Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 10-025-16)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us SJC-11875 BERNARD E. BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] Middlesex. November 3, 2015. – February 29, 2016. Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, & Lenk, JJ. Hospital, Appointment to staff. Anti-Discrimination Law, Race, Employment. Employment, Discrimination. Contract, Employment, With hospital, Performance and breach. Practice, Civil, Summary judgment. 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. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review. Robert R. Hamel, Jr. (Megan E. Kures with him) for the defendants. Denzil D. McKenzie (James E. Clancy, IV, with him) for the plaintiff. James A.W. Shaw, for Massachusetts Employment Lawyers Association, amicus curiae, submitted a brief. LENK, J. Massachusetts law prohibits employers from discriminating against their employees on the basis of, among other things, race or national origin. See G. L. c. 151B, § 4. Because direct proof of such discrimination is rarely available, employees filing claims under G. L. c. 151B, § 4, are permitted to prove discrimination without direct evidence of discriminatory intent, by relying on evidence that their employers gave a “false reason,”[2] or pretext, for terminating their employment. In this case, we address whether the plaintiff has produced sufficient evidence of pretext to survive his former employer’s motion for summary judgment. In doing so, we clarify the evidentiary burdens each party faces after one party has moved for summary judgment. We address, in particular, three concerns: whether the evidence on which an employee relies to survive a defendant’s motion for summary judgment need show not only that the defendant’s stated reason was false, but also that it concealed a discriminatory purpose; whether it is the plaintiff’s burden to persuade the motion judge based on that evidence that there is an issue of material fact appropriate for trial; and, finally, whether, in discerning the existence of an issue of material fact, the motion judge may weigh or otherwise evaluate the evidence. The plaintiff, Bernard E. Bulwer, is a black male of African descent who is originally from the Central American country of Belize. The plaintiff has a medical degree from the University of the West Indies, and practiced medicine outside the United States until […]
Bulwer v. Mount Auburn Hospital, et al. (Lawyers Weekly No. 11-118-14)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11-P-1583 Appeals Court BERNARD BULWER vs. MOUNT AUBURN HOSPITAL & others.[1] No. 11-P-1583 Middlesex. November 26, 2012. – September 24, 2014. Present: Berry, Kafker, Meade, Sikora, & Wolohojian, JJ.[2] 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 Interference. Practice, Civil, Summary judgment. 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. 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.[3] 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 novo 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, […]
T. Butera Auburn, LLC, et al. v. Williams, et al. (and a companion case) (Lawyers Weekly No. 11-051-13)
NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us 11‑P‑1230 Appeals Court T. BUTERA AUBURN, LLC, & another[1] vs. ROSEMARIE WILLIAMS & another[2] (and a companion case[3]). No. 11‑P‑1230. Worcester. May 1, 2012. ‑ April 17, 2013. Present: Green, Grainger, & Rubin, JJ. Veterinarian. Contract, Performance and breach, Damages. Consumer Protection Act, Unfair or deceptive act, Damages, Attorney’s fees. Damages, Consumer protection case. Practice, Civil, Costs. Civil actions commenced in the Superior Court Department on July 31 and August 23, 2007, respectively. After consolidation, the breach of contract and G. L. c. 93A claims were tried before John S. McCann, J.; following trial, the remaining claims were heard by him on a motion for summary judgment. Stephen J. Waite for T. Butera Auburn, LLC, & others. Jessica Parenti for Rosemarie Williams & another. RUBIN, J. These cross appeals stem from litigation over the sale of a veterinary practice. The issues appealed relate to breach of contract and G. L. c. 93A, § 11. Background. Rosemarie Williams and Feline Health, Inc. (collectively, Williams), operated a feline veterinary practice in Auburn named The Cat Hospital of Auburn (TCH). TCH was licensed by the Department of Public Health to handle radioactive material, iodine-131 (I-131), in order to treat cats using radioactive chemicals. There are few veterinary practices in the Commonwealth that are licensed to conduct feline nuclear medicine, which arguably made TCH a valuable prospective acquisition for the purchasers, T. Butera Auburn, LLC, and S. Thomas Butera (collectively, Butera). The radioactive materials handling license listed TCH as the licensee, and “Rosemarie M. Williams, D.V.M.,” as the supervisor and “Radiation Safety Officer.” The parties signed an asset purchase agreement (APA), by which Butera purchased TCH’s assets for $ 800,000 cash and a promissory note (Note) whereby Butera would pay Williams an additional $ 400,000 over fifteen years. As part of the transaction, the parties also signed an employment agreement, and Williams became employed by Butera on an at-will basis. The APA contained a two-year noncompetition/nonsolicitation provision encompassing an area with a thirty-mile radius extending from TCH. This noncompetition clause proscribed the solicitation by Williams of Butera’s clients and any action by Williams that would “directly or indirectly . . . impair the goodwill” or “the business reputation or good name” of Butera, or “be otherwise detrimental to” Butera. In addition, under the APA, Butera […]