Bulwer v. Mount Auburn Hospital

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revision and are superseded by the advance sheets and bound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.

1
Eric Flint, Ricardo Wellisch, and Lori Balestrero.
2
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.
 2

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

3
Bulwer also asserted claims for breach of health insurance
obligation, and intentional and negligent emotional distress.
However, he raises no issue on appeal with respect to the
adverse summary judgment ruling on those claims.
 3

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, 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
 4

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,4 the ACGME required that:

"e. Conditions for reappointment;

4
The ACGME also required that "ACGME-accredited programs
must not discriminate with regard to sex, race, age, religion,
color, national origin, disability, or veteran status." This
requirement does not appear to add anything of substance to
G. L. c. 151B.
 5

"(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-accredited 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.
 6

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.

". . .
 7

"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

e]xcellent 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]orks hard[, is a] [w]onderful person[, and g]reat

with patients and staff," and that he is" [v]ery knowledgeable,

extremely hardworking and conscientious[, and h]as great

rapport with fellow physicians and staff."5 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

5
Two others rated him "average," also noting Bulwer's
positive work habits.
 8

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 houseofficers who have rotated in
the E[mergency] D[epartment] 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-Il 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
 9

knowledge relative to their peers. Bulwer scored in the top

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] D[epartment] 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 then with you,
but they are really quite harsh, and that led to a whole
series of other discussions that we had and a reflection
 10

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.6

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

6
Bulwer contends that these meetings did not occur because
of Balestrero's schedule, while she contends the opposite. On
summary judgment, this dispute must be resolved in favor of
Bulwer.
 11

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 ensur[ing] 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.
 12

"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."7

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 . . .

speaking continuously" without permitting Bulwer to respond.

When Bulwer met with his adviser, Balestrero, on January

18, 2006, to review his progress, she stated that he had

received good reports and that "the past [was] behind [him]."

This was the first and last meeting Balestrero had with him

concerning his progress after December 1, 2005, when he had been

told he would have weekly progress meetings with her.

Bulwer next rotated into cardiology, where two reviewers

gave him highest marks, and one reviewer gave him mixed marks.

The only narrative review provided for that month read:

"[Bulwer] worked well [with] team this month. He
repeatedly brought in articles to support his presentations
& teach team. This is very commendable. Could have a
little more poised presentations (ie: why is p[atien]t in

7
Song also reported that another physician in the MICU had
also had reported that she never had any problems with Bulwer's
performance, that he did a very good job, and that he "tucked
his patients in tightly" (a phrase apparently meaning that he
left no loose ends).
 13

the hosp[ital]/what's keeping him/her here?). Cardiology
knowledge base is excellent! Would encourage ↑ [greater]
communication [with] nurses to make sure everyone is in the
loop."

Outside of these rotations, Bulwer also received favorable

reviews for his performance in the continuity clinic and from

Dr. Ramona Dvorak, the director of consultation-liaison

psychiatry at the hospital:

"I have been impressed with Dr. Bulwer's thorough knowledge
of the medical issues arising with his patients. He always
gives me a complete, well organized and well thought out
presentation of the case. He puts forth a psychological
formulation of his impressions or concerns that demonstrate
an astute integrative style in which he considers many
levels of the patient's situation. I have always found him
to be extremely engaging, personable, open, extremely
bright, articulate and willing to learn. He is verbal,
active in teaching rounds, and brings up sensitive and
essential cultural and psychosocial issues that many
trainees at his level do not consider when thinking of
patients. He is an independent thinker, yet I have found
him to take in feedback well and add an interesting
personal and cultural dimension to patient care. I feel
that his unique cultural and clinical background has
enriched learning experiences with his peers and with
patient care that has made an important contribution to the
Mount Auburn Hospital milieu."

c. Adverse employment actions and Bulwer's appeal from

them. On March 17, 2006, Flint told Bulwer that he would not be

promoted because his work was not up to the standard required of

a first-year resident in the areas of patient care, especially

complex cases, and communication around cases. Bulwer

questioned the quality of the feedback on which the decision was
 14

based and wanted to acquire additional points of observation,

and a follow-up meeting was scheduled for the next week.

On April 5, 2006, Bulwer was formally notified by Flint

that his contract would not be extended for a second year

because of concerns in the areas of patient care, interpersonal

and communication skills, and practice-based learning (i.e., the

ability to gain insight from feedback). These concerns were

based on observations "some of which have been documented and

some of which have not."

Bulwer was informed of his right to appeal the decision

under the ACGME requirements, and he was provided with a copy of

the hospital's "Houseofficer Evaluation/Grievance/Due Process

Policy" which contained the provisions set out above. Bulwer

invoked his right to appeal and, as a result, an ad hoc appeal

committee (ad hoc committee) was established. That committee

met and deliberated on three occasions, April 24, May 2, and May

9, 2006. Bulwer was present only at the first; he was not

invited to attend the second and third days of the hearing, nor

did he receive any of the materials submitted those days despite

his request. Extensive -- and important -- testimony concerning

his performance was heard during the second and third sessions.

For example, Balestrero testified extensively during the second

day of the hearing, and the ad hoc committee members' discussion

after her testimony demonstrates that it affected their view of
 15

the case. The ad hoc committee also heard from Dr. Carey

Thomson and from Setnik, who both gave substantive evaluations

of their experiences working with Bulwer, and from Dr. Ricardo

Wellisch, chair of the CCC, who did the same. The evidence

before the ad hoc committee was not uniformly critical of

Bulwer, and indeed, there was some praise of his work. At the

end of the second day of the hearing, Dr. Charles Hatem, the

chair of the ad hoc committee, commented that "it is interesting

how one set of behaviors can elicit such different perception,"

and he determined that additional discussion and thought would

be necessary to reach a conclusion about Bulwer.

The record does not contain a transcript of the third ad

hoc committee meeting. However, after the third session, the ad

hoc committee confirmed the decision of the CCC not to extend

Bulwer's contract for a second year for the same reasons

articulated by Flint,8 and a letter dated May 17, 2006, from Dr.

Stephen Zinner, chair of the department of medicine, so informed

Bulwer.

Also on May 17, the hospital terminated Bulwer, effective

immediately, for

"serious additional concerns about his performance [that]
have arisen over the past 3 weeks while his review was in

8
The hospital notified Bulwer of his right to appeal the
decision of the ad hoc committee, which he did, although it
appears he did not follow the proscribed procedure.
 16

progress[.] Dr. Flint made the decision that in the
interest of patient safety at Mount Auburn Hospital, Dr.
Bulwer should be immediately relieved of his
responsibilities as a medical intern."

The record does not reflect that immediate termination was ever

formally made a part of the ad hoc committee process or that the

additional patient safety issues were discussed by that

committee. (No mention of them is in the transcripts of the

first or second sessions). Instead, the decision to terminate

Bulwer was made after the last meeting of the ad hoc committee.

Indeed, the hospital admits that Bulwer was never informed that

the ad hoc committee was considering terminating him due to

alleged patient safety risks. The hospital also admits that the

first Bulwer learned of this possibility was when he was

notified of his termination.

d. Posttermination events. On May 17, 2006, Flint sent a

mass e-mail to employees of the hospital informing them that

Bulwer had been terminated. He concluded the e-mail: "The

decision was clear. Yet the need to take this action was most

unfortunate and the consequences for Dr. Bulwer's future are

large. I wish him the best in his future endeavors and I hope

he finds a career path that is best suited to his strengths."

The next day, Flint sent another group e-mail, this time to

all residents:
 17

"Some of you may have heard that Bernard Bulwer is no
longer working with us in our program, so I wanted to offer
a few words regarding this.

"The Clinical Competence Committee (CCC, made up of
all the docs that serve as advisors) meets from time to
time to review performances of all residents. Over the
winter, the issues regarding Dr. Bulwer were discussed and
shared with him in a way that was supportive and geared
towards allowing him to use the feedback constructively to
improve. After a time, with no improvement noted in key
areas, a decision was made not to continue him in the
program.

"According to our program's policy and in accordance
with ACGME requirements, Dr. Bulwer appealed this decision.
An ad hoc committee chaired by Dr. Hatem and including
members of other departments reviewed the CCC concerns,
allowed Dr. Bulwer to offer his perspective and supporting
materials, reviewed his records and patient care activities
to date, and after all that decided to support the CCC
decision not to continue him in the program.

"The decision was clear. There was much deliberation
both by the CCC and during the appeals process. It is
difficult to take this action because of the consequences
for Dr. Bulwer going forward. I personally and on behalf
of all the staff in the Department of Medicine wish him
success in the future in a career path best suited for his
strengths."

The hospital also reported Bulwer's termination to the

Board of Registration in Medicine. The hospital did not give

patient safety as its reason for the termination; instead, it

represented that Bulwer had been terminated for "[f]ailure to

make appropriate progress in processing and applying evaluations

and other constructive criticism and feedback to patient care

responsibilities."

We reserve additional facts to the discussion below.
 18

2. Discussion. We review a grant of summary judgment de

novo, with "no deference to the decision of the motion judge."

DeWolfe v. Hingham Centre, Ltd., 464 Mass. 795, 799 (2013). The

defendants, as the moving parties, "have the burden of

establishing that there is no genuine issue as to any material

fact and that they are entitled to judgment as a matter of law."

Ibid. The moving party may satisfy its burden by demonstrating

that the opposing party has no reasonable expectation of proving

an essential element of the case at trial. Kourouvacilis v.

General Motors Corp., 410 Mass. 706, 716 (1991). "Once the

moving party establishes the absence of a triable issue, the

party opposing the motion must respond and allege specific facts

establishing the existence of a material fact in order to defeat

the motion." SCA Servs., Inc. v. Transportation Ins. Co., 419

Mass. 528, 531 (1995).

a. Discrimination claim. "In employment discrimination

cases alleging disparate treatment, we allocate the burden of

producing evidence according to the framework set forth by the

United States Supreme Court under the Federal antidiscrimination

provisions of Title VII of the Civil Rights Act of 1964, 42

U.S.C. §§ 2000e et seq. (1994). Under this framework, the

plaintiff bears the initial burden of establishing a prima facie

case of racial discrimination. Once the plaintiff meets this

burden, unlawful discrimination is presumed. The burden then
 19

shifts to the defendant to articulate a legitimate,

nondiscriminatory reason for its hiring decision, and to produce

credible evidence to show that the reason or reasons advanced

were the real reasons. The defendant's burden of production is

not onerous. The reasons given for a decision may be unsound or

even absurd, and the action may appear arbitrary or unwise,

nonetheless the defendant has fulfilled its obligation. The

defendant is not required to persuade the fact finder that it

was correct in its belief. Once the defendant meets its burden,

the presumption of discrimination vanishes, and the burden

returns to the plaintiff to persuade the court, by a fair

preponderance of the evidence, that the defendant's proffered

reason for its employment decision was not the real reason, but

is a pretext for discrimination. The plaintiff bears the burden

of persuasion on the ultimate issue of discrimination, and

therefore must produce evidence sufficient to support a jury

verdict that it was more likely than not that the articulated

reason was pretext for actual discrimination. If the

defendant's reasons are not discriminatory, and if the plaintiff

does not prove that they are pretexts, the plaintiff cannot

prevail." Matthews v. Ocean Spray Cranberries, Inc., 426 Mass.

122, 127-128 (1997) (quotations and citations omitted).

Our standard of review in discrimination cases based on

disparate impact is the same as in any other summary judgment
 20

case. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 38-39

(2005). And, as in all other types of cases, the defendant, "as

the moving party, 'has the burden of affirmatively demonstrating

the absence of a genuine issue of material fact on every

relevant issue, even if [the defendant] would not have the

burden on an issue if the case were to go to trial.'" Id. at

39, quoting from Matthews v. Ocean Spray Cranberries, Inc., 426

Mass. at 127.

The hospital accepted, for purposes of summary judgment,

that Bulwer had met his burden of demonstrating a prima facie

case of discrimination. And Bulwer does not seriously argue

that the hospital failed to meet its non-onerous burden of

articulating a legitimate reason for his termination.9 In other

words, the first two steps of the burden-shifting framework are

not at issue.

Instead, the issue is whether the hospital met its burden

of establishing that there is no genuine issue of fact

concerning pretext.10 See Pederson v. Time, Inc., 404 Mass. 14,

9
Bulwer's appellate brief devotes only one and one-half
pages to the argument that the hospital did not meet its burden
on the second stage.
10
The dissent incorrectly argues that the burden is on
"Bulwer to prove that [the defendant's] reason for termination
constituted a pretext concealing a discriminatory purpose."
Post at . This is Bulwer's burden at trial, not on summary
judgment. The dissent's error is caused by its reliance on a
 21

17 (1989) ("The party moving for summary judgment assumes the

burden of affirmatively demonstrating that there is no genuine

issue of material fact on every relevant issue, even if he would

have no burden on an issue if the case were to go to trial").

See also DeWolfe v. Hingham Centre, Ltd., 464 Mass. at 799. Put

another way, the defendant is entitled to summary judgment only

if "the summary judgment record demonstrates that the defendant

has shown that the plaintiff will be unable to prove at trial

that the stated reason for terminating him was a pretext."

Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129.

Pretext, like other inquiries into the minds and motivations of

men, is generally not appropriate for disposition on summary

judgment. See Blare v. Husky Injection Molding Sys. Boston,

Inc., 419 Mass. 437, 439 (1995), citing Brunner v. Stone &

Webster Engr. Corp., 413 Mass. 698, 705 (1992). "Summary

judgment is generally disfavored in cases involving employment

discrimination because the question of intent requires a

credibility determination." Godfrey v. Globe Newspaper Co., 457

Mass. at 119. See also Matthews v. Ocean Spray Cranberries,

Inc., 426 Mass. at 127; Santiago-Ramos v. Centennial P.R.

Wireless Corp., 217 F.3d 46, 54 (1st Cir. 2000) ("[C]ourts

quotation from Lewis v. Area II Homecare for Senior Citizens,
Inc., 397 Mass. 761, 765 (1986), which is an appeal from a
trial, not summary judgment.
 22

should exercise particular caution before granting summary

judgment for employers on such issues as pretext, motive, and

intent"). "[S]ummary judgment is disfavored in discrimination

cases based on disparate treatment because the question of the

employer's state of mind (discriminatory motive) is 'elusive and

rarely established by other than circumstantial evidence'"

(footnote omitted). Sullivan v. Liberty Mut. Ins. Co., 444

Mass. at 38, quoting from Blare v. Husky Injection Molding Sys.

Boston, Inc., supra.

There was sufficient evidence of pretext to withstand the

defendants' summary judgment motion in this case. Although

there was certainly ample evidence that Bulwer's performance in

the residency program fell short of expectations, there was also

evidence that he performed well. There was no dispute that he

was a well-trained physician coming into the program, or that

his fund of medical knowledge was sufficient. His problems

appear to arise in areas of performance less susceptible to

objective measurement: communication, ability to process

criticism, and manner (whether with patients or staff). There

is room for much subjectivity when evaluating these areas.11 And

it is particularly appropriate that a jury decide whether that

11
It was for a jury to decide what Wellisch meant when he
said Bulwer "is not supposed to be smart, he's supposed to
gather information. This is why all of this is happening."
 23

subjectivity included racial bias given, for example, that

Setnik, the chair of the emergency department, reported that he

and members of his department thought that Bulwer was being

criticized unfairly. He also testified that physicians who

reviewed Bulwer favorably were treated harshly, behavior that

was unprecedented at the hospital.

When Bulwer was informed of the criticisms against him, he

repeatedly asserted that they were not objective and that other

physicians with whom he worked should be asked their views.

Flint did not follow up with those physicians. There was also

evidence that Bial, who had a particularly negative view of

Bulwer's performance, harbored animosity toward him and had

behaved inappropriately toward him in public.

Moreover, there was evidence that Bulwer was not given the

same remediation opportunities as other first-year residents who

struggled in the program. Others were permitted to repeat

rotations or to repeat the full year. Similarly, although the

hospital gave Bulwer a six-point improvement plan that included

weekly meetings with his adviser, those meetings never occurred.

Dvorak's observation over her lengthy career at the hospital was

"that non-minorities who have significant performance or

behavioral issues in the institution . . . are given support,

where people of color, in my opinion, have been treated much

more harshly."
 24

More broadly, Dvorak described "institutional racism" at

the hospital. She described "white supremacist doctrine" left

in the staff room, and that the hospital administration took

inadequate action in response. She testified that a bumper

sticker she had on her office door that read, "We are all one

people in the world," was torn off, as was another that

expressed a similar support of diversity. She testified that

during her lengthy tenure at the hospital only two black

physicians remained. The weight and credibility of Dvorak's

testimony is clearly the province of the jury, not ours.

There is also evidence of how other residents fared in the

program. The hospital typically has forty-two residents in any

given year. Since 2000, three residents have been terminated

from the program. Two were of African descent; one was

Caucasian. In addition, "the hospital admits that another

intern of African descent did not continue in the program."12 It

is for the jury to decide whether the fact that two-thirds of

the terminated residents are of African descent is a pattern

from which discriminatory animus can be inferred in the

12
The hospital's claim it was not responsible for this
physician's departure is open to dispute. Although that
physician left the program after the Board of Registration in
Medicine failed to renew his license, the hospital's negative
feedback about his poor performance led to the board's action.
 25

termination of Bulwer.13 Numeric evidence of how other members

of the class fared at the hospital "are relevant, and may be

properly introduced in a disparate treatment case . . . because

. . . they may support an inference that the particular decision

was tainted by an unlawful bias." Lipchitz v. Raytheon Co., 434

Mass. 493, 509 (2001). See Smith College v. Massachusetts

Commn. Against Discrimination, 376 Mass. 221, 228 n.9 (1978)

(statistical evidence can be probative on question of motive).

See also Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 46 n.16

(numeric evidence concerning composition of employees who were

terminated "may help establish a prima facie case of

discrimination, even in a disparate treatment case").

Irregularities in the ad hoc committee process could

support an inference that it was not fair or that Bulwer was

treated in an unusual fashion from which pretext could be

inferred. As discussed in more detail below, the hospital did

not abide by its own rules or those required by the ACGME with

13
This is not statistical evidence as presented in the
summary judgment record because the figures are not placed
within a larger numeric context for comparison. It is
nonetheless evidence of the racial composition of the residents
who have historically been terminated from the hospital's
residency program. On summary judgment, we are not entitled to
disregard it. If the case proceeds to trial -- as it should --
the hospital will have an opportunity to rebut the inference
that can be drawn from this evidence by introducing additional
information concerning the composition of the program and those
who have been terminated from it. The hospital (as it is
entitled to), however, has chosen not to do so at this stage.
 26

respect to the review process. Of particular significance,

Bulwer was not allowed to be present for two of the three ad hoc

committee meetings, and was not provided with the materials from

those meetings despite his request. He was never informed that

the ad hoc committee was considering terminating him for an

issue relating to patient safety or given an opportunity to

address or rebut the criticisms of his performance with respect

to the patient at issue. Song, who tried to convey his positive

view of Bulwer's performance to Flint, received the impression

from Flint that "the train had already left the station" and

that positive feedback about Bulwer would not make a difference.

Finally, shifting explanations for the hospital's actions

could also support an inference of pretext. The hospital's

position in the statement of undisputed facts on summary

judgment was that it did not promote Bulwer because of "poor

performance in the internal medicine department." Its "reason

for immediately terminating Bulwer from employment that day was

risk to patient safety." This, however, was not the reason the

hospital gave to the Board of Registration in Medicine in a

report the hospital was required by law to file within thirty

days of Bulwer's termination. See G. L. c. 111, § 53B.

Instead, the hospital stated that Bulwer was terminated because

he "[f]ail[ed] to make appropriate progress in processing and

applying evaluations and other constructive criticism and
 27

feedback to patient care responsibilities."14 In short, when the

summary judgment record is taken in the light most favorable to

Bulwer, Drakopoulos v. U.S. Bank Natl. Assn., 465 Mass. 775, 777

(2013), without evaluating the credibility of witnesses or the

weight of the evidence, McGuinness v. Cotter, 412 Mass. 617, 628

(1992), the record was sufficient to put the discrimination

claim to the jury.

b. Breach of contract. Bulwer argues that the hospital

breached its contractual obligations to him by (a) failing to

comply with the ACGME's nondiscrimination requirement;15 (b)

failing to include a resident on the ad hoc committee, as

required by the hospital's written due process procedures; (c)

failing to provide him with advance notice of specific patients

or allegations considered by the ad hoc committee; (d) failing

to provide him with required resources and supervision; and (e)

failing to provide him with an appeal from the ad hoc committee

decision. There was sufficient evidence in the summary judgment

14
These various explanations can perhaps be reconciled.
However, it is for the jury -- not us -- to resolve the
conflict.
15
The hospital's general promise of conformance with ACGME
standards would incorporate by reference the ACGME requirements
into the residency contract. See Chicopee Concrete Serv., Inc.
v. Hart Engr. Co., 398 Mass. 476, 478 (1986) ("incorporation by
a clearly stated general reference will suffice").
 28

record to support each of these arguments, with the exception of

the last.16

First, the evidence supporting Bulwer's G. L. c. 151B

discrimination claim as set forth above is, for the same

reasons, sufficient to support his claim that the hospital

breached the ACGME nondiscrimination policy. See note 4, supra.

Second, it is undisputed that the ad hoc committee did not

include a resident member as required by the hospital's due

process policy. Third, it is undisputed that Bulwer did not

receive any notice that the ad hoc committee was considering his

immediate termination, nor does the record show that he was

provided any of the information concerning the patient whose

care precipitated the hospital's decision to terminate him

immediately. Instead, Bulwer was informed that the decision to

terminate him was based on "additional" information that came to

light during the review process, and there is no indication that

that information was disclosed to Bulwer before his termination

or that it was discussed during any of the three meetings of the

ad hoc committee. Indeed, the decision to terminate Bulwer

immediately was made after the third and final meeting of the ad

hoc committee, and was communicated by Zinner (chair of the

16
Bulwer's claim in this regard requires that we disregard
the undisputed facts concerning the multiple communications to
Bulwer concerning his right to appeal the ad hoc committee's
decision.
 29

department of medicine) to Flint. Bulwer's requests for

materials considered during the second and third meetings of the

ad hoc committee went unanswered. Fourth, as discussed in the

previous section, there was evidence that Bulwer was not given

the same remediation opportunities as his peers and that the

weekly meetings with his supervisor that were part of his

remediation plan did not occur. We are unpersuaded by the

hospital's argument that, even if the jury were to accept that

the hospital breached its obligations, those breaches were

immaterial as a matter of law. The ad hoc committee's decision

rested in large part on information considered and aired during

the two meetings from which Bulwer was excluded, and the

decision to terminate him appears to have stemmed from a process

that did not afford any of the procedural protections of the

hospital's policies or the ACGME guidelines.

c. Defamation. Bulwer's defamation claim is based on the

two mass e-mails sent to hospital personnel after his

termination. He contends that the false implication of the e-

mails was that his incompetence as a physician was such that he

should not be engaged in a medical career. Even were we to

accept this as a reasonable reading of the e-mails, and that the

statements were false (neither view we hereby endorse), summary

judgment properly entered on the claim.
 30

An employer has the conditional privilege to "disclose

defamatory information concerning an employee when the

publication is reasonably necessary to serve the employer's

legitimate interest in the fitness of an employee to perform his

or her job." White v. Blue Cross & Blue Shield of Mass., Inc.,

442 Mass. 64, 69 (2004), quoting from Bratt v. International

Bus. Machs. Corp., 392 Mass. 508, 509, (1984). Here, there is

no suggestion in the summary judgment record that the e-mails

were sent for any reason other than to notify physicians and

staff at the hospital of Bulwer's departure. The first e-mail

was sent on the day of his termination and included instructions

that Bulwer was not permitted to see or treat patients. The

second e-mail was sent the very next day to Bulwer's fellow

residents in the residency program.

It is true that an employer may lose its privilege if it

"(1) knew the information was false, (2) had no reason to

believe it to be true, . . . (3) recklessly published the

information unnecessarily, unreasonably, or excessively," or (4)

that it acted out of malice. Dragonas v. School Comm. of

Melrose, 64 Mass. App. Ct. 429, 438 (2005), quoting from Sklar

v. Beth Israel Deaconess Med. Center, 59 Mass. App. Ct. 550, 558

(2003). However, Bulwer did not meet his burden of putting

forward a record on summary judgment that would permit a

rational fact finder to conclude that the hospital was not
 31

entitled to the conditional privilege with respect to the two e-

mails. See Foley v. Polaroid Corp., 400 Mass. 82, 95 (1987)

(employee bears burden of demonstrating that employer has lost

privilege).

d. Retaliation. General Laws c. 151B, § 4(4), "makes it

unlawful for 'any person . . . to discharge, expel or otherwise

discriminate against any person because he has . . . filed a

complaint'" alleging discrimination. Psy-Ed Corp. v. Klein, 459

Mass. 697, 706 (2011), quoting from G. L. c. 151B, § 4(4). A

prima facie case of retaliation requires the plaintiff to show

(1) his engagement in protected conduct; (2) the infliction of

some adverse action; and (3) a causal connection between the

two. Mole v. University of Mass., 442 Mass. 582, 591-592

(2004).

Bulwer alleges that the hospital unlawfully retaliated

against him by (1) terminating him because on two occasions he

responded to Flint in writing about certain criticisms of his

performance, and (2) not providing him with a process to appeal

from the ad hoc committee's decision after he had filed his

complaint with the Massachusetts Commission Against

Discrimination (MCAD) on August 25, 2006.

Both claims fail. Bulwer's communications related solely

to his disagreement with the criticisms that had been leveled

against his work -- they cannot be reasonably read to raise a
 32

complaint about discrimination and, accordingly, they are not

protected activity within the meaning of G. L. c. 151B, § 4(4).

The record shows that the hospital offered Bulwer a

discretionary appeal from the ad hoc committee decision, and

that Bulwer never pursued the offer of appeal. Moreover, the

fact that Bulwer's MCAD complaint was filed more than two months

after the hospital offered him an appeal defeats his ability to

demonstrate any causal connection between the protected activity

and the supposed retaliation. See Mole v. University of Mass.,

442 Mass. at 592 (inferable causal connection will arise from

adverse employer action "in the immediate aftermath" of

employer's awareness of protected activity).

e. Tortious interference. To prove that Flint, Wellisch,

and Balestrero intentionally interfered with his contractual

relationship with the hospital, Bulwer must prove that they

acted "malevolently, i.e., for a spiteful malignant purpose

unrelated to the legitimate corporate interest." Ayash v. Dana

Farber Cancer Inst., 443 Mass. 367, 395 (2005), quoting from

Wright v. Shriners Hosp. for Crippled Children, 412 Mass. 469,

476 (1992). Although, as set out above, we conclude that the

record is sufficient to put the claim of discrimination to a

jury, that record does not suffice to raise a genuine issue of

fact regarding malevolence on the part of the three individual

defendants.
 33

3. Conclusion. For the reasons stated above, we reverse

that portion of the judgment dismissing the claims of

discrimination in violation of G. L. c. 151B and for breach of

contract. The judgment is otherwise affirmed.

So ordered.
 SIKORA, J. (concurring in part and dissenting in part, with

whom Meade, J., joins). I concur in the affirmance of summary

judgment entered by the Superior Court judge on Dr. Bernard

Bulwer's claims of (1) retaliation against his complaint of

discrimination, as prohibited by G. L. c. 151B, § 4, by Mount

Auburn Hospital (MAH); (2) defamation by MAH; and (3) tortious

interference with his residency contract by the three individual

physician defendants. I dissent from the reversal of summary

judgment entered by the judge against Bulwer's remaining claims

of (1) discrimination based on his race and national origin

within the meaning of G. L. c. 151B, § 4, by MAH; and (2) breach

of his residency contract by MAH.

The rationale offered by the majority in support of its

discrimination analysis constitutes an extraordinary aberration

from basic principles of evidence. It violates settled

standards of summary judgment practice and draws appellate

judges into the act of second guessing professional medical

judgments. A gaping deficiency extends through the core of its

position: the absence of any admissible evidence, and indeed of

any trustworthy information, creating a genuine material factual

issue of racial animus or of a pretext veiling racial animus on

the part of MAH and its physicians; and the presence of abundant

admissible evidence of unsatisfactory medical performance by

Bulwer.
 2

The majority's treatment of the breach of contract claim

relies in part upon the premise of MAH's possible engagement in

racial discrimination and fails in part with that claim. The

remaining bases of the majority's contract reasoning rest upon

an erroneous interpretation of the contract and fail as a matter

of law. I would affirm in full the thorough analysis of all

claims by the Superior Court judge in her lengthy memorandum of

decision and her entry of summary judgment on all counts.

Background. A full and accurate account of the relevant

summary judgment record of this unfortunate case requires

substantial enlargement of the majority's portrayal.

1. Biography. Bulwer achieved his medical degree in 1989

from the University of the West Indies. From that date into

2002, he practiced in Trinidad (1989-1991), Belize (1991 to

1993), the United Kingdom (1994-1996), and again in Belize

(1997-2002). He received a master of science degree in

nutrition in 1994 in the United Kingdom. His practice during

those years centered in subjects of nutrition and diabetes. His

curriculum vitae lists authorships of seven journal articles,

ten book chapters, and either authorship or editorship of seven

books.

Bulwer came to the United States in 2002. His first

experience in the American medical system was participation as a

research associate and fellow in a subresidency cardiology
 3

program at Brigham and Women's Hospital in Boston from 2002 to

2005. In the course of that work he brought a charge of

discrimination against a supervisor. An ombudsman resolved that

dispute by terms omitted from our record.

In April, 2005, Bulwer wrote to Dr. Eric Flint, the

director of MAH's internal medicine residency program, and

inquired about a position. Flint interviewed Bulwer and thought

him personable, capable, and well trained. Bulwer did not

inform Flint of his discrimination claim at Brigham and Women's

Hospital. In June of 2005, MAH offered Bulwer a residency

position in internal medicine. He would begin his residency in

September of 2005, two months after the normal commencement in

July. He signed a one-year medical resident agreement (MRA).

With the approval of MAH, it was renewable on an annual basis

for two additional years.

2. Bulwer's rotations. In September of 2005, Bulwer began

his monthly rotations at MAH. Various supervising physicians

evaluated residents' performances within the rotations. In

addition, the clinical competence committee (CCC), comprised of

thirteen physicians and advisers, met periodically to assess

residents' progress. The CCC determined whether MAH should

retain and advance residents on the basis of satisfactory

completion of educational and training objectives.
 4

MAH's residency program complied with standards set by the

National Accreditation Counsel for Graduate Medical Education

(ACGME). The ACGME mandated a member hospital to require

demonstrated competence in (1) patient care, (2) medical

knowledge, (3) practice-based learning, (4) interpersonal and

communication skills with patients, families, and other health

professionals, (5) professionalism, and (6) systems-based (high

technology) practice. MAH supervisory physicians graded

residents in each of these six core competencies at the

conclusion of each monthly rotation.1

Bulwer's opening assignment in September, 2005, to the

emergency medicine department went well. His supervisors viewed

his work favorably, with one exception.2

However, Bulwer's October rotation in the medical intensive

care unit (MICU) resulted in evaluations of unsatisfactory

performance from all three of his supervisors. One gave him

failing ("needs improvement") grades in all six core

competencies; another in five; and a third in three. Critical

1
The grading scale extended from numerals 1 (lowest rating)
through 5 (highest). Grades 1 and 2 signified a need for
improvement; 3 was "satisfactory"; and 4 and 5 reflected
"superior" performance.
2
One evaluator gave him an "overall" rating of "below
average." As a narrative summary, the evaluator commented,
"Very good knowledge of cardiac issues. Major deficiencies in
other areas of medicine. Not ready to be a PGY II [second year
resident]."
 5

commentary accompanied the grades. One supervisor wrote, among

other concerns, "Made drastic and potentially dangerous/life

threatening decisions about [patient] care [without] consulting

attending. Was not always honest about [patient] care and his

role as the intern (i.e. labs ordered, medications ordered).

Needs to improve [history] & [physical] writing skills,

especially assessment and plan. . . . Too confident for his own

good and [patient's] own good without showing any proof of

capability to perform at the level of an intern or resident

yet." A second evaluator commented that Bulwer was "optimistic"

and "eager to learn" but that "[h]e does not seem to be aware of

his responsibilities as an intern despite being told them

repeatedly." A third wrote that, as goals for improvement,

Bulwer needed to increase his fund of knowledge, to improve the

depth of his histories and physicals, and to "take feedback as

constructive criticism and improve [his] attitude." In late

October, that evaluator (Dr. Carey Thomson, a senior attending

physician in the MICU) met with Bulwer to discuss those concerns

further.

The October evaluations identified weaknesses in three of

the residency program's six prescribed areas of core competency:

(1) Bulwer's grasp of complex cases; (2) professionalism and

interpersonal communications; and (3) practice-based learning,

i.e., the capacity to accept and to learn from evaluation and
 6

criticism. Bulwer disagreed with the October evaluations, and

sent written objections to his supervisors and to Flint.

In mid-November, Dr. Lori Balestrero, his adviser, met with

Bulwer to discuss the evaluations. A memorandum resulting from

the meeting and signed by Bulwer acknowledged that he

"understands [that] continuation in the program is contingent on

his improved performance." On December 1, the CCC and

Balestrero forwarded to Bulwer a memorandum proposing a six-

point remedial plan for improvement during the month of

December.3

Meanwhile in November and December, Bulwer performed a

"wards" rotation comprised of evaluation and care of patients

admitted to MAH. Three evaluations from that rotation appear in

the summary judgment record. One supervisor graded Bulwer

positively, urged him to communicate more concisely, but

credited him with "much improvement." A second evaluator (who

did not give specific grades) wrote to Bulwer, Balestrero, and

Flint that Bulwer's history, physical, and progress notes were

"[o]verall . . . pretty good" but could benefit from greater

conciseness or specificity. The third supervisor awarded an

over-all passing grade, but found him deficient in practice-

3
The plan included weekly meetings between Bulwer and
Balestrero. The majority notes that "[t]hose meetings did not
occur." Ante at . Balestrero's deposition testimony is that
she tried unsuccessfully to schedule time with Bulwer.
 7

based learning and improvement (failure to accept feedback and

undertake improvement), professionalism (failure to accept

responsibility for actions and decisions), and -- most

particularly -- the organization of notes of patients' physical

examinations and progress.

Bulwer's January, 2006, rotation occurred in the cardiology

department and generated three evaluations. One supervising

physician gave Bulwer high marks in all competencies without

narrative comment. A second gave him passing grades and

favorable comments, and a recommendation for deeper patient

presentations. However a third supervisor gave him

predominantly failing grades in five of the six competencies,

with no additional commentary.

In February, Bulwer returned to a wards rotation. Two

supervisors evaluated him. One gave him over-all passing grades

with two reservations: his questionable ability to

"synthesize[] key information in the history, physical (exam)

and data to develop an accurate, problem-based assessment and

plan," including the development of an expanded differential

diagnosis; and his uncertain capacity for practice-based

learning and improvement, or more specifically his acceptance of

feedback for self-assessment and improvement.

The other February wards evaluation was severely critical.

Dr. Erica Bial had supervised Bulwer throughout the month. She
 8

gave him failing grades in all six competencies: the minimum

grade of 1 in four of them and the grade of 2 in the other two.

Her extended commentary was emphatic: "My experience of Dr.

Bernard Bulwer during our month together on the wards was

horrendous. I feel that Bernard is a poor intern, and that he

suffers major deficiencies, many of which I am gravely concerned

are impossible to remediate. There is no aspect of the central

competencies in which Bernard is evenly modestly competent, and

in truth I cannot envision his possessing the ability to ever

function as a resident in this program. My concerns can be

summarized into four major areas: Clinical Knowledge,

Communication Skills, Patient Care, and Professionalism." She

elaborated upon those failings with rigorous specificity and

examples.

As to clinical knowledge, Bial found that Bulwer showed a

specialized interest in echocardiology but that he failed to

seek and integrate new clinical knowledge into his daily

practice upon the general patient population in the wards. He

seemed "intellectually disorganized, confused, and just plain

ill-informed about physiologic processes, algorithmic

evaluation, and options for treatment of most diseases." These

shortcomings required her oversight "even on the moment-to-

moment management of 'simple' patients."
 9

As to communication skills, Bial found Bulwer unwilling to

ask for help in cases beyond his experience, unable to keep her

informed of changes in patients' plans and of emergency clinical

concerns, and "belligerent" in response to evaluation. She

viewed his presentations on rounds to be incomplete and

disorganized. He did not adequately communicate treatment plans

to patients and families and treated coworkers, instructors, and

nurses disrespectfully. He would not honestly acknowledge to

her his failure to communicate with consultants, to write

orders, and to keep up with his daily clinical tasks.

In her assessment of patient care, Bial credited Bulwer

with genuine concern with the well-being of patients but found

him unable to function efficiently in the hospital environment.

In particular, his average time to complete an initial history,

physical, and admission note approximated three hours. He did

not stay informed of the results of laboratory and diagnostic

tests and of new patient data. His histories and physical notes

were unclear and meandering. He did not readily establish

rapport, trust, and respect with patients and families.

As to professionalism, Bial concluded that Bulwer "refuses

to accept constructive criticism," "has no capacity whatsoever

for self-assessment," treated her with hostility, and resented

direction from women in a professional environment. His age and

experience caused him to describe his first-year residency
 10

status as a "grave indignity" and "beneath him." She viewed

those traits as irremediable. "While he certainly talks the

talk of someone eager to learn and participate, his actions

demonstrate an individual who fails to communicate or function

even minimally effectively as a member of the medical team."

Bial offered to meet with the program director for further

discussion.

The majority does not set out the sequence of Bulwer's six

rotations in clear order. In particular, it blurs the timing of

the February, 2006, evaluations. The chronology is important.

It indicates a failure of improvement and the resistance to

remediation by Bulwer during the four months between the October

and February evaluations. No positive trend had taken hold

despite the involvement of his adviser (Balestrero) and the CCC

during November and December. His professional shortcomings

remained persistent and thematic.

The thirteen-member CCC considered the evaluations. On

April 5, 2006, it notified Bulwer that it had confirmed "areas

of concern" precluding his promotion to the second year. Its

letter to Bulwer identified problems with (1) "analyz[ing]

clinical data in complex cases"; (2) "interpersonal and

communication skills"; and (3) "gain[ing] insight into

feedback." The signatories were Flint, residency program

director, and Riccardo Wellisch, chair of the CCC.
 11

3. MAH's due process proceedings. As a result of the

CCC's decision of nonrenewal, MAH in accordance with its written

policy4 convened an ad hoc appeal committee (AHC) to review the

CCC's conclusion. The AHC consisted of four physicians: the

chairs of the departments of medicine and radiology; the

director of the training program for radiology; and, in this

instance, the director of medical education, Dr. Charles Hatem,

who served as chair of the AHC. The AHC process sought to

assure sanctioned residents a fair hearing, including the right

to attend and the opportunity to present evidence and argument.

The AHC met three times. Bulwer attended the first

meeting, on April 24, 2006. Flint submitted the evaluators'

concerns about Bulwer's deficiencies in the three core

competencies and offered examples of errors in patient care from

three charts. Bulwer disputed the deficiencies alleged by the

evaluators and Flint. He did not express any feelings of

discrimination. Three days after the meeting, he submitted a

fourteen-page letter responding specifically to alleged patient

care errors and the core competency concerns. The letter

contained no complaint of discriminatory treatment.

4
The hospital codified its procedure for residency
sanctions in a formal document entitled "Houseofficer
Evaluation/Grievance/ Due Process Policy," approved by its
medical education committee (due process policy).
 12

At the conclusion of the first meeting, the AHC began

deliberations and decided that it "need[ed] more data" and

communications with other physicians to make sure that it had

exercised "due diligence and due process." Chairman Hatem was

especially concerned that, as a means of thoroughness and

fairness, the AHC receive information from rotation supervisors

directly familiar with Bulwer's performance.

At a second meeting on May 1, 2006, the AHC interviewed

Balestrero, two senior evaluators from the MICU (Thompson and

Dr. Robert Westlake), Dr. Gary Setnik, chair of the department

of emergency medicine, and Wellisch. Balestrero, Westlake,

Thomson, and Wellisch regarded Bulwer as still deficient in the

competencies specified by the CCC. Thomson, Westlake, and

Wellisch viewed Bulwer as "dangerous" to patient safety. Setnik

judged him to be "better than average" and free of any "specific

shortcoming need[ing] drastic attention."

The AHC devoted its third meeting on May 9, 2006,

exclusively to deliberation. It reviewed all submitted

materials, weighed the satisfactory emergency department and

cardiology rotations against the criticized work in the

intensive care units and on wards, and ultimately concluded that

Bulwer's performance of the residency had been substandard. The

four AHC members voted unanimously to support the CCC decision

of nonrenewal of his MRA after the first year.
 13

On May 17, 2006, Flint and Dr. Stephen Zinner, the chair of

the department of medicine, met with Bulwer. They informed him

that MAH would not offer him further training. By separate

letters of that date, Flint and Zinner formally reported the AHC

decision to Bulwer. On the same day, Zinner wrote a "memo to

file," summarizing the decision and its grounds, including

concern for patient safety. The memorandum included the

following passage:

"I also informed Dr. Bulwer that in the three week period
during which the appeal was reviewed, I had received
several communications from attending physicians that
pointed out that Dr. Bulwer had demonstrated additional
clinical errors, failures to document or comply with our
clearly stated expectations about chart notes, and failures
to call for appropriate help with severely ill patients.
In addition I told him I recently was made aware of a
review by the Department of Quality and Safety at Mount
Auburn Hospital of a patient under his care last January
whose death might be attributable to an error made by Dr.
Bulwer."

The memorandum stated that Flint had decided to terminate Bulwer

immediately rather than to permit him to finish the remaining

months of his MRA; it stated also that Zinner supported that

decision.5

5
In accordance with MAH's due process policy, only the
chair of the department of medicine, Zinner, could terminate a
resident for concerns of patient safety.
 14

Bulwer immediately appealed from the AHC's decision to the

president and chief executive officer of MAH, Jeanette Clough.6

On June 5, 2006, Clough forwarded a letter of notice to Bulwer

that she would convene a committee to review the AHC's decision.

Despite three attempted deliveries by the post office, Bulwer

did not claim the letter.7 In June, in accordance with the

hospital's statutory obligation,8 Flint advised the Board of

Registration in Medicine that MAH had terminated Bulwer from the

residency program. In July of 2006, Bulwer received Clough's

letter, but pursued no further process at MAH.

Analysis. 1. Discrimination. a. Absence of disparate

impact claim. Neither in the Superior Court nor on appeal has

Bulwer presented or argued a claim of discrimination by reason

of disparate impact. As the majority acknowledges, the summary

judgment record shows that over the six years from 2000 through

2006, approximately 252 residents matriculated at MAH; that

three of them failed to complete the program; and that two of

6
MAH's due process policy required Bulwer to appeal from
the AHC's decision to the president of the medical staff, who
was not Clough.
7
Bulwer testified in his deposition that he could not
receive the letter because he was hospitalized for temporary
blindness, a condition which he alleged the defendants' conduct
to have triggered.
8
General Laws c. 112, §§ 5B and 5F, require a hospital to
report a termination of a registrant's privileges for cause to
the Board of Registration in Medicine.
 15

the three were of African descent and one Caucasian. From these

numbers the majority submits, "It is for the jury to decide

whether the fact that two-thirds of the terminated residents are

of African descent is a pattern from which discriminatory animus

can be inferred in the termination of Bulwer."9 Ante at .

No authority supports this remarkable proposition.

"Discrimination that is based on proof of disparate impact

'involve[s] employment practices that are facially neutral in

their treatment of different groups, but that in fact fall more

harshly on one group than another.'" Lopez v. Commonwealth, 463

Mass. 696, 709 (2012), quoting from School Comm. of Braintree v.

Massachusetts Commn. Against Discrimination, 377 Mass. 424, 429

(1979). See Watson v. Fort Worth Bank & Trust, 487 U.S. 977,

987-988 (1988). Here Bulwer has not identified a suspect

employment practice by MAH. Nor has he proposed that three

terminations out of the 252 residencies provide a statistical

9
By footnote, the majority continues: "This is not
statistical evidence. . . . It is nonetheless evidence of the
racial composition of the residents who have historically been
terminated from the hospital's residency program. On summary
judgment, we are not entitled to disregard it. If the case
proceeds to trial -- as it should -- the hospital will have an
opportunity to rebut the inference that can be drawn from this
evidence by introducing additional information concerning the
composition of the program and those who have been terminated
from it." Ante at note 13. This reasoning reduces to the
notion that, although Bulwer is not pursuing a disparate impact
claim, he should receive the benefit of inadequate evidence of
such a claim.
 16

sample sufficient to qualify as evidence in support of any

inference. See Fudge v. Providence Fire Dept., 766 F.2d 650,

657-659 (1st Cir. 1985) (African-American plaintiff failed to

prove disparate impact claim under Title VII where written

examination for hiring in fire department resulted in admission

of four percent of black applicants as compared to thirteen

percent of white applicants because [1] sample size constituted

"narrow data base" [only twenty-four of 248 applicants were

black], [2] results lacked statistical significance, and [3]

results could have occurred by chance). See also 2 Larson,

Employment Discrimination § 22.05 (2d ed. 2014) (requiring

adequate sample size to permit inference of statistical

significance and disparity). The majority's reference to the

minute incidence of residency failure cannot manufacture a

triable issue of disparate impact or disparate treatment.

2. Standard of review. We study de novo the same record

as the motion judge. See Matthews v. Ocean Spray Cranberries,

Inc., 426 Mass. 122, 123 n.1 (1997); Chai-Sang Poon v.

Massachusetts Inst. of Technology, 74 Mass. App. Ct. 185, 194

(2009). The majority invokes the guidance that questions of

intent or motivation are usually unsuitable for disposition of

summary judgment. However the applicable standard of review has

moved far beyond that generality. Otherwise a conclusory

assertion of intent or motive will immunize itself from
 17

inspection and force the conduct of an unwarranted trial. The

developed refinements of the standard of review call for

examination of the summary judgment record in the light most

favorable to the nonmoving or opposing party (Bulwer) and ask

whether the record resolves the material questions of fact and

issues of law in favor of the moving parties. The "most

favorable" light is comprehensive; it falls upon evidence

submitted by both a complaining employee and a responding

employer. See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34,

37 (2005) (weighing possible deficits in employee's

"responsiveness to clients," "collegiality," and "human

relations skills"); Chai-Sang Poon v. Massachusetts Inst. of

Technology, supra at 196-199 (assessing history of friction with

students, staff, and colleagues).10

In cases of alleged employment discrimination, intent,

motivation, and credibility will typically come into dispute.

Massachusetts precedents have consistently concluded that a

defendant employer is entitled to summary judgment against an

accusation of discrimination if the employer demonstrates that

the employee's "evidence of intent, motive, or state of mind is

10
In particular, the majority avoids the obligation to
consider countervailing evidence, ante at (addressing
"summary judgment record"), and consequently offers a one-sided
synopsis of the record without explanation of the performance of
Bulwer as concededly "short of expectations." Ante at .
 18

insufficient to support a judgment in the plaintiff's favor."

Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass.

437, 440 (1995). See, e.g., Matthews v. Ocean Spray

Cranberries, Inc., 426 Mass. at 127; Sullivan v. Liberty Mut.

Ins. Co., 444 Mass. at 39-40 (affirming summary judgment against

allegation of discriminatory motive); Tardanico v. Aetna Life &

Cas. Co., 41 Mass. App. Ct. 443, 447-450 (1996) (same); Romero

v. UHS of Westwood Pembroke, Inc., 72 Mass. App. Ct. 539, 545-

548 (2008) (same); Chai-Sang Poon v. Massachusetts Inst. of

Technology, 74 Mass. App. Ct. at 196-199 (same).

c. Discriminatory treatment claim. i. Summary judgment

standards. Under G. L. c. 151B, § 4(1), to establish liability

for racially motivated employment discrimination, Bulwer must

prove each of four prima facie elements: "membership in a

protected class, harm, discriminatory animus, and causation."

Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). Sullivan

v. Liberty Mut. Ins. Co., 444 Mass. at 39. If the evidence

shows the plaintiff to have "no reasonable expectation" of proof

of a prima facie element, the defendant is entitled to summary

judgment. Kourouvacilis v. General Motors Corp., 410 Mass. 706,

716 (1991).

In the typical setting of only circumstantial information,

the case at trial would proceed through the three burden-

shifting stages established by McDonnell Douglas Corp. v. Green,
 19

411 U.S. 792, 802 (1973), and Wheelock College v. Massachusetts

Commn. Against Discrimination, 371 Mass. 130, 138-139 (1976).

Bulwer must offer prima facie evidence of discrimination, a

light burden which we shall assume to have been carried. See

Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 40. Then MAH

must offer a legitimate nondiscriminatory ground for its action

and produce credible supporting evidence, as accomplished here

by the account of unsatisfactory performance. See Abramian v.

President & Fellows of Harvard College, 432 Mass. 107, 117

(2000), and cases cited. Third, and often decisively for the

purpose of summary judgment, the burden returns to Bulwer to

prove that MAH's reason for termination constituted a pretext

concealing a discriminatory purpose. See, e.g., Matthews v.

Ocean Spray Cranberries, Inc., 426 Mass. at 128.

The majority incorrectly states that at the stage of

summary judgment "the issue is whether the hospital met its

burden of establishing that there is no genuine issue of fact

concerning pretext" (emphasis supplied). Ante at . Where,

as here, the first two stages of the burden-shifting framework

are not in dispute, the question on summary judgment reduces to

whether "the plaintiff introduced sufficient material to

demonstrate that there is a genuine issue of material fact

whether the defendant's proffered reason is a pretext; that is,

'[d]oes the employer's articulated reason lack[] reasonable
 20

support in evidence or is [it] wholly disbelievable[?]'"

(emphasis supplied). Brooks v. Peabody & Arnold, LLP, 71 Mass.

App. Ct. 46, 52 (2008), quoting from Lewis v. Area II Homecare

for Senior Citizens, Inc., 397 Mass. 761, 765 (1986) (affirming

summary judgment for defendant). Accord, Brunner v. Stone

Webster Engr. Corp., 413 Mass. 698, 699-700, 703-705 (1992)

(affirming summary judgment for defendant); Tardanico v. Aetna

Life & Cas. Co., 41 Mass. App. Ct. at 448 (affirming summary

judgment for defendant); Chai-Sang Poon v. Massachusetts Inst.

of Technology, 74 Mass. App. Ct. at 196-197 (affirming summary

judgment for defendant). In the summary judgment process, the

defendant does not acquire an additional burden of disproving

pretext (i.e., proving a negative); rather, the plaintiff must

substantiate a genuine issue of its presence. See Wheelock

College v. Massachusetts Commn. Against Discrimination, 371

Mass. at 138-139. The plaintiff may not rest "merely upon

conclusory allegations, improbable inferences, and unsupported

speculation." Brooks v. Peabody & Arnold, LLP, supra at 56,

quoting from Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d

5, 8 (1st Cir. 1990). Indeed, "if the evidence is in balance,

the employer must prevail." Trustees of Forbes Library v. Labor

Relations Commn., 384 Mass. 559, 566 (1981). See Sullivan v.

Liberty Mut. Ins. Co., 444 Mass. at 57 (affirming summary

judgment for defendant employer because "ample, uncontroverted
 21

evidence [showed] that the negative impression [which the

employer] had formed of [the employee's] abilities was a primary

reason [why the employee] was selected for layoff").

Finally, it bears emphasis in this instance that the

information submitted in support of, and opposition to, summary

judgment must have the quality of "facts as would be admissible

in evidence" at trial. Mass.R.Civ.P. 56(e), 365 Mass. 824

(1974). As we will specify, the information offered by Bulwer

in support of pretextual conduct by MAH falls well below the

threshold of admissible evidence.

ii. Proffered information. The majority relies upon four

categories of information as evidence of pretext: (i) MAH's

treatment of other residents or physicians; (ii) the words or

conduct of supervisors during Bulwer's rotations or due process

review; (iii) the representations of Dr. Romana Dvorak; and (iv)

the allegedly "shifting explanations" provided by MAH to the

Board of Registration in Medicine for termination of Bulwer's

residency. None withstands analysis.

(A) Treatment of comparable individuals. "The most

probative means of establishing that the plaintiff's termination

was a pretext for racial discrimination is to demonstrate that

similarly situated white employees were treated differently."

Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at 129,
 22

citing Smith College v. Massachusetts Commn. Against

Discrimination, 376 Mass. 221, 228 (1978).

The majority contends that "Bulwer was not given the same

remediation opportunities as other first year residents who

struggled in the program," ante at ; that two of the three

members terminated from the residency program since 2000 were

"of African descent," ante at ; and that another "intern of

African descent did not continue in the program," ante at .

However, the majority does not acknowledge that the record tells

us nothing about those terminated residents: neither their

identities, nor their qualifications and performances, nor the

reasons for their departures, nor their remedial opportunities.11

In Matthews v. Ocean Spray Cranberries, Inc., 426 Mass. at

130, quoting from Smith v. Stratus Computer, Inc., 40 F.3d 11,

17 (1st Cir. 1994), cert. denied, 514 U.S. 1108 (1995), the

court explained that, to establish pretext by demonstrating

differential treatment of similarly situated persons, a

plaintiff must identify comparators "in terms of performance,

qualifications and conduct, 'without such differentiating or

mitigating circumstances that would distinguish' their

11
The other residents experiencing difficulty, but
maintained in the program in recent years, were two
international medical graduates who "struggled" with MAH's
computer system (and one with a language barrier). MAH
permitted them to repeat rotations.
 23

situations." The court has since held that the comparators'

circumstances must be "substantially similar to those of the

complainant 'in all relevant aspects' concerning the adverse

employment decision." Trustees of Health & Hosps. of Boston,

Inc. v. Massachusetts Commn. Against Discrimination, 449 Mass.

675, 682 (2007), quoting from Matthews v. Ocean Spray

Cranberries, Inc., supra at 129. "The test is whether a prudent

person, looking objectively at the incidents, would think them

roughly equivalent and the protagonists similarly

situated. . . . Exact correlation is neither likely nor

necessary, but the cases must be fair congeners. In other

words, apples should be compared to apples." Ibid., quoting

from Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st

Cir. 1989). A "plaintiff does not carry his burden of

demonstrating pretext on a motion for summary judgment where he

provides merely 'sketchy evidence lacking a sufficient

foundation for a legally relevant comparison' of allegedly

similarly situated employees." Matthews v. Ocean Spray

Cranberries, Inc., supra at 131 n.6, quoting from Smith v.

Stratus Computer, Inc., 40 F.3d at 17.12

12
The majority states that "[i]t is for the jury to decide
whether the fact that two-thirds of the terminated residents are
of African descent is a pattern from which discriminatory animus
can be inferred in the termination of Bulwer." Ante at . In
an accompanying footnote, the majority also faults MAH for not
 24

(B) Conduct and words of supervisory physicians. The

majority proposes that the conduct or words of multiple MAH

physicians permit a reasonable inference of unfair treatment and

therefore pretext masking racial animus. In the view of the

majority, these deeds and words included (1) criticism of

emergency department physicians by MICU physicians as a result

"introducing additional evidence concerning the composition of
the program and those who have been terminated from it." Ante
at note 13. We disagree on both points.

First, as discussed previously, the relevant legal
question is whether Bulwer has introduced sufficient evidence to
demonstrate a genuine issue of material fact as to pretext. MAH
has no third-stage summary judgment obligation to introduce
evidence to prove the absence of pretext.

Second, even if three cases out of 252 could somehow
create a "pattern," the evidence of the dismissed residents is
relatively meaningless because we know nothing about the reasons
for their dismissals. See Matthews v. Ocean Spray Cranberries,
Inc., 426 Mass. at 130 n.4 ("The plaintiff also asserts that the
defendant has exhibited discriminatory intent in that it does
not employ African-American managers or supervisors. However,
he has not supported this assertion, as he must in order to meet
the burden of establishing pretext, with evidence concerning
whether any African-Americans ever applied for such positions,
and, if so, evidence concerning their qualifications. Thus, the
plaintiff's assertions do not assist his pretext claim");
Sullivan v. Liberty Mut. Ins. Co., 444 Mass. at 54-56 & n.36
(statistical evidence had "limited probative value" in proving
pretext because it failed "to eliminate other explanations for
the disproportionate statistics, such as random chance [given
the small discrepancies and sample size involved here] or the
actual distribution of aptitudes or expertise among [employees]
. . . both before and after the [employment decision]"); Boston
v. Massachusetts Commn. Against Discrimination, 39 Mass. App.
Ct., 234, 243 (1995) (evidence of discharged employees is "not
very instructive" without knowledge of "the reasons underlying
those discharges").
 25

of the emergency department's favorable evaluation of Bulwer,

ante at ; (2) the failure of Flint to "follow up" with

physicians engaged in unfair criticism of Bulwer, ante at ;

(3) the failure of Balestrero to hold weekly meetings with

Bulwer after December 1, 2005, ante at ; (4) open criticism

of Bulwer by Bial, ante at ; (5) an impliedly critical

comment by CCC chair Wellisch, ante at ; (6) the imposition

of termination rather than nonrenewal, ante at ; and (7)

alleged irregularities in the AHC process, ante at .

The most obvious characteristic of this body of behavior is

its professional, not racial, nature. The majority's

insinuation of racial, rather than medical, motivation

constitutes guesswork rather than reasonable inference. None of

these events indicates that the actors dealt with race or made

less than a good faith judgment about Bulwer's professional

performance. See Brunner v. Stone & Webster Engr. Corp., 413

Mass. at 703-704, and cases cited (lack of evidence

contradicting good faith evaluation of employee's performance

permits summary judgment for employer). Indeed the record

reflects the efforts of individual physicians to assist Bulwer's

residency. Flint accommodated Bulwer's late entry into the
 26

program.13 Balestrero testified that she both met and attempted

to meet with Bulwer. Bial acknowledged that she confronted him

on multiple occasions to address the quality of his work. The

one such instance cited by the majority occurred in a small room

outside the presence of patients and in the presence of one

other resident. No evidence supports the imputation that she

"harbored" a separate personal racial animosity toward him.

Wellisch's comment that a resident's duty is to furnish

information to senior physicians related to medicine and not

13
In deposition testimony, Bulwer effectively acknowledged
his unawareness of any evidence of animus from Flint.

Q.: "When he accepted you into the program out of the
normal rotation, you didn't believe at that time that he
was discriminatory --"

A.: "Loved -- loved him to bits."

Q.: "Okay. At this point in time in April[,] 2006[,] did
you believe he was discriminatory against you?"

A.: "By virtue of him siding with people who were
supremacist [with] their language and said and did what
they did, then I had to lump them all in one basket."

Q.: "So you believe Dr. Flint acted with a discriminatory
animus towards you?"

A.: "Yes."

To this concession, one could add the improbability that
Flint's professional receptiveness would transform into
discriminatory rejection in the course of eight months. See
Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 406
(2002), and cases cited ("[I]t is improbable that the same
persons who hire or promote someone already in a [protected
group] will suddenly develop an aversion to [that group]").
 27

race. MAH's written due process policy specifically authorized

termination of a residency, rather than mere nonrenewal by the

AHC, "in cases where patient safety and well-being may be in

jeopardy as determined by the Chair of the Department [of

Medicine]." Here, that chair, Zinner, served as a member of

the AHC and made such a determination.

The majority's imputation of pretext or animus to these

multiple, separate professional judgments is unsupported and

unsupportable. See Wooster v. Abdow Corp., 46 Mass. App. Ct.

665, 672 (1999) (affirming summary judgment for defendant on age

discrimination claim where "there [were] no remarks concerning

age and no apparent connection between the evaluations and the

plaintiff's age"); Bruce v. Wellesley, 47 Mass. App. Ct. 800,

806 (1999) (remanding case to Superior Court for entry of

judgment notwithstanding verdict because "[o]ther than the

undisputed fact that the plaintiff was over age forty at the

time he was discharged, there was no showing that the town was

concerned about the plaintiff's age" when it denied him tenure

as teacher at high school).

The case law requires invidious motive, not perfect

evaluation, by the employer. Sullivan v. Liberty Mut. Ins. Co.,

444 Mass. at 56. "The employer's reasons [for adverse action]

need not be wise, so long as they are not discriminatory and

they are not pretext." Tardanico v. Aetna Life & Cas. Co., 41
 28

Mass. App. Ct. at 448. "[N]ot every unfair termination . . .

constitutes unlawful employment discrimination . . . .

Membership in a protected class without more is insufficient to

make the difference." Weber v. Community Teamwork, Inc., 434

Mass. 761, 778 (2001). See Wooster v. Abdow Corp., 46 Mass.

App. Ct. at 673 (same). In this case, Bulwer has offered only

membership in a protected group, and nothing more.14

(C) Dr. Ramona Dvorak. Dvorak furnished deposition

testimony in support of Bulwer. She had worked at MAH from 1997

until 2005. During her last six years she had served as the

director of consultation psychiatry, until MAH eliminated that

position. She observed Bulwer on approximately twenty

occasions, and viewed him as a "talented and outstanding

clinician." Dvorak had submitted a letter to the AHC in support

of him. She could not recall any specific interactions with

him.

14
The majority points out that Bulwer received some
favorable rotation evaluations. Ante at . However the
favorable reviews do not permit a reasonable inference that
MAH's reliance on the unfavorable assessments was false. See
Lipchitz v. Raytheon Co., 434 Mass. at 502, 507; Knight v. Avon
Prod., Inc., 438 Mass. 413, 421-422 (2003); Waite v. Goal Sys.
Intl., Inc., 55 Mass. App. Ct. 700, 705 (2002). The work in
question is the practice of medicine. The majority
acknowledges, as it must, the "certainly ample evidence that
Bulwer's performance in the residency program fell short of
expectations." Ante at . MAH was fully entitled to conclude
that a mixed performance was an unsatisfactory performance,
especially for patients located in the wrong part of the mix.
 29

Dvorak testified that "in my opinion, there is

institutional racism at Mount Auburn Hospital." She was aware

of only "one other black physician that remained on staff . . .

besides myself"; but she was not aware of the hospital-wide

diversity statistics during her employment.

Dvorak based her opinion of institutional racism on three

grounds: (1) incidents of conduct by unidentified persons

within the MAH buildings; (2) the administration's tolerance of

several mediocre white physicians on staff; and (3) elimination

of her position.

As to incidents, at unspecified times, unknown individuals

had twice removed from her office door a diversity bumper

sticker and had once left a piece of white supremacist

literature in a staff room.

As to personnel, Dvorak cited three occurrences of

preferential treatment of white staff physicians. In one

instance, MAH had retained on staff a male psychiatrist whose

clinical judgment she had criticized repeatedly over a five-year

period. As a second, she cited the elimination of her own

position by MAH in 2006 as racially motivated retaliation

against her role as an outspoken black female insistent upon
 30

clinical excellence.15 She did not specify any incident or

personnel involved in that action. As a third instance, she

referred to MAH's retention of a physician whom she suspected as

a white supremacist. When MAH counsel asked for the basis of

her suspicion, she responded that the physician had maintained a

large American flag on his office wall.16

None of Dvorak's commentary qualifies as admissible

evidence. It is inadmissible, not on technical bases, but

rather on multiple independently adequate grounds of lack of

foundation, lack of relevance, and overriding prejudice.

As to foundation, she conceded that she had no knowledge of

the medical merits of Bulwer's case in the CCC and AHC:

Counsel for the hospital: "But you will agree with me, you
don't know the circumstances [of Bulwer's case in the CCC
and AHC]."

A.: "I do not know the circumstances."

Q.: "But you believe it [racial bias by MAH] generically;
you don't know the specifics of their concerns [about
Bulwer's performance], right?"

15
She believed that MAH had eliminated her position because
"they really felt that they wanted someone else in the
[reconfigured] position who could get along better with the
people throughout the hospital." She viewed that reason as
"completely absurd" and "the only explanation" for the
elimination of her position to be "racism."
16
Dvorak testified, "[W]hite supremacists frequently have
huge American flags as that denotes their, you know, white
America mentality."
 31

A.: "I do not know the specifics of their concerns, that
is correct."

As to relevance, she could not identify the perpetrators,

the time, or the circumstances of the events in MAH buildings,

nor connect them in any respect to the case of Bulwer. Nor did

the retention of the allegedly mediocre white male psychiatrist

have any linkage to this dispute. Her criticism of unidentified

passive MAH administrators had no bearing on the decision

terminating Bulwer's residency. See Brunner v. Stone & Webster

Engr. Corp., 413 Mass. at 704, quoting from Medina-Munoz v. R.J.

Reynolds Tobacco Co., 896 F.2d at 10 ("The biases of one who

neither makes nor influences the challenged personnel decisions

are not probative in an employment discrimination case"); Weber

v. Community Teamwork, Inc., 434 Mass. at 777 (employee could

not establish discrimination based on events and conditions that

predated decisionmaker's arrival at employer because no evidence

that previous discriminatory attitude influenced decisionmaker).

See also Bennett v. Saint-Gobain Corp., 507 F.3d 23, 31 (1st

Cir. 2007), quoting from Velazquez-Fernandez v. NCE Foods, Inc.,

476 F.3d 6, 11 (1st Cir. 2007) ("[T]he discriminatory intent of

which [an employee] complains must be traceable to the person or

person who made the decision to fire him. . . . When assessing

a claim of pretext in an employment discrimination case, an
 32

inquiring court must focus on the motivations and perceptions of

the actual decisionmaker").

Finally, Dvorak's broadsided "opinion" of MAH, her former

employer, as a "racist" institution is blatantly inflammatory

and prejudicial. See Pina v. The Children's Place, 740 F.3d

785, 795 (1st Cir. 2014), quoting from Caban Hernandez v. Philip

Morris, USA, Inc., 486 F.3d 1, 8 (1st Cir. 2007) ("Although we

will draw all reasonable inferences in the nonmovant's favor, we

will not 'draw unreasonable inferences or credit bald

assertions, empty conclusions, rank conjecture, or vitriolic

invective'"). These offerings do not present questions of

credibility or weight for a jury, but only a question of law for

a judge. Dvorak's deposition testimony is an attempt to

substitute a grudge for evidence. As a matter of law, it is

inadmissible in toto.17

(D) Shifting explanations. Finally, the majority's

description of MAH's statements of reasons for nonrenewal of the

residency ("poor performance in the internal medicine

department") and for termination as reported to the Board of

Registration in Medicine ("[f]ailure to make appropriate

progress in processing and applying evaluations and other

17
The motion judge correctly rejected Dvorak's deposition
testimony as "bare assertions, understandings, beliefs or
assumptions," with citation to Key Capital v. M&S Liquidating
Corp., 27 Mass. App. Ct. 721, 728 (1989).
 33

constructive criticism and feedback to patient care

responsibilities") as potentially shifting and suggestive of

pretext is untenable. As the survey of rotation evaluations and

committee findings demonstrates, those expressions convey a

consistent assessment of the grounds for unsatisfactory

performance. The indicator of shifting explanations requires a

significant inconsistency or apparent falsehood. See, e.g.,

Waite v. Goal Sys. Intl., Inc., 55 Mass. App. Ct. 700, 705

(2002).

iii. Discrimination summary. In sum, eight rotational

evaluators independently identified common and continuing

shortcomings. The program director, Bulwer's adviser, and the

thirteen-member CCC concurred in those evaluations. The AHC of

four senior physicians, after an expanded review, concluded that

the deficiencies remained serious. The chair of the department

of medicine concluded that the deficits risked patient safety.18

The entire work of the physicians and committees is devoid of

any reference to race or national origin. The minutes of the

AHC's meetings reflect a special concern about the consequences

of the proceeding for Bulwer's career.

18
The physicians and the AHC recognized that Bulwer had
received a number of mixed and favorable rotation evaluations
and that his described weaknesses lay in three of the six core
competencies, and not all six. The gravamen of concern was his
persistence in those three deficiencies and his treatment of
constructive criticism with obdurate resentment.
 34

Against this body of evidence, Bulwer and the majority have

not identified disparate treatment of any similarly situated

individual. The record is devoid of comparators and devoid of

any direct or circumstantial evidence of racial motivation by

any participating MAH decisionmaker. The summary judgment

record presents a case in which evidence of invidious intent is

not merely insufficient, but rather nonexistent.

Perhaps most troubling is the majority's treatment of

medical judgment. It purports to see beneath the accumulated

layers of professional opinion some evidentiary clues of

invidious behavior warranting a jury trial (e.g., failure of

Flint and Balestrero to meet more frequently with Bulwer amid

their duties; criticism of Bulwer's performance by Bial; comment

about a resident's duties by Wellisch). Nothing in the record

supports the characterization of these events as evidence of

discrimination rather than the practice of medicine in a large

teaching hospital. The majority's rationale is strangely

skeptical of contemporaneous documented medical judgment, and

even more strangely indulgent of hypothetical conspiracy

theories.19 Its entire discrimination analysis is an exercise in

conjecture, not evidence. The record permits no reasonable

19
The gist of the deposition testimony of both Bulwer and
Dvorak was that white supremacists had infiltrated the decision-
making positions of a major university teaching hospital.
 35

expectation of proof of racially discriminatory conduct or

pretext for such conduct.

2. Breach of contract claim. The majority believes that

several claims of breach of the residency contract by MAH

deserve a trial: (1) the failure to provide a nondiscriminatory

workplace; (2) failure to provide Bulwer with required resources

and supervision; (3) failure to provide him with adequate notice

of specific patients or allegations considered by the AHC; and

(4) omission of a resident from membership in the AHC. Ante at

. For the following reasons, no triable issue of a material

breach is present.

The claim of a discriminatory workplace depends entirely

upon allegations of discrimination already discussed. That

claim does not have the support of evidence creating a genuine

issue of material fact.

Similarly, the alleged failure to furnish Bulwer with

required resources and supervision lacks any basis in the

record. This claim appears to rest upon the allegation that

Flint and Balestrero failed to provide sufficient remedial

support to Bulwer after delivery of his October, 2005,

evaluations and his November conferences with them. The only

specification of that claim is that Balestrero did not meet with

him on a weekly basis in December, a problem which she

attributed to his scheduling. That component was only one of
 36

six elements of the December 1, 2005, remediation plan composed

by the CCC. No evidence indicates that the remaining five

elements did not go into effect for Bulwer's benefit (review of

all his notes by a senior resident; monitoring of his case

presentations by attending physicians; consultations by the CCC

with his nurse managers; review of his December rotation by the

CCC; discussion of his December evaluations and general standing

by a CCC representative, Balestrero, and Bulwer). Bulwer's

December, 2005, and January, 2006, evaluations appeared better,

but his February, 2006, assessment plummeted.

At the first meeting of the AHC, Flint presented the

reasons for nonrenewal: problems in the three core competencies

and three illustrative cases from patient charts. Bulwer

responded to the three competency concerns, requested and

received permission to file responsive written material, and

three days later submitted a fourteen-page reply with specific

references to four patient charts and five admissions and

progress notes. It is uncertain whether Bulwer received notice

of the three illustrative cases first submitted by Flint. The

AHC's provision of a full written rebuttal process cured any

deviations from the notice requirement.

The AHC did not breach any contractual standard by the

conduct of its second and third meetings. The contractual due

process provision calls for the introduction of original
 37

evidence in the presence of the resident. Then, "[i]n reaching

its findings and recommendations, the [AHC] may meet with other

persons and examine records" (emphasis supplied). The AHC

followed that process as part of its deliberations here, as it

invited to the second meeting the views of the additional

physicians through whose departments Bulwer had rotated. The

third meeting consisted entirely of deliberative discussion.

Those proceedings were not unauthorized or secretive events, as

persistently suggested by the majority opinion. Contractual due

process did not entitle Bulwer to attend the second and third

deliberative sessions. The AHC had begun deliberation at the

close of the first session and then pursued it to completion.

Finally, the AHC did omit a resident or "house officer"

from its membership. Throughout the proceedings all

participants appear to have been unaware of that contractual

specification.20 The four members of the AHC eventually reached

a unanimous decision. The question remains whether the omission

constituted a material breach harmful to Bulwer. In these

circumstances, it did not.

"In determining whether a failure to render or to offer

performance is material, the following circumstances are

significant: (a) the extent to which the injured party will be

20
The written AHC process does not call for the
participation of attorneys.
 38

deprived of the benefit which he reasonably expected; . . .

[and] (e) the extent to which the behavior of the party failing

to perform or to offer to perform comports with standards of

good faith and fair dealing." Restatement (Second) of Contracts

§ 241 (1981).

Here the procedural deviation did not deprive Bulwer of a

reasonably expected benefit (a different outcome). Nor did MAH

depart from standards of good faith and fair dealing. The

absence of a resident was an oversight, and not an evasion. The

minutes of the AHC hearings show abundant concern for a fair

determination and for Bulwer's career. The weight of

information and the train of MAH procedures leading to the

outcome left no room for a different result.

Conclusion. The duty of a judge is to resolve a case on

the basis of the presence or absence of evidence and the

governing legal standards, not on the basis of speculation or

preconception. The Superior Court judge performed that duty

fully and accurately. I would affirm her entry of summary

judgment in its entirety.