Lee v. President & Fellows of Harvard College

806 N.E.2d 463, 60 Mass. App. Ct. 836, 2004 Mass. App. LEXIS 424
CourtMassachusetts Appeals Court
DecidedApril 20, 2004
DocketNo. 02-P-1587
StatusPublished
Cited by6 cases

This text of 806 N.E.2d 463 (Lee v. President & Fellows of Harvard College) 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
Lee v. President & Fellows of Harvard College, 806 N.E.2d 463, 60 Mass. App. Ct. 836, 2004 Mass. App. LEXIS 424 (Mass. Ct. App. 2004).

Opinion

Greenberg, J.

At age fifty-six, the plaintiff, Dr. James Lee, was informed by letter that his part-time job as an ophthalmologist at the eye services department of Harvard University’s health services (Harvard) would no longer be funded, and his appointment would not be renewed. The question put is whether age discrimination lay behind the decision or, as Harvard posits, budgetary constraints led to elimination of the position.

For purposes of establishing a triable claim of age discrimination under G. L. c. 151B, § 4(1B),1 “a plaintiff must demonstrate [837]*837that he or she was replaced by someone who is substantially younger or otherwise present some evidence that supports a reasonable inference that age was a determinative factor in the employer’s decision.” Knight v. Avon Prods., Inc., 438 Mass. 413, 414 (2003). A Superior Court judge allowed Harvard’s motion for summary judgment on Lee’s age discrimination claim on the ground that Harvard met its burden of articulating a nondiscriminatory rationale and that Lee failed to adduce evidence to raise a genuine issue of material fact with respect to the truthfulness of Harvard’s proffered reasons for the decision.2 Lee appeals, contending that disputed issues of fact precluded the allowance of summary judgment. We affirm.

We have in mind the principle that “[sjummary judgment is a disfavored remedy in the context of discrimination cases based on disparate treatment.” Blare v. Husky Injection Molding Sys. Boston, Inc., 419 Mass. 437, 439 (1995). Where there is conflicting evidence as to the defendant’s discriminatory motive, courts may not dispose of such cases on the basis of affidavits. Id. at 445. “That is not to say, however, that summary judgment is never appropriate in unlawful discrimination [838]*838cases.” Tardanico v. Aetna Life & Cas. Co., 41 Mass. App. Ct. 443, 448 (1996), and cases cited.

Here, the judge, viewing the evidence in a light most favorable to Lee, concluded that he qualified as a member of the protected class (over forty years of age)3; that he performed his ophthalmology role (a half day each week) at an acceptable level; and that his appointment after sixteen years of service was not renewed. For purposes of the motion, she assumed that he was equally qualified to do the ophthalmological work as Jeffrey Taveras, his colleague, who was seventeen years younger and survived the reorganization. Thus, for purposes of the motion, she concluded that Lee had established a prima facie case of age discrimination. See Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001).

Concerning Harvard’s “stage two” rationale for not renewing Lee’s appointment, the judge concluded that Harvard articulated, by competent proof, nondiscriminatory reasons for its decision. Those reasons were (1) the eye services department had exceeded its budget by $14,000; (2) Lee was a specialist in contact lenses and was the only ophthalmologist paid from the contact lens budget; (3) in the 1990’s, the number of cases requiring contact lens specialists (as opposed to routine fittings by optometrists) had decreased significantly; and (4) Harvard determined that it was contracting for more hours of ophthalmology time than needed and that Lee was the least productive ophthalmologist whose work could be assumed by other staff members.

On appeal, Lee claims that the motion judge disregarded crucial evidence (under stage three) that demonstrated that Harvard’ s real motivation was to decrease the age of the workforce through early retirement. On March 22, 1996, Lee received a letter from Dr. Firmón Hardenbergh, chief of ophthalmology, informing him that his appointment would not be renewed. The letter incorporates the concept of cost savings. In pertinent part, the letter states:

[839]*839“[T]he eye service is overstaffed relative to our visit volume. As a consequence, we must implement this reorganization. It is based on careful analysis of service needs, clinician access and continuity of care for our patient population” (emphasis supplied).

Lee disagrees with the characterization of the analysis undertaken as careful. He claims that the data consisted of “a very rough analysis of the clinical activities in the department.” It was described as a “rough analysis” by Kerry Michael, assistant director of human services, in her deposition. A report providing statistical support, confirming Michael’s earlier assessment, was provided in the summary judgment materials.

Lee contends that it was error for the motion judge to rely on the statistical report because this analysis was not available to Hardenbergh at the time the decision to terminate him was made, citing Perkins v. Brigham & Women’s Hosp., 78 F.3d 747, 751 (1st Cir. 1996) (“[A]n employer’s proffered justification must be based on information that it knew and relied upon at the time it decided to take the adverse employment action”). We disagree. The motion judge concluded that the statistical data was relevant because it was “consistent” with Michael’s deposition testimony about her “rough analysis.” Contrary to Lee’s argument on this point, Michael defended her 1996 findings and conclusions in her deposition. Lee failed to proffer any admissible evidence that contradicted Michael’s initial conclusions about the budgetary shortfall, and the substance of Michael’s findings are undisputed. Even if there were conflicts (and we do not so decide), to defeat a summary judgment motion the asserted conflict “must be genuine, i.e., the proponent cannot establish it by simply saying so or adducing only evidence from which a finder could not reasonably infer unlawful discrimination.” Finney v. Madico, Inc., 42 Mass. App. Ct. 46, 49 (1997). Taken as a whole, and in the context that the job being eliminated was a one-half day per week position, Michael’s testimony is consistent with the explanation contained in the 1996 letter.

Lee argues that the motion judge erred by “discounting” much of his deposition testimony on the issues of the funding of the contact lens service and the budgetary shortfall. We need [840]*840not delve into all of the details. As Harvard points out in its brief, the motion judge acknowledged some conflicts but was unpersuaded that they created a genuine issue of material fact as to the validity of the reasons given for nonrenewal of Lee’s appointment. What we find crucial is that Harvard’s summary judgment materials demonstrated that the budgetary shortfall could be cured by the elimination of a part-time position and that Harvard articulated legitimate, nondiscriminatory reasons for choosing to eliminate Lee’s one-half day position. Nothing in what Lee submitted in any way refuted Harvard’s nondiscriminatory reasons for eliminating Lee’s position.

Despite unrebutted evidence that the contact lens service budget (from which Lee drew his salary) was in the red from 1994 to 1996, Lee contends that budgetary concerns were a pretext because he offered to reduce his salary to $1.00 per year. The motion judge found that “[a]t some point, Dr.

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Bluebook (online)
806 N.E.2d 463, 60 Mass. App. Ct. 836, 2004 Mass. App. LEXIS 424, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-president-fellows-of-harvard-college-massappct-2004.