Breach of Contract Cases

Bernard Bulwer vs. Mount Auburn Hospital & others. No. 11-P-1583 Middlesex. November 26, 2012. September 24, 2014. Present: Berry, Kafker, Meade, Sikora, & Wolohojian, JJ. Further appellate review granted, 471 Mass. 1105 (2015). Hospital, Appointment to staff. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Contract, Employment, With hospital, Performance and breach, Interference with contractual relations. Libel and Slander. Unlawful Inteiference. Practice, Civil, Summary judgment. In a civil action alleging discrimination in employment based on race, the judge erred in granting summary judgment in favor of the defendant employer (a hospital), where the defendant did not meet its burden of establishing that there was no genuine issue of fact concerning pretext, in that, although there was ample evidence that the plaintiff’s performance in the residency program at issue fell short of expectations, there was also evidence that he performed well and that the plaintiff had not been given the same remediation opportunities as others who had struggled in the program; there was some evidence of institutional racism at the hospital; evidence of irregularities in the grievance process could support an inference that it was not fair or that the plaintiff had been treated in an unusual fashion from which pretext could be inferred; and the employer supplied shifting explanations for its actions. [328-333] Sikora, J., dissenting, with whom Meade, J., joined. 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 defendant employer, where evidence that the employer discriminated against the plaintiff on the basis of race was sufficient to support a claim of breach of a nondiscrimination policy, and where the defendant’s decision to terminate the plaintiff appeared to have stemmed from a process that did not afford all the procedural protections of the hospital’s policies or guidelines. [333-335] Sikora, J., dissenting, with whom Meade, J., joined. In a civil action claiming defamation based on two electronic mail messages sent by the defendant employer to employees concerning the termination of the plaintiff from his employment, the judge properly granted summary judgment in favor of the defendant, where the defendant enjoyed a conditional privilege to disclose defamatory information concerning an employee that was reasonably necessary to serve the defendant’s legitimate interest in the fitness of the plaintiff to perform his job. [335] In a civil action alleging retaliation by the defendant employer against the plaintiff employee, the judge properly granted summary judgment in favor of the defendant, where communications by the plaintiff relating to his disagreement with criticisms against his work did not constitute protected activity within the meaning of G. L. c. 151B, § 4(4); and where the plaintiff failed to demonstrate any causal connection between other alleged protected activity (i.e., the filing of a complaint with the Massachusetts Commission Against Discrimination) and the supposed retaliation. [335-336] In a civil action alleging tortious interference on the part of three individual defendants with the plaintiff’s contractual employment relationship with the defendant employer, the judge properly granted summary judgment in favor of the defendants, where the record did not raise a genuine issue of fact regarding malevolence on the part of those individual defendants. [336] 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. Sara Discepolo for the plaintiff. Robert R. Hamel, Jr., for the defendants. Eric Flint, Ricardo Wellisch, and Lori Balestrero. This case was initially heard by a panel comprised of Justices Meade, Sikora, and Wolohojian. After circulation of the opinion to the other justices of the Appeals Court, the panel was expanded to include Justices Berry and Kafker. See Sciaba Constr. Corp. v. Boston, 35 Mass. App. Ct. 181, 181 n.2 (1993). Justice Sikora participated in the deliberation on this case and authored his separate opinion prior to his retirement. Wolohojian, J. The plaintiff, Dr. Bernard Bulwer, an experienced physician and a black man from Belize, became a first-year resident at Mount Auburn Hospital (hospital) in August, 2005. He joined the residency program under a one-year contract, with the possibility of advancement to a second year of residency upon successful completion of the first. Eight months into the program, he was told that the hospital would not extend a second-year contract to him but that he would be allowed to continue his residency through the end of his first year. One month later, however, he was terminated. This suit followed, in which Bulwer alleges discrimination and retaliation based on his race and national origin in violation of G. L. c. 151B, breach of contract, defamation, and tortious interference with his contractual relationship with the hospital. Summary judgment entered in favor of the defendants on all counts. We conclude that the summary judgment record sufficed to entitle Bulwer to have a jury decide his discrimination and breach of contract claims, but that summary judgment was properly entered on his remaining claims. Accordingly, we affirm in part and reverse in part. 1. The summary judgment record. In reviewing a grant of summary judgment, we assess the record de nova and take the facts, together with all reasonable inferences to be drawn from them, in the light most favorable to the nonmoving party. Godfrey v. Globe Newspaper Co., 457 Mass. 113, 119 (2010). “[T]he court does not pass upon the credibility of witnesses or the weight of the evidence [or] make [its] own decision of facts.” Shawmut Worcester County Bank, N.A. v. Miller, 398 Mass. 273, 281 (1986), quoting from Attorney Gen. v. Bailey, 386 Mass. 367, 370 (1982). Viewing the facts in this light, we then determine whether the moving party has affirmatively shown that there is no real issue of fact, “all doubts being resolved against the party moving for summary judgment.” Ibid. The record at hand, viewed with these principles in mind, showed the following. a. Bulwer’s background and the hospital’s residency program. Bulwer is a black male of African descent whose nation of origin is Belize. In the spring of 2005, he contacted the hospital to inquire about a possible position in its internal medicine residency program. The director of the program, Dr. Eric Flint, interviewed Bulwer and believed him to be personable and capable. Flint followed up on the interview by verifying Bulwer’s previous professional experience and confirming that he had performed satisfactorily at those positions. Based on his favorable impressions and the satisfactory results of his due diligence, Flint recommended that Bulwer be accepted into the program. Bulwer was not a typical applicant to the hospital’s residency program because he was already an experienced physician. Before joining the program, Bulwer had sixteen years of professional experience as a physician, and had certified postgraduate specialist training in nutrition, diabetes and metabolic medicine, cardiovascular disease, and echocardiography. He had authored or coauthored three books, and had over forty scientific publications. The first year residency program typically consists of twelve one-month rotations, and there are forty-two residents in the program in any given year. The program is accredited by the Accreditation Counsel for Graduate Medical Education (ACGME) and governed by that organization’s requirements. As pertinent here, the ACGME required that: “e. Conditions for reappointment; “(1) Nonrenewal of agreement of appointment: [The hospital] must provide a written institutional policy that conforms to the following: In instances where a resident’s agreement is not going to be renewed, [the hospital] must ensure that its ACGME-accredited programs provide the resident(s) with a written notice of intent not to renew a resident’s agreement no later than four months prior to the end of the resident’s current agreement. However, if the primary reason(s) for the nonrenewal occurs within the four months prior to the end of the agreement, [the hospital] must ensure that its ACGME-accredit-ed programs provide the residents with as much written notice of the intent not to renew as the circumstances will reasonably allow, prior to the end of the agreement. “(2) Residents must be allowed to implement the institution’s grievance procedures as addressed below if they have received a written notice of intent not to renew their agreements. “f. Grievance procedures and due process: [The hospital] must provide residents with fair and reasonable written institutional policies on and procedures for grievance and due process. These policies and procedures must address “(1) academic or other disciplinary actions taken against residents that could result in dismissal, nonrenewal of a resident’s agreement or other actions that could significantly threaten a resident’s intended career development; and, “(2) adjudication of resident complaints and grievances related to the work environment or issues related to the program or faculty.” Bulwer entered into a one-year medical resident agreement (agreement) with the hospital covering the period of August 29, 2005, to August 28, 2006. The agreement provided that the hospital agreed to comply with the ACGME requirements. As noted above, one of those requirements was that the hospital have written grievance and due process policies, which it did. Certain of those policies are relevant to Bulwer’s claims, and we set them out here: “4----In instances where a resident’s agreement is not going to be renewed, the training program will provide the resident with written notice of intent not to renew a resident’s agreement no later than four months prior to the end of the agreement. . . . Residents are allowed to implement the due process procedure as addressed below if they have received a written notice of intent not to renew their agreements. “II. Due Process Procedures: “Upon request by a resident, program director, member of the teaching staff, administration or patient for review of an issue under the scope of this policy an Ad Hoc Committee will be assembled. “Composition: “The Ad Hoc Committee will be composed of the ACGME Designated Institutional Official/Director of Medical Education, the Chairs of the Departments of Medicine and Radiology, the Program Directors of the training programs in Medicine and Radiology, the houseofficer, and a houseofficer representative that is mutually agreed upon by the Director of Medical Education and the houseofficer under discussion. “Fair Hearing: “The resident is assured of the fundamental aspects of a fair hearing including written statement of the specific issues from the Department Chair, at least 5 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. . . . Appeal of the decision of the hearing is limited to matters introduced at the hearing and made available to the resident.” b. Bulwer’s performance in the program. Under this contractual framework, Bulwer began his residency. His first rotation was in the emergency department, where he received strong evaluations. For example, at least two physicians evaluated Bulwer as “outstanding” during this rotation, and commented that “Dr. Bulwer... knows more cardiology and has better echo skills than I do, [is] professional, enthusiastic, [gives] great presentations, [and is a] pleasure to work with.” Five others rated him “above average,” commenting that he was “knowledgeable, responsible, [and had a] pleasant demeanor[, and excellent work ethic,” that he was “very good, works hard [and is] excited to be at work and looks to improve every shift,” that he “[w]arks hard[, is a] [w]onderful person[, and g]reat with patients and staff,” and that he is“ [v]cry knowledgeable, extremely hardworking and conscientious [, and h]as great rapport with fellow physicians and staff.” He was assessed to be mature and a pleasure to work with. Significantly, Dr. Gary Setnik, head of the emergency department, in response to a request that he assess Bulwer’s performance over a period of months in the emergency department, wrote: “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. Aside from some very minor documentation issues, and his failure to assure that the admitting resident was called on one case, his performance has been outstanding. He is in the top 10% of the medical house-officers who have rotated in the E[mergency] Department] over the last several years.” By contrast, Bulwer’s evaluations during his next rotation through the medicine intensive care unit (MICU) were not of the same sort. In that rotation, he received three strongly negative evaluations. That said, the assessment of Bulwer’s performance in the MICU was not uniform. Dr. Soon-11 Song reported a positive view of Bulwer’s performance in the MICU: “His strengths were that he 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.” During October of 2005 (the same month of Bulwer’s MICU rotation), the first-year residents at the hospital (like other first-year residents nationally) were required to take a national standardized test designed to test their medical knowledge relative to their peers. Bulwer scored in the top one-third nationally on that test, and his results were consistent with those of his peers at the hospital. On October 26, 2005, Bulwer sent an electronic mail message (e-mail) to Flint, the director of the internal medicine residency program, to address the negative comments Bulwer had received during his MICU rotation. Bulwer did not believe those reviews were objective and asked Flint to obtain a more objective view of his performance by speaking with the physicians with whom he had actually seen patients: Drs. Hayat, Song, Tillinger, and Brady-Joyce. Flint did not speak with any of those individuals, even after Bulwer again expressed to Flint he felt that he was not being assessed objectively. Bulwer was not alone in this view of the MICU’s evaluation of his performance. Setnik, the chair of the emergency department, reported that the MICU team was unnecessarily critical of Bulwer and also that the MICU staff had harshly attacked members of the emergency department for favorably evaluating Bulwer’s performance: “It was about the same time that he was having difficulty in the [MICU] that we were criticized very heavily by members of the [MICU] team, and when I say we I mean the entire E[mergency] Department] staff, and some of them unbelievably harshly. An experience that I hadn’t previously had at Mount Auburn, to be honest with you and I have collected the emails and I could share them with you, but they are really quite harsh, and that led to a whole series of other discussions that we had and a reflection about maybe thinking that [Bulwer] had entered an area that was going to be a little bit more critical than it needed to be for a person in his circumstances, just and not having had clinical medicine for a while and the like.” On November 15, 2005, Dr. Lori Balestrero (who was Bulwer’s adviser for the residency program) met with him to discuss the feedback received on his performance in the MICU rotation. Bulwer again responded that he did not believe that the feedback was accurate. On December 1, 2005, Balestrero again met with Bulwer, after having met with the clinical competence committee (CCC) to identify areas in which Bulwer needed to improve. These areas were presented as part of a six-point plan that included meeting with his adviser weekly to review Bulwer’s progress. Those meetings did not occur. Similarly, although the action plan called for a follow-up meeting between Bulwer, Balestrero, and a CCC representative after the December evaluations were received, that meeting too did not occur. Bulwer next rotated into “wards,” where several evaluations of his performance were on the whole positive, although they also noted some areas of weakness. One such evaluation read, “Great job! Very bright/knowledgeable. Be concise, people get lost sometimes lo[ ]sing the big picture of the story you are telling. Much improvement seen!” Song, who supervised Bulwer directly, gave the following detailed assessment of Bulwer’s performance during his wards rotation, responding specifically to the areas of concern raised during the MICU rotation: “1____Bernard’s ability to interpret and analyze clinical data, and formulating a plan of management is excellent and in the 10% of the intern class. His presentations on wards work rounds are methodical, to the point, and effective. “2. ... He has a good sense of humor and speaks even of those who have criticized, him with respect. The main issue here I think is that his behavior has been misconstrued in the past as arrogance in his zeal to impart instruction. However, he has demonstrated nothing but caring, concern, and team spirit this month on wards. His interactions with nursing and patients in my observation demonstrated no serious deficiencies requiring me to give feedback to him. “3. ... I have been mindful when I visit Bernard’s patients to assess their subjective and emotional responses to his presence in the room. These are the more intangible things which may be difficult to quantify, but at no time have I sensed tension on the part of Bernard’s patients toward him. I have on several occasions observed him interacting with patients when he was initially unaware of my presence and I have come to the same conclusion. It is difficult for me to understand past allegations in this regard, and if true, certainly do not leave their residue today. “4. ... In honesty, there are a few times when I felt the need to give constructive criticism to Bernard. I believe the manner in which feedback is given is important with any scenario. I get the impression that Bernard may be sensitive to feedback given in a humiliating manner. My approach has been to give feedback in the spirit of gentleness, and of emphasizing ensuring] of proper patient care. With this approach, I have had no problems with Bernard, as I interact with him as one professional colleague to another, and he understands this approach as my particular style. “In sum, Bernard has areas of weakness and strength as any other intern. But as an intern, I have seen residents with far less clinical acumen and interpersonal skills graduate from the program.” By contrast, Dr. Erica Bial considered Bulwer’s performance during his wards rotation to be “horrendous.” There is evidence in the record, however, to suggest that Bial had acted inappropriately towards Bulwer, including berating him in public in an inappropriate way, with her “voice raised and . . . sp