Opinion
19-P-760
05-21-2020
DOUGLAS HUBBARD v. NASHOBA VALLEY MEDICAL CENTER.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Douglas Hubbard, appeals from a summary judgment dismissing his employment discrimination suit against the defendant, Nashoba Valley Medical Center (hospital). Concluding that the plaintiff has failed to demonstrate that the judge erred, we affirm.
Before us and the trial court, the plaintiff takes the position that the mere fact that he disputed a number of the hospital's averments in the statement of undisputed material facts precludes summary judgment. Despite the terminology of Superior Court Rule 9A, parties inevitably place immaterial facts in the statement of undisputed material facts, and the statement before us is no exception. The proper question for reviewing a grant of summary judgment "is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to judgment as a matter of law." Bank of New York Mellon v. Morin, 96 Mass. App. Ct. 503, 506 (2019), quoting Molina v. State Garden, Inc., 88 Mass. App. Ct. 173, 177 (2015).
The plaintiff's briefs, in which he cites no cases or statutes, provide no indication why any of the disputed facts are material or genuinely disputed. The plaintiff similarly declines even to identify his theories of discrimination and failed to include his complaint in his appendices. See G.B. v. C.A., 94 Mass. App. Ct. 389, 397 n.13 (2018) ("It is the appellant's burden to provide us with a complete record"). Nonetheless, we fare somewhat better than the motion judge, to whom the plaintiff argued in his opposition brief only as follows:
"In support of its Motion for Summary Judgment Nashoba Valley lists 62 paragraphs of supposed undisputed facts. However, under oath Hubbard has disputed 37 of those supposed undisputed facts. See Consolidated Rule 9A(B)(5) Statement of Facts. That is more than a sufficient basis to deny the Motion of Summary Judgment. Enough said."The plaintiff has simply failed to comply with the requirements of Mass. R. A. P. 16 (a) (9), as appearing in 481 Mass. 1629 (2019), to provide a brief allowing us to assess any claim other than his assertion that the mere act of disputing items in the statement of undisputed material facts entitles him to a trial. See Leonard v. Zoning Bd. of Appeals of Hanover, 96 Mass. App. Ct. 490, 498 (2019).
No genuine issue of material fact reveals itself from the appendices. In his deposition, the plaintiff confirmed that the images that were the subject of his first written warning were inadequate, that his boot was not covered to the hospital's standards, that each of the complaints in the second written warning had a basis (though he had an explanation for each), and that he accepted responsibility for the mislabeling of an image that resulted in his termination. Whether or not he should have been discharged, there was no evidence that this disciplinary history was a pretext. See Quarterman v. Springfield, 91 Mass. App. Ct. 254, 258, cert. denied, 138 S. Ct. 506 (2017). Indeed, the plaintiff attributed his discharge to a dispute whether he should have been required to obtain American Registry of Radiologic Technologists certification in radiography before being sent for training in computed tomography. Whether or not the plaintiff was correct, an employer's desire that an employee obtain a certain certification is not an unlawful ground for termination. Accordingly, the plaintiff has not shown that the motion judge erred in granting summary judgment to the hospital.
Judgment affirmed.
By the Court (Meade, Ditkoff & Englander, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: May 21, 2020.