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COMMONWEALTH OF MASSACHUSETTS
Hampden, ss. Superior Court Department
of the Trial Court
Civil Action No. 15-679
FRANCIS J. DUDA, M.D. }
Plaintiff )
v. } DEFENDANT’S OBJECTIONS.
) AND REQUESTED
BAYSTATE MEDICAL PRACTICES, ) MODIFICATIONS TO THE
INC., f/k/a BAYSTATE MEDICAL ) COURT’S FIRST DRAFT OF
EDUCATION AND RESEARCH ) PROPOSED JURY INSTRUCTIONS
FOUNDATION, INC. )
Defendant )
Pursuant to the Court’s Charge Conference Order dated June 12, 2018, the defendant,
Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc.
(“BMP”), submits the following objections and requests for additions, deletions, and/or
modifications to the proposed jury instructions.
1. Location: Proposed Instruction 7.0 (second paragraph)
BMP suggests the following modifications to Proposed Instruction 7.0 (second paragraph):
To prove a claim of employment discrimination based on age against
defendant in a case like this, a plaintiff must prove the following elements of the
claim:
(21348 43,(1) That he was a member of a class of persons who are protected from
discrimination under the law — that is, that he was aged 40 or more;
AZ That he was performing his job at an acceptable level:
@)3) That he was discharged from employment;
BA) That the defendant held a discriminatory animus toward the
plaintiff based on his age;
(45) That the discriminatory animus caused the employer's
decision to discharge him.
Objection/Authority: This is an element that must be proven by the plaintiff. See
Knight v. Avon Products, Inc., 438 Mass. 413, 420-421 & 425 (2003).
2. Location: Proposed Instruction 7.0 (third paragraph)
BMP suggests the following modifications to Proposed Instruction 7.0 (third paragraph):
To prove a claim of employment discrimination based on disability against a
defendant in a case like this, a plaintiff must prove the following elements of the
claim by a preponderance of the evidence:
1. That the plaintiff is a "qualified handicapped person" capable of
performing the essential functions of his job either without a
reasonable accommodation or with a reasonable
accommodation;
2. That he requested an reasonable accommodation and the employer did
not provide it; and
3. That the plaintiff was subject to an adverse employment action because
of his disability.4. the position he had occupied remained open and the employer sought to
fill it.
Objection/Authority: Gannon v. City of Boston, 476 Mass. 786, 794 & n. 5 (2017).
3. Location: After Proposed Instruction 7.0
BMP suggests that the following instruction be added after Proposed Instruction 7.0:
QUALIFIED HANDICAPPED PERSON
A “qualified handicapped person” means someone who is capable of
performing the essential functions of [the job at issue] or who would be
capable of performing the essential functions of that job with a reasonable
accommodation for his handicap.
Objection/Authority: Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.5(b)
(2016).
4, Location: After Proposed Instruction 7.0
BMP suggests that the following instruction also be added after Proposed Instruction 7.0:
ESSENTIAL FUNCTIONS
The essential functions of a job are those activities that must necessarily be
performed by an employee to accomplish the principal goals of the job. In
determining the essential functions of the plaintiff's job, you may consider the
plaintiff's job description as well as the nature of the employer’s
particular business. Here, Dr. Duda was employed as a doctor in a medical
ractice. i ion of Dr. Duda’s job incl Cumenting the
i eatin: iS patients:Objection/Authority: “Essential functions” is a term used in the elements of handicap
discrimination instruction (Proposed Instruction 7.0). The term has a specific meaning under
applicable law and it should, therefore, be defined. This instruction is taken from Massachusetts
Superior Court Civil Practice Jury Instructions, §5.2.5(c) (2016), modified to include facts of this
case.
5.
Location: After Proposed Instruction 7.0
BMP suggests that the following instruction also be added after Proposed Instruction 7.0:
REASONABLE ACCOMMODATION
The plaintiff claimstfat he had difficulty dé¢umenting patient encounters and
treatment in Locctonie medical-fecord because of his cerébral palsy.
him to do’so. “Reasonable accommodations” are modifications or
a
adjustments to the manner in which a handieapped individual performs the
essential functions of the position involved. Accommodations may take many
sesh lification
not “reasonable” if you find that it places an undue hardship on the
employer, requires waiving or excusing an inability to perform an essential
job function, endangers safety or requires substantial changes in the
standards of the job.Objection/Authority: “Reasonable accommodation” is a term used in the elements of handicap
discrimination instruction (Proposed Instruction 7.0). The term has a specific meaning under
applicable law and it should, therefore, be defined. This proposed instruction is taken from
Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.5(d) (2016), modified to
indicate that an accommodation is not reasonable if it poses safety concerns or requires
modification of a job standard. See Beal v. Board of Selectmen of Hingham, 419 Mass. 535, 542
(1995) (holding that safety issues precluded any reasonable accommodation for police officer’s
handicap) ; Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 405 (2002) (holding that
reduction in billable hours requirement for attorney not a reasonable accommodation because it
. involved changing a job standard).
6.
Location: Proposed Instruction 8.1
BMP suggests the following modification to Proposed Instruction 8.1:
8.1 Direct Evidence
Sometimes motive, intent, or state of mind can be proved directly; for
example, by a witness describing what her state of mind was or by a witness
testifying to what a defendant said that would be reflective of her or his state
of mind. Direct evidence may be a statement by a decision-maker that relates
to his or her decision. Direct evidence is evidence that, if believed, would
result in a highly probable inference that a forbidden bias was present in the
workplace. Direet-evidence-can-consist of statements-of a defendant-that
Objection/Authority: This sentence is unclear.
57. Location: Proposed Instruction 8.2
BMP suggests the following modification to Proposed Instruction 8.2:
8.2 Circumstantial Evidence
But at other times, intent or state of mind must be proved indirectly or
circumstantially. Here, you may examine BMPBaystate-meanagement's actions and
words, and all of the surrounding circumstances, to help you determine what the
defendant's state of mind, or intent, was when the-BaystateBMP placed the plaintiff
on a remediation plan -suspended and then terminated the plaintiff. The law does not
draw any distinction between the weight to be given direct or circumstantial
evidence; that is up to you, the jury. Circumstantial evidence permits you to draw
reasonable inferences from facts in evidence. The inference proposed from the
evidence need not be the only possible inference; however, it must be a reasonable
inference.
Objection/Authority:
(a) “Baystate” is a confusing way to refer to the defendant since Baystate Health,
Inc. and Baystate Medical Center are often referred to as “Baystate.” The
defendant is Baystate Medical Practices, Inc., not Baystate Health, Inc. or
Baystate Medical Center. We suggest “BMP” as an abbreviated form of the
defendant’s name.
(b) The plaintiff was not suspended. He was placed on a remediation plan.8. Location: Proposed Instruction 8.3
BMP suggests the following revision to Proposed Instruction 8.3:
8.3. Unexamined Bias
An employer may not necessarily be aware of his or her bias. Employment
decisions that are made because of stereotypical thinking about people because of is
their age and/or disability whether conscious or unconscious, violate the (a®
Massachusetts law prohibiting discrimination._Stereotypical thinking occyfs when
an employer categorizes people on the basis of broad generalizations.“For
example, if the performance of an employee, male or female, suffers as a result of
family responsibilities (or any other personal obligation or interest), the employer
is free to respond accordingly; however, an employer is not free to assume that a
woman, because she is a woman, will necessarily be a poor worker because of
family responsibilities.
Objection/Authority: The addition is necessary to explain what is meant by “stereotypical
thinking.” The addition is taken from Massachusetts Superior Court Civil Practice Jury
Instructions, §5.2.2(c) (2016).
9% Location: Proposed Instruction 8.5
BMP suggests the following modification to Proposed Instruction 8.5:
8.5 Disproving Defendant's Claim of Legitimate Reason for Adverse
Employment Action
Here the defendant has offered evidence regarding the nondiscriminatory
reasons for the termination of plaintiff. Because the defendant has offered evidenceof a non-discriminatory reason for its action, the plaintiff must also prove one
further element of the claim, namely:
1. that the reason given by the defendant was not the real reason for his
suspension-placement on a remediation plan and termination, but was
a pretext for discrimination. If the plaintiff has proven that the
asserted reason was false, then you may, but are not required to, infer
that the real reason for the adverse employment action was
discrimination.
Objection/Authority:
(a) Dr. Duda was not suspended. He was placed on a remediation plan.
(b) Description of the inference should include language indicating that the jury is not
obligated to infer discrimination. Lipchitz v. Raytheon Co., 434 Mass. 493, 501
(2001) (“In an indirect evidence case, if the fact finder is persuaded that one or more
of the employer’s reasons is false, it may (but need not) infer that the employer is
covering up a discriminatory intent, motive, or state of mind”). The addition is taken
from Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.3(a)
(2016).
10. Location: Proposed Instruction 8.6
BMP suggests the following modification to Proposed Instruction 8.6:
8.6 Proof That Reason Given Was Pretext
Circumstantial evidence of discrimination can include proof by plaintiff that
the reason given by the defendant for the adverse actions taken against him is not
true or, if more than one reason was given, that at least one if the reasons given was
8not a real reason for his suspensien-placement on a remediation plan and/or
termination.
If the plaintiff has persuaded you that at least one of Baystate's, BMP's reasons is
false, you may, but are not required to, infer that Baystate BMP is covering up a
discriminatory intent, motive, or state of mind.
The reason that such an inference is allowable is because experience
indicates that people do not generally act in a totally arbitrary manner, without any
underlying reasons, especially in a business setting. In a situation where the
legitimate reason or reasons advanced by the employer for taking an adverse action
are rejected as not being the real or true reasons, one might reasonably conclude
that it is more likely than not that the employer, who is generally assumed to act
only with some reason, based its decision on impermissible consideration._When
considering pretext, your focus must be on the defendant’s state of mind, not on
whether the defendant was right or wrong.
Objection/Authority:
(a) The plaintiff was not suspended. He was placed on a remediation plan.
(b) BMP suggests that it be referred to as BMP instead of Baystate. Please see
paragraph 7 above.
(c) The additional sentence is taken from Massachusetts Superior Court Civil Practice
Jury Instructions, §5.2.3(a) (2016) (last sentence of paragraph 2).11. Location: After Proposed Instruction 9.0
BMP suggests the following addition after Proposed Instruction 9.0:
STRAY OR AMBIGUOUS REMARKS
____ You have heard disputed evidenee during the comrse of the trtat
‘tegarding certain allegedly discriminatory remarks. Isolated or ambiguous
comments may be too abstract or remote to support a finding of
discrimination. In order to prove discrimination by reference to comments
in the workplace, plaintiff must demonstrate that a connection exists
between the comments made and the Defendant’s decision to treat him
differently.
Objection/Authority: Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 49 n. 24 (2005) (noting
that ambiguous remarks may have reflected nondiscriminatory managerial concern rather than
bias); Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 667,
729 N.E.2d 1068, 1078 (2000), overruled on other grounds by Stonehill Coll. v. Massachusetts
Comm'n Against Discrimination, 441 Mass. 549, 808 N.E.2d 205 (2004) (“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”); Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294,
302, 568 N.E.2d 611, 615 (1991).
1012. _ Location: Proposed Instruction 11.0
BMP suggests removing Proposed Instruction 11.0:
Objection/Authority: The instruction is not applicable to this case. There is no evidence that
BMP failed to follow its own policies or guidelines in terminating Dr. Duda’s employment.
13. Location: Proposed Instruction 12.0
BMP suggests adding the following to Proposed Instruction 12.0:
Business Judgment
When assessing a plaintiff's claim of pretext, you should focus on the
motivation of the employer, and not its business judgment. While an employer's
judgment or course of action may seem poor or erroneous to outsiders, the
relevant question is simply whether the given reason was a pretext for illegal
discrimination. The employer's stated legitimate reason must be reasonably
articulated and nondiscriminatory, but does not have to be a reason that you, the
jury, would act on or approve. An employer is entitled to make its own policy and
business judgments, and may, for example, fire an adequate employee if its reason
is to hire one who will be even better, as long as this is not a pretext for
discrimination.
ILYou may consider the reasonableness or lack or reasonableness of the
defendant's stated business judgment along with all the other evidence in
determining whether the defendant discriminated against the plaintiff. The
reasonableness of the employer's reason(s) may of course be probative of whether
the reason(s) are pretexts. You must keep in mind, however, that your focus is to be
on the defendant's (employer's) motivation and not on its business judgment._Your
task is not to evaluate the soundness of the employer’s decision making, but to
ensure it does not mask discriminatory animus.
Objection/Authority: Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 56 (2005) (quoting
Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir.1991), cert. denied, 542 504 U.S. 985,
112 S. Ct. 2965, 119 L.Ed.2d 586 (1992) (“Courts may not sit as super personnel departments,
assessing the merits - or even the rationality - of employers' nondiscriminatory business
decisions”); Ray v. Ropes & Gray LLP, 961 F. Supp. 2d 344, 356 (D. Mass. 2013) aff'd 799 F. 3d
99 (2015) (a court does “not sit as a super-personnel department that reexamines an entity's
business decisions. Rather, “its task is limited to determining whether [the employer] believed in
the accuracy of the reason given” for the [employment action]) (quoting Espinal v. Nat’l Grid NE
Holdings 2, LLC, 693 F.3d 31, 35 (1 Cir. 2012).
14. _ Location: Proposed Instruction 13.0
BMP suggests the following modification to Proposed Instruction 13.0:
13.0 Mixed Motive
Sometimes employment decisions are a product of a mixture of legitimate
(nondiscriminatory) and illegitimate (discriminatory) reasons. Here the plaintiff
has effered—evidenceasserted that discriminatory bias was at least one factor
12motivating Baystate's,BMP's decisions to suspend_place him on a remediation plan
and then to terminate him. Although the plaintiff generally has the burden of proof,
where the plaintiff has proven by a preponderance of the evidence that
discriminatory bias was a substantial contributing factor in the defendant's
decisions, the defendant must prove by a preponderance of the evidence that it
would have made the same decision regardless of the plaintiffs age and/or
disability. If you are not convinced that the defendant would have taken the same
action regardless of the plaintiff's age and/or disability_and you are convinced that
the plaintiff has proven that the claimed discriminatory reason was determinative
of the action, then the plaintiff has met his burden of proving that the defendant
acted with discriminatory animus.
Objection/Authority:
(a) The language of the proposed instruction, that “the plaintiff has offered
evidence that discriminatory bias was at least one factor" implies that the
evidence actually shows this. That is something the jury must determine.
(b) BMP suggests that it be referred to as “BMP” not “Baystate.” See paragraph 7
above.
(c) The plaintiff was not suspended. He was placed on a remediation plan.
(d) The addition “and you are convinced that the plaintiff has proven that the
claimed discriminatory reason was determinative of the action” is taken fromMassachusetts Superior Court Civil Practice Jury Instructions, §5.2.3.4 (2016) (last
sentence of paragraph 2).
15. Location: Proposed Instruction 13.2
BMP suggests the following revision to Proposed Instruction 13.2:
13.2 Back Pay
Back pay is the amount of the plaintiff's lost earnings from the date of the
adverse employment decision until today. This includes all lost bonuses,
employment benefits, and health insurance benefits that would have accumulated
but for the defendant's discriminatory conduct. However, you should decrease this
amount by any earnings and benefits received by the plaintiff from another
employer since the date of the adverse employment action._If there was a period of
time that Dr. Duda was not, or would not have been, working for some reason other
than the defendant’s discriminatory conduct, then you should not award any lost -
earning for that time.
Objection/Authority: Back pay should not include pay for times when plaintiff would not have
been earning income for reasons other than the defendant’s discriminatory conduct. See Black v.
School Committee of Malden, 365 Mass. 197, 213-14 (1974) (remanding for reduction of back pay
by deduction of amounts for time wrongfully terminated employee would not have been earning
income anyway).
1416. Location: Proposed Instruction 13.5
BMP suggests the following modification to proposed instruction 13.5:
13.5 Punitive Damages
If you find that the defendant has intentionally discriminated against the
plaintiff_based_on his disability, you may consider whether punitive damages are
warranted. Punitive damages are different from compensatory damages. Unlike
compensatory damages, which compensate the victim for the harm he has
suffered, the purpose of punitive damages is to punish the defendant for conduct
that is outrageous because of the defendant's evil motive or reckless indifference
to the rights of others. Punitive damages are appropriate where the defendant's
misconduct is extraordinary and warrants condemnation and deterrence.
In determining the amount of a punitive damage award, if any, you should
consider:
1, the character and nature of the defendant's conduct;
2. the defendant's wealth, in order to determine what amount of money
is needed to punish the defendant's conduct and to deter any future
acts of discrimination;
3. the actual harm suffered by the plaintiff; and
4. the magnitude of any potential harm to other victims if similar future
behavior is not deterred.
15If you do award punitive damages, you should fix the amount by using calm
discretion and sound reason.
Objection/Authority: Punitive damages are not available for age discrimination claims.
See Fontaine v. Ebtec Corp., 415 Mass. 309, 322 (1993).
Dated: June 13, 2018
The Defendant
BAYSTATE MEDICAL PRACTICES,
INC. f/k/a BAYSTATE MEDICAL
EDUCATION AND RESEARCH
FOUNDATION, INC.
By Its Attorney:
Mary J. Kennedy — BBO No. 552345
Jennifer K. Cannon — BBO No. 664431
Bulkley, Richardson and Gelinas, LLP
1500 Main Street - Suite 2700
P.O. Box 15507
Springfield, MA -01115
Tel: (413) 272-6242; Fax: (413) 272-6803
mkennedy@bulkley.com
jeannon@bulkley.com
Certificate of Service
I, Mary J. Kennedy, attorney for the defendant, Baystate Medical Practices, Inc., f/k/a
Baystate Medical Education and Research Foundation, Inc., in this above matter, hereby certify
that a true copy of the above document was served upon the attorney of record for each party by
hand delivery on June 13, 2018.
2950747v1
Mary 1. Kafedy
16
Preview
COMMONWEALTH OF MASSACHUSETTS Hampden, ss. Superior Court Department of the Trial Court Civil Action No. 15-679 FRANCIS J. DUDA, M.D. } Plaintiff ) v. } DEFENDANT’S OBJECTIONS. ) AND REQUESTED BAYSTATE MEDICAL PRACTICES, ) MODIFICATIONS TO THE INC., f/k/a BAYSTATE MEDICAL ) COURT’S FIRST DRAFT OF EDUCATION AND RESEARCH ) PROPOSED JURY INSTRUCTIONS FOUNDATION, INC. ) Defendant ) Pursuant to the Court’s Charge Conference Order dated June 12, 2018, the defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc. (“BMP”), submits the following objections and requests for additions, deletions, and/or modifications to the proposed jury instructions. 1. Location: Proposed Instruction 7.0 (second paragraph) BMP suggests the following modifications to Proposed Instruction 7.0 (second paragraph): To prove a claim of employment discrimination based on age against defendant in a case like this, a plaintiff must prove the following elements of the claim: (21348 43,(1) That he was a member of a class of persons who are protected from discrimination under the law — that is, that he was aged 40 or more; AZ That he was performing his job at an acceptable level: @)3) That he was discharged from employment; BA) That the defendant held a discriminatory animus toward the plaintiff based on his age; (45) That the discriminatory animus caused the employer's decision to discharge him. Objection/Authority: This is an element that must be proven by the plaintiff. See Knight v. Avon Products, Inc., 438 Mass. 413, 420-421 & 425 (2003). 2. Location: Proposed Instruction 7.0 (third paragraph) BMP suggests the following modifications to Proposed Instruction 7.0 (third paragraph): To prove a claim of employment discrimination based on disability against a defendant in a case like this, a plaintiff must prove the following elements of the claim by a preponderance of the evidence: 1. That the plaintiff is a "qualified handicapped person" capable of performing the essential functions of his job either without a reasonable accommodation or with a reasonable accommodation; 2. That he requested an reasonable accommodation and the employer did not provide it; and 3. That the plaintiff was subject to an adverse employment action because of his disability.4. the position he had occupied remained open and the employer sought to fill it. Objection/Authority: Gannon v. City of Boston, 476 Mass. 786, 794 & n. 5 (2017). 3. Location: After Proposed Instruction 7.0 BMP suggests that the following instruction be added after Proposed Instruction 7.0: QUALIFIED HANDICAPPED PERSON A “qualified handicapped person” means someone who is capable of performing the essential functions of [the job at issue] or who would be capable of performing the essential functions of that job with a reasonable accommodation for his handicap. Objection/Authority: Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.5(b) (2016). 4, Location: After Proposed Instruction 7.0 BMP suggests that the following instruction also be added after Proposed Instruction 7.0: ESSENTIAL FUNCTIONS The essential functions of a job are those activities that must necessarily be performed by an employee to accomplish the principal goals of the job. In determining the essential functions of the plaintiff's job, you may consider the plaintiff's job description as well as the nature of the employer’s particular business. Here, Dr. Duda was employed as a doctor in a medical ractice. i ion of Dr. Duda’s job incl Cumenting the i eatin: iS patients:Objection/Authority: “Essential functions” is a term used in the elements of handicap discrimination instruction (Proposed Instruction 7.0). The term has a specific meaning under applicable law and it should, therefore, be defined. This instruction is taken from Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.5(c) (2016), modified to include facts of this case. 5. Location: After Proposed Instruction 7.0 BMP suggests that the following instruction also be added after Proposed Instruction 7.0: REASONABLE ACCOMMODATION The plaintiff claimstfat he had difficulty dé¢umenting patient encounters and treatment in Locctonie medical-fecord because of his cerébral palsy. him to do’so. “Reasonable accommodations” are modifications or a adjustments to the manner in which a handieapped individual performs the essential functions of the position involved. Accommodations may take many sesh lification not “reasonable” if you find that it places an undue hardship on the employer, requires waiving or excusing an inability to perform an essential job function, endangers safety or requires substantial changes in the standards of the job.Objection/Authority: “Reasonable accommodation” is a term used in the elements of handicap discrimination instruction (Proposed Instruction 7.0). The term has a specific meaning under applicable law and it should, therefore, be defined. This proposed instruction is taken from Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.5(d) (2016), modified to indicate that an accommodation is not reasonable if it poses safety concerns or requires modification of a job standard. See Beal v. Board of Selectmen of Hingham, 419 Mass. 535, 542 (1995) (holding that safety issues precluded any reasonable accommodation for police officer’s handicap) ; Dziamba v. Warner & Stackpole LLP, 56 Mass. App. Ct. 397, 405 (2002) (holding that reduction in billable hours requirement for attorney not a reasonable accommodation because it . involved changing a job standard). 6. Location: Proposed Instruction 8.1 BMP suggests the following modification to Proposed Instruction 8.1: 8.1 Direct Evidence Sometimes motive, intent, or state of mind can be proved directly; for example, by a witness describing what her state of mind was or by a witness testifying to what a defendant said that would be reflective of her or his state of mind. Direct evidence may be a statement by a decision-maker that relates to his or her decision. Direct evidence is evidence that, if believed, would result in a highly probable inference that a forbidden bias was present in the workplace. Direet-evidence-can-consist of statements-of a defendant-that Objection/Authority: This sentence is unclear. 57. Location: Proposed Instruction 8.2 BMP suggests the following modification to Proposed Instruction 8.2: 8.2 Circumstantial Evidence But at other times, intent or state of mind must be proved indirectly or circumstantially. Here, you may examine BMPBaystate-meanagement's actions and words, and all of the surrounding circumstances, to help you determine what the defendant's state of mind, or intent, was when the-BaystateBMP placed the plaintiff on a remediation plan -suspended and then terminated the plaintiff. The law does not draw any distinction between the weight to be given direct or circumstantial evidence; that is up to you, the jury. Circumstantial evidence permits you to draw reasonable inferences from facts in evidence. The inference proposed from the evidence need not be the only possible inference; however, it must be a reasonable inference. Objection/Authority: (a) “Baystate” is a confusing way to refer to the defendant since Baystate Health, Inc. and Baystate Medical Center are often referred to as “Baystate.” The defendant is Baystate Medical Practices, Inc., not Baystate Health, Inc. or Baystate Medical Center. We suggest “BMP” as an abbreviated form of the defendant’s name. (b) The plaintiff was not suspended. He was placed on a remediation plan.8. Location: Proposed Instruction 8.3 BMP suggests the following revision to Proposed Instruction 8.3: 8.3. Unexamined Bias An employer may not necessarily be aware of his or her bias. Employment decisions that are made because of stereotypical thinking about people because of is their age and/or disability whether conscious or unconscious, violate the (a® Massachusetts law prohibiting discrimination._Stereotypical thinking occyfs when an employer categorizes people on the basis of broad generalizations.“For example, if the performance of an employee, male or female, suffers as a result of family responsibilities (or any other personal obligation or interest), the employer is free to respond accordingly; however, an employer is not free to assume that a woman, because she is a woman, will necessarily be a poor worker because of family responsibilities. Objection/Authority: The addition is necessary to explain what is meant by “stereotypical thinking.” The addition is taken from Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.2(c) (2016). 9% Location: Proposed Instruction 8.5 BMP suggests the following modification to Proposed Instruction 8.5: 8.5 Disproving Defendant's Claim of Legitimate Reason for Adverse Employment Action Here the defendant has offered evidence regarding the nondiscriminatory reasons for the termination of plaintiff. Because the defendant has offered evidenceof a non-discriminatory reason for its action, the plaintiff must also prove one further element of the claim, namely: 1. that the reason given by the defendant was not the real reason for his suspension-placement on a remediation plan and termination, but was a pretext for discrimination. If the plaintiff has proven that the asserted reason was false, then you may, but are not required to, infer that the real reason for the adverse employment action was discrimination. Objection/Authority: (a) Dr. Duda was not suspended. He was placed on a remediation plan. (b) Description of the inference should include language indicating that the jury is not obligated to infer discrimination. Lipchitz v. Raytheon Co., 434 Mass. 493, 501 (2001) (“In an indirect evidence case, if the fact finder is persuaded that one or more of the employer’s reasons is false, it may (but need not) infer that the employer is covering up a discriminatory intent, motive, or state of mind”). The addition is taken from Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.3(a) (2016). 10. Location: Proposed Instruction 8.6 BMP suggests the following modification to Proposed Instruction 8.6: 8.6 Proof That Reason Given Was Pretext Circumstantial evidence of discrimination can include proof by plaintiff that the reason given by the defendant for the adverse actions taken against him is not true or, if more than one reason was given, that at least one if the reasons given was 8not a real reason for his suspensien-placement on a remediation plan and/or termination. If the plaintiff has persuaded you that at least one of Baystate's, BMP's reasons is false, you may, but are not required to, infer that Baystate BMP is covering up a discriminatory intent, motive, or state of mind. The reason that such an inference is allowable is because experience indicates that people do not generally act in a totally arbitrary manner, without any underlying reasons, especially in a business setting. In a situation where the legitimate reason or reasons advanced by the employer for taking an adverse action are rejected as not being the real or true reasons, one might reasonably conclude that it is more likely than not that the employer, who is generally assumed to act only with some reason, based its decision on impermissible consideration._When considering pretext, your focus must be on the defendant’s state of mind, not on whether the defendant was right or wrong. Objection/Authority: (a) The plaintiff was not suspended. He was placed on a remediation plan. (b) BMP suggests that it be referred to as BMP instead of Baystate. Please see paragraph 7 above. (c) The additional sentence is taken from Massachusetts Superior Court Civil Practice Jury Instructions, §5.2.3(a) (2016) (last sentence of paragraph 2).11. Location: After Proposed Instruction 9.0 BMP suggests the following addition after Proposed Instruction 9.0: STRAY OR AMBIGUOUS REMARKS ____ You have heard disputed evidenee during the comrse of the trtat ‘tegarding certain allegedly discriminatory remarks. Isolated or ambiguous comments may be too abstract or remote to support a finding of discrimination. In order to prove discrimination by reference to comments in the workplace, plaintiff must demonstrate that a connection exists between the comments made and the Defendant’s decision to treat him differently. Objection/Authority: Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 49 n. 24 (2005) (noting that ambiguous remarks may have reflected nondiscriminatory managerial concern rather than bias); Wynn & Wynn, P.C. v. Massachusetts Comm'n Against Discrimination, 431 Mass. 655, 667, 729 N.E.2d 1068, 1078 (2000), overruled on other grounds by Stonehill Coll. v. Massachusetts Comm'n Against Discrimination, 441 Mass. 549, 808 N.E.2d 205 (2004) (“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”); Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 302, 568 N.E.2d 611, 615 (1991). 1012. _ Location: Proposed Instruction 11.0 BMP suggests removing Proposed Instruction 11.0: Objection/Authority: The instruction is not applicable to this case. There is no evidence that BMP failed to follow its own policies or guidelines in terminating Dr. Duda’s employment. 13. Location: Proposed Instruction 12.0 BMP suggests adding the following to Proposed Instruction 12.0: Business Judgment When assessing a plaintiff's claim of pretext, you should focus on the motivation of the employer, and not its business judgment. While an employer's judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination. The employer's stated legitimate reason must be reasonably articulated and nondiscriminatory, but does not have to be a reason that you, the jury, would act on or approve. An employer is entitled to make its own policy and business judgments, and may, for example, fire an adequate employee if its reason is to hire one who will be even better, as long as this is not a pretext for discrimination. ILYou may consider the reasonableness or lack or reasonableness of the defendant's stated business judgment along with all the other evidence in determining whether the defendant discriminated against the plaintiff. The reasonableness of the employer's reason(s) may of course be probative of whether the reason(s) are pretexts. You must keep in mind, however, that your focus is to be on the defendant's (employer's) motivation and not on its business judgment._Your task is not to evaluate the soundness of the employer’s decision making, but to ensure it does not mask discriminatory animus. Objection/Authority: Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 56 (2005) (quoting Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir.1991), cert. denied, 542 504 U.S. 985, 112 S. Ct. 2965, 119 L.Ed.2d 586 (1992) (“Courts may not sit as super personnel departments, assessing the merits - or even the rationality - of employers' nondiscriminatory business decisions”); Ray v. Ropes & Gray LLP, 961 F. Supp. 2d 344, 356 (D. Mass. 2013) aff'd 799 F. 3d 99 (2015) (a court does “not sit as a super-personnel department that reexamines an entity's business decisions. Rather, “its task is limited to determining whether [the employer] believed in the accuracy of the reason given” for the [employment action]) (quoting Espinal v. Nat’l Grid NE Holdings 2, LLC, 693 F.3d 31, 35 (1 Cir. 2012). 14. _ Location: Proposed Instruction 13.0 BMP suggests the following modification to Proposed Instruction 13.0: 13.0 Mixed Motive Sometimes employment decisions are a product of a mixture of legitimate (nondiscriminatory) and illegitimate (discriminatory) reasons. Here the plaintiff has effered—evidenceasserted that discriminatory bias was at least one factor 12motivating Baystate's,BMP's decisions to suspend_place him on a remediation plan and then to terminate him. Although the plaintiff generally has the burden of proof, where the plaintiff has proven by a preponderance of the evidence that discriminatory bias was a substantial contributing factor in the defendant's decisions, the defendant must prove by a preponderance of the evidence that it would have made the same decision regardless of the plaintiffs age and/or disability. If you are not convinced that the defendant would have taken the same action regardless of the plaintiff's age and/or disability_and you are convinced that the plaintiff has proven that the claimed discriminatory reason was determinative of the action, then the plaintiff has met his burden of proving that the defendant acted with discriminatory animus. Objection/Authority: (a) The language of the proposed instruction, that “the plaintiff has offered evidence that discriminatory bias was at least one factor" implies that the evidence actually shows this. That is something the jury must determine. (b) BMP suggests that it be referred to as “BMP” not “Baystate.” See paragraph 7 above. (c) The plaintiff was not suspended. He was placed on a remediation plan. (d) The addition “and you are convinced that the plaintiff has proven that the claimed discriminatory reason was determinative of the action” is taken fromMassachusetts Superior Court Civil Practice Jury Instructions, §5.2.3.4 (2016) (last sentence of paragraph 2). 15. Location: Proposed Instruction 13.2 BMP suggests the following revision to Proposed Instruction 13.2: 13.2 Back Pay Back pay is the amount of the plaintiff's lost earnings from the date of the adverse employment decision until today. This includes all lost bonuses, employment benefits, and health insurance benefits that would have accumulated but for the defendant's discriminatory conduct. However, you should decrease this amount by any earnings and benefits received by the plaintiff from another employer since the date of the adverse employment action._If there was a period of time that Dr. Duda was not, or would not have been, working for some reason other than the defendant’s discriminatory conduct, then you should not award any lost - earning for that time. Objection/Authority: Back pay should not include pay for times when plaintiff would not have been earning income for reasons other than the defendant’s discriminatory conduct. See Black v. School Committee of Malden, 365 Mass. 197, 213-14 (1974) (remanding for reduction of back pay by deduction of amounts for time wrongfully terminated employee would not have been earning income anyway). 1416. Location: Proposed Instruction 13.5 BMP suggests the following modification to proposed instruction 13.5: 13.5 Punitive Damages If you find that the defendant has intentionally discriminated against the plaintiff_based_on his disability, you may consider whether punitive damages are warranted. Punitive damages are different from compensatory damages. Unlike compensatory damages, which compensate the victim for the harm he has suffered, the purpose of punitive damages is to punish the defendant for conduct that is outrageous because of the defendant's evil motive or reckless indifference to the rights of others. Punitive damages are appropriate where the defendant's misconduct is extraordinary and warrants condemnation and deterrence. In determining the amount of a punitive damage award, if any, you should consider: 1, the character and nature of the defendant's conduct; 2. the defendant's wealth, in order to determine what amount of money is needed to punish the defendant's conduct and to deter any future acts of discrimination; 3. the actual harm suffered by the plaintiff; and 4. the magnitude of any potential harm to other victims if similar future behavior is not deterred. 15If you do award punitive damages, you should fix the amount by using calm discretion and sound reason. Objection/Authority: Punitive damages are not available for age discrimination claims. See Fontaine v. Ebtec Corp., 415 Mass. 309, 322 (1993). Dated: June 13, 2018 The Defendant BAYSTATE MEDICAL PRACTICES, INC. f/k/a BAYSTATE MEDICAL EDUCATION AND RESEARCH FOUNDATION, INC. By Its Attorney: Mary J. Kennedy — BBO No. 552345 Jennifer K. Cannon — BBO No. 664431 Bulkley, Richardson and Gelinas, LLP 1500 Main Street - Suite 2700 P.O. Box 15507 Springfield, MA -01115 Tel: (413) 272-6242; Fax: (413) 272-6803 mkennedy@bulkley.com jeannon@bulkley.com Certificate of Service I, Mary J. Kennedy, attorney for the defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc., in this above matter, hereby certify that a true copy of the above document was served upon the attorney of record for each party by hand delivery on June 13, 2018. 2950747v1 Mary 1. Kafedy 16