Discrimination 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