Hostile Work Environment Cases

COTTON v BANKS Docket No. 319001. Submitted February 10, 2015, at Detroit. Decided March 26, 2015, at 9:10 a.m. Tramaine Cotton brought a wrongful-termination suit in the Wayne Circuit Court against the state of Michigan and Brian Banks (a member of the Michigan House of Representatives by whom Cotton had been hired as a legislative assistant). Cotton alleged that Banks terminated his employment because Cotton rejected Banks’s romantic advances. Banks contended that he terminated Cotton’s employment after learning that Cotton had been driving without a valid driver’s license and that a bench warrant had been issued for Cotton’s arrest following his failure to appear at a court hearing related to a traffic violation. Cotton’s suit claimed that Banks discriminated against him on the basis of his sex, demanded sexual favors as a condition of employment, created a hostile work environment, and retaliated against him for reporting Banks’s conduct. Cotton also claimed that Banks’s conduct constituted the tort of intentional infliction of emotional distress. The state moved for summary disposition on the basis that it was not Cotton’s employer for purposes of his civil rights claim and that his intentional tort claim should have been brought in the Court of Claims. Banks claimed that his conduct was protected by the legislative immunity provided under the Speech or Debate Clause of Michigan’s Constitution, Const 1963, art 4, § 11, and moved for summary disposition on that basis. The court, Susan D. Borman, J., denied Banks’s motion and granted the state’s motion for summary disposition. The court also granted Cotton’s motion to amend his complaint to add the House of Representatives as a defendant. Cotton’s amended complaint alleged civil rights violations against Banks and the House of Representatives and one count of intentional infliction of emotional distress against Banks alone. Banks appealed. The Court of Appeals held,'. 1. The trial court erred by determining that the Civil Rights Act, MCL 37.2101 et seq., effectively waived the legislative immunity provided by the Speech or Debate Clause of the Michigan Constitution, Const 1963, art 4, § 11, for certain acts of legislators, because the Civil Rights Act did not expressly and unequivocally state such a waiver. Waiver of the constitutional immunity offered by the Speech or Debate Clause cannot be made by inference. 2. The trial court properly held that Banks was not immune from civil suit under the Speech or Debate Clause because terminating Cotton’s employment did not constitute activity within the legitimate sphere of legislative activity for which the immunity was intended. Banks’s decision to terminate Cotton’s employment was not integral to the legislative process. That is, Banks’s personnel management was not essential to the consideration and passage or rejection of proposed legislation, nor did it involve a matter solely within the jurisdiction of the Legislature. 3. Banks was not protected by the Speech or Debate Clause because his decision to terminate Cotton’s employment was administrative, not legislative, in nature. Whether the absolute immunity provided legislators by the Speech or Debate Clause protects a legislator from civil arrest and civil process for the legislator’s employment decisions does not depend on the nature of an employee’s duties. Rather, the immunity offered by the Speech or Debate Clause depends on whether the legislator is engaged in a true legislative act, not simply an act that has some connection to the legislative process. Trial courts must be careful to distinguish between a true legislative act, and an act that is merely performed by a legislator. 4. The trial court properly denied Banks’s motion for summary disposition, which was based on the ground that he was protected by the absolute immunity found in the Speech or Debate Clause. Banks was not entitled to absolute immunity because analysis of Banks’s alleged misconduct — terminating Cotton’s employment for improper reasons — did not require an investigation into Banks’s legislative activity. 5. The trial court did not err by denying Banks’s motion for summary disposition based on his contention that the Civil Rights Act provided the exclusive remedy for Cotton’s claim of sexual harassment and his consequent allegation of the common-law tort of intentional infliction of emotional distress. The Civil Rights Act did not abrogate Cotton’s right to bring suit against Banks, because the statutory language in the Civil Rights Act contains no reference to legislators, and it does not preclude an action for the intentional infliction of emotional distress even when the same facts could give rise to a statutory violation of the Civil Rights Act. Affirmed. 1. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Waiver. The Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., does not expressly and unequivocally waive the absolute immunity to which a legislator is entitled under the Speech or Debate Clause of the Michigan Constitution, Const 1963, act 4, § 11, and a waiver of the immunity cannot be made by inference. 2. Constitutional Law — Speech or Debate Clause — Legislative Immunity. The Speech or Debate Clause of the Michigan Constitution immunizes a legislator from civil arrest and civil process premised on actions that the legislator took within the legitimate sphere of legislative activity; a legislator’s conduct that is integrally related to the consideration and passage or rejection of proposed legislation or concerns a matter solely within the Legislature’s jurisdiction is engaged in conduct within the legitimate sphere of legislative activity. 3. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Employment Decisions. Whether a legislator is immune from civil arrest and civil process under the Speech or Debate Clause for decisions related to his or her staffs employment does not depend on the nature of an employee’s duties; whether a legislator is entitled to immunity depends on whether the legislator’s conduct constituted a true legislative act and was not merely an act performed by a legislator. 4. Constitutional Law — Speech or Debate Clause — Legislative Immunity— Investigation Into Legislator’s Conduct. A legislator is absolutely immune from civil arrest and civil process when evaluation of the legislator’s conduct would require an investigation into his or her legislative activity. Darryl K. Segars for Trámame Cotton. The Bradley Law Center, LLC (by Avery J. Bradley and Andrea J. Bradley), for Brian Banks. Dickinson Wright, PLLC (by Peter H. Ellsworth, Jeffery V. Stuckey, and Ryan M. Shannon), for the Michigan House of Representatives. Before: SERVITTO, P.J., and STEPHENS and M. J. KELLY, JJ. M. J. KELLY, J. In this employment dispute, defendant Representative Brian Banks of the Michigan House of Representatives appeals by right the trial court’s order denying his motion for summary disposition of the claims by Banks’s former staff member, plaintiff, Tramaine Cotton. The primary issue on appeal is whether Banks has absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for personnel decisions involving those members of his staff who might have involvement in the legislative process. See Const 1963, art 4, § 11. For the reasons fully explained below, we conclude that there were no errors warranting relief. Accordingly, we affirm. I. BASIC FACTS According to Cotton, Banks hired him in January 2013 to serve as a driver. Cotton alleged that, after his hire, Banks continuously expressed his desire to have a dating relationship with him, but Cotton rejected Banks’s advances. After Cotton made it clear that he would not agree to a romantic relationship, Cotton maintained that Banks began to assign him tasks that were beyond the scope of his employment and asked him to work on days he was not supposed to work. Cotton alleged that he was constructively discharged in April 2013. Banks, however, presented a very different version of events in the trial court. Banks stated that he hired Cotton in February 2013 to serve as a legislative assistant and that Cotton’s duties included responding to constituent concerns, attending functions, and driving Banks and other representatives between Detroit and Lansing. Banks claimed that he began proceedings to terminate Cotton’s employment after he learned that Cotton had been arrested for driving on a suspended license and had missed a court date, after which a bench warrant issued for Cotton’s arrest. He stated that Cotton was terminated from his employment in May 2013 for those reasons. In May 2013, Cotton sued Banks and the state of Michigan for wrongful termination. Cotton alleged that Banks violated Michigan’s Elliott-Larsen Civil Rights Act, MCL 37.2101 et seq., by discriminating against him on the basis of his sex, by demanding sexual favors as a condition of employment, by creating a hostile work environment, and by retaliating against him. Cotton also alleged that Banks’s sexual harassment constituted the intentional infliction of emotional distress. Cotton alleged that the state, as Banks’s employer, was vicariously liable for Banks’s wrongful conduct. In August 2013, the state moved for summary disposition under MCR 2.116(C)(4) and (10). The State argued that, because employees of the House of Representatives were excluded from state civil service, the State was not Cotton’s employer for purposes of the Civil Rights Act. The state also argued that the circuit court did not have jurisdiction over Cotton’s intentional tort claim — that claim had to be brought in the Court of Claims. Banks moved for summary disposition under MCR 2.116(C)(7) and (8) in September 2013. Banks argued that he was absolutely immune, under MCL 691.1407(5), from claims arising out of his termination of Cotton’s employment. He claimed he was entitled to immunity under an unpublished decision from a circuit court because his decision to terminate Cotton involved an integral part of the legislative process, but Banks did not specifically argue that he had immunity under Const 1963, art 4, § 11. Additionally, Banks argued that the trial court must dismiss Cotton’s claim of retaliation because Cotton did not plead that he reported the alleged sexual harassment to anyone before his discharge. Cotton’s claim for intentional infliction of emotional distress similarly had to be dismissed, Banks stated, because that claim, as alleged, involved wrongful sexual discrimination in employment, and the Civil Rights Act is the exclusive remedy for such a claim. In response, Cotton argued that the Civil Rights Act constitutes an exception to the immunity provided under MCL 691.1407 and, in any event, the acts of sexual harassment were outside the scope of Banks’s authority as a representative. He also maintained that the Civil Rights Act is not the exclusive remedy for the harms occasioned by sexual harassment. Therefore, he argued, the trial court should deny Banks’s motion for summary disposition. In his reply brief, Banks cited Const 1963, art 4, § 11, and for the first time argued that he had absolute immunity from suit under the Speech or Debate Clause of Michigan’s Constitution for any personnel decisions involving his staff. Banks argued that the undisputed evidence — namely the job description for a legislative assistant and copies of correspondence — showed that Cotton’s job duties were integrally related to the legislative process. On that basis, Banks claimed he was immune from liability for his actions related to Cotton’s employment. In October 2013, the trial court held a hearing on the motions. At the hearing, the trial court expressed its belief that the Civil Rights Act created an exception to all governmental immunity, including immunity provided under the Speech or Debate Clause. The trial court also did not believe that Cotton was so integrally related to the legislative process that immunity would apply. As for Cotton’s retaliation claim, the trial court refused to consider Banks’s evidence that Cotton did not report the alleged harassment because Banks’s motion was brought under MCR 2.116(C)(8). See MCR 2.116(G)(5). Additionally, the trial court did not agree that the Civil Rights Act preempted Cotton’s claims for intentional infliction of emotional distress. Finally, the trial court agreed that the state was not Cotton’s employer and that the claims against it should be dismissed. The trial court entered an order granting the state’s motion for summary disposition and dismissed the state without prejudice. It also entered a separate order allowing Cotton to amend his complaint to include the House of Representatives as a defendant. Finally, the trial court entered an order denying Banks’s motion for summary disposition. Cotton soon filed his first amended complaint naming the Michigan House of Representatives as a defendant. In his amended complaint, Cotton alleged that he reported the sexual harassment to his superiors. Cotton again alleged four counts against Banks and the House of Representatives premised on violations of the Civil Rights Act, and a fifth claim of intentional infliction of emotional distress against Banks alone. Banks then appealed in this Court. II. THE SPEECH OR DEBATE CLAUSE A. STANDARDS OF REVIEW Banks first argues that the trial court erred when it denied his motion for summary disposition, which was based on the ground that he was absolutely immune from suit under Const 1963, art 4, § 11. He maintains that Michigan courts should construe Michigan’s Speech or Debate Clause similarly to the federal courts’ construction of the federal Speech or Debate Clause. Relying on federal authority, Banks contends that this Court should conclude that the Speech or Debate Clause applies to bar any claims premised on acts or omissions arising from the legislative process. According to Banks, because his decision to terminate Cotton implicated the legislative process, the trial court should have determined that he had absolute immunity under Const 1963, art 4, § 11. This Court reviews de novo a trial court’s decision on a motion for summary disposition. Barnard Mfg Co, Inc v Gates Performance Engineering, Inc, 285 Mich App 362, 369; 775 NW2d 618 (2009). This Court also reviews de novo whether the trial court properly interpreted and applied Michigan’s Constitution. Wayne Co v Hathcock, 471 Mich 445, 455; 684 NW2d 765 (2004). B. CIVIL IMMUNITY UNDER THE SPEECH OR DEBATE CLAUSE Michigan’s Speech or Debate Clause provides legislators with a privilege against civil arrest and civil process during sessions of the Legislature and immunity from liability for their speech in either house: Except as provided by law, senators and representatives shall be privileged from civil arrest and civil process during sessions of the legislature and for five days next before the commencement and after the termination thereof. They shall not be questioned in any other place for any speech in either house. [Const 1963, art 4, § 11.] The purpose of the privilege from civil arrest and civil process, our Supreme Court explained, is “to protect the legislators from the trouble, worry and inconvenience of court proceedings during the session, and for a certain time before and after, so that the State could have their undivided time and attention in public affairs.” Auditor General v Wayne Circuit Judge, 234 Mich 540, 542; 208 NW 696 (1926) (construing Const 1908, art 5, § 8, the predecessor to the present Speech or Debate Clause). Although an unreasonably long period of immunity might result in the denial of due process in an extreme case, the privilege must generally be construed to give effect to the policy which underlies it: to prevent both actual distraction and potential distraction from public duty during the legislative session. Bishop v Wayne Circuit Judge, 395 Mich 672, 677; 237 NW2d 465 (1976). The immunity provision in the Speech or Debate Clause is similarly intended to protect legislators from the distraction of litigation. See Prelesnik v Esquina, 132 Mich App 341, 347; 347 NW2d 226 (1984). Read literally, the clause only provides senators and representatives with immunity for speeches made in either house — that is, from being “questioned in any other place for any speech in either house.” See Const 1963, art 4, § 11. Because Michigan’s Speech or Debate Clause is substantially similar to the Speech or Debate Clause found in the Constitution of the United States, it should be similarly construed. See Prelesnik, 132 Mich App at 347, citing Eastland v United States Servicemen’s Fund, 421 US 491; 95 S Ct 1813; 44 L Ed 2d 324 (1975). The United States Supreme Court has stated that the Speech or Debate Clause was the product of the English experience and was intended to ensure the independence of the legislative branch from interference by the executive branch or a possibly hostile judiciary. Eastland, 421 US at 502. But, the Court noted, it had not limited the protection provided by the Speech or Debate Clause to acts of interference by public officials: The applicability of the Clause to private civil actions is supported by the absoluteness of the term “shall not be questioned,” and the sweep of the term “in any other Place.” In reading the Clause broadly we have said that legislators acting within the sphere of legitimate legislative activity “should be protected not only from the consequences of litigation’s results but also from the burden of defending themselves.” Just as a criminal prosecution infringes upon the independence which the Clause is designed to preserve, a private civil action, whether for an injunction or damages, creates a distraction and forces Members to divert their time, energy, and attention from their legislative tasks to defend the litigation. Private civil actions also may be used to delay and disrupt the legislative function. Moreover, whether a criminal action is instituted by the Executive Branch, or a civil action is brought by private parties, judicial power is still brought to bear on Members of Congress and legislative independence is imperiled. We reaffirm that once it is determined that Members are acting within the “legitimate legislative sphere” the Speech or Debate Clause is an absolute bar to interference. [Id. at 503 (citations omitted).] Consequently, in the absence of a waiver of the immunity, the Speech or Debate Clause immunizes a legislator from civil suits premised on actions that he or she took within the legitimate sphere of legislative activity. Id. C. WAIVER OF IMMUNITY UNDER THE ELLIOTT-LARSEN CIVIL RIGHTS ACT Banks initially argued that the trial court should dismiss Cotton’s claims because Banks had immunity under MCL 691.1407(5), and Cotton failed to plead in avoidance of that immunity. See Yono v Dep’t of Transp (On Remand), 306 Mich App 671, 682; 858 NW2d 128 (2014) (stating that a plaintiff must plead in avoidance of governmental immunity by alleging facts that, if true, would establish that his or her claim falls within an exception to governmental immunity). Cotton did, however, plead claims under the Civil Rights Act, and our Supreme Court has recognized that the act constitutes an exception to the immunity provided by MCL 691.1407. See Mack v Detroit, 467 Mich 186, 195; 649 NW2d 47 (2002). Banks later asserted before the trial court that he was also entitled to immunity under the Speech or Debate Clause, Const 1963, art 4, § 11. On appeal, Banks has abandoned any contention that MCL 691.1407 immunizes him from claims brought under the Civil Rights Act; instead, he now relies exclusively on the Speech or Debate Clause as the source of his immunity. Defendant Michigan House of Representatives notes that at the hearing on Banks’s motion for summary disposition, the trial court expressed its belief that there was no immunity for a

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