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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., ) SUPPLEMENTAL
Plaintiff ) MEMORANDUM OF LAW IN
) SUPPORT OF DEFENDANT'S
vs. ) MOTION FOR DIRECTED
) VERDICT AT THE CLOSE OF
BAYSTATE MEDICAL PRACTICES, INC.) ALL THE EVIDENCE ON
fk/a BAYSTATE MEDICAL EDUCATION) _ pL AINTIFF’S HANDICAP BIAS
AND RESEARCH FOUNDATION, INC. ) DISCRIMINATION CLAIM
Defendant )
IL INTRODUCTION
Pursuant to Mass. R. Civ. P. 50(a), Defendant, Baystate Medical Practices, Inc., f/k/a
Baystate Medical Education and Research Foundation, Inc. (“BMP”), submits this supplemental
memorandum of law in support of its motion for a directed verdict at the close of all of the
evidence on the handicap bias discrimination claim of the plaintiff Francis J. Duda, M.D. (“Dr.
Duda). Defendant moved for a directed verdict at the close of all of the evidence on Dr. Duda’s
two other claims, an age discrimination claim and a failure to provide a reasonable
accommodation claim on Friday, June 15, 2018. At that time, the only two claims included in
the Special Verdict Form and the Proposed Jury Instructions were the plaintiff's age
discrimination claim and his failure to provide a reasonable accommodation claim.! As set forth
1 At oral argument, on Friday, June 15, 2018, Defendant's counsel noted that Defendant would
supplement defendant's motion for a directed verdict to request a directed verdict on the plaintiff's
handicap bias claim, if such a claim were added to the Special Verdict Form and the Jury Instructions.
(y-l8-18
utbelow, no reasonable jury could, based on all of the evidence, find for Dr. Duda on his handicap
bias claim because there is insufficient evidence of handicap bias.
I. ARGUMENT
A. NO REASONABLE JURY COULD CONCLUDE THAT BMP HELD A
DISCRIMINATORY ANIMUS AGAINST INDIVIDUALS WITH CEREBRAL
PALSY
In order to prevail on a handicap bias claim, Dr. Duda must prove, among other things,
the defendant terminated his employment because of bias against him based on his handicap.
See Gannon v. City of Boston, 476 Mass. 786, 794 (2017) (plaintiff must prove that adverse
action was taken because of the employee’s handicap, that is, that the “true reason [for the
adverse employment action] was discrimination on the basis of handicap”); Lipchitz v. Raytheon
Co., 434 Mass. 493, 502 (2001) (discriminatory animus is an essential element of employment
discrimination claims). No reasonable jury could conclude that BMP acted because of
discriminatory animus against individuals with cerebral palsy where the only evidence offered of
handicap bias are four remarks that do not directly show bias and there is ample evidence of a
lack of bias.
The four remarks are:
e Inan email to new BMP President John Schreiber on February 28, 2014, the day after Dr.
Duda fell in the office and was transported from there to the Emergency Department,
describing Dr. Duda’s health issues (as requested by Dr. Schreiber), Dr. Koenigs listed
Dr. Duda’s recent health incidents at work and stated “He has a history of cerebral palsy
with spasticity.” Exhibit 20.In an email exchange among Dr. Koenigs, Dr. Levine, Kathleen Bachetti, and Linda
Todaro beginning on February 28, 2014, the day after Dr. Duda fell in the office and was
transported from there to the Emergency Department, Dr. Levine stated, “I do think that,
given his underlying frailty and apparent progression of medical problems, we should
insist that he have a complete medical evaluation done in order to determine what are
reasonable expectations for his continued employment — fit for full-time service, part-
time service, medical leave of absence, whatever.” Exhibit 21.
In an email on March 5, 2014, less than a week after Dr. Duda fell in the office and was
transported from there to the Emergency Department, Dr. Koenigs wrote, “This is
incredibly hard for us since the majority of his health issues seem to be from his
increasing frailty with his age and underlying health condition.” Exhibit 22.
In an email on August 31, 2014 discussing the problems she faced in the pediatric
pulmonology division, Dr. Quizon stated, “Francis, at his age and limitations, has habits
which are hard to fix and if attempts are made to correct this, such may be construed as
cruel and callous.” Exhibit 26.
The plaintiff did not offer any other evidence purporting to show bias on the basis of handicap.
The four remarks could be seen as directly showing an awareness of Dr. Duda’s cerebral
palsy and, with respect to two of them, an awareness that his cerebral palsy might be having an
effect on his health. They do not directly show bias against individuals with cerebral palsy.
Direct evidence is “evidence which, if believed by the trier of fact, will prove the particular fact
in question without reliance upon inference or presumption.” Johansen v. NCR Comten, Inc., 30
Mass. App. Ct. 294, 299 (1991), internal quotation omitted. “When the cases speak of direct
evidence they generally refer to evidence which, if believed, results in an inescapable, or at least
a highly probable, inference that a forbidden bias was present in the workplace.” Jd. at 300.
Where evidence is not direct, the factfinder relies upon inference to draw a conclusion.
3Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 299 (1991). To support a verdict, such
an inference must be reasonable. See Continental Assur. Co. v. Diorio-Volungis, 51 Mass. App.
Ct. 403, 410 (2001). “To be reasonable, the inference ‘must be based on probabilities rather than
possibilities and cannot be the result of mere speculation or conjecture.” Phelan v. May Dept.
Stores Co., 443 Mass. 52, 55 (2004) (quoting McEvoy Travel Bur., Inc. v Norton Co., 408 Mass.
704, 706-707 n. 3 (1989).
An inference of discriminatory bias against individuals with cerebral palsy would be
unreasonable based on the evidence in this case because the remarks reflect legitimate
managerial concern and because there is ample evidence of a lack of bias.
1. The four remarks reflect legitimate managerial concern and, as such, do not support
a reasonable inference of bias.
The four remarks reflect legitimate managerial concern and, as such, do not support a
reasonable inference of bias. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 49 n. 24 (2005)
(remark indicated nondiscriminatory managerial concern rather than bias). The first three
remarks were written in late February and early March 2014, more than nine months before the
termination of Dr. Duda’s employment, almost immediately after Dr. Duda fell in the office and
was transported to the Baystate Medical Center Emergency Department for medical treatment
and evaluation. Dr. Koenigs and Dr. Levine testified that Dr. Duda’s apparent medical issues
raised concerns about whether Dr. Duda would continue to need to miss work and how to assess
the possibility of that. Dr. Koenigs testified that when a physician was unable to work, coverage
must be arranged, which can be complicated in a small division such as the Pediatric
4Pulmonology division was. Dr. Koenigs also testified that after Dr. Duda returned to work in
early March after his second episode at work, her concern about whether Dr. Duda would
continue to need to miss work dissipated. Dr. Duda’s sudden illnesses in the office did not recur
during the remainder of the year and there are no other remarks concerning his “frailty.”
Dr. Quizon’s reference to Dr. Duda’s “limitations,” if it refers to cerebral palsy, reflects
Dr. Quizon’s perception that attempts to correct Dr. Duda’s performance issues were seen by
others, such as Lori Miller and Beth Russell-Smith, as “cruel and callous” because of Dr. Duda’s
cerebral palsy. Lori Miller and Beth Russell Smith testified that they felt that reporting by the
nurses concerning Dr. Duda’s performance problems and refusal of nurses to perform tasks
outside their scope of practice were unfair to Dr. Duda and even that one of the nurses was a
“bully.” This evidence supports an inference that Dr. Quizon was concerned about how her
attempts to improve Dr. Duda’s performance were being seen by others in the division, not that
she harbored bias against individuals with cerebral palsy.
2. The ample evidence of a lack of handicap bias prevents a reasonable inference of
handicap bias from the four remarks.
The evidence of a lack of handicap bias further prevents a reasonable inference of
handicap bias from the four remarks. There was ample evidence tending to show a lack of bias:
(1) when Dr. Duda was hired by BMP in 1992 he had cerebral palsy and Dr. Duda continued to
have cerebral palsy throughout the twenty-two years of his employment by BMP; (2) Dr.
Koenigs, the final decision-maker, worked in the same department with Dr. Duda for twenty-two
years, throughout which time Dr. Duda had cerebral palsy; (3) Dr. Levine, another decision-
5maker, worked in the same department and was a colleague of Dr. Duda for fifteen years,
throughout which time Dr. Duda had cerebral palsy; and (4) Dr. Quizon was Dr. Duda’s direct
supervisor previously from 2003 to 2007, throughout which time Dr. Duda had cerebral palsy.
There was no evidence of any earlier remarks by anyone at BMP even referencing cerebral palsy,
much less any remark directly showing bias. Rather, Dr. Quizon reviewed Dr. Duda’s
performance favorably during the 2003 to 2007 period. The four remarks, when considered with
the ample evidence of a lack of handicap bias, do not support a reasonable inference of handicap
bias. A verdict should be directed against Dr. Duda on his handicap bias discrimination claim.
Ill. CONCLUSION
Because no jury could reasonably infer that BMP harbored discriminatory animus against
individuals with cerebral palsy, the Court should allow BMP’s motion for a directed verdict on
Dr. Duda’s handicap bias discrimination claim.The Defendant
BAYSTATE MEDICAL PRACTICES,
INC. f/k/a BAYSTATE MEDICAL
EDUCATION AND RESEARCH
FOUNDATION, INC.
By Its Attorney:
Semon Cnn
Dated: June 18, 2018 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
jcannon@bulkley.com
Certificate of Service
I, Jennifer K. Cannon, 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 on June 18, 2018.
n
“Seed LA \K Coepern
Jennifer K. Cannjfn
29532691
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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., ) SUPPLEMENTAL Plaintiff ) MEMORANDUM OF LAW IN ) SUPPORT OF DEFENDANT'S vs. ) MOTION FOR DIRECTED ) VERDICT AT THE CLOSE OF BAYSTATE MEDICAL PRACTICES, INC.) ALL THE EVIDENCE ON fk/a BAYSTATE MEDICAL EDUCATION) _ pL AINTIFF’S HANDICAP BIAS AND RESEARCH FOUNDATION, INC. ) DISCRIMINATION CLAIM Defendant ) IL INTRODUCTION Pursuant to Mass. R. Civ. P. 50(a), Defendant, Baystate Medical Practices, Inc., f/k/a Baystate Medical Education and Research Foundation, Inc. (“BMP”), submits this supplemental memorandum of law in support of its motion for a directed verdict at the close of all of the evidence on the handicap bias discrimination claim of the plaintiff Francis J. Duda, M.D. (“Dr. Duda). Defendant moved for a directed verdict at the close of all of the evidence on Dr. Duda’s two other claims, an age discrimination claim and a failure to provide a reasonable accommodation claim on Friday, June 15, 2018. At that time, the only two claims included in the Special Verdict Form and the Proposed Jury Instructions were the plaintiff's age discrimination claim and his failure to provide a reasonable accommodation claim.! As set forth 1 At oral argument, on Friday, June 15, 2018, Defendant's counsel noted that Defendant would supplement defendant's motion for a directed verdict to request a directed verdict on the plaintiff's handicap bias claim, if such a claim were added to the Special Verdict Form and the Jury Instructions. (y-l8-18 utbelow, no reasonable jury could, based on all of the evidence, find for Dr. Duda on his handicap bias claim because there is insufficient evidence of handicap bias. I. ARGUMENT A. NO REASONABLE JURY COULD CONCLUDE THAT BMP HELD A DISCRIMINATORY ANIMUS AGAINST INDIVIDUALS WITH CEREBRAL PALSY In order to prevail on a handicap bias claim, Dr. Duda must prove, among other things, the defendant terminated his employment because of bias against him based on his handicap. See Gannon v. City of Boston, 476 Mass. 786, 794 (2017) (plaintiff must prove that adverse action was taken because of the employee’s handicap, that is, that the “true reason [for the adverse employment action] was discrimination on the basis of handicap”); Lipchitz v. Raytheon Co., 434 Mass. 493, 502 (2001) (discriminatory animus is an essential element of employment discrimination claims). No reasonable jury could conclude that BMP acted because of discriminatory animus against individuals with cerebral palsy where the only evidence offered of handicap bias are four remarks that do not directly show bias and there is ample evidence of a lack of bias. The four remarks are: e Inan email to new BMP President John Schreiber on February 28, 2014, the day after Dr. Duda fell in the office and was transported from there to the Emergency Department, describing Dr. Duda’s health issues (as requested by Dr. Schreiber), Dr. Koenigs listed Dr. Duda’s recent health incidents at work and stated “He has a history of cerebral palsy with spasticity.” Exhibit 20.In an email exchange among Dr. Koenigs, Dr. Levine, Kathleen Bachetti, and Linda Todaro beginning on February 28, 2014, the day after Dr. Duda fell in the office and was transported from there to the Emergency Department, Dr. Levine stated, “I do think that, given his underlying frailty and apparent progression of medical problems, we should insist that he have a complete medical evaluation done in order to determine what are reasonable expectations for his continued employment — fit for full-time service, part- time service, medical leave of absence, whatever.” Exhibit 21. In an email on March 5, 2014, less than a week after Dr. Duda fell in the office and was transported from there to the Emergency Department, Dr. Koenigs wrote, “This is incredibly hard for us since the majority of his health issues seem to be from his increasing frailty with his age and underlying health condition.” Exhibit 22. In an email on August 31, 2014 discussing the problems she faced in the pediatric pulmonology division, Dr. Quizon stated, “Francis, at his age and limitations, has habits which are hard to fix and if attempts are made to correct this, such may be construed as cruel and callous.” Exhibit 26. The plaintiff did not offer any other evidence purporting to show bias on the basis of handicap. The four remarks could be seen as directly showing an awareness of Dr. Duda’s cerebral palsy and, with respect to two of them, an awareness that his cerebral palsy might be having an effect on his health. They do not directly show bias against individuals with cerebral palsy. Direct evidence is “evidence which, if believed by the trier of fact, will prove the particular fact in question without reliance upon inference or presumption.” Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 299 (1991), internal quotation omitted. “When the cases speak of direct evidence they generally refer to evidence which, if believed, results in an inescapable, or at least a highly probable, inference that a forbidden bias was present in the workplace.” Jd. at 300. Where evidence is not direct, the factfinder relies upon inference to draw a conclusion. 3Johansen v. NCR Comten, Inc., 30 Mass. App. Ct. 294, 299 (1991). To support a verdict, such an inference must be reasonable. See Continental Assur. Co. v. Diorio-Volungis, 51 Mass. App. Ct. 403, 410 (2001). “To be reasonable, the inference ‘must be based on probabilities rather than possibilities and cannot be the result of mere speculation or conjecture.” Phelan v. May Dept. Stores Co., 443 Mass. 52, 55 (2004) (quoting McEvoy Travel Bur., Inc. v Norton Co., 408 Mass. 704, 706-707 n. 3 (1989). An inference of discriminatory bias against individuals with cerebral palsy would be unreasonable based on the evidence in this case because the remarks reflect legitimate managerial concern and because there is ample evidence of a lack of bias. 1. The four remarks reflect legitimate managerial concern and, as such, do not support a reasonable inference of bias. The four remarks reflect legitimate managerial concern and, as such, do not support a reasonable inference of bias. Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 49 n. 24 (2005) (remark indicated nondiscriminatory managerial concern rather than bias). The first three remarks were written in late February and early March 2014, more than nine months before the termination of Dr. Duda’s employment, almost immediately after Dr. Duda fell in the office and was transported to the Baystate Medical Center Emergency Department for medical treatment and evaluation. Dr. Koenigs and Dr. Levine testified that Dr. Duda’s apparent medical issues raised concerns about whether Dr. Duda would continue to need to miss work and how to assess the possibility of that. Dr. Koenigs testified that when a physician was unable to work, coverage must be arranged, which can be complicated in a small division such as the Pediatric 4Pulmonology division was. Dr. Koenigs also testified that after Dr. Duda returned to work in early March after his second episode at work, her concern about whether Dr. Duda would continue to need to miss work dissipated. Dr. Duda’s sudden illnesses in the office did not recur during the remainder of the year and there are no other remarks concerning his “frailty.” Dr. Quizon’s reference to Dr. Duda’s “limitations,” if it refers to cerebral palsy, reflects Dr. Quizon’s perception that attempts to correct Dr. Duda’s performance issues were seen by others, such as Lori Miller and Beth Russell-Smith, as “cruel and callous” because of Dr. Duda’s cerebral palsy. Lori Miller and Beth Russell Smith testified that they felt that reporting by the nurses concerning Dr. Duda’s performance problems and refusal of nurses to perform tasks outside their scope of practice were unfair to Dr. Duda and even that one of the nurses was a “bully.” This evidence supports an inference that Dr. Quizon was concerned about how her attempts to improve Dr. Duda’s performance were being seen by others in the division, not that she harbored bias against individuals with cerebral palsy. 2. The ample evidence of a lack of handicap bias prevents a reasonable inference of handicap bias from the four remarks. The evidence of a lack of handicap bias further prevents a reasonable inference of handicap bias from the four remarks. There was ample evidence tending to show a lack of bias: (1) when Dr. Duda was hired by BMP in 1992 he had cerebral palsy and Dr. Duda continued to have cerebral palsy throughout the twenty-two years of his employment by BMP; (2) Dr. Koenigs, the final decision-maker, worked in the same department with Dr. Duda for twenty-two years, throughout which time Dr. Duda had cerebral palsy; (3) Dr. Levine, another decision- 5maker, worked in the same department and was a colleague of Dr. Duda for fifteen years, throughout which time Dr. Duda had cerebral palsy; and (4) Dr. Quizon was Dr. Duda’s direct supervisor previously from 2003 to 2007, throughout which time Dr. Duda had cerebral palsy. There was no evidence of any earlier remarks by anyone at BMP even referencing cerebral palsy, much less any remark directly showing bias. Rather, Dr. Quizon reviewed Dr. Duda’s performance favorably during the 2003 to 2007 period. The four remarks, when considered with the ample evidence of a lack of handicap bias, do not support a reasonable inference of handicap bias. A verdict should be directed against Dr. Duda on his handicap bias discrimination claim. Ill. CONCLUSION Because no jury could reasonably infer that BMP harbored discriminatory animus against individuals with cerebral palsy, the Court should allow BMP’s motion for a directed verdict on Dr. Duda’s handicap bias discrimination claim.The Defendant BAYSTATE MEDICAL PRACTICES, INC. f/k/a BAYSTATE MEDICAL EDUCATION AND RESEARCH FOUNDATION, INC. By Its Attorney: Semon Cnn Dated: June 18, 2018 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 jcannon@bulkley.com Certificate of Service I, Jennifer K. Cannon, 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 on June 18, 2018. n “Seed LA \K Coepern Jennifer K. Cannjfn 29532691