Hostile Work Environment 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

William Vranos vs. Michael D. Skinner & others. No. 08-P-2006. Franklin. November 5, 2009. July 19, 2010. Present: McHugh, Vuono, & Meade, JJ. Practice, Civil, Motion to dismiss, Complaint. Contract, Performance and breach, Employment, Implied covenant of good faith and fair dealing, Interference with contractual relations. Doctor, Employment. Hospital, Peer review. Civil Rights, Coercion. Libel and Slander. In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claims of breach of contract and breach of the implied covenant of good faith and fair dealing, which were based on a theory that the hospital’s bylaws and staff policy created a contract between the hospital and the plaintiff, where the plaintiff failed to comply with the provisions in the bylaws containing extensive review processes; where the plaintiff could not demonstrate that a course of conduct, oral representations, or other aspects of the plaintiff’s tenure at the hospital somehow eroded the review process provisions; and where the plaintiff could not demonstrate that the provisions were facially invalid or that he was excused from complying with them. [287-290] In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claim alleging a violation of G. L. c. 12, § 111, the Massachusetts Civil Rights Act, where the defendants’ actions effected neither a surrender of the plaintiff’s right to work nor his right to express opinions [290]; further, the judge correctly granted the defendants’ motion to dismiss the plaintiff’s claim of interference with contractual and advantageous relations, where the plaintiff’s allegations that the defendants’ activities “jeopardized” the plaintiff’s existing or anticipated relationships were not sufficient to state a claim [290-291]. In a civil action brought by a plaintiff surgeon following the summary suspension of his staff privileges at a hospital, the judge did not err in granting summary judgment in favor of the defendants (the hospital, its president, and its director of surgical services) on the plaintiff’s defamation claims, where, to the extent the claims were based on the content of the summary suspension letter issued by the president, such a document constituted a peer review document and, by virtue of G. L. c. Ill, §§ 204(a) and 205(6), was inadmissible in any judicial proceeding and thus could not serve as a basis for a viable defamation claim [293-295]; further, the fact of the plaintiff’s suspension, by itself, could not serve as the basis for a defamation claim, where the suspension was the result of the peer review process, which is statutorily immunized from judicial review [295-296]; finally, allegedly defamatory statements that the president made to hospital staff, when considered in context, added nothing to whatever defamatory sting flowed from the suspension itself [296-297], Civil action commenced in the Superior Court Department on March 3, 2005. Following review by the Supreme Judicial Court, 448 Mass. 425 (2007), the case was heard by Constance M. Sweeney, J., on a motion for summary judgment. Thomas T. Merrigan (Peter M. Merrigan with him) for the plaintiff. Francis D. Dibble, Jr., for the defendants. Kenneth Gaspard and Franklin Medical Center. McHugh, J. After his staff privileges at Franklin Medical Center (FMC) were summarily suspended, Dr. William Vranos, an orthopedic surgeon, commenced this action against FMC, Michael D. Skinner, R.N., who is the FMC president, and Kenneth Gaspard, R.N., FMC’s director of surgical and material services. Vranos’s complaint contains six counts: defamation against Gaspard (Count I); defamation against Skinner and FMC (Count II); breach of contract by FMC (Count III); violation of the duty of good faith and fair dealing by FMC (Count IV); violation of G. L. c. 12, § 111, the Massachusetts Civil Rights Act, against Skinner and FMC (Count V); and interference with contractual and advantageous relations by Skinner (Count VI). Early in the case, a judge of the Superior Court allowed the defendants’ motion to dismiss all counts of the complaint save the two alleging defamation. Discovery followed and, among other things, produced a dispute regarding the application and impact of the peer review statute, G. L. c. 111, §§ 203-205. The Supreme Judicial Court resolved that dispute, see Vranos v. Franklin Med. Center, 448 Mass. 425 (2007), and discovery proceeded to a conclusion. The defendants then moved for summary judgment on the defamation counts. The same Superior Court judge allowed the motion, and the resulting judgment dismissed the entire case. Now Vranos appeals, seeking reinstatement of all counts except Count I, which asserted the defamation claim against Gaspard. We affirm, though for reasons that do not in all instances track those set out by the motion judge in her thoughtful memorandum of decision. Because the complaint provides a context for all of the claims at issue on this appeal, we begin our review by examining the allegations it contains and the four claims dismissed for facial insufficiency. Then, using a different standard, we turn to the defamation claim and to the additional facts supplied by the affidavits and other materials the parties filed in connection with the summary judgment proceedings. 1. The motion to dismiss (Counts III through VI). a. Facts. Our initial approach to the complaint’s allegations is a limited one. Counts III through VI were dismissed pursuant to Mass. R.Civ.P. 12(b)(6), 365 Mass. 754 (1974), for failure to state a claim on which relief could be granted. Accordingly, in reviewing that dismissal, we are limited to facts alleged in the complaint itself and to the inferences reasonably drawn when those allegations are viewed in the light most favorable to the plaintiff. See, e.g., Warner-Lambert Co. v. Execuquest Corp., 427 Mass. 46, 47 (1998); Karty v. Mid-America Energy, Inc., 74 Mass. App. Ct. 25, 26 (2009). Read with that standard in mind, the complaint reveals that Vranos, a board-certified orthopedic surgeon, had been on the FMC staff since July, 1996. From January, 2002, through November, 2004, he had been chief of the FMC department of surgery. Throughout that period, Vranos was also a partner in the Franklin Orthopedic Group, which is not affiliated with FMC. Both FMC and the Franklin Orthopedic Group are located in Greenfield. For several months before the summary suspension at the heart of this case, Skinner tried to recruit Vranos to leave the Franklin Orthopedic Group and establish a competing practice at FMC. In late August, 2004, Vranos declined and, instead, accepted a position at Brattleboro Memorial Hospital, across the Vermont State line less than twenty miles north of Greenfield. The new position was effective January 1, 2005, and Skinner was concerned that Vranos’s move would produce a loss of orthopedic surgical cases at FMC. Vranos’s year-end departure, however, was not the only event roiling the surgical services department at FMC in the fall of 2004. On October 19, forty-nine members of the department of surgery, including Vranos, signed a “Memorandum of Concern” relating to Gaspard and his assistant, Kim Cotter. The memorandum, copies of which were delivered to Skinner, Gaspard, and Cotter, focused on whether Gaspard and Cotter were fit to manage the FMC surgical department. The specific events that led to this lawsuit began on October 28, 2004, when Vranos attended a regular meeting of the FMC surgical services support committee. The other three attendees were Dr. Henry K. Godek, chief of anesthesia, Gaspard, and Cotter. At the meeting, a heated disagreement between Vranos and Gaspard over a surgical services policy quickly ensued. Gaspard insisted that Vranos sign the policy and, when Vranos refused, Gaspard threatened to cancel all of Vranos’s surgical cases for the day. The animated exchange lasted about five minutes, after which the meeting ended and Vranos returned to his medical responsibilities, performed surgeries, and interacted without incident with Gaspard and Cotter during the course of the day. At some point shortly after the meeting, Gaspard reported to Skinner, falsely the complaint alleges, that Vranos had physically threatened and verbally abused him during the meeting and that Vranos had previously engaged in disruptive behavior and unprofessional conduct. Cotter also informed Skinner that Vranos had offended her on several occasions, though the complaint does not allege that those reports were false. Late in the afternoon of October 29, 2004, Skinner delivered to Vranos a letter imposing a summary suspension on Vranos’s medical staff membership and clinical privileges at FMC. In material part, the letter stated: “The grounds for this summary suspension are an incident that occurred on October 28, 2004, in the context of a history of disruptive behavior and unprofessional conduct by you at FMC. On October 28, 2004, in a meeting of the Operating Room Management Committee, you used intimidating, abusive, and hostile language and exhibited threatening behavior, including picking up a stack of papers and slamming them down on the table, picking up a chair and slamming it down in the conference room, and placing yourself physically close to one or more individuals while speaking in a loud, angry, and confrontational manner. Your behavior and conduct during this incident and at FMC has been perceived to be intimidating, abusive, hostile, and physically threatening.[]” The letter also described the appellate rights available to Vranos under the FMC bylaws. Before issuing the letter, Skinner did not ask Vranos for his version of events, nor did he contact Godek to obtain his recollections and observations. The suspension, Vranos alleges, was issued in retaliation for his decision to move his practice to Vermont and his challenge of Gaspard and Cotter’s management style. Under an FMC bylaw provision, Vranos’s summary suspension was automatically and quickly presented to the FMC medical staff summary suspension review committee (review committee) on which Skinner served as one of four members. Ultimately, the committee recommended that the suspension be lifted on three conditions, one of which was that Vranos resign as FMC’s chief of surgery. That recommendation was promptly approved by the FMC board of trustees (trustees). Vranos alleges in his complaint that he was not “allowed to appear before and make a presentation to” the review committee or to the trustees. However, before issuing its decision, the review committee considered a written submission from Vranos, along with written submissions from Godek, other physicians who supported Vranos, and “documentation concerning prior incidents of disruptive behavior by [Vranos] at FMC.” All of the parties agree that the FMC medical staff bylaws (bylaws) and staff regulations apply, and, as the motion judge noted, these bylaws and regulations govern the summary suspension letter and the subsequent committee actions. Three segments of those documents are of particular importance to our review of the motion to dismiss. The first is appendix 3, part 2, § 2.1, of the bylaws. That section provides that a summary suspension may only be imposed “whenever the failure to take such action may result in an imminent danger to the life, health, or safety of an individual or otherwise whenever a practitioner’s acts or conduct require that immediate action be taken: “(a) To protect the life of any patient; “(b) To reduce the substantial likelihood of injury or damage to the health or safety of any patient, employee, or other person at the Medical Center; or “(c) For the continued effective operation of the Medical Center.” If those criteria are met, § 2.1 authorizes a number of FMC officials, including Skinner, to suspend summarily a physician’s medical staff membership or clinical privileges or both. Within three business days following a summary suspension, however, a review committee must convene to review the summary suspension and advise the trustees “to continue, modify, or terminate the terms of the summary suspension.” The review committee may also “recommend additional corrective action concerning the [physician], up to and including termination of the [physician’s] Medical Staff membership or all or any portion of the [physician’s] clinical privileges, or both.” Part 2 of the appendix is followed by additional parts dealing with such things as hearings after adverse action, procedures for the conduct of hearings, including the right to counsel, the right to call witnesses, the right to cross-examine adverse witnesses, and appellate review of adverse hearing results. The appendix ends with part 10, containing § 10.2, the second of the three provisions of particular importance. In material part, § 10.2 provides: “Whenever any adverse recommendation or [other] adverse action ... is recommended or taken, the practitioner shall be entitled only to the remedies afforded by this Appendix 3, Corrective Actions and Fair Hearings, and shall exhaust such remedies. By requesting a hearing or appellate review under this Appendix 3, the practitioner agrees that any final action of the Board of Trustees following such hearing or appellate review shall be final and binding on the practitioner.” It is undisputed that the action taken by the trustees was “adverse action” within the meaning of § 10.2. Finally, the third pertinent provision comes from FMC’s medical staff policy on disruptive behavior, which requires that reports of disruptive behavior be documented in writing and submitted to the FMC patient care assessment coordinator for review, investigation, and any necessary corrective action. The affected staff member must be given notice of the report and an opportunity to respond, though the policy also states that it is not intended to preempt or interfere with other corrective action and disciplinary action described in the bylaws. The policy defines “disruptive behavior” broadly to include “[b]ehavior or conduct, whether verbal or physical, that has, or potentially may have, an adverse effect on the delivery of quality patient care, or that disrupts, or has the potential to disrupt, FMC or Medical Staff operations.” b. Discussion. In assessing the adequacy of a complaint, we read the complaint’s allegations generously and in the plaintiff’s favor. To withstand dismissal, the complaint’s factual allegations, so read, “must be enough to raise a right to relief above the speculative level.” Iannacchino v. Ford Motor Co., 451 Mass. 623, 636 (2008), quoting from Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). We therefore look to see whether there are in the complaint “ ‘allegations plausibly suggesting (not merely consistent with)’ an entitlement to relief, in order to ‘reflect[] the threshold requirement of [Mass.R.Civ.P.] 8(a)(2) that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” ’ ” Ibid., quoting from Bell Atl. Corp. v. Twombly, supra at 557. (i) Counts III & IV — breach of contract & breach of the covenant of good faith and fair dealing. The complaint alleges that the FMC bylaws and staff policy on disruptive behavior constitute a contract between FMC and Vranos. The complaint also alleges that the suspension and actions surrounding its issuance and removal breached the contract and one of its implied terms. The complaint does not allege, however, that Vranos availed himself of the extensive review processes the bylaws contain. Unless compliance with those processes is somehow excused, that is an insurmountable problem, for our cases have established that “[w]here employment rights are contractual, and the contract establishes an internal grievance procedure for resolving disputes, the procedure ought to be followed.” Berkowitz v. President & Fellows of Harvard College, 58 Mass. App. Ct. 262, 275 (2003) (tenure selection). Accord O’Brien v. New England Tel. & Tel. Co., 422 Mass. 686, 696 (1996). Although the contractual relationship between Vranos and FMC was not, strictly speaking, an “employment” relationship, the relationship governed Vranos’s ability to perform surgery and otherwise treat patients at FMC, and it provided the basis for oversight, peer and other, of his interaction with patients. The peer review process, which formed an important part of that relationship, was driven by public policy and patient care considerations embodied in statutory mandates. See, e.g., G. L. c. 111, § 203. See generally Carr v. Howard, 426 Mass. 514, 518 (1998); Mass. G. Evid. § 513 (2010). Consequently, the importance of complying with the contractual review processes is no less compelling in this case than it is when the contract covers the ordinary employer-employee relationship. See generally Katz v. Children’s Hosp. Corp., 33 Mass. App. Ct. 574 (1992). Indeed, because the review processes may have an impact on patient care even if patient care was not immediately affected by the conduct under review, compliance with the internal review processes is even more important than it is in the typical employer-employee relationship. Vranos’s arguments to the contrary are unpersuasive. His claim that “[t]he allegations [of the complaint] are sufficient to permit proof of an oral contract or a contract implied infact, and the evidence may show that the by-laws’ limitations on the employees’ privileges were not controlling,” Hobson v. McLean Hasp. Corp., 402 Mass. 413, 416 (1988), is simply not borne out by the contents of the complaint even when read with the requisite indulgence. The complaint does not allege, nor does it plausibly point to, a course of conduct, oral representations, or other aspects of Vranos’s tenure at FMC that somehow implicitly eroded the extensive and carefully constructed bylaws and other provisions he seeks to avoid, provisions driven by patient care concerns governing statutes embrace. Next, Vranos’s argument that the finality provisions of appendix 3, § 10.2, unfairly deprive him of all access to judicial review amounts to a facial attack on the elaborate hearing and appeal provisions appendix 3 contains. Like most such attacks, see, e.g., O’Brien’s Case, 424 Mass. 16, 23-24 (1996); Commonwealth v. Blair, 60 Mass. App. Ct. 741, 749 n.15 (2004), Vranos’s challenge necessarily and inappropriately assumes that the process will inevitably produce an unfair result. Neither a particular component of the review provisions nor the provisions as a whole describe a deck so stacked that unfairness is the likely outcome. On the contrary, the review process includes the right to counsel, the right to confront witnesses, the right to discovery, and other procedural devices that lie at the very heart of the judicial system. While the “Office of the [FMC] CEO” appoints the hearing panel, it must do so “after considering any recommendations of the President of the Medical Staff or of the Chair of the Board of Trustees,” it must appoint an “impartial Hearing Officer,” and any results the process produces must be approved by the trustees before they become effective. Beyond that, similar “finality” provisions are common ingredients of other nonjudicial mechanisms for grievance resolution, and those provisions have not eliminated the ability to obtain some judicial review of resulting decisions. See, e.g., Acmat Corp. v. Daniel O’Connell’s Sons, Inc., 17 Mass. App. Ct. 44, 49 (1983); Katz. v. Children’s Hosp. Corp., 33 Mass. App. Ct. at 575. There is no reason to assume that an appropriate level of review would be unavailable here. Finally, Vranos claims that he was excused from following the grievance procedures bec