Constructive Discharge Cases

Darrell Green vs. Harvard Vanguard Medical Associates, Inc. No. 09-P-2092. Norfolk. November 18, 2010. March 3, 2011. Present: Lenk, Vuono, & Rubin, JJ. Anti-Discrimination Law, Race. Employment, Discrimination, Retaliation. Contract, Performance and breach. Fraud. In a civil action alleging discrimination in employment based on race, the judge erred in granting summary judgment in favor of the defendant employer on the employee’s claim of a hostile work environment, where, as a matter of law, a supervisor’s use of an offensive and hurtful racial epithet in a single, brief conversation was sufficiently severe or pervasive to give rise to a claim of a racially hostile work environment, and a release contained in a salary continuation agreement that the plaintiff employee signed did not bar such a claim, in that genuine issues of material fact existed whether the parties intended that agreement to be a complete and integrated contract; whether the employer committed a breach of that agreement by failing to provide the employee with suitable employment; and whether the employer fraudulently induced the employee to sign the release contained in the agreement. [7-13] In a civil action alleging discrimination in employment based on race, the judge erred in granting summary judgment in favor of the defendant employer on the employee’s claim of retaliation, where genuine issues of material fact existed whether the employee was intentionally recommended for and hired into a job for which he was not qualified and from which he was consequently bound to separate such that his resignation amounted to a constructive discharge, and whether the employer’s decision to take this course of action was a result of the employee’s having complained about his supervisor’s allegedly racially discriminatory conduct. [13-14] Civil action commenced in the Superior Court Department on April 9, 2008. The case was heard by Janet L. Sanders, J., on a motion for summary judgment. Christopher J. Trombetta for the plaintiff. Eugene J. Sullivan, III, for the defendant. Rubin, J. For the third time in as many years, we address an antidiscrimination suit under G. L. c. 15 IB involving the alleged workplace use against an African American of the racial epithet that is widely regarded as the most hateful and offensive in our culture. See Thomas O’Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. 549 (2008); Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. 398 (2009). Here, the Superior Court judge granted summary judgment in favor of the defendant, Harvard Vanguard Medical Associates, Inc. (Harvard Vanguard). The plaintiff, Darrell Green, now appeals. In reviewing an order granting summary judgment, as we do in this case, the standard of review is the familiar one. We review de novo the propriety of the order granting summary judgment, viewing the evidence in the summary judgment record in the light most favorable to the nonmoving party, in this case the plaintiff. See Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000). I. The summary judgment record reveals the following: Green applied for a position and was hired in June, 2005, by Harvard Vanguard to work as a medical secretary in Harvard Vanguard’s physical therapy department at its Kenmore Square location. According to Green’s affidavit, Mary Beth Walsh, who was to be his supervisor, told him that, although the job formally was for only twenty hours per week, Green would be able to work forty hours per week. Green accepted the position based on that representation. Green completed not only secretarial tasks in the position but assisted with other needs of the physical therapy department. According to Green’s affidavit, Walsh praised Green for his performance and did not criticize him or his work. Walsh, however, only inconsistently provided additional work for Green above the twenty hours required by the job. Without the twenty additional hours per week, Green was unable to earn sufficient income to support himself or his child. It is undisputed that sometime in August, 2005, Green went to Harvard Vanguard’s human resources department, where he spoke with Michelle Guamieri, who worked in that department. Green informed Guamieri that Walsh had promised him twenty additional hours of work each week but that she had failed to provide him with that work. Guamieri indicated that Walsh had neither the authority nor the ability to promise these additional hours. Subsequently, Guamieri apparently informed Walsh about her conversation with Green. According to Green, shortly after he spoke with Guamieri, near the end of a work day, Walsh walked up to him, stood very close within his personal space, pointed her finger at his face, and yelled at him, saying, “How dare you go to Human Resources and report me.” Green responded that all he wanted was a forty-hour work week, which is what he was told he would be given when he started working. Walsh responded, “You’re not going to get it. Now I don’t even want to see you. Who do you think you are? Who do you think they are going to believe, me, a valued employee of over ten years or a dirty fucking nigger?” The parties agree that Green immediately reported this alleged incident to the human resources department. According to Green, Walsh subsequently issued Green a “letter of concern.” This letter outlined alleged deficiencies in job performance that were purported to have occurred prior to the angry interaction between Walsh and Green. One involved calling in sick, which Walsh wrote that Green, as a probationary employee, was not permitted to do. The second involved an allegation that Green interrupted a conversation between an optical department supervisor and a patient in order to seek reimbursement for eyeglasses that Green had obtained as a Harvard Vanguard patient prior to his employment by Harvard Vanguard. According to Guarnieri’s own affidavit, after Green spoke with her about the incident with Walsh, she “decided that it would not be in [Harvard Vanguard’s] best interest to continue to employ him.” She asserts that this conclusion was not made in retaliation for his reporting the incident, but was based upon the behavior described in Walsh’s letter of concern as well as certain other alleged workplace incidents. According to Green’s testimony, Guarnieri. told Green that he would have to avoid Walsh and that Walsh intended to force Green out of Harvard Vanguard. Subsequently, Guarnieri indicated to Green that in order to avoid remaining in Walsh’s department, he would have to resign his position. Green testified that he was told that this measure would be temporary and that Harvard Vanguard would rehire him to a future position as soon as one became available. Although the “letter of concern” extended Green’s time as a probationary employee — and thus extended the time until he could become a member of the union — according to Green, Guarnieri indicated that in the new position he would be able to work the time necessary for union admission. Green also testified that Guarnieri told him that he would be paid while he awaited this new position and that he would not lose any compensation or benefits. Green agreed to this proposal. At Guarnieri’s request he signed a letter of resignation. He also signed a “salary continuation agreement” (agreement). It provided that for four weeks, or until Green commenced other employment comparable to his position as a medical secretary, Harvard Vanguard would continue to pay Green’s salary and would pay for his health insurance. Contrary to Green’s testimony, Guarnieri testified in her affidavit that, upon providing Green the agreement, she told him that after his resignation he could apply for jobs at Harvard Vanguard on the same basis as anyone else. The agreement also contained a clause entitled “Release.” This clause states that “[t]his Agreement constitutes the entire agreement between Mr. Green and [Harvard Vanguard] with respect to all matters pertaining hereto and provides the only benefits that Mr. Green shall receive in connection with his resignation and is in full settlement of all claims Mr. Green now has or may have against [Harvard Vanguard]. Mr. Green agrees to release and forever discharge [Harvard Vanguard]” from any claims that he may have had “by reason of any cause or matter occurring on or prior to the date of this Agreement.” The agreement was executed on August 30, 2005, by Harvard Vanguard and was signed by Green on September 2, 2005. According to Green, while he was still receiving the four weeks’ pay referenced in the agreement, Guamieri called him and offered him a position, for which he had not applied, as a medical assistant in the cardiology department. This was a full time, forty hours per week position. Green’s assertion that he had not applied for this position is supported by a detailed listing of his applications for positions at Harvard Vanguard produced during discovery that does not indicate that he applied for the cardiology department position. The job description for this position indicates that among the essential functions of the job are “[o]btain[ing] relevant information and takfing] vital signs”; possibly “advis[ing] patient[s] of preparation required for” examinations or additional testing specific to the cardiology department; obtaining “information from or providing information to outside doctors, hospitals, health or social service agencies, and insurance agencies”; answering telephones in conformance with “emergency and departmental protocols”; “relaying] messages to providers”; “[a]ssist[ing] with data collection activities for statistical reports or required studies”; and “ensuring data is properly collected and accurate.” A bachelor’s degree, an associate’s degree in medical assisting, or completion of a certificate program were preferred qualifications for the job, and Green testified that all the other individuals holding the same position had such qualifications. According to Green, who has an associate’s degree in electrical engineering from Wentworth Institute of Technology and whose prior customer service experience was limited to many years of work in the travel industry, he told Guamieri that he was not qualified for the position that she had suggested. Guamieri, however, told him not to worry. According to Green’s deposition, she told Green that he would receive training such that his asserted lack of qualifications would not be an issue. According to the affidavit of Zufan Araya, the supervisor of the cardiology department at Harvard Vanguard’s Kenmore Square location, Guamieri called Araya about Green. Araya testified in the affidavit that Guamieri strongly recommended Green for the medical assistant position due to his experience in his position in the physical therapy department and said that he would be a good fit for answering patients’ telephone calls in the cardiology department. According to Araya, Guamieri did not tell Araya of any of the problems in his prior employment at Harvard Vanguard that Guamieri herself describes in her affidavit. Indeed, Araya’s affidavit states that Guamieri did not say anything negative about Green. Araya testified that she was not aware that Green had resigned his prior position, nor was she aware of any alleged performance issues Green had had there. After meeting Green for an interview, Araya hired him for the medical assistant position. After several days of training, Green joined the cardiology department. As part of his responsibilities, he was required to answer the telephone and to communicate with patients with respect to their heart conditions. According to Green, he did not understand the terminology concerning the nature of the conditions or of their treatment. At one point, according to Green’s affidavit, a coworker told a patient that Green was “an idiot.” Less than two weeks after Green joined the cardiology department, on October 12, 2005, his supervisor, Araya, issued him a “letter of concern.” This letter referred to incidents on October 5 and 6. With respect to the incident on October 6, the letter described Green speaking to a caller while a medical assistant training him was listening in. The medical assistant would feed Green information to repeat to the caller. Rather than attempting to repeat the directive, Green asked the caller “if they heard what the assistant said.” With respect to the October 5 incident, the letter asserts that while speaking in the same circumstances to a patient with whom there was a “clear language barrier,” Green failed to address the patient as “sir,” as directed by the assistant, but instead continued to attempt to pronounce the patient’s last name. In his affidavit, Green stated that both incidents resulted from his inability to understand and use the necessary medical terminology. He asserted that this was the basis of the October 6 incident, and that the problem on October 5 did not actually concern the pronunciation of the patient’s last name but rather, again, the meaning and use of medical terminology. On the same day in which he received the letter of concern, Green spoke with Guamieri. According to his affidavit, he explained that he did not understand the terminology being used in the cardiology department. She indicated that he would be unable to continue in the new position. When he asked if he could obtain a position in a different department instead, Guamieri said no. She said, “They don’t want you here.” Guamieri indicated to Green that he should sign a letter of resignation, apparently so that he would be eligible for severance payments, and Green did so. Guamieri also told Green that he would have to sign another release in order to obtain severance payments. Green refused to sign any such release. Harvard Vanguard nonetheless did make severance payments to Green. n. Green brought this action for racial discrimination in employment in violation of G. L. c. 151B. He alleges both that Harvard Vanguard subjected him to a hostile work environment while he worked in the physical therapy department under Walsh, see Thomas O’Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. at 560, and that it retaliated against him for his assertion of his discrimination claim. A. Hostile environment discrimination. There can be no doubt that if the facts recited above were proven at trial, they would suffice, in the absence of the release contained in the agreement, to support a finding of liability on the part of Harvard Vanguard for racial discrimination against Green in violation of G. L. c. 15IB, § 4(1), during his employment in its physical therapy department. See Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. at 408-409. As we explained just last year, “a supervisor who calls a black subordinate a ‘fucking nigger’ has engaged in conduct so powerfully offensive” that liability for racial discrimination under G. L. c. 151B, § 4, may be based “on a single instance. That term inflicts cruel injury by its very utterance. It is degrading, it is humiliating, and it is freighted with a long and shameful history of humiliation, the ugly effects of which continue to haunt us all. The words have no legitimate place in the working environment — indeed, they have no legitimate place — and there is no conceivable justification for their use by a workplace supervisor.” Ibid. Harvard Vanguard does not argue, as it did below, before our decision in Augis, that, as a matter of law, a supervisor’s use of the language alleged in a single “two to three minute” private conversation is not sufficiently “severe or pervasive” to give rise to a claim of a racially hostile work environment. See Thomas O’Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. at 560 (stating that discrimination must be severe or pervasive to amount to actionable discrimination). The use of these disgusting, demeaning, and humiliating words, and the impact of their use upon those to whom they are directed, is a grave matter. Among the purposes of our Commonwealth’s antidiscrimination laws is the elimination from the workplace of this offensive and hurtful racial epithet — and of all others — and of the discriminatory injury inhering in their use. Harvard Vanguard does not disagree, but argues that the release contained in the agreement bars any discrimination claim based upon Walsh’s alleged conduct while Green worked in its physical therapy department because any such conduct occurred prior to the signing of the agreement. Green disagrees. He argues that there are genuine issues of material fact both whether the defendant breached its agreement with him by failing to provide him with a suitable new position, and whether he was fraudulently induced into signing the release. 1. Breach of the agreement. Harvard Vanguard asserts that the release in the agreement bars Green from raising a discrimination claim against it based upon its treatment of Green prior to the date on which the agreement was executed, including the entire period when he was employed in the physical therapy department. Green, however, alleges that at the same time he signed the agreement, the defendant orally undertook, as part of the agreement between the parties, the obligation to find him a suitable position elsewhere at Harvard Vanguard, and that it breached this obligation. A material breach by Harvard Vanguard of its agreement with Green would excuse Green from his obligations under the agreement. See, e.g., Prozinski v. Northeast Real Estate Servs., LLC, 59 Mass. App. Ct. 599, 610 (2003); Ward v. American Mut. Liab. Ins. Co., 15 Mass. App. Ct. 98, 100 (1983) (“It is well established that a material breach by one party excuses the other party from further performance under the contract”). Harvard Vanguard points to the language of the release and argues that it resolves the question. In essence, this amounts to an argument that the agreement is a complete and integrated contract, and that any oral promises made to Green are irrelevant. Whether an agreement is integrated “is an issue of fact for the decision of the trial judge, entirely preliminary to any application of the parol evidence rule.” Wang Labs., Inc. v. Docktor Pet Centers, Inc., 12 Mass. App. Ct. 213, 219 (1981). It is “a question of fact which turns upon the intention of the parties.” Holmes Really Trust v. Granite City Storage Co., 25 Mass. App. Ct. 272, 275 (1988). The judge was not asked to, and did not, make a determination on the question of integration. Nor would one have been appropriate at this stage of the proceedings based solely on the summary judgment record. As this court’s decisions have made clear, even apparently straightforward contractual language asserting integration will not always compel a conclusion that a writing reflects a complete and integrated agreement. Thus, for example, in Holmes Realty Trust, despite a contract containing clear language asserted to demonstrate integration, we found summary judgment based on the agreement being complete and integrated inappropriate. See ibid. Green testified in his affidavit that he was in fact promised in return for his resignation and his signing the agreement not only four weeks’ severance, but that he would be given another job that would be suitable to allow him to continue his employment at Harvard Vanguard, to retain his benefits, and to become eligible for union membership. Guarnieri, on the other hand, testified that contemporaneous with asking Green to sign the release, she told him only that after his resignation he could apply for jobs at Harvard Vanguard on the same basis as anyone else. Indeed, it is her testimony that she had determined that he should not be employed at Harvard Vanguard. Consistent with Green’s testimony, ho

ALOHA E. BRYSON, M.D., Ph.D., Plaintiff v. HAYWOOD REGIONAL MEDICAL CENTER, PRIMEDOC MANAGEMENT SERVICES, INC. and PRIMEDOC OF HAYWOOD COUNTY, P.A., Defendants No. COA09-270 (Filed 15 June 2010) 1. Appeal and Error— interlocutory order and appeal — statutory privilege asserted — medical review committee records An appeal was properly before the Court of Appeals even though it was interlocutory where it involved an assertion of statutory privilege in medical review committee records. 2. Discovery— medical review committee records — privilege not established The trial court did not err by entering an order compelling discovery of certain documents in an employment action involving a hospital where defendant contended that the documents had been produced by a medical review committee and were protected from discovery under N.C.G.S. § 131E-95(b). The documents did not appear to be privileged on their face, and defendant submitted no affidavits or other evidence to support its claim. Appeal by defendant Haywood Regional Medical Center from order entered 19 December 2008 by Judge Ronald K. Payne in Haywood County Superior Court. Heard in the Court of Appeals 16 September 2009. Elliot Pishko Morgan, P.A., by Robert M. Elliot, for plaintiffappellee. Van Winkle, Buck, Wall, Starnes & Davis P.A., by Allan R. Tarleton, for defendant-appellant Haywood Regional Medical Center. GEER, Judge. Defendant Haywood Regional Medical Center (“HRMC”) appeals from the trial court’s order granting in part plaintiff Dr. Aloha E. Bryson’s motion to compel discovery of certain documents. On appeal, HRMC contends the trial court erred in concluding that the documents were not privileged under N.C. Gen. Stat. § 131E-95(b) (2009) and in ordering HRMC to produce and disclose those documents to plaintiff. Because HRMC has failed to meet its burden of showing that the documents fall into one of the three categories of privileged material under N.C. Gen. Stat. § 131E-95(b), we affirm. Facts On 26 February 2008, plaintiff filed a complaint in Haywood County Superior Court against HRMC, as well as Primedoc Management Services, Inc. and Primedoc of Haywood County, P.A. (“the Primedoc defendants”). Plaintiff, an internist hired by the Primedoc defendants to work at HRMC from March 2005 to December 2007, alleged that, during her time at HRMC, she became concerned about patient safety issues in the Intensive Care Unit (“ICU”) and Definitive Observation Care Unit (“DOCU”). Plaintiff alleged that she observed numerous nursing errors in the ICU and DOCU, including (1) mistakes in the dosing and administration of patient medication; (2) failure to accurately and completely follow doctors’ orders; and (3) instances of nurses, while on duty, text messaging, using cell phones for personal calls, sleeping, and shopping online. Plaintiff documented these patient safety issues by filing occurrence reports with HRMC’s risk manager in accordance with hospital policy. According to plaintiff, HRMC officials began pressuring her to cease filing occurrence reports. Plaintiff alleged HRMC gave false information to the Primedoc defendants about her work and directed that her employment be terminated in retaliation for her complaints about patient care. Plaintiff asserted claims for wrongful interference with contract and defamation against HRMC. Plaintiff also asserted claims for breach of contract, breach of the covenant of good faith and fair dealing, and constructive discharge against the Primedoc defendants. Plaintiff also brought claims for civil conspiracy, punitive damages, and unfair and deceptive trade practices against all defendants. On 29 February 2008, plaintiff served HRMC with her first set of interrogatories and her first set of requests for production of documents. In its responses, HRMC refused to respond to several of plaintiff’s requests, contending that they sought disclosure of the proceedings, records, and materials produced or considered by a medical review committee, which constituted information protected from discovery under N.C. Gen. Stat. § 131E-95(b). On 16 September 2008, plaintiff filed a motion to compel discovery. Although HRMC filed a written response to the motion to compel, it did not submit any affidavits or other evidence supporting its claims of privilege. In an order entered 24 October 2008, the trial court directed HRMC to respond to most of plaintiff’s discovery requests. With respect, however, to certain interrogatories and requests for production, the trial court ordered HRMC to submit the documents and information for its in camera review. After conducting the in camera review, the trial court entered an order on 19 December 2008 granting an order protecting some of the documents and ordering others to be produced. HRMC timely appealed to this Court. Discussion The trial court’s order granting in part plaintiff’s motion to compel discovery is an interlocutory order. “Generally, there is no right of immediate appeal from interlocutory orders and judgments.” Sharpe v. Worland, 351 N.C. 159, 161, 522 S.E.2d 577, 578 (1999). N.C. Gen. Stat. § 7A-27(d)(l) (2009), however, authorizes an appeal from an interlocutory order that affects a substantial right. “[W]hen, as here, a party asserts a statutory privilege which directly relates to the matter to be disclosed under an interlocutory discovery order, and the assertion of such privilege is not otherwise frivolous or insubstantial, the challenged order affects a substantial right under sections l-277(a) and 7A-27(d)(1).” Sharpe, 351 N.C. at 166, 522 S.E.2d at 581. This appeal is, therefore, properly before us. See Armstrong v. Barnes, 171 N.C. App. 287, 290-91, 614 S.E.2d 371, 374 (holding challenged discovery order affected substantial right because “assertions of statutory privilege relate directly to the matters to be disclosed under the trial court’s interlocutory discovery order”), disc. review denied, 360 N.C. 60, 621 S.E.2d 173 (2005). The sole issue on appeal is whether the trial court erred in compelling HRMC to disclose certain documents to plaintiff in discovery. “ ‘Whether or not the party’s motion to compel discovery should be granted or denied is within the trial court’s sound discretion and will not be reversed absent an abuse of discretion.’ ” Hayes v. Premier Living, Inc., 181 N.C. App. 747, 751, 641 S.E.2d 316, 318-19 (2007) (quoting Wagoner v. Elkin City Schs. Bd. of Educ., 113 N.C. App. 579, 585, 440 S.E.2d 119, 123, disc. review denied, 336 N.C. 615, 447 S.E.2d 414 (1994)). It is well established, however, that this Court reviews questions of law, as well as questions of statutory construction, de novo. Moody v. Sears Roebuck & Co., 191 N.C. App. 256, 264, 664 S.E.2d 569, 575 (2008). Thus, we review de novo whether the requested documents are privileged under N.C. Gen. Stat. § 131E-95(b). The information that HRMC contends on appeal is protected from disclosure can be grouped into two categories. The first category contains three internal documents of HRMC. One document is an e-mail dated 17 December 2007 from Shirley Trantham, HRMC’s director of Risk Management, to Janet Ledford with the subject of “Peer Review Request.” In the e-mail Trantham reviews six instances of patient care at HRMC. The e-mail summarizes each incident, notes whether any occurrence reports were received, and discusses any quality concerns. It does not identify Ms. Ledford, what position she held, or even for whom she worked. Nor does the e-mail indicate who requested the information or for what purpose it was generated. The second document is a memorandum dated 18 December 2007 with a title indicating that Shirley Harris, former director of Clinical Services at HRMC, requested a review of patient charts. The document, which contains summaries and analyses of six instances of patient care, does not indicate who authored the document, for what purpose it was generated, or who received it. The third document is a memorandum dated 19 December 2007, authored by Dr. Harry Lipham, Chairman of the Intensive Care Unit at HRMC, and addressed to Shirley Harris and Dr. Nancy Freeman. The memorandum indicates it was authored by Dr. Lipham at the request of “Dr. Freeman from the Hospital Board for information concerning allegations that have been made by Dr. Aloha Bryson concerning [certain patients’] care.” It summarizes six patient charts and analyzes the appropriateness of the care provided. The document does not identify who Dr. Freeman is or the purpose for which she requested the information. The documents in the second category were apparently transmitted between HRMC and an outside company called MDReview. They include (1) a letter to Eileen Lipham of HRMC, written on letterhead with the name “MDReview,” that thanks her “for calling on MDReview to assist [her] with [her] peer review needs”; (2) six documents entitled “Peer Review Report” authored by Scott A. Eisman, M.D.; and (3) Dr. Eisman’s curriculum vitae. Each of the reports warn that “THIS IS A CONFIDENTIAL PEER REVIEW DOCUMENT” and state that the document “was prepared at the request of [HRMC] in order to provide an independent professional opinion of the care rendered” to a specifically-referenced patient. “ ‘It is for the party objecting to discovery [of privileged information] to raise the objection in the first instance and he has the burden of establishing the existence of the privilege.’ ” Adams v. Lovette, 105 N.C. App. 23, 28, 411 S.E.2d 620, 624 (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2016 (1970)), aff’d per curiam, 332 N.C. 659, 422 S.E.2d 575 (1992). HRMC, therefore, has the burden of establishing that these documents are protected. HRMC contends the documents are protected by N.C. Gen. Stat. § 131E-95(b), which provides in part: The proceedings of a medical review committee, the records and materials it produces and the materials it considers shall be confidential and . . . shall not be subject to discovery or introduction into evidence in any civil action against a hospital . . . which results from matters which are the subject of evaluation and review by the committee. N.C. Gen. Stat. § 131E-76(5) (2009) in turn defines “[mjedical review committee”: (5) “Medical review committee” means any of the following committees formed for the purpose of evaluating the quality, cost of, or necessity for hospitalization or health care, including medical staff credentialing: a. A committee of a state or local professional society. b. A committee of a medical staff of a hospital. c. A committee of a hospital or hospital system, if created by the governing board or medical staff of the hospital or system or operating under written procedures adopted by the governing board or medical staff of the hospital or system. d. A committee of a peer review corporation or organization. “By its plain language, N.C. Gen. Stat. § 131E-95 creates three categories of information protected from discovery and admissibility at trial in a civil action: (1) proceedings of a medical review committee, (2) records and materials produced by a medical review committee, and (3) materials considered by a medical review committee.” Woods v. Moses Cone Health Sys., 198 N.C. App. 120, 126, 678 S.E.2d 787, 791-92 (2009), disc. review denied, 363 N.C. 813, 693 S.E.2d 253 (2010). The statute also, however, provides that “information, documents, or other records otherwise available are not immune from discovery or use in a civil action merely because they were presented during proceedings of the committee.” N.C. Gen. Stat. § 131E-95(b). The Supreme Court construed these provisions in Shelton v. Morehead Mem’l Hosp., 318 N.C. 76, 83, 347 S.E.2d 824, 829 (1986): These provisions mean that information, in whatever form available, from original sources other than the medical review committee is not immune from discovery or use at trial merely because it was presented during medical review committee proceedings; neither should one who is a member of a medical review committee be prevented from testifying regarding information he learned from sources other than the committee itself, even though that information might have been shared by the committee. The Court explained further: “The statute is designed to encourage candor and objectivity in the internal workings of medical review committees. Permitting access to information not generated by the committee itself but merely presented to it does not impinge on this statutory purpose. These kinds of materials may be discovered and used in evidence even though they were considered by the medical review committee.” Id. at 83-84, 347 S.E.2d at 829. See also Cunningham v. Charles A. Cannon Jr. Mem’l Hosp., Inc., 187 N.C. App. 732, 737, 654 S.E.2d 24, 27 (2007) (“However, § 131E-95 applies to the information generated by a medical review committee. . . . Regardless of its form, the information sought by plaintiff was generated by defendant [physician], not the [medical review committee]. Therefore, the information is discoverable and the trial court did not abuse its discretion in denying defendant’s motion for a protective order.”), disc. review denied, 362 N.C. 356, 661 S.E.2d 244 (2008). HRMC argues that the e-mail and memoranda in the first category of documents are privileged because they relate to internal peer review investigations of patient charts requested by its Risk Management Department. HRMC contends that it is clear from the face of these documents that they were written for the purpose of evaluating the quality of health care and, therefore, that we can assume they were generated by or for a medical review committee. We do not agree. In Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319, this Court stressed that mere assertions that documents constitute peer review materials and meet the requirements of Shelton are insufficient. A trial court properly grants a motion to compel when the “defendants [do] not present any evidence tending to show that the disputed incident reports were (1) part of the [medical review committee’s] proceedings, (2) produced by the [medical review committee], or (3) considered by the [medical review committee] as required by N.C. Gen. Stat. § 131E-107.” Hayes, 181 N.C. App. at 752, 641 S.E.2d at 319. As this Court explained, the statutory requirements are substantive, not formal, requirements. Thus, in order to determine whether the peer review privilege applies, a court must consider the circumstances surrounding the actual preparation and use of the disputed documents involved in each particular case. The title, description, or stated purpose attached to a document by its creator is not dispositive, nor can a party shield an otherwise available document from discovery merely by having it presented to or considered by a quality review committee. Id. at 752, 641 S.E.2d at 319. In the analogous attorney-client privilege context, this Court has similarly held that “[m]ere assertions” that privilege applies “will not suffice.” Multimedia Publ’g of N.C., Inc. v. Henderson County, 136 N.C. App. 567, 576, 525 S.E.2d 786, 792, disc. review denied, 351 N.C. 474, 543 S.E.2d 492 (2000). The party claiming privilege must instead proffer “some objective indicia” that the privilege applies. Id. Here, however, HRMC did not submit any “evidence,” as required by Hayes, or “objective indicia,” as required by Multimedia Publishing. Instead, like the Court in Brown v. Am. Partners Fed. Credit Union, 183 N.C. App. 529, 539, 645 S.E.2d 117, 124 (2007), addressing the attorney-client privilege, “we can only determine the applicability of the privilege based upon what the [documents] reveal on their face.” Starting with the first category of documents, HRMC has pointed to no evidence in the record that Shirley Trantham, who sent the 17 December 2007 e-mail, or Janet Ledford, who received it, were members of a medical review committee. The author and recipients of the 18 December 2007 memorandum are not even identified. Neither of these documents explicitly states that it was generated by members of a medical review committee or for a medical review committee’s consideration. There is absolutely no evidence in the record from which this Court can infer that either document is privileged under § 131E-95(b). See Brown, 183 N.C. App. at 535, 645 S.E.2d at 122 (holding that defendant failed to establish that board of directors meeting minutes were protected by attorney-client privilege because documents listed individuals as being present at meeting, but did not identify their positions and, therefore, defendant could not demonstrate that privilege had not been waived). The third document, the 19 December 2007 memorandum, indicates that it was authored by the Chair of the Intensive Care Unit at HRMC for Dr. Freeman “from the Hospital Board.” Nothing in the document itself and nothing in the record specifically identifies what “the Hospital Board” is. In plaintiff’s complaint, she alleges that she composed a letter to the Hospital Authority Board of Commissioners about her concerns. Even assuming arguendo that this is the “Hospital Board” to which the memorandum refers, the Supreme Court in Shelton, 318 N.C. at 84, 347 S.E.2d at 829-30, held that a hospital’s Board of Trustees does not fit the definition of a medical review committee. HRMC has, therefore, failed to present any evidence that the “Hospital Board” in the 19 December 2007 memorandum constituted a medical review committee within the meaning of N.C. Gen. Stat. § 131E-95(b). Turning to the second category of documents, HRMC contends that the six reports and Dr. Eisman’s curriculum vitae are documents generated by a medical review committee because MDReview, the apparent source of these documents, is a “peer review corporation or organization.” HRMC has, however, failed to point to any evidence in the record showing that MDReview is a peer review organization or corporation or that it authored those documents for that purpose. Although the reports identify themselves as peer review documents, as Hayes stated, “[t]he title, description, or stated purpose attached to a document by its creator is not dispositive ....” 181 N.C. App. at 752, 641 S.E.2d at 319. We, therefore, cannot conclude simply from a bare name that MDReview is a peer review organization or corporation. In any event, even if MDReview is a peer review organization or corporation, HRMC has not provided any evidence, as required by N.C. Gen. Stat. § 131E-76(5), that the reports were generated by “[a] committee of a peer review corporation or organization.” (Emphasis added.) In sum, HRMC submitted no affidavits or other evidence to support its claim that the documents at issue were protected from discovery under N.C. Gen. Stat. § 131E-95(b). In addition, the documents on their face do not establish that they are privileged. Thus, HRMC has failed to meet its burden of proof, and accordingly, we affirm the trial court’s order compelling discovery. Affirmed. Judges STROUD and ERVIN concur.