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Massachusetts SJC’s Decision in Bulwer v. Mount Auburn Hospital Stops Erosion of Right to Jury Trial in Employment Cases

Among lawyers who represent employees in discrimination lawsuits, the most maligned rule of civil procedure is Rule 56, which governs summary judgment—a time-consuming, expensive, and frequently unfairly applied procedure in which judges decide cases on paper instead of allowing juries to hear the parties’ evidence.  In Massachusetts, the Supreme Judicial Court’s recent decision in Bulwer v. Mount Auburn Hospital should help to discourage employers from filing motions for summary judgment, and help plaintiffs to get their cases before a jury.

Motions for summary judgment ask the court to enter judgment for a party prior to trial and without allowing a jury to hear the evidence.  Either side can make such a motion, and in cases where the parties agree on the basic facts, summary judgment can be a useful tool for resolving cases that turn purely on a question of law without expending resources on a full trial.  In the practice of employment law, though, the employment defense bar devoted to protecting companies from discrimination claims has successfully perverted summary judgment into a tool for taking the ultimate contested issue of fact—whether the employer chose to fire or otherwise take action against the plaintiff because of his or her race, gender, sexual orientation, disability, or age—away from the jury.  Instead, employment defense lawyers ask judges to answer that question based on a paper record, depriving the plaintiff of the chance to tell his or her story.  Judges, unfortunately, have been all too eager to accept the invitation to substitute their own judgment of the evidence for that of a jury, and summary judgment has become an important hurdle for many employment plaintiffs—one that can be difficult and costly to surmount.

The SJC’s decision in Bulwer may be important in changing that trend in Massachusetts.   That isn’t because it works a ground-breaking change in the law–the court states at the outset of the decision that it will address three legal issues, but in addressing those concerns, the court simply upholds its own precedents. What is most noteworthy about the decision, to my reading, is not that the SJC sticks by its prior precedents, but how it treats the evidence in the case at issue, and the example it sets about how judges should treat an employment case at the summary judgment stage.

Among the specific legal issues that the SJC addresses in Bulwer is whether or not the court, in ruling on a motion for summary judgment, should weigh or otherwise evaluate the evidence.   The court holds that it should not—an unsurprising conclusion in light of its own past statements that at the summary judgment stage a court “does not resolve issues of material fact, assess credibility, or weigh evidence.”  What is notable in the decision is how the court’s ruling exemplifies that principle.

Bernard Bulwer, the plaintiff in the case, came to the United States from Belize, where he was a practicing medical doctor, and enrolled in a residency program at Mount Auburn Hospital to become certified to practice medicine in this country.  Less than a year later, the hospital declined to renew his employment, then terminated his contract.  The parties disagreed regarding why he was terminated, and in its motion for summary judgment, the hospital claimed that it acted based on his employment evaluations, which it alleged reflected professional judgment, not racial bias.  The SJC held that the plaintiff had produced enough evidence that the question of the employer’s motivation should go to a jury.  The court noted that while many evaluators did criticize the plaintiff’s performance, many others did not; that interns of other races who had issues were given opportunities to remediate or repeat rotations, while the plaintiff was not; that Caucasian doctors with performance issues were not disciplined for deficient performance until long after complaints were made; that comments by evaluators and supervisors could be read as reflecting stereotypical thinking; and that the defendants did not follow their own written procedures when deciding to terminate the plaintiff.  This is all inconclusive–the employer might have been able to explain away the evidence or a jury might read it as non-discriminatory—but the court correctly held that looking at all of the plaintiff’s evidence as a whole, rather than viewed in isolation, a rational jury could decide that the employer’s explanation for the plaintiff’s termination was false.

The court’s treatment of the comments by evaluators is particularly noteworthy.  The comments included criticism that the plaintiff was “too confident for his own good;” that someone in his position as an “intern is not supposed to be smart,” and “[t]hat is why all of this [criticism] is happening;” that he was “the least respectful person with whom [the evaluator] had ever worked” with “no capacity whatsoever for self-assessment;” and that he “is not well suited for a career in internal medicine in this country.”  As evidence of discrimination, such comments are not a smoking gun—but a plaintiff in a discrimination case is not supposed to have to produce a smoking gun to prevail, particularly at the summary judgment stage.  Accordingly, the court held:

These kinds of comments can, of course, admit of different interpretations by a jury, including ones reflecting only untainted professional judgment.  One interpretation that a jury could make of such comments, however, is that, combined with Bial’s behavior, they reflect a subconscious sense that the plaintiff, as a black man and a foreigner, did not “know his place.”

Accordingly, the court declined the defendants’ invitation to substitute its own reading of the comments and left it to a jury to decide on their meeting, in the context of all of the evidence it hears in the case.

In one cogent and entertaining take on the summary judgment situation in the federal courts, the Honorable Mark W. Bennett of the United States District Court in the Northern District of Iowa writes: “The time has come to recognize that summary judgment has become too expensive, too time-consuming for the parties and the judiciary, and too likely to unfairly deprive parties—usually plaintiffs—of their constitutional and statutory rights to trial by jury.”  Judge Bennett proposes temporarily eliminating, or at least dramatically modifying, federal Rule 56 to deal with the problems that summary judgment poses for employment plaintiffs in particular.  It seems unlikely that the state or federal courts will adopt that solution in the near future—but, at least in Massachusetts, employment plaintiffs can rely on Bulwer to argue that courts should leave the difficult and complex factual issue of discriminatory intent to the jury.

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