Opinion
20-P-418
03-24-2022
ANULI MKPARU v. BOSTON MEDICAL CENTER & others.[1]
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Anuli Mkparu ("plaintiff" or "Dr. Mkparu"), filed an action in the Superior Court alleging unlawful discrimination and retaliation in violation of G. L. c 151B against the defendants, Boston Medical Center (BMC), Dr. Thomas Einhorn, and Dr. Paul Tornetta (collectively "defendants").Following a hearing in the Superior Court, a judge allowed the defendants' motion for summary judgment. Judgment entered for the defendants and the plaintiff now appeals therefrom. We affirm.
BMC is the primary teaching hospital for the Boston University School of Medicine (BUSM).
The complaint also contained a count claiming intentional interference with advantageous or contractual relationships. That count was dismissed on summary judgment and the plaintiff does not make a separate argument as to it on appeal.
Earlier in the litigation, a different judge allowed a motion to dismiss Dr. Mkparu's claim that Dr. Einhorn and Dr. Tornetta aided and abetted BMC's alleged discrimination and retaliation in violation of G. L. c. 151B.
Background.
The details of this case are well known to both parties. Accordingly, we need not undertake a full recitation of the lengthy background facts of this case. Of course, "we view the facts of record in the light most favorable to the nonmoving party (i.e., the plaintiff), as required by the summary judgment standard." Earielo v. Carlo, 98 Mass.App.Ct. 110, 111 (2020).
The facts at summary judgment, viewed in the light most favorable to the non-moving party, derive from the consolidated statement of undisputed material facts filed pursuant to Superior Court Rule 9A(b)(5) along with the exhibits and supporting materials filed in support of the motion. Here, the judge allowed, in part, the defendants' motion to strike some of the plaintiff's responses to the defendant's statement of undisputed material facts for noncompliance with rule 9A(b)(5). The plaintiff challenges the allowance of the motion to strike on appeal, and we address this issue below.
The plaintiff is a Black woman from Nigeria. She attended medical school at Duke University where she obtained her doctorate of medicine. In 2008, she was accepted into BMC's orthopedic residency program, a five-year program through which BMC is responsible for the clinical and academic training of orthopedic surgery residents. Residents advance through the program on an annual basis. The residents begin as interns in postgraduate year one ("PGY-1") and then move on to PGY-2, PGY-3, PGY-4 and PGY-5 years. Residents undertake an incremental increase in responsibility each year, and a substantial increase in responsibility in the PGY-5 or "chief resident" year.
The plaintiff was selected from approximately 600 applicants to interview for one of the five spots in the residency program in 2008. Dr. Einhorn, who was the chairman of the orthopedic surgery department at BUSM and Dr. Tornetta who was the program director for the residency program, gave the plaintiff favorable rankings and supported her application, which resulted in her acceptance into the residency program.
Throughout the plaintiff's time in the program, there were myriad complaints about her behavior and performance. Indeed, the program director for the residency program, Dr. Tornetta, received substantial negative feedback regarding the plaintiff's performance, skills, and deficiencies relating to the Accreditation Council for the Graduate Medical Education ("ACGME") competencies. The negative feedback included, but was not limited to, complaints during the plaintiff's intern year regarding her performance, below average knowledge base, and poor behavior and discourtesy toward others. Likewise, there were multiple complaints about the plaintiff in her PGY-2 year regarding her performance, tardiness for rounds, rudeness in interactions with patients and colleagues, and multiple instances where hospital security had to be called to defuse situations involving her upset patients. The faculty met in 2010 to review the progress of all residents and determined that the plaintiff had failed to meet PGY-2 expectations because of deficiencies in all six ACGME competencies. In a letter dated November 9, 2010, Dr. Tornetta informed the plaintiff that she was being placed on a remediation plan. He also identified her deficiencies -- based on reports from multiple faculty members who had evaluated the plaintiff during her PGY-2 year -- in each of the ACGME competencies. Dr. Tornetta received additional negative feedback regarding the plaintiff's performance while she was on the remediation plan, including a specific report that her "operative skills are well below average for her year in training." Nonetheless, the faculty ultimately advanced the plaintiff to her PGY-3 year because she generally appeared to be working on issues outlined in the remediation plan and because there was no substantial increase in unsupervised patient management from PGY-2 year to PGY-3 year.
The record contains a surfeit of examples of the complaints, concerns, and deficiencies regarding the plaintiff's performance and conduct, delineated infra. Although we do not delve into each specific example, we have reviewed the summary judgment record in its entirety and confirm that it supports the facts as described herein.
The six ACGME competencies include patient care, medical knowledge, practice-based learning, interpersonal and communication skills, professionalism, and systems-based practice.
During the plaintiff's PGY-3 year, the complaints and reports of her unsatisfactory performance continued. These included an incident where she failed to return a patient call because she felt it was too early in the morning to do so; reports that she was "struggling to catch up with her class"; and a report from an assistant professor of orthopedic surgery at Boston University School of Medicine (BUSM) that she demonstrated "below average attention" in the operating room ("OR"), "asks questions in the OR that are often not relevant and/or imply lack of preparation," and demonstrated a "limited ability to integrate limited knowledge base and poor judgment into rational[] clinical care decisions." The faculty determined that the plaintiff again failed to meet expectations for her PGY-3 year due to deficiencies in all six ACGME competencies. Accordingly, on January 1, 2012, she was placed on a remediation plan for the second time. The faculty later determined that she had failed to make the requisite improvements in her remediation plan or reach the "minimum competency level" required to advance to the PGY-4 year. However, rather than terminate her from the residency program, the BMC provided her an opportunity to improve her performance by repeating her PGY-3 year.
The negative feedback regarding the plaintiff's conduct and performance continued during her repeat PGY-3 and PGY-4 years.These included being "verbally abusive" to staff, "oversleeping through call," engaging in disputes with residents, patient safety reports, inconsistency of performance, tardiness, issues with operative techniques, and problems with communication and professionalism.
Despite extensive issues in her repeat PGY-3 year, the faculty opted to advance the plaintiff to her PGY-4 year because they wanted her to succeed, observed some improvement in some areas, and understood that she would continue to work under complete supervision at the PGY-4 level.
Once again, we note that the summary judgment record is replete with letters, testimony, and documentation of the many issues, problems, and deficiencies in the plaintiff's performance and professionalism in her repeat PGY-3 year and PGY-4 year, which we need not repeat here in further detail. We are not ignoring that the plaintiff points to instances where she received positive feedback and evidence regarding her efforts at improvement, including reviews from two nurses and a supervising surgeon. We accept them as true and consider those positive reviews in our analysis below.
On January 11, 2014, approximately twenty faculty members met and discussed the plaintiff's performance as a resident, their experiences with her, and whether she should advance to her PGY-5 year. None of the faculty expressed the opinion that she should simply advance to her PGY-5 year. However, they did not want to terminate her from the program. Rather, they wanted to explore other options to allow her to succeed. On January 12, 2014, Dr. Tornetta met with Dr. Mkparu and informed her that she would not advance to the PGY-5 year in 2014. He also presented the options discussed by the faculty. On January 31, 2014, Maxine Kessler, BMC's Director of Graduate Medical Education and Designated Institutional Official for ACGME, emailed the plaintiff and reiterated the options that Dr. Tornetta had explained regarding her completion of her training in the residency program. Kessler indicated that the options included: (1) completing a non-operative program, at the conclusion of which she would not be "board eligible"; (2) doing a mentorship year with surgeons for one week periods, "getting specific hands on training in the anatomy lab or other areas, completing a research project, committing to continued counseling, and being evaluated monthly" to determine whether she could advance to a PGY-5 year and graduate; or (3) non-renewal of her contract, which would be reported to the Massachusetts Board of Registration in Medicine.
On February 17, 2014, the plaintiff chose the mentorship year. The BMC and the Union representing the plaintiff entered into a "Last Chance Agreement" ("LCA") setting forth the terms and conditions of her continued participation in the residency program. However, the plaintiff refused to sign the LCA, and did not select any other option. On June 30, 2014, her license to practice medicine expired and BMC issued a non-renewal of her appointment as a resident at BMC. The plaintiff appealed pursuant to the collective bargaining agreement (CBA) the non-renewal of her appointment as a resident at BMC on grounds that BMC's decision violated the CBA. On August 13, 2014, BMC's associate chief medical officer issued a decision ruling that the non-renewal of the plaintiff's appointment was appropriate and for just cause. The plaintiff appealed this decision under the terms of the CBA. On August 28, 2014, an ad-hoc committee of doctors conducted a de novo review hearing and unanimously upheld the decision not to renew her appointment in the residency program based upon "many factors . . . including the issues and circumstances that eventually lead [sic] to the non renewal . "
As noted above, on appeal to the Superior Court, the judge granted summary judgment for the defendants and the plaintiff appealed.
Discussion.
1. Standard of review.
We review a grant of summary judgment de novo to determine whether, "viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law" (citation omitted). Casseus v. Eastern Bus Co., 478 Mass. 786, 792 (2018). "The moving party bears the burden of affirmatively demonstrating the absence of a triable issue." Milliken & Co. v. Duro Textiles, LLC, 451 Mass. 547, 550 n.6 (2008). If the moving party carries its burden, "the party opposing the motion must respond and allege specific facts establishing the existence of a genuine issue of material fact." French King Realty Inc. v. Interstate Fire & Cas. Co., 79 Mass.App.Ct. 653, 659-660 (2011).
2. Motion to strike portions of plaintiff's rule 9A responses.
The plaintiff first contends that the judge erred in allowing, in part, the defendants' "Motion to Strike Portions of the Plaintiff's Submission in Opposition to Defendants' Motion for Summary Judgment." Specifically, the plaintiff claims that the judge abused her discretion in allowing the motion to strike because certain responses contained admissible nonhearsay, the allowance of the motion elevated form over substance, and the defendants' statement of undisputed material facts similarly failed to comply with Superior Court Rule 9A(b)(5). We disagree.
The plaintiff did not file a motion to strike the defendants' statement of undisputed material facts.
Initially, in allowing the motion to strike, the judge noted that at the hearing on the summary judgment motion, the plaintiff's attorney "stated that the court could deem admitted facts to which [the plaintiff] responded in the 9A(b)(5) statement of [f]acts, 'Plaintiff does not have knowledge or information sufficient to form a belief as to the truth of this statement, and it is therefore denied.'" In other words, the judge found that at the summary judgment motion hearing the plaintiff assented to a portion of the motion to strike. Thus, any challenge to the judge's allowance of that portion of the motion to strike is waived on appeal. See Cacicio v. Secretary of Pub. Safety, 422 Mass. 764, 769 n.9 (1996); Century Fire & Marine Ins. Corp. v. Bank of New England-Bristol County, N.A., 405 Mass. 420, 421 n.2 (1989).
We note that appellate counsel for the plaintiff was not trial counsel.
The transcript of the summary judgment motion hearing was not included as part of the record on appeal. Accordingly, there is nothing in the record before us that contradicts the judge's statement regarding plaintiff counsel's representations at that hearing.
The judge allowed the motion to strike with respect to other responses by the plaintiff because they did not "meet the standard required of Superior Court Rule 9A(b)(5)(ii)." At the time, rule 9A(b)(5)(ii) required that the opposing party "set forth a response to each [statement of fact] directly below the appropriate numbered paragraph, including, if the response relies on opposing evidence, page or paragraph references to supporting pleadings, depositions, answers to interrogatories, responses to requests for admission, affidavits, or other evidentiary documents." Rule 9A(b)(5)(ii) of the Rules of the Superior Court (2017). The opposing party is required to make "specific contradiction[s], . . . with the support of record reference, in order to preserve a dispute of material fact. The omission of a specific denial or contradiction particularly grounded in the summary judgment record results in an effective admission." Poon v. Massachusetts Inst, of Tech., 74 Mass.App.Ct. 185, 193 n.7 (2009) . Here, the judge did not err in finding that the plaintiff's responses did not meet the standard required by rule 9A(b)(5)(ii). The responses at issue include only the word "disagree," citations to the plaintiff's statement of facts, and in some cases an assertion that the evidence relied on by the defendants was inadmissible. The majority of the cited portions of the plaintiff's statement of facts do not reference, much less refute, the facts delineated by the defendants. See Poon, supra. See also Dziamba v. Warner & Stackpole, LLP, 56 Mass.App.Ct. 397, 400 (2002) ("It would unreasonably lengthen this opinion were we to proceed paragraph by paragraph through the parties' rule 9A(b)(5) statements to illustrate the plaintiff's compliance or noncompliance with the rule"). Accordingly, the judge did not abuse her discretion in allowing the motion to strike as to certain specified statements of fact and in deeming certain facts admitted. See Dziamba, 56 Mass.App.Ct. at 401.
Finally, the record reveals that the judge conducted an independent and thorough review of the entire summary judgment record, which is reflected in her comprehensive twenty-page memorandum of decision and order. See Id., quoting rule 9A(b)(5) (noting that although action by judge under rule 9A(b)(5) was fully warranted, she "added suspenders to that belt" through her independent review of "'evidentiary materials submitted by the plaintiff, '" and consideration "in the light most favorable to the plaintiff [i.e., the nonmoving party]," of "'those additional facts that [the court] deem[ed] material, and that [were] supported by admissible evidence . . .'") . Following our own thorough de novo review of the summary judgment record, we conclude that the judge did not abuse her discretion in allowing the motion to strike. After review of the remaining record (after the allowance of the motion to strike), we conclude that summary judgment was properly allowed. Moreover, as explained below, even after consideration of the material evidence referenced in the stricken rule 9A responses, we conclude that summary judgment was still properly allowed.
2. Discrimination claim.
The plaintiff contends that the judge erred in allowing summary judgment on her discrimination claim because she sustained her burden of (a) demonstrating a prima facie case of discrimination, and (b) demonstrating that BMC's articulated reasons for her non-renewal and termination from its residency program were pretext. Under G. L. c. 151B, § 4 (1), "[i]t shall be an unlawful practice . . .[f]or an employer . . . because of the race, color, . . .[or] national origin ... of any individual ... to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." In the present case, the plaintiff had the burden to demonstrate that "she is a member of a protected class; that [she] was subject to an adverse employment action; that the employer bore 'discriminatory animus' in taking that action; and that that animus was the reason for the action (causation)." Bulwer v. Mount Auburn Hosp., 473 Mass. 672, 680 (2016), citing Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001). We agree that under the summary judgment standard, the plaintiff has shown that she is a member of a protected class. Furthermore, we will assume for purposes of our analysis that she was subject to an adverse employment action. Accordingly, this inquiry centers on whether the plaintiff provided evidence from which a reasonable jury could infer that the defendants bore discriminatory animus and that the animus was the reason for the adverse action.
We note that BMC did not terminate the plaintiff until she declined to select one of the options presented to her following the decision not to advance her to her PGY-5 year. The plaintiff had the opportunity to continue with a further mentorship year with the possibility of advancing to the PGY-5 year.
Where, as here, a plaintiff relies on indirect evidence to prove a prima facie case of discrimination, she must provide evidence that she was a member of a class protected by G. L. c. 151B, she performed her job at an acceptable level, and she suffered an adverse employment action. See Bulwer, 473 Mass. at 680-682. Here, the plaintiff did not show that she performed her job at an acceptable level. We need not repeat the details delineated throughout the summary judgment record regarding her failure to perform at an acceptable level. Suffice it to say they include two remediation plans, a repeat year of training, multiple opportunities provided to correct her failures, criticisms and negative reports from multiple supervisors, colleagues, staff, patients, and faculty at several institutions, and the unanimous consensus of approximately twenty faculty members that the plaintiff should not advance to her PGY-5 year. Accepting all the evidence in the summary judgment record regarding positive feedback received by the plaintiff does nothing to change the undisputed evidence of her unacceptable job performance. In short, in view of the plaintiff's well-documented history of deficient performance and escalating discipline no reasonable jury could conclude -- on the record before us -- that she performed her duties at an acceptable level.
The plaintiff argues that, when considering whether she performed her job at an acceptable level, the court should limit its inquiry to her performance during the PGY-4 year because any deficiencies during the PGY-1 through PGY-3 years were "remediated and [she] successfully completed years 1-3." We see no reason to limit our analysis to the plaintiff's performance during the PGY-4 year where the plaintiff was advanced to the PGY-4 year to allow her to continue learning under complete supervision, see note 9, supra, and where a holistic review of performance throughout the residency program is relevant to whether a resident is prepared to assume the additional responsibility and autonomy associated with the PGY-5 year. See generally Blare v. Husky Injection Molding Sys. Boston, 419 Mass. 437, 441 (1995) (purpose of "prima facie case [is to] 'eliminate[] the most common nondiscriminatory reasons for the plaintiff's rejection,' thereby creating a presumption of discrimination" [citation omitted]).
Even assuming, arguendo, that the plaintiff had met her burden of establishing a prima facie case of discrimination, she failed to present evidence that the defendants' purported animus was the reason for the adverse action. In other words, she has not pointed to evidence of pretext. See Bulwer, 473 Mass. at 682. To show pretext, a plaintiff may point to circumstantial evidence that the employer's proffered reason for its action is not credible. See Salem v. Massachusetts Comm'n Against Discrimination, 44 Mass.App.Ct. 627, 642 (1998). A plaintiff's proof of pretext may include evidence of "weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action." Id. at 643, quoting Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). "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. 122, 129 (1997).
Here, the plaintiff asserts, inter alia, that a female Caucasian resident was provided an opportunity at remediation and was later promoted and graduated the program without repeating a year. She also points to positive comments received from a faculty member and a willingness of another faculty member to write recommendations for a fellowship for the plaintiff. Neither assertion demonstrates an inconsistency or implausibility that contradicts the defendants' actions here. The record is devoid of evidence showing that the other resident had conducted herself similarly to the plaintiff, had performed deficiently like the plaintiff, or had received complaints from other residents, patients, staff, or faculty members similar in type, quantity, or scope as those received by the plaintiff. Put simply, the record does not support the claim that the other resident was similarly situated to the plaintiff. See Matthews, 426 Mass. at 129-130 ("plaintiff must identify other employees to whom he is similarly situated in terms of performance, qualifications and conduct, without such differentiating or mitigating circumstances that would distinguish their situations" [quotations and citations omitted]). As to the faculty comments, it is undisputed that these two faculty members -- like the others -- did not believe that the plaintiff should advance to her PGY-5 year without additional training. That a faculty member provided positive feedback or was willing to write a recommendation for the plaintiff is not inconsistent with his or her view that the plaintiff was not qualified to advance to her PGY-5 year.
Additionally, the plaintiff points to a comment allegedly made by Dr. Tornetta during the January 12, 2014, meeting, at which the plaintiff was informed that she would not progress to the PGY-5 year. The plaintiff asserts that Dr. Tornetta told her that she could explore the possibility of practicing as an operative orthopedic surgeon in Nigeria. The plaintiff contends that the statement was "akin to saying 'you can go back to Africa.'" We note that this alleged statement was not raised or mentioned in the plaintiff's complaint, answers to interrogatories, or her two depositions. Instead, it was first raised in the plaintiff's self-serving affidavit dated July 5, 2018, filed in opposition to the defendants' motion for summary judgment, after the close of discovery. Accordingly, the statement may be disregarded. See, e.g., Martino v. Hogan, 37 Mass.App.Ct. 710, 721 n.12 (1994); Hanover Ins. Co. v. Leeds, 42 Mass.App.Ct. 54, 59 (1997) ("'if a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony,' the utility of summary judgment would be greatly diminished" [citation omitted]); 0'Brien v. Analog Devices, Inc., 34 Mass.App.Ct. 905, 906 (1993). See also Fontaine v. Ebtec Corp., 415 Mass. 309, 314 n.7 (1993) ("isolated or ambiguous remarks, tending to suggest animus . . . insufficient, standing alone, to prove an employer's discriminatory intent"). The plaintiff also cites to comments made by other residents in the program that she categorizes as "vile racial comments" directed at her and others. Although we agree that some of the comments, as alleged, were offensive or inappropriate, there is nothing in the record suggesting that they in any way motivated the defendants' decision not to advance the plaintiff to the PGY-5 year. See, e.g., Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 667 (2000) ("Stray remarks in the workplace, statements by people without the power to make employment decisions, and statements made by decision makers unrelated to the decisional process itself do not suffice to satisfy the plaintiff's threshold burden").
4. Retaliation claim.
The plaintiff's retaliation claim suffers from similar shortcomings. To establish a prima facie claim of retaliation, the plaintiff must show that(1) she engaged in protected conduct, (2) she suffered some adverse action, and (3) a causal nexus existed between the protected conduct and adverse action. See Mole v. University of Mass., 442 Mass. 582, 591-592 (2004). Here, the evidence in the summary judgment record fails to satisfy the third element. Myriad issues with the plaintiff's performance were identified before she engaged in the alleged protected conduct (here, her reports to Dr. Tornetta and others of the alleged discrimination) . See Id. at 594 ("Where, as here, adverse employment actions or other problems with an employee predate any knowledge that the employee has engaged in protected activity, it is not permissible to draw the inference that subsequent adverse actions, taken after the employer acquires such knowledge, are motivated by retaliation"); Dziamba, 56 Mass.App.Ct. at 407 (record lacked evidentiary support for retaliation claim where "expressions of dissatisfaction, warnings about unsatisfactory accomplishment, and not raising [plaintiff's] salary had begun well before [plaintiff]. . . 'had done or said anything that could be characterized as an exercise of protected rights'"). Accordingly, the judge properly allowed the defendants' motion for summary judgment.
The plaintiff argues on appeal that she is not required to make out a prima facia case under the standard for indirect evidence of retaliation because there was direct evidence of retaliatory motive. The plaintiff alleges that Dr. Tornetta "told [her] that no resident ever sues their program and wins" and "that he was a vindictive person and will go to the end to pay back anyone who crossed him." However, this argument is waived where it was not raised in the trial court. Child v. Child, 58 Mass.App.Ct. 76, 84 (2003), quoting M.H. Gordon & Son v. Alcoholic Bevs. Control Comm'n, 386 Mass. 64, 67 (1982) ("The general rule is that an issue not raised in the trial court cannot be argued for the first time on appeal").
The plaintiff's claim of pretext for her retaliation claim fails for the same reasons as her claim of pretext for her discrimination claim.
To the extent that we have not specifically addressed subsidiary arguments in the defendant's brief, "[w]e find nothing in them that requires discussion." Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).
Judgment affirmed.
Neyman, Desmond & Hershfang, JJ.
The panelists are listed in order of seniority.