered judgment for EventMonitor on Leness’s claim for indemnification. EventMonitor appealed, and Leness cross-appealed. We transferred the matter to this court on our own motion. EventMonitor contends that the judge erred in finding that Leness did not commit a material breach of the employment contract and did not engage in a defalcation of company assets. In support of its assertion that Leness’s employment properly was terminated for cause, EventMonitor asks that we adopt the “after-acquired evidence doctrine” used in some other jurisdictions, which allows an employer to recharacterize the nature of an employee’s termination on the basis of information learned after the termination has taken place. In the rare opportunities that this court and the Appeals Court have had to consider the issue of after-acquired evidence in the context of a termination from employment, neither of the courts has adopted, or declined to adopt, this doctrine. See Flesner v. Technical Communications Corp., 410 Mass. 805, 815-817 (1991); Prozinski v. Northeast Real Estate Servs., 59 Mass. App. Ct. 599, 610-612 (2004). We need not reach the question here, because we agree with the trial judge that Leness did not commit a material breach of the employment contract, and did not engage in defalcation of company assets. Therefore, Leness committed no act giving rise to a termination for cause, and the after-acquired evidence doctrine would have had no impact on the result we reach. We affirm the judge’s conclusion that Leness is entitled to severance payments under the terms of the contract, and remand the matter for entry of an amended judgment correcting certain arithmetic errors in the calculation of accrued vacation payments. 1. Facts. “We recite the essential facts found by the judge, which we accept ‘unless they are clearly erroneous,’ ... and which the parties do not challenge, supplemented by other undisputed information from the record.” Boyle v. Zurich American Ins. Co., 472 Mass. 649, 651 (2015), quoting Weiler v. PortfolioScope, Inc., 469 Mass. 75, 81 (2014). In June, 2001, EventMonitor hired Leness as vice-president for business affairs. Leness and EventMonitor entered into a written employment agreement detailing how EventMonitor could terminate Leness with or without cause. Termination without cause required thirty days’ written notice; it also entitled Leness to severance payments consisting of twelve months of salary and benefits, unless he began full-time employment during that period, and his accrued but unused vacation time. Section 5 of the contract specified a very limited number of reasons that EventMonitor could terminate Leness’s employment for cause, including if Leness “engaged in wilful fraud or defalcation, either of which involved funds or other assets of [EventMonitor].” Section 6(b) of the employment agreement, the non-disclosure provision, required Leness to “hold in confidence and not knowingly disclose or, except within the scope of his employment, knowingly use any Proprietary Information.” “Proprietary Information” was defined as the following: “[A]ll [inventions and all other business, technical and financial information (including without limitation, the identity of and information relating to customers, investors, vendors, business partners or employees of [EventMonitor])... that relate to [EventMonitor] or the business or demonstrably anticipated business of [EventMonitor] or that are received by or for [EventMonitor] in confidence.” The section provided further that, upon termination of his employment, Leness was required “promptly [to] return to [Event-Monitor] all items containing or embodying Proprietary Information (including all copies).” Leness worked at EventMonitor for approximately six years. In the early years, the company grew substantially in terms of revenue and number of employees. In the fall of 2007, however, tensions developed between Leness and Chang over the direction of the company. Those tensions escalated significantly after October 17, 2007, when Leness submitted a business proposal that would have left Chang to focus on research and development, using the existing software as a base product, and would have created a spin-off company for sales and support, with Leness in charge of that new entity. The new entity would have taken the majority of EventMonitor’s revenue, which was derived largely from service and licensing agreements with three large clients; in exchange, the new entity would have lent EventMonitor startup funds to develop several new products that were then being considered. Chang initially agreed to Leness’s suggestion that a new business plan be considered. After seeing the proposal, however, Chang believed that the plan was developed to further Leness’s self-interest, and the proposal demonstrated that he was not loyal to the company. Consequently, in December, 2007, EventMonitor notified Leness of his termination. On December 5, 2007, Chang informed Leness verbally that his employment was terminated “without cause,” and sent him a copy of a written termination letter, via electronic mail, stating that EventMonitor was giving thirty days’ notice. As required by the employment contract, prior to the effective date of his termination, Leness provided EventMonitor with information about client accounts and agreements, as well as a written explanation of the locations on the company computers where he had stored proprietary information. After Leness’s departure, Chang hired a forensic expert to examine Leness’s work-issued laptop computer. The examination revealed that in early October, 2007, at approximately the same time that he submitted the proposal for restructuring EventMon-itor, Leness paid for a one-year subscription to an online data storage service through a company called Carbonite. Carbonite is a professional data storage service that encrypts information for purposes of security. Using this subscription, Leness copied all of EventMonitor’s files that had been on his laptop to Carbonite’s data storage system. The uploaded data included EventMonitor’s “proprietary information,” as defined by the contract, including information related to its customers, business documents, and financing. Leness did not tell anyone at EventMonitor about the Carbonite account or the copying of EventMonitor’s proprietary information to Carbonite’s storage system. Indeed, Leness used his personal electronic mail address, and his personal credit card, to pay for the Carbonite subscription. Leness also downloaded a computer cleaning program to the company laptop in an effort to erase evidence of the Carbonite account from the laptop. When Chang learned of Leness’s actions in copying Event-Monitor’s proprietary information to the Carbonite system, he retroactively changed Leness’s termination to one “for cause.” As a result, in early February, 2008, EventMonitor stopped making the severance payments required under the contract for a termination “without cause.” EventMonitor also refused to pay Leness for his unused vacation time, which, under the terms of the contract, it was required to pay regardless of the type of termination. Ultimately, Leness informed EventMonitor that he would file a claim in the Superior Court if his severance payments were not resumed by May 1,2008. On April 30,2008, without having made any further payments, EventMonitor commenced this action. 2. Material breach of the employment agreement. EventMon-itor argues that Leness committed a material breach of the employment agreement by violating section 6(b), which required him to maintain the confidentiality of EventMonitor’s proprietary information and to return all such information, including all copies, upon termination. A breach of a contract is a material breach when it involves “an essential and inducing feature of the contract.” Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 470 (1991), quoting Bucholz v. Green Bros., 272 Mass. 49, 52 (1930), S.C., 290 Mass. 350 (1935). Whether a party has committed a material breach ordinarily is a question of fact. See Cetrone v. Paul Livoli, Inc., 337 Mass. 607, 610 (1958); Coviello v. Richardson, 76 Mass. App. Ct. 603, 609 (2010); Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. at 609. See also 23 Williston on Contracts § 63:3, at 440 (4th ed. 2002). But if “the evidence on the point is either undisputed or sufficiently lopsided ... the court must intervene and address what is ordinarily a factual question as a question of law.” See Teragram Corp. v. Marketwatch.com, Inc., 444 F.3d 1, 11 (1st Cir. 2006), quoting Gibson v. Cranston, 37 F.3d 731, 736 (1st Cir. 1994). Thus, we accept a trial judge’s findings as to the materiality of a breach unless they are clearly erroneous. Mass. R. Civ. P. 52 (a), as amended, 423 Mass. 1402 (1996). “We are not bound, however, by the judge’s conclusions of law, and we must ensure that the judge’s ultimate findings and conclusions are consistent with relevant legal standards.” Demoulas v. Demoulas Super Mkts., Inc., 424 Mass. 501, 510 (1996). See Psy-Ed Corp. v. Klein, 459 Mass. 697, 710 (2011), quoting Kendall v. Selvaggio, 413 Mass. 619, 620-621 (1992) (“In reviewing a judge’s decision after a jury-waived trial, ‘we . . . scrutinize without deference the legal standard which the judge applied to the facts’ ”). “If a judge’s ultimate findings aré inconsistent with the subsidiary findings, we must set them aside.” Demoulas v. Demoulas Super Mkts., Inc., supra. Here, the evidence fully supports the judge’s findings, and there is no error in his determination, based on these findings, that Leness did not commit a material breach of the employment contract. The judge found that in copying EventMonitor’s proprietary information to Carbonite’s data storage system, not disclosing the upload to EventMonitor, and not returning the Carbonite files upon his termination from employment, Leness violated section 6(n) of the employment contract, in particular because he did not return all copies of EventMonitor’s proprietary information. Nonetheless, as the judge correctly concluded, Leness’s failure to return the information, while a “variance from complete compliance” with the employment contract, did not affect an essential and inducing feature of the contract, and therefore was not a material breach. The judge found that there was no evidence that Leness had used the information for any purpose, before or after his termination more than five years prior to the date of trial, or intentionally had disclosed it to anyone. The judge stated further that, while he did not credit Leness’s stated reasons for having placed a copy of EventMonitor’s proprietary information on the Car-bonite system (EventMonitor’s purportedly inadequate backup procedures), he also rejected EventMonitor’s suggestion that the copying had been done with a malicious intent. Indeed, the judge stated that, given the circumstances and the state of the relationship between Leness and Chang in October, 2007, when the copies were made, Leness might well have wanted the copy in order to be able to demonstrate that he had not neglected his duties or acted deliberately to the detriment of EventMonitor’s interests. The judge concluded that the essential purpose of section 6(b) is to protect the confidentiality of EventMonitor’s proprietary information. A breach of section 6(b) therefore becomes material if it undermines that confidentiality. Because there was no evidence or indication that Leness had disclosed EventMonitor’s confidential information, Leness’s breach was not material. We observe that, while electronic copies of proprietary information placed on third-party storage devices potentially could fall into the hands of competitors, or otherwise become public or be disclosed, as the judge found, there was no showing that such a result was likely to have, or had, occurred. Carbonite maintains its clients’ information in a secure and encrypted manner, and its business model relies on its clients’ confidence in this assurance. EventMonitor did not suggest, let alone offer evidence to prove, that its information could more readily be compromised because it temporarily had been stored on Carbonite’s servers. Indeed, EventMonitor used similar data backup services, indicating that it did not view the use of such services as endangering the confidentiality of the information stored thereon. In any event, the possibility of unintentional disclosure is not relevant under the terms of the employment contract. As the judge found, Leness did not “knowingly disclose” or “knowingly use” any of EventMonitor’s proprietary information. Accordingly, because Leness’s breach did not endanger the confidentiality of EventMonitor’s information, the breach was not material, and EventMonitor was not entitled to stop making severance payments. See Anthony’s Pier Four, Inc. v. HBC Assocs., 411 Mass. at 470; Lease-It, Inc. v. Massachusetts Port Auth., 33 Mass. App. Ct. 391, 396 (1992); 23 Williston on Contracts § 63:3, at 438. 3. Whether termination could be amended to one “for cause. ” Having concluded that Leness did not commit a material breach of the employment contract, we turn to EventMonitor’s argument that Leness’s breach nonetheless provided adequate grounds for EventMonitor to have converted the termination to one for cause. To support its decision to change the termination to one “for cause,” EventMonitor a