Green v. Harvard Vanguard Medical Associates, Inc.

944 N.E.2d 184, 79 Mass. App. Ct. 1, 2011 Mass. App. LEXIS 292, 111 Fair Empl. Prac. Cas. (BNA) 1200
CourtMassachusetts Appeals Court
DecidedMarch 3, 2011
DocketNo. 09-P-2092
StatusPublished
Cited by17 cases

This text of 944 N.E.2d 184 (Green v. Harvard Vanguard Medical Associates, Inc.) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Green v. Harvard Vanguard Medical Associates, Inc., 944 N.E.2d 184, 79 Mass. App. Ct. 1, 2011 Mass. App. LEXIS 292, 111 Fair Empl. Prac. Cas. (BNA) 1200 (Mass. Ct. App. 2011).

Opinion

Rubin, J.

For the third time in as many years, we address an antidiscrimination suit under G. L. c. 15 IB involving the alleged workplace use against an African American of the racial epithet that is widely regarded as the most hateful and offensive in our culture. See Thomas O’Connor Constructors, Inc. v. Massachusetts Commn. Against Discrimination, 72 Mass. App. Ct. 549 (2008); Augis Corp. v. Massachusetts Commn. Against Discrimination, 75 Mass. App. Ct. 398 (2009). Here, the Superior Court judge granted summary judgment in favor of the defendant, Harvard Vanguard Medical Associates, Inc. (Harvard Vanguard). The plaintiff, Darrell Green, now appeals.

In reviewing an order granting summary judgment, as we do in this case, the standard of review is the familiar one. We review de novo the propriety of the order granting summary judgment, viewing the evidence in the summary judgment record in the light most favorable to the nonmoving party, in this case the plaintiff. See Gray v. Giroux, 49 Mass. App. Ct. 436, 438 (2000).

I.

The summary judgment record reveals the following: Green applied for a position and was hired in June, 2005, by Harvard Vanguard to work as a medical secretary in Harvard Vanguard’s physical therapy department at its Kenmore Square location. According to Green’s affidavit, Mary Beth Walsh, who was to be his supervisor, told him that, although the job formally was [3]*3for only twenty hours per week, Green would be able to work forty hours per week. Green accepted the position based on that representation.

Green completed not only secretarial tasks in the position but assisted with other needs of the physical therapy department. According to Green’s affidavit, Walsh praised Green for his performance and did not criticize him or his work. Walsh, however, only inconsistently provided additional work for Green above the twenty hours required by the job. Without the twenty additional hours per week, Green was unable to earn sufficient income to support himself or his child.

It is undisputed that sometime in August, 2005, Green went to Harvard Vanguard’s human resources department, where he spoke with Michelle Guamieri, who worked in that department.1 Green informed Guamieri that Walsh had promised him twenty additional hours of work each week but that she had failed to provide him with that work. Guamieri indicated that Walsh had neither the authority nor the ability to promise these additional hours. Subsequently, Guamieri apparently informed Walsh about her conversation with Green.

According to Green, shortly after he spoke with Guamieri, near the end of a work day, Walsh walked up to him, stood very close within his personal space, pointed her finger at his face, and yelled at him, saying, “How dare you go to Human Resources and report me.” Green responded that all he wanted was a forty-hour work week, which is what he was told he would be given when he started working. Walsh responded, “You’re not going to get it. Now I don’t even want to see you. Who do you think you are? Who do you think they are going to believe, me, a valued employee of over ten years or a dirty fucking nigger?”

The parties agree that Green immediately reported this alleged incident to the human resources department.2 According to Green, Walsh subsequently issued Green a “letter of concern.” This letter outlined alleged deficiencies in job performance that were [4]*4purported to have occurred prior to the angry interaction between Walsh and Green. One involved calling in sick, which Walsh wrote that Green, as a probationary employee, was not permitted to do. The second involved an allegation that Green interrupted a conversation between an optical department supervisor and a patient in order to seek reimbursement for eyeglasses that Green had obtained as a Harvard Vanguard patient prior to his employment by Harvard Vanguard.

According to Guarnieri’s own affidavit, after Green spoke with her about the incident with Walsh, she “decided that it would not be in [Harvard Vanguard’s] best interest to continue to employ him.” She asserts that this conclusion was not made in retaliation for his reporting the incident, but was based upon the behavior described in Walsh’s letter of concern as well as certain other alleged workplace incidents.

According to Green’s testimony, Guarnieri. told Green that he would have to avoid Walsh and that Walsh intended to force Green out of Harvard Vanguard. Subsequently, Guarnieri indicated to Green that in order to avoid remaining in Walsh’s department, he would have to resign his position. Green testified that he was told that this measure would be temporary and that Harvard Vanguard would rehire him to a future position as soon as one became available. Although the “letter of concern” extended Green’s time as a probationary employee — and thus extended the time until he could become a member of the union — according to Green, Guarnieri indicated that in the new position he would be able to work the time necessary for union admission. Green also testified that Guarnieri told him that he would be paid while he awaited this new position and that he would not lose any compensation or benefits.

Green agreed to this proposal. At Guarnieri’s request he signed a letter of resignation. He also signed a “salary continuation agreement” (agreement). It provided that for four weeks, or until Green commenced other employment comparable to his position as a medical secretary, Harvard Vanguard would continue to pay Green’s salary and would pay for his health insurance. Contrary to Green’s testimony, Guarnieri testified in her affidavit that, upon providing Green the agreement, she told him that after his resignation he could apply for jobs at Harvard Vanguard on the same basis as anyone else.

[5]*5The agreement also contained a clause entitled “Release.” This clause states that “[t]his Agreement constitutes the entire agreement between Mr. Green and [Harvard Vanguard] with respect to all matters pertaining hereto and provides the only benefits that Mr. Green shall receive in connection with his resignation and is in full settlement of all claims Mr. Green now has or may have against [Harvard Vanguard]. Mr. Green agrees to release and forever discharge [Harvard Vanguard]” from any claims that he may have had “by reason of any cause or matter occurring on or prior to the date of this Agreement.” The agreement was executed on August 30, 2005, by Harvard Vanguard and was signed by Green on September 2, 2005.

According to Green, while he was still receiving the four weeks’ pay referenced in the agreement, Guamieri called him and offered him a position, for which he had not applied, as a medical assistant in the cardiology department. This was a full time, forty hours per week position. Green’s assertion that he had not applied for this position is supported by a detailed listing of his applications for positions at Harvard Vanguard produced during discovery that does not indicate that he applied for the cardiology department position.

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944 N.E.2d 184, 79 Mass. App. Ct. 1, 2011 Mass. App. LEXIS 292, 111 Fair Empl. Prac. Cas. (BNA) 1200, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-v-harvard-vanguard-medical-associates-inc-massappct-2011.