As the First Circuit Court of Appeals recently reminded practitioners, an award of summary judgment is uncalled for where, irrespective of an employer’s characterizations of the facts, a jury may find the evidence “nuanced” and may conclude, from a “convincing mosaic” of facts, that discrimination has occurred. Burns v. Johnson, 829, F. 3d (2016) 1, 9 (internal citations omitted, emphasis supplied). Five months earlier, in Bulwer v. Mt. Auburn Hospital, 473 Mass. 672, 680 (2016), the Massachusetts Supreme Judicial Court (the SJC or the Court) was even more forceful on the subject. In Bulwer, the SJC provided a primer on the proof of discrimination, reminding practitioners of the four elements of such claims: (1) membership in a protected class, (2) adverse action, (3) discriminatory animus and (4) causation. The SJC also reminded practitioners that the last two elements (animus and causation) may be proven by direct or indirect evident, and that when relying on indirect evidence, an employee may (but is not required) to use the three-stage burden shifting paradigm known as the McDonnell Douglas paradigm. Bulwer v. Mt. Auburn Hospital, 473 Mass. at 680–682.
Regarding summary judgment, and the application of the McDonnell Douglas paradigm pre-trial, the Bulwer Court had this to say: “Summary judgment remains a disfavored remedy … because the ultimate issue of discriminatory intent is a factual question… A defendant’s motive is elusive and rarely is established by other than circumstantial evidence, therefore requir[ing] [a] jury to weigh the credibility of conflicting explanations of the adverse… decision.” Bulwer v. Mt. Auburn Hospital, at 689 (internal citations omitted, emphasis supplied). Specifically, the Bulwer Court, at 673-674, posed three concerns which the Court addressed later in its opinion:
- Using McDonnell Douglas, must an employee show more than pretext to survive a motion for summary judgement? The SJC answered in the negative, at 681-682 (emphasis supplied). “Massachusetts is a pretext only jurisdiction.” Therefore, an employee “need only present evidence from which a reasonable jury could infer that the [employer]’s facially proper reasons …were not the real reason.”
- Is it the employee’s burden to persuade the motion judge based on the evidence that there is an issue of material fact appropriate for trial? Again, the SJC answered in the negative, at 683 (internal citations omitted, emphasis supplied). At summary judgment, the burden of persuasion is on the employer “as the moving party” to affirmatively demonstrate “the absence of a genuine issue of material fact on every relevant issue even if [the employer] would not have that burden on that issue if the case were to go to trial.”
- In discerning the existence of an issue of material fact, may the motion judge weigh or otherwise evaluate the evidence? Yet again, the Court answered in the negative, at 689 (internal citations omitted, emphasis supplied). In deciding a motion for summary judgement, “a court does not resolve issues of material fact, assess credibility or weigh evidence.” Indeed, as was later discussed in detail by the First Circuit in Burn, where there is conflicting evidence, or even conflicting “interpretations” of the evidence, “the question of whose interpretation is more believable,” … is not for the court to decide… but is for the fact finder….”
 The McDonnell Douglas paradigm requires an employee to present a prima facie case; the employer to respond with evidence of a legitimate lawful reason; and the employee to reply with evidence of pretext. Id. at 680. However, while the McDonnell Douglas paradigm is one way to prove discriminatory animus and causation “it is not the only way … [A]n inference of discrimination with suffice.” Trustees of Health and Hospitals of the City of Boston, Inc. v. MCAD, 449 Mass. 675, 687 (2007) (African American employees treated in an unlawfully stereotypical manner, as if likely to commit criminal acts).