On February 29, the Massachusetts Supreme Judicial Court (“SJC”) issued its opinion in Bulwer v. Mount Auburn Hospital, reversing the summary judgment ruling won by Mount Auburn Hospital on claims brought against it by Dr. Bernard Bulwer. In 2006, Dr. Bulwer, a black male from Belize, brought claims for race and national origin discrimination (and breach of contract) after he was abruptly terminated from the hospital’s residency program, purportedly for performance problems.
What Went Wrong?
During the first year of his residency, Dr. Bulwer was evaluated by a number of supervising physicians. Some evaluations of his work were critical, while others were quite positive. The hospital, however, decided not to renew Dr. Bulwer’s residency contract on the basis of the negative evaluations, and then, according to Dr. Bulwer, failed to follow its internal appeal process.
Taking a gestalt approach to the evidence, the SJC found that the following, when viewed in the aggregate, could support the conclusion that Dr. Bulwer was terminated not for performance, but because of his race and national origin: (1) the hospital’s stated reasons for terminating Dr. Bulwer were contradicted by some (though not all), of his performance evaluations; (2) there was evidence that other (non-black) residents were treated more leniently with regard to performance improvement; (3) there was evidence that the hospital failed to adhere to its own due process protocol in reviewing the termination decision; and (4) there was evidence that some of Dr. Bulwer’s supervisors may have been influenced by “stereotypical thinking” about black men.
Now, 10 years after his termination, Dr. Bulwer will have his day in court. Apart from the obvious lesson for employers – that it is usually better to resolve such disputes rather than spend 10+ years in litigation, the decision offers some valuable lessons for employers dealing with employee performance issues.
5 Tips For Managing Employee Performance Problems:
1. Before terminating an employee for performance issues, consider the source of information regarding that employee’s performance.
An employer who relies on the views of a biased or bigoted supervisor in making personnel decisions cannot escape liability for discrimination, even if the ultimate decision-maker is not so biased. Employers should consider whether there is evidence from other sources that either corroborates or conflicts with the supervisor’s perception, and should consider whether the particular supervisor is a reliable and credible source of information with regard to the particular employee. Where there is a difference of opinion among supervisory personnel regarding an employee’s performance, employers should attempt to reconcile the conflicting views before taking action. If there is a good reason for an employer to adopt the opinions of some supervisors over others, those reasons should be documented.
2. Consider whether performance evaluations have been influenced by “stereotypical thinking.”
In Bulwer, the SJC observed that a number of statements about Dr. Bulwer could be seen to reflect stereotypical, negative thinking about him as a black man and foreigner. Some of his superiors seemed to hold the view that Dr. Bulwer did not “know his place,” and was not sufficiently deferential in his behavior. In a similar vein, women who are presumed by their employers to be less committed to their work than their male counterparts – especially after becoming parents, might legitimately complain that such stereotypical thinking reflects unlawful bias. Employers should take the time to consider how supervisory observations about the employee might be interpreted to reflect bias.
3. Consistently follow all internal disciplinary and grievance procedures for every employee, in every circumstance.
As the SJC observed in Bulwer, an employer’s failure to follow established procedures or criteria in connection with discipline or termination can be evidence of intentional discrimination. In Dr. Bulwer’s case, the Court found that the hospital’s failure to adhere to its own protocol, for example by not allowing Dr. Bulwer to attend all meetings of the committee formed to address his performance, could be considered evidence of discriminatory bias. Employers who establish procedures for addressing performance improvement, employee grievances, or discipline, such as progressive disciplinary procedures, act at their peril if they fail to follow them in every circumstance.
4. Before terminating or disciplining an employee, consider whether other employees in similar circumstances have been treated in the same way.
This is the step that employers most often ignore or over-look when terminating or disciplining an employee, yet it is inevitably one of the most crucial aspects of evidence in any discrimination case. Before deciding to terminate or otherwise discipline an employee, consider whether other, similarly-situated employees have received the same or similar treatment in the past. If not, be prepared to justify any different treatment.
5. When providing an employee with the reasons for termination, make sure that every stated reason is demonstrably true.
In other words: document, document, document! When defending a decision to discipline or terminate an employee, employers with contemporaneous documentation of the employee’s shortcomings will fare far better than the employer who has only a supervisor’s memory to rely upon. When reviewing such documentation, take time to consider whether it is accurate, reliable and corroborated by other evidence.