Shervin v. Partners Healthcare System, Inc. et al
Filing
269
Judge Denise J. Casper: ORDER entered. MEMORANDUM AND ORDER. The Court DENIES IN PART Dr. Rubash's motion, D. 144, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Dr. R ubash's liability; DENIES IN PART Dr. Herndon's motion, D. 145, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Dr. Herndon's liability; DENIES IN PART Harvard's motion, D. 148, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that occurred prior to December 30, 2008 for Harvard's liability; and DENIES IN PART Partners' motion, D. 149, but ALLOWS it IN PART to the extent t hat Dr. Shervin cannot rely on conduct that occurred prior to June 5, 2008 for Partners' liability and Partners is entitled to qualified immunity for the tortious interference claim. The Defendants' motion to strike, D. 236, is DENI ED. The Defendants' motion for additional time to respond to Dr. Shervin's opposition papers, D. 237 at 9, is also DENIED as moot. Dr. Shervin's motion for leave to file a surreply to the Defendants' reply briefs, D. 263, which the Court considered in resolving the instant motions, is ALLOWED nunc pro tunc. (Maynard, Timothy)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
NINA SHERVIN, M.D.,
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)
Plaintiff,
)
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v.
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Civil Action No. 10-cv-10601
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PARTNERS HEALTHCARE
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SYSTEM, INC. et al.,
)
)
Defendants.
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)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J.
I.
March 7, 2014
Introduction
Plaintiff Nina Shervin, M.D. (“Dr. Shervin”) has brought suit against the several
Defendants based on alleged gender discrimination. D. 38. Dr. Shervin’s complaint alleges:
gender discrimination in violation of Mass. Gen. L. c. 151B (“c. 151B”) against Defendants
Partners Healthcare System, Inc. (“Partners”), Massachusetts General Physicians Organization
(“MGPO”), the President and Fellows of Harvard College/Harvard Medical School (“Harvard”),
Harry Rubash, M.D. (“Dr. Rubash”) and James Herndon, M.D. (“Dr. Herndon”) (Counts 1–5);
gender discrimination in violation of c. 151C against Partners and Harvard (Counts 6–7); gender
discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §
2000 et seq., against Partners, MGPO and Harvard (Counts 8–10); retaliation in violation of c.
1
151B against Partners, MGPO, Harvard, Dr. Rubash and Dr. Herndon (Counts 11–15);
retaliation in violation of Title VII against Partners, MGPO and Harvard (Counts 16–18); and
tortious interference with advantageous and/or contractual relations against Partners, Dr. Rubash
and Dr. Herndon (Counts 19–21).1 D. 38. The Defendants have moved for summary judgment
on a number of grounds. D. 144, D. 145, D. 148, D. 149. For the reasons discussed below, the
Court DENIES IN PART and ALLOWS IN PART Dr. Rubash’s motion, D. 144; DENIES IN
PART and ALLOWS IN PART Dr. Herndon’s motion, D. 145; DENIES IN PART and
ALLOWS IN PART Harvard’s motion, D. 148; and DENIES IN PART and ALLOWS IN PART
Partners’ motion, D. 149.2 The upshot of these rulings is that the timely claims of discrimination
and retaliation brought by Dr. Shervin as well as the interference claims will go forward to trial.
II.
Facts
As discussed in the Court’s legal analysis, a number of the material facts in this case
remain disputed. To the extent a material fact is undisputed, the Court refers to either Harvard’s
Statement of Material Facts, D. 153, or the remaining Defendants’ Amended Joint Statement of
Material Facts, D. 172, and Dr. Shervin’s responses to same, D. 230 and D. 229, respectively.
To the extent Dr. Shervin raises additional allegations, the Court refers only to her additional
Statement of Material Facts, D. 217, or her responses to the Defendants’ Statements of Material
Facts, again D. 229 and D. 230.
A.
Background
Dr. Shervin, an orthopaedic surgeon, was a medical resident in the Harvard Combined
Orthopedic Residency Program (“HCORP”), a five-year, post-graduate medical residency
1
The Court has since dismissed Count 7. D. 40 at 2. Partners has also represented to the
Court that Dr. Shervin has agreed to dismiss Count 6. D. 149 at 1.
2
Partners and MGPO filed a joint motion for summary judgment. See D. 149.
2
program. D. 172 ¶¶ 1, 6; D. 229 ¶¶ 1, 6. HCORP residents are taught at four Boston hospitals:
Massachusetts General Hospital (“MGH”), Brigham and Women’s Hospital (“Brigham”), the
Children’s Hospital of Boston and the Beth Israel Deaconess Medical Center (“Beth Israel”). D.
172 ¶ 6; D. 229 ¶ 6. Each HCORP class has twelve residents. D. 172 ¶ 9; D. 229 ¶ 9.
The HCORP Executive Committee (“the Executive Committee”) is HCORP’s governing
body. D. 172 ¶ 11; D. 229 ¶ 11. It is comprised of the chiefs of each HCORP hospital’s
department of orthopaedic surgery as well as the HCORP Program Director. Id.
Partners, a non-profit, charitable organization, is an integrated healthcare system that
includes several hospitals, including MGH and Brigham, a physician network and other healthrelated entities. D. 172 ¶ 2; D. 229 ¶ 2. MGPO is a private corporation and it is undisputed that
MGPO employs at least some MGH physicians. D. 172 ¶ 3; D. 229 ¶ 3.
Dr. Herndon is a Professor of Orthopaedic Surgery at Harvard Medical School (“HMS”)
and served as the HCORP Program Director from 1998 to 2008. D. 172 ¶ 4; D. 229 ¶ 4. The
Program Director has at least some oversight over HCORP and the Program Director’s
responsibilities include overseeing and organizing residents’ educational programs, including
resident evaluations. D. 172 ¶ 10; D. 229 ¶ 10.
Dr. Rubash remains the Chief of the Department of Orthopaedic Surgery at MGH and a
Professor of Orthopaedic Surgery at HMS. D. 172 ¶ 5; D. 229 ¶ 5. He also served on the
Executive Committee. D. 172 ¶ 12; D. 229 ¶ 12.
B.
Dr. Shervin’s HCORP Residency and Probation
1.
Dr. Herndon Imposes Probation on Dr. Shervin
3
Dr. Shervin entered her HCORP residency in 2003. D. 172 ¶ 14; D. 229 ¶ 14. Dr.
Shervin contends that she performed well at the beginning of her residency.3 D. 217 ¶¶ 91–100,
132–138. However, on January 30, 2007, while Dr. Shervin was in her fourth year of residency,
Dr. Herndon met with Dr. Hari Parvataneni (“Dr. Parvataneni”), an arthroplasty fellow at MGH.
D. 172 ¶ 16; D. 229 ¶ 16; Deposition of Dr. Herndon (D. 157-4 at 19). The parties do not
dispute that during that meeting, Dr. Parvataneni made complaints to Dr. Herndon about Dr.
Shervin. Id.
On February 2, 2007, Dr. Herndon and Dr. Shervin met. D. 172 ¶ 18; D. 229 ¶ 18; D.
157-4 at 21. At this meeting, Dr. Herndon informed Dr. Shervin that he was placing her on
probation. Id. Dr. Shervin asserts that during the meeting, Dr. Herndon threatened her ability to
complete HCORP and her post-graduate fellowship. D. 172 ¶ 19; D. 229 ¶ 19; Deposition of Dr.
Shervin (D. 157-1 at 63). She further asserts that Dr. Herndon told her during the meeting that
the effects of probation could affect her medical license, board certification, fellowship and
employment opportunities. Id. Dr. Shervin also contends that Dr. Herndon did not allow her the
opportunity during the meeting to address the allegations he raised. D. 172 ¶ 21; D. 229 ¶ 21.
In a letter dated March 7, 2007, Dr. Herndon provided Dr. Shervin with written notice of
her three-month probation. D. 172 ¶ 22; D. 229 ¶ 22; Letter from Dr. Herndon (D. 157-11). Dr.
Herndon’s letter cited as reasons for the probation her clinical performance, low exams scores,
tardiness and negative feedback from other residents and fellows. Id.
In March 2007, Dr. Shervin met with Dr. Rubash to express her concerns that Dr.
Herndon’s decision to place her on probation was fueled by gender discrimination. D. 172 ¶ 27;
3
Dr. Shervin has presented an affidavit from Dr. Burke stating that he was very impressed
with Dr. Shervin, whom he described as a “rising star.” D. 221-8 at 2.
4
D. 229 ¶ 27; D. 157-1 at 65. Around the same time, Dr. Dennis Burke (“Dr. Burke”), an MGH
orthopaedic surgeon who worked with Dr. Shervin, D. 172 ¶ 13; D. 229 ¶ 13; Deposition of Dr.
Burke (D. 157-9 at 41), also expressed to Dr. Rubash that Dr. Shervin felt that she was placed on
probation because of gender bias. D. 172 ¶ 30; D. 229 ¶ 30; Deposition of Dr. Rubash (D. 157-5
at 34). Dr. Shervin alleges that during the meeting with Dr. Rubash, he discouraged her from
taking any legal action and questioned her regarding her desire to graduate. D. 172 ¶ 40; D. 229
¶ 40; D. 157-1 at 65.
2.
Dr. Shervin Requests Review of Probation Decision
Each year of her residency, Dr. Shervin entered into a residency contract, titled “Graduate
Trainee Benefits and Responsibilities.” D. 153 ¶ 53; D. 230 ¶ 53; Deposition of Dr. Shervin (D.
153-20 at 8). Each residency contract provides that a copy of the “Graduate Trainee Adverse
Action Process” and “Graduate Trainee Redress of Grievance” policies was to be attached to the
residency contract. D. 153 ¶ 63; D. 230 ¶ 63; Dr. Shervin’s Residency Contracts (D. 153-23; D.
153-24; D. 153-25). On March 27, 2007, Dr. Shervin wrote to Dr. James Kasser (“Dr. Kasser”),
the Executive Committee Chairman, seeking an Executive Committee review of her probation
and citing the Partners Graduate Trainee Adverse Action Process as evidence that the proper
procedures were not followed in placing her on probation. D. 172 ¶ 36; D. 229 ¶ 36; D. 153 ¶
94; D. 230 ¶ 94; March 27, 2007 Letter to Dr. Kasser (D. 157-15). She also requested that the
probation be expunged from her records. D. 172 ¶ 36; D. 229 ¶ 36; D. 157-15. On April 6,
2007, Dr. Burke wrote to Dr. Kasser requesting that Dr. Shervin be afforded a fair hearing. D.
172 ¶ 37; D. 229 ¶ 37; April 6, 2007 Letter from Dr. Burke to Dr. Kasser (D. 157-16).
The parties do not dispute that once the Executive Committee’s investigation into Dr.
Shervin’s probation began, Dr. Rubash discussed Dr. Shervin with other residents and fellows.
5
D. 172 ¶ 42; D. 229 ¶ 42; Dr. Rubash’s Answers to Interrogatories (D. 157-17 at 5–6). Dr.
Michael Fehm (“Dr. Fehm”) has stated that he had one such discussion with Dr. Rubash. D. 172
¶ 43; D. 229 ¶ 43; Deposition of Dr. Fehm (D. 157-18 at 9). Dr. Fehm stated that although Dr.
Rubash expressed concern for Dr. Shervin, he also felt that toward the end of the discussion, Dr.
Rubash attempted to elicit negative comments about Dr. Shervin. Id. Dr. Fehm said that he
“saw this conversation as an effort to build armor against [Dr. Shervin].” Id.
On April 10, 2007, Dr. Herndon met with the Executive Committee regarding Dr.
Shervin’s probation. D. 172 ¶¶ 46–47; D. 229 ¶¶ 46–47; 157-4 at 27. Dr. Shervin also met with
the Executive Committee in April 2007 and expressed her belief that she was being targeted and
subjected to an atmosphere of retaliation. D. 172 ¶ 49; D. 229 ¶ 49; 157-1 at 67–68. Dr. Shervin
asserts that in the spring and early summer of 2007, residents were being asked to find fault with
her and that unfounded allegations were being raised against her. D. 172 ¶ 51; D. 229 ¶ 51; see
D. 157-2 at 90–91.
Shortly after the Executive Committee meeting and, in April 2007, Dr. Shervin met with
Dr. Ellice Lieberman (“Dr. Lieberman”), HMS’s Dean for Faculty Affairs at the time, expressing
her concerns about retaliation. D. 172 ¶ 50; D. 229 ¶ 50; D. 157-2 at 66–67. Dr. Shervin
expressed to Dr. Lieberman that she felt she was being treated differently because she did not
behave in ways in which women are stereotypically expected to behave and that she felt she was
being punished for raising such concerns. Id.
On June 6, 2007, Dr. Kasser sent Dr. Shervin a letter informing her that the Executive
Committee had decided that she would remain on probation. D. 172 ¶ 53; D. 229 ¶ 53; Letter
from Dr. Kasser (D. 157-19). Shortly thereafter, on June 19, 2007, Dr. Herndon informed Dr.
Shervin that her probation would be extended for three months. D. 172 ¶ 56; D. 229 ¶ 56; see D.
6
157-4 at 29–30. On June 29, 2007, Dr. Herndon sent Dr. Shervin a letter providing written
notice of her probation extension. D. 172 ¶ 58; D. 229 ¶ 58; Letter from Dr. Herndon (D. 15721). In the letter, Dr. Herndon notified Dr. Shervin that he and Dr. Jo Shapiro (“Dr. Shapiro”),
the Associate Director for Graduate Medical Education for Partners at the time, would meet with
Dr. Shervin in September when Dr. Herndon returned from medical leave. D. 172 ¶¶ 56, 58; D.
229 ¶¶ 56, 58; D. 157-21.
On June 29, 2007, Dr. Burke wrote a letter to Dr. Nancy Tarbell (“Dr. Tarbell”), Director
of the Office for Women’s Careers at MGH, stating that he thought Dr. Shervin was being
treated unfairly. D. 172 ¶ 60; D. 229 ¶ 60; Letter from Dr. Burke to Dr. Tarbell (D. 157-22). Dr.
Shervin met with Dr. Tarbell on July 2, 2007 and also wrote Dr. Tarbell a letter expressing that
she believed that Dr. Herndon was retaliating against her for questioning his probation decision.
D. 172 ¶ 61; D. 229 ¶ 61; Letter from Dr. Shervin to Dr. Tarbell (D. 157-23).
3.
Dr. Shervin’s Probation Ends
During Dr. Herndon’s medical leave during the summer of 2007, D. 172 ¶ 62; D. 229 ¶
62; D. 157-4 at 16, Dr. Kasser was assigned to oversee Dr. Shervin’s residency. D. 172 ¶ 58; D.
229 ¶ 58; D. 157-21. While on medical leave, Dr. Herndon received emails from two doctors
reporting incidents concerning Dr. Shervin, one such incident being that Dr. Shervin was absent
from an anatomy lecture. D. 172 ¶¶ 63, 65; D. 229 ¶¶ 63, 65; email from Dr. Scott to Dr.
Herndon (D. 157-28). In late August 2007, Dr. Shervin wrote to Drs. Tarbell and Kasser stating
that she felt Dr. Herndon was harassing and targeting her by trying to find fault with her
performance. D. 172 ¶¶ 67–68; D. 229 ¶¶ 67–68; August 27, 2007 Email from Dr. Shervin (D.
157-29).
7
During a meeting on September 6, 2007, the Executive Committee decided to end Dr.
Shervin’s probation. D. 172 ¶ 71; D. 229 ¶ 71; Executive Committee Meeting Minutes (D. 15731 at 3). As of the end of Dr. Shervin’s probation, and consistent with Dr. Shervin’s request, Dr.
Herndon was no longer Dr. Shervin’s residency director and was replaced by Dr. Kasser. D. 172
¶¶ 74–75; D. 229 ¶¶ 74–75; D. 157-4 at 9–10.
4.
Conclusion of Residency and Applying for a Medical Board
License
In or around March to April 2008, Dr. Shervin sought information from at least Drs.
Weinstein and Shapiro of the Partners Graduate Medical Education Office (“GME”) regarding
the effect of her earlier probation on her application for a medical license. D. 153 ¶ 112; D. 230
¶ 112; April 7, 2008 email to Dr. Shervin (D. 153-40). According to Dr. Shervin, Drs. Weinstein
and Shapiro of the GME told Dr. Shervin that probation was not an adverse action that needed to
be reported to the Board of Registration in Medicine. D. 217 ¶ 327; April 7, 2008 email from
Drs. Weinstein and Shapiro (D. 153-40 at 2); Deposition of Dr. Shapiro (D. 223-1). Dr. Shervin
contends that she submitted her application for a license on April 11, 2008, reporting that she had
never received a disciplinary action. D. 217 ¶ 333; Supplement Form to Board (D. 226-4). On
June 13, 2008, Dr. Shervin asserts, the Board informed Dr. Shervin that her prior probation was
considered disciplinary action, id. ¶ 337; Notice from Board (D. 226-7), and as a result, Dr.
Shervin had to resubmit her application, causing a delay in her obtaining her medical license; as
result of probation, Dr. Shervin was issued was a “limited license” that would require her to be
monitored and/or supervised during her fellowship, unlike other fellows. Id. ¶¶ 339–340, 344;
Letter from Board (D. 226-16).
On June 20, 2008, residents, including Dr. Shervin, presented their theses. D. 172 ¶ 88;
D. 229 ¶ 88; Deposition of Dr. Sanaz Hariri (D. 157-37 at 9–10). Some residents walked out of
8
the room during or prior to Dr. Shervin’s thesis presentation.4 D. 172 ¶ 89; D. 229 ¶ 89; D. 15737 at 9–10.
Dr. Shervin contends that Dr. Herndon and other members of the Executive
Committee were aware this would occur and took no action to prevent it from happening. D.
172 ¶¶ 351, 354–358; D. 229 ¶¶ 351, 354–358.
Dr. Shervin graduated from HCORP on June 30, 2008. D. 172 ¶ 96; D. 229 ¶ 96.
C.
Dr. Shervin’s Post-Residency Fellowship and Commencement of Grievance
and Legal Proceedings_____________________________________________
Starting around August or September 2008, Dr. Shervin worked as a one-year fellow at
MGH. D. 172 ¶¶ 1, 98; D. 229 ¶¶ 1, 98; D. 157-1 at 46–47; Engagement Letter (D. 157-42).
Around August 8, 2008, Dr. Shervin, through counsel, informed Partners that she planned to
proceed with a grievance before the Partners Graduate Education Committee (“Partners
Education Committee”). D. 172 ¶ 99; D. 229 ¶ 99; August 7, 2008 email from Paul Cirel to Joan
Stoddard (D. 157-43).
On March 25, 2009, Dr. Shervin submitted a grievance statement through counsel, in
which she alleged that Dr. Herndon’s February 2007 probation decision “lacked any reasonable
foundation in fact and was wholly deficient procedurally.” D. 172 ¶ 102; D. 229 ¶ 102;
Grievance Statement (D. 157-46 at 2). In the statement, she again raised her concern that Dr.
Herndon had engaged in gender bias. D. 157-46 at 7. The statement also alleged that the
Executive Committee extended her probation on “pretextual grounds.” Id. at 3. The statement
requested that “the decisions regarding probation be reversed and records relating to those
decisions be expunged.” Id. A Partners Education Committee Grievance Subcommittee (“the
4
It is not entirely clear from the record who, if anyone, organized the “walkout.” There
is at least some suggestion that this action may have been a response to Dr. Shervin’s lack of
courtesy to fellow residents during their respective thesis presentations. D. 172 ¶ 89; Deposition
of Dr. Coleen Sabatini, D. 157-38 at 7.
9
Grievance Subcommittee”) was assembled to investigate and make a recommendation to the
Partners Education Committee. D. 172 ¶ 103; D. 229 ¶ 103, 111; D. 153 ¶ 125; D. 230 ¶ 125;
Deposition of Dr. Jonathan Borus (D. 157-47).
On April 1, 2009, Partners and Dr. Shervin engaged a mediator to “attempt to resolve the
disputes between them.” D. 172 ¶ 108; D. 229 ¶ 108; Letter from Mediator to MCAD (D. 15754). The same day, Dr. Shervin and Partners entered into a Tolling Agreement (“the Tolling
Agreement”) providing that were Dr. Shervin to file a complaint with the Massachusetts
Commission Against Discrimination (“MCAD”) by a certain agreed-upon date, her MCAD
complaint would be treated as having been filed on April 1, 2009 for statute of limitations
purposes. D. 172 ¶ 109; D. 229 ¶ 109; Letter from Joan Stoddard to Ellen Zucker (D. 157-55).
Dr. Shervin completed her fellowship in the summer of 2009. D. 172 ¶ 110; D. 229 ¶
110; D. 157-1 at 46–47. On October 14, 2009, the Grievance Subcommittee recommended that
the Partners Education Committee affirm the initial probation decision by Dr. Herndon, the
ratification of same by the Executive Committee and the extension of the initial probation for
three months, Grievance Subcommittee Report (D. 157-48 at 4-11); the parties do not dispute
that the Partners Education Committee adopted the subcommittee’s recommendation. D. 172 ¶
111; D. 229 ¶ 111.
On October 26, 2009, Dr. Shervin filed a discrimination complaint with MCAD and the
U.S. Equal Employment Opportunity Commission (“EEOC”) against Partners, Harvard, Dr.
Herndon and Dr. Rubash. D. 172 ¶ 113; D. 229 ¶ 113; MCAD Complaint (D. 157-56). Dr.
Shervin filed her complaint in this Court on April 9, 2010. D. 1.
D.
Post-Fellowship Employment (2009-2010)
10
The parties do not dispute that in 2005, while Dr. Shervin was in the third year of her
residency, she had discussions with Drs. Burke, Rubash and others concerning the possibility of
a post-fellowship staff position at MGH, which would include privileges at Newton-Wellesley
Hospital (“Newton-Wellesley”). D. 172 ¶¶ 119–120, 124; D. 229 ¶¶ 119–120, 124; D. 157-1 at
4; D. 157-5 at 12. Upon Dr. Burke’s suggestion, Dr. Shervin met with Dr. Rubash on November
30, 2005. D. 157-12; see also D. 172 ¶¶ 132–133; D. 229 ¶¶ 132–133. The parties do not
dispute that Dr. Rubash recommended that Dr. Shervin meet with Dr. Andrew Freiberg (“Dr.
Freiberg”), MGH’s Chief of Arthroplasty service, to discuss fellowships. D. 172 ¶ 136; D. 229 ¶
136; D. 157-1 at 14–15. Dr. Rubash also explained in the meeting the differences between
academia and private practice. D. 172 ¶ 138; D. 229 ¶ 138; D. 157-5 at 13–14. Following the
meeting, Dr. Rubash sent Dr. Burke an email stating that he was “very optimistic that we can do
something for [Dr. Shervin] here.” D. 172 ¶ 150; D. 229 ¶ 150; November 30, 2005 email from
Rubash to Dr. Burke (D. 157-64).
In December 2005, Dr. Shervin met with Dr. Freiberg and, according to Dr. Shervin, they
discussed his recommendations for fellowships and “coming on staff” at MGH and NewtonWellesley. D. 172 ¶ 155; D. 229 ¶ 155; D. 157-1 at 12–13. Although the parties do not dispute
that there were conversations in and around 2005 about the possibility of a post-fellowship staff
position at MGH for Dr. Shervin, the Defendants deny that any agreement or employment offer
regarding the same was made.
See D. 229 ¶¶ 143–147.
Dr. Shervin contends that the
Defendants later interfered with her purported hiring at Newton-Wellesley and MGH in the
spring of 2009. Dr. Shervin relies upon the fact that Dr. Rubash told a recommender that no staff
positions were available, June 14, 2009 email from Dr. Rubash to Dr. Sunder (D. 227-14 at 2),
11
which she contends was pretext for a retaliatory withdrawal of her contemplated employment
offer. D. 229 ¶ 152.
E.
Post-Complaint Employment Prospects
Dr. Shervin also contends that retaliation for her earlier complaints of gender
discrimination continued after she initiated this lawsuit. According to Dr. Shervin, she received
an offer letter in or around the Spring 2012 from Cooley Dickinson Hospital (“Cooley”); see
Draft Recruitment Letter (D. 228-2); D. 157-2 at 39. Affidavit of Dr. Henry Drinker (D. 227-24
at 3). At the time, Cooley was in negotiations with MGH about an affiliation. There is evidence
in the affidavit of Dr. Henry Drinker, Director of Joints Replacement Services at Cooley who
recruited Dr. Shervin, that after the hospital had tendered her a contract and after contact
between Cooley management and MGH management, the offer was withdrawn in or around late
2012. Id. at 3–4.
Dr. Shervin also alleges that around June 2012, Dr. Mark Gebhardt, chief of the
orthopaedic service at Beth Israel Deaconess Medical Center-Milton Hospital (“Milton”), not a
party to this lawsuit, contributed to her being deprived of the opportunity to join the Beth-Israel
Deaconess Physicians Organization. D. 172 ¶ 183–185; D. 229 ¶ 183–185; D. 153 ¶ 142; D. 230
¶ 142; Deposition of Dr. Joseph Morrissey (D. 228-6 at 11–12); D. 157-2 at 25–34, 44–45.
III.
Procedural History
Dr. Shervin initiated this action on April 9, 2010. D. 1. Dr. Shervin filed an amended
complaint on July 13, 2010, in which the present Defendants are named. D. 38. On June 14,
2010, Harvard moved to dismiss Dr. Shervin’s state and federal discrimination and retaliation
claims. D. 10; D. 11. On December 15, 2010, the Court allowed Harvard’s motion to dismiss in
12
part, only as to Count 7, the c. 151C claim. D. 40. On June 30, 2010, Dr. Rubash moved to
dismiss the tortious interference claim, D. 31, which the Court denied. D. 40.5
The parties have now engaged in extensive discovery, which has prompted numerous
discovery disputes by and between the parties and various third parties. See D. 66; D. 71; D. 73;
D. 91; D. 97; D. 99; D. 112; D. 114; D. 125; D. 127; D. D. 169; D. 182; D. 214. The Defendants
moved for summary judgment on November 22, 2013. D. 144; D. 145; D. 148; D. 149. After
extensive briefing and a hearing on February 6, 2014, the Court took these matters under
advisement. D. 254.
IV.
Standard of Review
A.
Summary Judgment
The Court may grant summary judgment when there is no genuine dispute of material
fact and the moving party is entitled to judgment as a matter of law based on the undisputed
facts. Fed. R. Civ. P. 56(a). “An issue is genuine if the evidence of record permits a rational
factfinder to resolve it in favor of either party.” Borges ex. rel. S.M.B.W. v. Serrano-Isern, 605
F.3d 1, 4 (1st Cir. 2010) (citation and quotations omitted). “A fact is material if its existence or
nonexistence has the potential to change the outcome of the suit.” Id. at 5.
Once the moving party meets its burden of showing that there are no genuine issues of
material fact, “the burden shifts to the nonmoving party, who must, with respect to each issue on
which she would bear the burden of proof at trial, demonstrate that a trier of fact could
reasonably resolve that issue in her favor,” Borges, 605 F.3d at 5 (citation omitted), by
5
The Court’s order on the motions to dismiss also ruled that certain portions of the
Defendants’ motions were mooted by the filing of the amended complaint. D. 40.
13
presenting specific admissible facts. Id. “If the nonmovant fails to make this showing, then
summary judgment is appropriate.” Id.
“[A]t the summary judgment stage the judge’s function is not . . . to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The moving party “need only show
that there is an absence of evidence in support of at least one element of [its] case in[] order to
succeed on summary judgment.” Cellco P’ship v. Town of Grafton, Mass., 336 F. Supp. 2d 71,
82 (D. Mass. 2004). The Court “view[s] the record in the light most favorable to the nonmovant,
drawing reasonable inferences in [her] favor.” Noonan v. Staples, Inc., 556 F.3d 20, 25 (1st Cir.
2009). However, “conclusory allegations, improbable inferences, and unsupported speculation”
are not sufficient to overcome summary judgment. Sullivan v. City of Springfield, 561 F.3d 7,
14 (1st Cir. 2009) (citation omitted).
B.
Statement of Material Facts
The Defendants urge the Court to strike Dr. Shervin’s statement of material facts,
response to their statements of material facts and consolidated memorandum of law in opposition
to their motions for summary judgment. D. 236. They contend that Dr. Shervin failed to comply
with D. Mass. R. 56.1 and cite cases where courts have struck or otherwise rejected oppositions
to summary judgment motions deemed noncompliant with this local rule for lack of conciseness
and/or inclusion of immaterial statements of fact. D. 237 at 7–8.
A party opposing a motion for summary judgment “shall include a concise statement of
material facts of record as to which it is contended that there exists a genuine issue to be tried,
with page references to affidavits, depositions and other documentation.” D. Mass. R. 56.1. The
Court does not disagree that an excessive amount of ink has been expended on the pending
14
summary judgment motions and opposition to same. Moreover, the Court does not disagree that
many of the papers includes statements, arguments and suggestions that are not material to the
issues of law that the Court must resolve in addressing the pending motions. It is, however, not
only Dr. Shervin’s papers that suffer from this problem. See, e.g., Dr. Rubash’s Memorandum in
Support of Summary Judgment, D. 144-1 at 3 n.3 (“In one of the most curious aspects of this
case Dr. Burke provided Dr. Shervin with approximately $375,000 from his personal account”).
For this reason, and, significantly because of the Court’s reluctance to initiate yet another
round of briefing, the Court declines to grant the motion to strike and accordingly, D. 236 is
DENIED. That having been said, the Court, however, has not relied upon any claims or facts
that were not supported by specific references to the record or any alleged facts that were not
material to deciding the Defendants’ motions for summary judgment. See Brown v. Armstrong,
957 F. Supp. 1293, 1297 (D. Mass. 1997); Caban Hernandez v. Phillip Morris USA, Inc., 486
F.3d 1, 7–8 (1st Cir. 2007).
To the extent the Defendants argue that the Court should allow them an additional time to
respond to Dr. Shervin’s opposition papers, D. 237 at 9, the Court DENIES such request as moot
as the Defendants have already filed responses, which the Court considered in deciding their
motions for summary judgment. See D. 243; D. 246; D. 247; D. 253.
V.
Discussion
Dr. Shervin alleges gender discrimination in violation of Title VII against Partners,
MGPO and Harvard, as well as gender discrimination in violation of c. 151B against all the
Defendants. D. 38. Title VII provides that “[i]t shall be an unlawful employment practice for an
employer . . . to discriminate against any individual with respect to his compensation, terms,
conditions or privileges of employment, because of such individual’s . . . sex . . . ” 42 U.S.C. §
15
2000e–2(a)(1). Likewise, Mass. Gen. Laws c. 151B, § 4(1) makes it unlawful “[f]or an employer
. . . because of . . . sex . . . to . . . discriminate against such individual in compensation or in
terms, conditions or privileges of employment, unless based upon a bona fide occupational
qualification.” The statute also makes it unlawful for “any person to coerce, intimidate, threaten,
or interfere with another person in the exercise or enjoyment of any right granted or protected by
this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided
or encouraged any other person in the exercise or enjoyment of any such right granted or
protected by this chapter.” Mass. Gen. Laws c. 151B, § 4(4A).
To prove gender discrimination under either statute, Dr. Shervin must show that “she is a
member of a protected group who has been denied an employment opportunity for which she
was otherwise qualified.” Dichner v. Liberty Travel, 141 F.3d 24, 29–30 (1st Cir. 1998). “Such
a showing gives rise to an inference that the employer discriminated due to the plaintiff’s
[protected status] and places upon the employer the burden of articulating “a legitimate,
nondiscriminatory reason for the adverse employment decision.” Id. at 30; see also Tate v. Dep’t
of Mental Health, 419 Mass. 356, 361 (1995) (applying the same burden-shifting standards for c.
151B discrimination claim). This burden-shifting to the Defendants “entails only a burden of
production, not a burden of persuasion; the task of proving discrimination remains the plaintiff’s
at all times. Dichner, 141 F.3d at 30. If the Defendants meet such burden, Dr. Shervin must then
prove that the Defendants’ explanation is a pretext for unlawful discrimination. Id.
Dr. Shervin further alleges retaliation in violation of Title VII against Partners and
Harvard, as well as retaliation in violation of c. 151B, § 4(4) against all the Defendants. D. 38.
Title VII provides that it is an “unlawful employment practice for an employer to discriminate
against any of his employees . . . because [s]he has opposed any practice made an unlawful
16
employment practice by this subchapter, or because [s]he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or hearing under this subchapter.”
42 U.S.C. § 2000e-3. Similarly, c. 151B, § 4(4) makes it unlawful “[f]or any person [or]
employer . . . to . . . discriminate against any person because [s]he has opposed any practices
forbidden under this chapter or because he has filed a complaint, testified or assisted in any
proceeding under section five.” To prove prima facie retaliation, Dr. Shervin must show that she
“engaged in protected conduct,” “suffered an adverse employment action” and that the “adverse
action was causally connected to the protected activity.” Fantini v. Salem State Coll., 557 F.3d
22, 32 (1st Cir. 2009) (citations and quotations omitted); Mole v. University of Massachusetts,
442 Mass. 582, 591-92 (2004). To show participation in a protected activity, Dr. Shervin need
not prove that discrimination actually occurred, id. (citations and quotations omitted), but must
show that she “reasonably and in good faith believed that the [defendant] was engaged in
wrongful discrimination, that she acted reasonably in response to her belief, and that the
[defendant’s] desire to retaliate against her was a determinative factor in its decision to [engage
in adverse action].” Tate, 419 Mass. at 364.
Dr. Shervin also brings aiding and abetting claims against the Defendants, pursuant to
Mass. Gen. L. c. 151B, § 4(5), which provides that it is unlawful for “any person, whether an
employer or an employee or not, to aid, abet, incite, compel or coerce the doing of any of the acts
forbidden under this chapter or to attempt to do so.” As to these claims, a defendant must still
have “the requisite intent to discriminate [or retaliate] in order to be liable for aiding and
abetting.” Beaupre v. Cliff Smith & Associates, 50 Mass. App. Ct. 480, 495 n.23, (2000).
All the Defendants seek summary judgment on the claims for gender discrimination and
retaliation under both Title VII and c. 151B on the basis that there is no genuine dispute of
17
material fact that would foreclose the Court from granting summary judgment as to Dr. Shervin’s
timely claims. Specifically, Dr. Rubash, Dr. Herndon, Partners and MGPO argue that because of
the Tolling Agreement, all of Dr. Shervin’s discrimination and retaliation claims that occurred
prior to June 5, 2008 – 300 days before April 1, 2009 – are time-barred. D. 144-1 at 10; D. 152
at 9; D. 150 at 2. They further argue that there is insufficient timely evidence that they engaged
in gender discrimination or retaliation, D. 144-1 at 16–19; D. 152 at 10; D. 150 at 8, and that Dr.
Shervin has failed to present sufficient evidence of a tortious interference with a contract or
advantageous business relationship. D. 144-1 at 19; D. 152 at 19; D. 150 at 18. Partners also
argues that it qualifies for charitable immunity for the interference claim pursuant to Mass. Gen.
L. c. 231, § 85K. D. 150 at 19.
Harvard asserts that it was not party to the Tolling Agreement, and that therefore, the
statute of limitations date for claims against Harvard is December 30, 2008 – 300 days prior to
the filing of Dr. Shervin’s MCAD complaint on October 26, 2009. D. 151 at 28. Like the other
Defendants, Harvard argues that neither the “continuing violation” doctrine nor the so-called
grievance exception to the statute of limitations applies. D. 151 at 28. Harvard also seeks
summary judgment on all counts on the grounds that even in considering Dr. Shervin’s timely
claims, Harvard was not Dr. Shervin’s employer, and therefore cannot be held liable under Title
VII or c. 151B, and on the grounds that there is no evidence that Harvard possessed
discriminatory animus, necessary for aiding and abetting discrimination or retaliation, since it is
not the employer of Dr. Herndon or Dr. Rubash. D. 151 at 1–2.
The Court will address each of the Defendants’ arguments.
18
A.
The Grievance Exception Does Not Apply to Dr. Shervin’s c. 151B Claims
The Court first addresses Dr. Shervin’s argument that regardless of the Tolling
Agreement, the statute of limitations does not apply to her c. 151B claims because of the socalled “grievance exception” to the statute of limitations. The Court concludes that the grievance
exception does not apply because Dr. Shervin did not invoke any grievance proceedings pursuant
to a collective bargaining agreement.
Under c. 151B (as well as Title VII), a claim of unlawful discrimination or retaliation
must be filed with MCAD within 300 days of alleged illegal conduct. Mass. Gen. L. c. 151B, §
5; 42 U.S.C. § 2000e-5(1); Ryan v. Holie Donut, Inc., 82 Mass. App. Ct. 633, 641 (2012).
Massachusetts regulations provide, however:
[The] 300 day requirement shall not be a bar to filing in those instances where . .
. an aggrieved person enters into grievance proceedings concerning the alleged
discriminatory act(s) within 300 days of the conduct complained of and
subsequently files a complaint within 300 days of the outcome of such
proceeding(s).
804 C.M.R. § 1.10(2); see also D. 231 at 64.
As Dr. Shervin notes in her papers in opposition to summary judgment, D. 231 at 64, the
Massachusetts Supreme Judicial Court has “consistently granted deference to MCAD’s decisions
and policies” when interpreting c. 151B. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass.
521, 534 (2001). While the Court notes that 804 C.M.R. § 1.10(2) makes no explicit reference
to collective bargaining agreements and only references “grievance proceedings,” the MCAD has
stated that it “has interpreted [the grievance] exception to apply only to formal grievance
proceedings set forth in a collective bargaining agreement.” Hall v. Fidelity Investments, Inc.,
No. 06-BEM-02514 (MCAD Aug. 24, 2007). Deferring to MCAD’s own interpretation of this
regulation, the court in Hall v. FMR Corp., 559 F. Supp. 2d 120, 125–26 (D. Mass. 2008),
19
adopted the MCAD’s position, holding that the plaintiff in that case could not benefit from the
grievance exception because she did “not allege that she was covered by a collective bargaining
agreement or that she pursued a formal grievance under the terms of such an agreement.”
While Dr. Shervin directs the Court to cases concerning the application of 804 C.M.R. §
1.10(2), none of them stand for the broad proposition that 804 C.M.R. § 1.10(2) applies to nonunion-bargained grievance proceedings or that the MCAD has taken the position that it does.
See Silvestris v. Tantasqua Reg’l Sch. Dist., 446 Mass. 756 (2006); Martins v. Univ. of Mass.
Med. Sch., 75 Mass. App. Ct. 623 (2009); Leitao v. State Street Corp., 74 Mass. App. Ct. 1101
(2009). In first two cases where the grievance exception was analyzed, the plaintiff was either
party to a collective bargaining agreement or a union agreement was otherwise at-play. See
Silvestris, 446 Mass. at 764 (grievance procedure set forth in plaintiff’s collective bargaining
agreement); Martins, 75 Mass. App. Ct. at 628 (referencing the UMMS’s grievance procedure)
Pl.’s Br., Martins v. Univ. of Mass. Med. Sch., No. 08-P-1343, 2008 WL 5009146, at *3 (Mass.
App. Ct. Oct. 17, 2008) (noting that while plaintiff “did not belong to Union, [he] was
transferred with the terms and conditions of the Union employees”).6 Dr. Shervin has not cited
other decisions in which a plaintiff who was not party to a collective bargaining agreement was
permitted to use the grievance exception to the statute of limitations. That this exception is
6
Addressing the cases cited in Dr. Shervin’s surreply, the Court first notes that in Leitao,
the court found that the plaintiff had not even entered into any grievance proceedings. 74 Mass.
App. Ct., at *3. Dr. Shervin also relies upon Tunnell v. Smith College, No. 85-SEM-0081, 8
MDLR 1189 (MCAD 1986). See D. 263-1 at 14. Tunnell, however, does not save Dr. Shervin’s
argument where it turned on whether the complaint before the grievance committee needed to
allege sex discrimination or only the same underlying facts to invoke the grievance exception.
Id. at 5. The decision does not address, however, whether the proceeding was in the collective
bargaining context. Moreover, to the extent that Dr. Shervin relies upon the case to suggest
MCAD’s position about the scope of the grievance exception, certainly the same is superseded
by MCAD’s later pronouncement about the collective bargaining requirement in Hall in 2007.
20
confined to grievance proceedings arising out of collective bargaining process, a process that
“promo[tes] stability in collective bargaining relationships without impairing the free choice of
employees,” N.L.R.B. v. Curtin Matheson Scientific, Inc., 494 U.S. 775, 794 (1990) (citation
omitted), is consistent with the MCAD’s position regarding application of the regulation (as
noted above in Hall) and as reflected in other MCAD rulings. See, e.g., Randall v. Whittier Reg’l
Vocational Technical High Sch., No 97-BEM-0497, 2002 WL 31318576, at *5, 9 (MCAD Aug.
28, 2002) (reflecting collective bargaining agreement in place and relying upon 804 C.M.R. §
1.10(2)).
For these reasons, the Court finds that the grievance exception articulated in 804 C.M.R.
§ 1.10(2) does not apply here, and therefore, the statute of limitations did not toll during the
pendency of Dr. Shervin’s grievance proceedings.
B.
The Continuing Violations Doctrine Does Not Save Dr. Shervin’s TimeBarred Claims________________________________________________
1.
Continuing Violation Doctrine Under Title VII
Dr. Shervin also argues that another exception to the statute of limitations, the
“continuing violation” doctrine, allows her to base the Defendants’ liability for discrimination
and retaliation on conduct that occurred outside the limitations period.
Under both Title VII and c. 151B, plaintiffs may rely on conduct that occurred when the
conduct amounts to a “continuing violation.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101 (2002); 804 C.M.R. § 1.10(2). The United States Supreme Court clarified the reach of the
Title VII continuing violation doctrine in Morgan, where the court held that while the continuing
violation doctrine may provide an exception to the statute of limitations for claims which by
“[t]heir very nature involve[] repeated conduct,” id. at 114, “discrete discriminatory acts are not
actionable if time barred, even when they are related to acts alleged in timely filed charges.” Id.
21
at 113. “Discrete acts” include such acts as “termination, failure to promote, denial of transfer,
or refusal to hire,” id. at 114, and, accordingly, a plaintiff “can only file a charge to cover
discrete acts that ‘occurred’ [i.e., the day that the discrete discriminatory or retaliatory act
‘happened’] within the appropriate time period.” Id. The Morgan court, in differentiating
“hostile environment claims” from such discrete acts, held that a defendant may be liable for
discriminatory or retaliatory conduct that falls outside of the limitations period when “all acts
which constitute the claim are part of the same unlawful employment practice and at least one act
falls within the time period.” Id. at 122.
i.
“Anchoring Events” that Fall Within the Limitations Period
Dr. Shervin argues that four timely events “anchor” her claims (i.e., fall within the
requisite time period), and, therefore, all of the allegedly discriminatory and retaliatory conduct,
including conduct occurring before June 5, 2008, is actionable. D. 231 at 67. Although the
nature and circumstances of these events are disputed by the Defendants, Dr. Shervin contends
that there is specific, admissible evidence from which a reasonable jury could find that these
events were discriminatory and/or retaliatory.
D. 231 at 67–68.
These events, occurring
between June 5, 2008 and October 26, 2009, include:
(1)
Dr. Shervin asserts that Dr. Herndon aided and abetted the June 20, 2008 thesis
presentation “walkout” by taking no action in response to residents walking out of the
room during her thesis presentation. D. 231 at 67; D. 217 ¶¶ 354–355. While Dr.
Shervin has not presented specific, admissible evidence that Dr. Herndon had prior
knowledge that the walkout would occur,7 Dr. Herndon testified at his deposition that
7
Dr. Herndon testified at his deposition that he had no prior knowledge the walkout
would occur. D. 157-4 at 41–42. The only evidence Dr. Shervin offers in support of her
22
although he was present when the residents walked out during Dr. Shervin’s presentation,
he did not respond to Dr. Shervin’s concern or investigate the incident. D. 157-4 at 4142.
(2)
Dr. Shervin contends that Drs. Rubash and Herndon urged two residents to
present unfounded complaints about Dr. Shervin, which they knew to be untrue, to the
Executive Committee in July 2008. D. 231 at 67. Dr. Shervin has provided evidence that
at an Executive Committee meeting on July 22, 2008, Dr. Brett Shore reported to the
Committee that while on call, Dr. Shervin failed to respond to pages and that in other
circumstances, Dr. Shervin improperly left cases for other residents to handle. D. 217 ¶
347 (citing Executive Committee Meeting Minutes from July 22, 2008, D. 226-17). Dr.
Shervin has also offered evidence that while Drs. Rubash and Herndon were both aware
that Dr. Shervin had previously requested to be removed from the on-call schedule that
weekend, D. 225-5,8 the meeting minutes reflect that neither of them indicated such at the
meeting of the Executive Committee. D. 226-17. While the meeting minutes do not
reflect that Dr. Herndon was present at the meeting, Dr. Herndon also testified at his
deposition that he urged Dr. Shore to come forward to talk to him about Dr. Shervin. D.
219-4.
argument that Dr. Herndon knew the walkout would occur is inadmissible hearsay. First, she
offers a resident self-evaluation stating: “Recently, I heard rumors that many or some of my class
would like to boycott graduation in response of the failure of the program to reprimand the
student in question,” referring to Dr. Shervin. The resident continues: “Not going to graduation
is an insult not only to each other, but to the attendings we know, love and respect.” D. 226-20.
Dr. Shervin also offers Dr. Burke’s testimony that the “Executive Committee knew or should’ve
known, about the walkout on Dr. Shervin and did nothing to stop it” and that if Dr. Kasser knew
the walk out would occur, Dr. Herndon also must have known. D. 219-20 at 37.
8
D. 225-5 is an email from Dr. Rubash to Dr. Herndon asking to “seek an alternate
solution” to Dr. Shervin being on call during graduation weekend.
23
(3)
Dr. Shervin posits that the Defendants interfered with her purported hiring at
Newton-Wellesley and MGH in the spring of 2009. While the question of whether Dr.
Shervin was ever offered a staff position remains highly contested, see D. 229 ¶ 152, Dr.
Shervin cites in support of her position that Dr. Rubash withdrew her job offer evidence
that Dr. Rubash told a recommender that no staff positions were available. June 14, 2009
email from Dr. Rubash to Dr. Sunder, D. 227-14 at 2 (“Thank you for your email
regarding Dr. Nina Shervin.
At the moment, there are no positions open in the
Orthopaedic Department for which we are hiring”).
(4)
Dr. Shervin argues that the Grievance Committee’s investigation in 2009 into her
probation was conducted in an unfair manner. She relies upon testimony of Dr. Borus, a
member of the Grievance Subcommittee, who testified in a deposition that he did not
know during the course of the Subcommittee’s investigation that Dr. Shervin had alleged
gender discrimination, D. 220-1 at 15, finding out about those allegations during the
grievance hearing, which a jury could reasonably find means that the Subcommittee’s
process was not as searching as it should have been. D. 220-1 at 24. Dr. Borus also
testified that he did not “have an understanding about how one demonstrates that actions
are the product of impermissible gender bias.” D. 220-1 at 24. Dr. Borus further testified
that Dr. Shervin’s counsel sent him an email on or around June 27, 2009 requesting that
the subcommittee speak with Drs. Briggs and Hornicek as part of their investigation. D.
220-1 at 74. The Grievance Committee wrote in its Grievance Report, however, that
“[n]either party responded to the Committee’s request to submit a list of additional
individuals for the Committee to interview.” D. 157-48 at 3. Although Dr. Herndon
cited a case involving a patient with a shoulder injury (“the shoulder case”) in support of
24
his decision to impose probation, D. 220-1 at 57-58, Dr. Borus testified that Dr. Herndon
never indicated to him that his description of events surrounding the shoulder dislocation
patient in his March 7, 2007 probation letter to Dr. Shervin, was written in error.9 D.
220-1 at 57–58. Dr. Borus testified that at the hearing, Dr. Herndon also stated that Dr.
Shervin “didn’t do the right thing with the shoulder.” D. 220-1 at 120. Dr. Borus
testified that the Committee never spoke to Dr. Holovacs and that the Committee did not
receive the letter Dr. Holovacs wrote. D. 220-1 at 121.
ii.
Probation was a Discrete Act
Even if the above conduct is in itself actionable, however, the Court concludes that Dr.
Shervin cannot rely on these events to anchor a time-barred discriminatory or retaliatory acts to
such timely acts as a continuing violation, where those time-barred acts, namely Dr. Herndon’s
February 2007 initial imposition of probation, the subsequent ratification of same by the
Executive Committee the extension of that probation, were discrete acts. As previously noted,
the Morgan court held:
Discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire
are easy to identify. Each incident of discrimination and each retaliatory adverse
employment decision constitutes a separate actionable “unlawful employment practice.”
Id. at 114. The First Circuit has since applied Morgan in a number of cases, focusing on whether
the alleged discrimination or retaliation requires “repeated conduct to establish an actionable
claim.” Tobin v. Liberty Mut. Ins. Co., 553 F.3d 121, 130–31 (1st Cir. 2009). Here, the Court
finds instructive the First Circuit’s analysis in Miller v. New Hampshire Dep’t of Corr., 296 F.3d
9
On April 10, 2007, Dr. Holovacs, the attending surgeon, wrote an email to Dr. Kasser
stating that he believed the only mistake Dr. Shervin made was failing to keep a hard copy x-ray
after the operation; he did not believe, however, that this mistake rose “to the level of seriousness
to which it seems to have risen.” D. 222-15; D 157 at 3.
25
18, 22 (1st Cir. 2002), a case decided after Morgan. There, the court rejected the plaintiff’s
argument that although he received a letter of warning and performance evaluation from his
employer, he did not understand the “tangible effects” of the letter until three years later, when
he was denied a promotion. Id. The court found that the continuing violation doctrine did not
apply because the plaintiff understood the warning letter and evaluation – a discrete act – to be
formal discipline, appealing such discipline through the internal review procedures. Id. In his
appeal, the plaintiff stated that he felt “abused and retaliated against,” demanding that the letter
be removed from his file.
Id.
The court found that the plaintiff’s “recognition [of the
discriminatory and retaliatory nature of the disciplinary action taken against him] eliminate[d]
any argument that the warning and evaluation did not have any crystallized implications or
apparent tangible effects at the time they were issued.” Id. (quotations omitted).
Dr. Shervin denounced the untimely discrete acts of discrimination and retaliation as such
almost as soon as they occurred. In fact, the record in this regard is largely undisputed. Dr.
Shervin, shortly after the February 2, 2007 meeting with Dr. Herndon, felt she was being treating
disparately because of her gender. D. 172 ¶ 20; D. 229 ¶ 20; D. 157-2 at 88. As early as March
2007, Dr. Shervin told Dr. Rubash that she felt Dr. Herndon was treated her differently because
of her gender. D. 229 ¶ 27; D. 157-1 at 65. Dr. Shervin claims that after she complained to Dr.
Rubash, “reprisals began immediately.” D. 229 ¶ 28. In fact, Dr. Shervin has asserted that the
statements Dr. Rubash made to her during that meeting were retaliatory in nature. D. 229 ¶ 32.
As did the plaintiff in Miller, Dr. Shervin expressed that she was “not being treated fairly” in the
letter she addressed to Dr. Kasser dated March 27, 2007, in which she requested an Executive
Committee review and expungement of her probation. Letter to Dr. Kasser (D. 157-15 at 2). In
the letter, Dr. Shervin states her belief that “proper procedures were not followed” and that she
26
was “fully prepared to go forward with a full hearing on the merits.” Id. She notes Dr.
Herndon’s “inappropriate references” to her weight loss.
Id.
During her presentation to
Executive Committee on April 10, 2007, Dr. Shervin asserts that she told the Executive
Committee that she was concerned about gender bias. D. 229 ¶ 54; 157-1 at 67–68. Despite Dr.
Shervin’s claims, the Executive Committee notified Dr. Shervin in June 2007 that it was
upholding Dr. Herndon’s probation decision. D. 229 ¶ 55; June 6, 2007 Letter from Dr. Kasser
(D. 157-19). The letter stated that the Executive Committee felt that Dr. Herndon “made an
appropriate decision” based on Dr. Shervin’s clinical and professional performance and did not
address gender bias.
D. 157-19.
After the Executive Committee’s decision, Dr. Shervin
informed Dr. Lieberman that she suspected that new, unsubstantiated allegations about her
alteration of medical records may have surfaced because she had raised her concerns about
gender bias. D. 229 ¶ 55. As the Morgan court articulated, “related discrete acts” cannot be
converted into a “single unlawful practice for the purposes of timely filing.” Morgan, 536 U.S.
at 111. The most that can said here is that the earlier discrete discriminatory acts related to the
later timely charged claims, but that does not aid Dr. Shervin since “discrete discriminatory acts
are not actionable if time barred, even when they are related to acts alleged in timely filed
charges.” Morgan, 536 U.S. at 113. Accordingly, as much of Dr. Shervin’s discrimination and
retaliation claims that occurred before June 5, 2008 (and before December 30, 2008 as to
Harvard for reasons stated below) is not actionable.
To the extent that Dr. Shervin contends that the Defendants’ conduct rose to the level of a
“hostile work environment”—i.e., discriminatory conduct based on gender “sufficiently severe
or pervasive that it altered the conditions of [Dr. Shervin’s] employment and created an abusive
working environment,” where “the offending conduct was both objectively and subjectively
27
offensive,” Tuli v. Brigham & Women’s Hospital, 656 F.3d 33, 39 (1st Cir. 2011) (citations and
quotations omitted), such contention does not aid Dr. Shervin on this record. In hostile work
environment cases, acts which may not be actionable on their own, occur over a period of time,
eventually culminating into the plaintiff’s realization that she has been subject to discrimination.
Tuli, 656 F.3d at 39–40, upon which Dr. Shervin relies, illustrates this paradigm. In Tuli, over
the course of over two years, a female neurosurgeon observed and endured sexual innuendo,
sexually charged suggestions and degrading insinuations about her skills as a spine surgeon
because she was a woman, many of them committed by her supervisor. Id.
Although she
complained internally about his behavior and it continued, it was not until after the supervisor’s
adverse presentation about her to the credentialing board that resulted in her qualified
reappointment (affirmed, after review, by an internal committee) that she filed a MCAD
complaint. The Tuli court held that it was the “accumulated effect of incidents of humiliating,
offensive comments directed at women and work-sabotaging pranks, taken together” that
constituted the hostile work environment, id. (quoting O’Rourke v. City of Providence, 235 F.3d
713, 729 (1st Cir. 2001)), and was the “classic example of a continuing violation” from the
earlier 2005 to 2007 incidents to the 2007 adverse employment decision Id. at 40 (quoting
Tobin, 553 F.3d at 130); Johnson v. Univ. of Puerto Rico, 714 F.3d 48, 53 (1st Cir. 2013) (noting
that “[d]iscrete acts and hostile work environment claims are different in kind . . . because hostile
work environment claims by their nature involve repeated conduct and a single act of harassment
may not be actionable on its own”).
Not so here. Even drawing every reasonable inference in Dr. Shervin’s favor to the
extent that the material facts on this point are disputed, it remains the case that the untimely
claims—the initial probation decision by Dr. Herndon, the failure to reverse such decision by Dr.
28
Herndon, Dr. Rubash or the Executive Committee, the extension of probation—were all discrete
acts, all of which Dr. Shervin contemporaneously denounced as discriminatory and/or retaliatory
and complained about to various of the Defendants as such. See D. 172 ¶ 27; D. 229 ¶ 27
(undisputed fact that in March 2007, Dr. Shervin met with Dr. Rubash to express her concerns
that Dr. Herndon’s decision to place her on probation was fueled by gender discrimination).
That is, unlike the paradigm in which plaintiff suffers a number of indignities, the discriminatory
animus of which is not clear until a series of such events continue over time or culminate in a
discriminatory or retaliatory act for which the plaintiff then seeks relief, the opposite is true here.
It is undisputed that Dr. Shervin complained about the probation (and the failure to reverse the
decision or not allow its extension as discrimination) in 2007 and understood by June 6, 2007
that the Executive Committee would not provide her the relief she sought. This is not a
circumstance which, by virtue of the continuing violation doctrine, “victims of discrimination
[are not penalized] for reporting misconduct as it occurs and attempting to work with their
employers to remedy the situation.” Tuli, 656 F.3d at 41 (comparing the “Massachusetts’
parallel analysis” under Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521, 541 (2001)).
Nor is this case the paradigm in Tuli where “[a]lthough in 2005 and 2006, prior to the 300-day
window, Tuli was subject to ‘pinpricks,’ . . . [her supervisor’s] presentation to the [credentials]
committee in October 2007 could be viewed as making clear that the situation was hopeless,
triggering the clock for the sum of prior acts comprising the continuing violation.” Id. The
Court agrees with Dr. Shervin that Tuli is instructive, but it is instructive and distinguishable
where she did not suffer “pinpricks,” but a discrete punch in the form of the probation that, upon
her contemporaneous complaints about it as gender bias, did not lead to the relief she sought, as
in Miller, 296 F.3d at 22.
29
For all of these reasons, the Court finds that Dr. Shervin’s claims do not fall under Title
VII’s continuing violation exception.
2.
Continuing Violation Doctrine Under c. 151B
Similar to Title VII, Massachusetts law provides that “the 300 day requirement shall not
be a bar to filing in those instances where facts are alleged which indicate that the unlawful
conduct complained of is of a continuing nature.” 804 C.M.R. § 1.10(2); see Tuli, 656 F.3d
(comparing the analysis under Morgan to the analysis under Massachusetts law). “[A] person
[may] seek damages for alleged discrimination occurring outside the usual statute of limitations
period if the alleged events are part of an ongoing pattern of discrimination, and there is a
discrete violation within the statute of limitations period to anchor the earlier claims.” Pelletier
v. Town of Somerset, 458 Mass. 504, 520 (2010) (citing Cuddyer, 434 Mass. at 541 (2001)).
Like the Title VII rule, Massachusetts’s continuing violation doctrine “recognizes that
some claims of discrimination involve a series of related events that have to be viewed in their
totality in order to assess adequately their discriminatory nature and impact.” Cuddyer, 434
Mass. at 531. Similarly, the doctrine applies to retaliation claims. Clifton v. Massachusetts Bay
Transp. Auth., 445 Mass. 611, 616-17 (2005) (“Although unlawful retaliation, typically, may
involve a discrete and identifiable [action], it may also consist of a continuing pattern of behavior
that is, by its insidious nature, linked to the very acts that make up a claim of hostile work
environment . . . . In sum, it is the nature of the unlawful conduct alleged by the plaintiff,
independent of the precise formulation of his claim, that allows a plaintiff to invoke an exception
to the limitations period for a continuing violation”).
Cuddyer, decided in 2001, “decline[d] to adopt the Federal precedent [at the time]. . .
with respect to the application of the continuing violation doctrine to claims of hostile work
30
environment sexual harassment under G.L. c. 151B.” 434 Mass. at 521. Citing the First
Circuit’s decision in O’Rourke, 235 F.3d, the Supreme Judicial Court held that federal law
“fail[ed] to recognize fully that an employee who suffers from recurring acts of abusive sexual
verbal or physical conduct that, over time, rise to the level of a hostile work environment, may be
unable to appreciate the true character and enormity of the discriminatory environment until after
it has continued for an appreciable length of time.” Cuddyer, 434 Mass. at 538. The court held
that the continuing violation doctrine could therefore apply to c. 151B claims when “[i]ncidents
of sexual harassment serious enough to create a work environment permeated by abuse typically
accumulate over time, and many incidents in isolation may not be serious enough for complaint.”
Cuddyer, 434 Mass. at 532–33.
However, after the Supreme Court’s decision in Morgan in 2002, the federal and state
standards are closer to each other or at least co-extensive. See Clifton, 445 Mass. at 619 n.8
(citing Morgan for the conclusion that the “United States Supreme Court has agreed, in
substance, with our reasoning in the Cuddyer case”).
Since Morgan, in Ocean Spray
Cranberries, Inc. v. Mass. Comm’n Against Discrimination, 441 Mass. 632 (2004), the Supreme
Judicial Court articulated a three-part test: “a complainant must ordinarily prove that (1) at least
one discriminatory act occurred within the six month limitations period; (2) the alleged timely
discriminatory acts have a substantial relationship to the alleged untimely discriminatory acts . . .
and (3) earlier violations outside the six-month limitations period did not trigger [the plaintiff’s]
‘awareness and duty’ to assert [her] rights, i.e., that [the plaintiff] could not have formed a
reasonable belief at the time the employment actions occurred that they were discriminatory.”
Id. at 642–43 (citations and quotations omitted). In recognizing this standard, the court held that
MCAD erred in finding that a new violation occurred each time an employer rejected the
31
plaintiff’s same reasonable accommodation request, focusing, like the post-Morgan federal
courts, on whether a “discrete discriminatory act” triggered the statute of limitations:
Looked at from another perspective, if the commission’s “each day” theory is a viable
way of identifying continuing acts of discrimination, nothing in principle distinguishes
any discrete act of discrimination from a continuing violation. For example, the “act of
discrimination” that occurs when an employer improperly denies an employee a
promotion could be characterized as the refusal, every day after the denial, to give the
employee the additional responsibilities and benefits that would have accompanied the
promotion. Similarly, a refusal to hire or a decision to terminate could also be
recharacterized as unlawfully denying the employee a job “each day” thereafter. This
would eviscerate the purpose of a statutory limitations period, and permit what should be
a limited exception to such a stricture to swallow it whole. When an employer refuses an
employee’s request for a reasonable accommodation, the refusal is a discrete
discriminatory act triggering the statutory limitations period.
Id. at 643–45. The court in that case did, however, carve out an exception when an employer
takes equivocal action or inaction: “when an employer responds to a request . . . with equivocal
action or inaction, the limitations period . . . begins to run at the point thereafter when the
employee knew or reasonably should have been aware that the employer was unlikely to afford
him [relief].” Id. at 645. Likewise, in Clifton v. Massachusetts Bay Transp. Auth., 445 Mass.
611 (2005), the court again emphasized the plaintiff’s “pervasively hostile” work environment.
Id. at 621. The court noted that “[a] hostile work environment may be manifested by a series of
harassing acts that have been described as “pinpricks [that] only slowly add up to a wound. . . .
One pinprick may not be actionable in itself, and its abusive nature may not be apparent except
in retrospect, until the pain becomes intolerable.” Id. at 617 n.5; see Butler v. Wellington Mgmt.
Co., LLP, 79 Mass. App. Ct. 1126, 2011 WL 2463446, at *3 (2011) (unpublished) (citing
Morgan, found that “continuing violations are ‘different in kind from discrete acts. Their very
nature involve repeated conduct’” and quoting Morrison v. Northern Essex Community College,
56 Mass. App. Ct. 784, 794 (2002)).
That is, even under state law, this doctrine concerns the
hostile work environment claims, see Pelletier, 458 Mass. at 523–24 (workplace “pervaded by
32
harassment or abuse . . . and that the resulting intimidation, humiliation, and stigmatization posed
a formidable barrier to [her] full participation in the workplace”), and not discrete acts, to which
later acts may be related but are not continuing violations.
The general rule is and, “[b]y the plain language of the statute, the limitations period
begins to run at the time of the ‘act of discrimination.’” Ocean Spray Cranberries, Inc., 441
Mass. at 265; Mass. Gen. L. c. 151B, §5. As with Supreme Court’s recognition in Morgan of the
distinction between discrete acts and continuing violations, the Supreme Judicial Court
distinguished between acts for which the precise moment of the act of discrimination “is easy to
calculate: plainly, if an employee is denied a promotion on an improper basis, the date of the
‘act of discrimination’ is the date of that denial” and those instances in which “improper conduct
continues or evolves over a course of time, the date of the ‘act of discrimination’ is more difficult
to determine” and for which the MCAD has adopted the ‘continuing violations’ exception to the
statute of limitations.” Ocean Spray Cranberries, Inc., 441 Mass. at 641-42 & n. 12 (citing
application MCAD regulation, now 804 C.M.R. § 1.10(2)); see Pelletier, 458 Mass. at 520
(citing Cuddyer and noting that “[c]hapter 151B discrimination complaints must be brought
within these prescribed periods, but where alleged misconduct forms a pattern of behavior, the
continuing violation doctrine applies”). That is, the continuing violation doctrine under
Massachusetts law no more aids Dr. Shervin here than it did under federal law for the reasons
discussed above. Accordingly, the Court cannot find that the continuing violation doctrine
applies to Dr. Shervin’s c. 151B claims for the reasons discussed above in regard to the Title VII
analysis. Rather, the probation-related decisions were discrete acts of which Dr. Shervin
denounced as discriminatory and/or retaliatory and for which she did not contemporaneously
receive the relief she sought.
See Ocean Spray Cranberries, Inc., 441 Mass. at 646-47
33
(concluding that claim regarding the employer’s failure to make reasonable accommodation was
time-barred where “there is no basis in the record to support the conclusion that [the claimant]
did not know or should not have been reasonably aware that his request was not going to be
accommodated”).10
Therefore, the Court finds that Dr. Shervin cannot benefit from the continuing violation
doctrine for liability for her c. 151B claims.
3.
The Operative Limitations Date for Harvard is December 30, 2008 and
June 5, 2008 for the Remaining Defendants
In light of the Court’s ruling about the statute of limitations,11 the Court turns to assessing
the appropriate operative statute of limitations dates.
The parties do not dispute that Dr. Shervin and Partners entered into a Tolling Agreement
on April 1, 2009 stating that “any discrimination or retaliation claims filed by Dr. Shervin on or
before October 26, 2009 shall be treated as having been filed on April 1, 2009 for statute of
10
Since Dr. Shervin has not met the continuing violation standard, she is not entitled to a
Cuddyer instruction, but, she may still be able to introduce time-barred events at trial, even if she
cannot recover damages for them. Pelletier, 458 Mass. at 521 & n.33. That is, while the
Defendants may not be found liable for conduct outside the limitations period, a jury may still
be permitted to consider untimely “background evidence” in assessing the viability of the
actionable discrimination and retaliation claims. O’Rourke, 235 F.3d at 726; Clifton, 445 Mass.
at 613.
11
Dr. Shervin also argues that equitable principles militate in favor of tolling the statute of
limitations on the c. 151B claims because a jury could find that the Defendants engaged in
discriminatory and retaliatory behavior to “try and wait out the clock.” D. 231 at 71. Equitable
tolling, however, is applied “sparingly in employment discrimination cases” and is used “[w]here
an employer affirmatively misleads an employee, or encourages or cajoles her into inaction.”
Cole v. Mount Ida Coll., 71 Mass. App. Ct. 1121 (2008) (citations and quotations omitted). The
Supreme Judicial Court has further held that equitable tolling applies only when “the prospective
plaintiff did not have, and could not have had with due diligence, the information essential to
bringing suit.” Protective Life Ins. Co. v. Sullivan, 425 Mass. 615, 63 (1997). As discussed
throughout this decision, the Executive Committee informed Dr. Shervin shortly after she asked
for review that it was affirming Dr. Herndon’s probation even though Dr. Shervin expressed
from the beginning that the probation was a result of gender bias. See D. 229 ¶¶ 53, 56. A
couple of weeks later, in fact, her probation was extended. D. 229 ¶ 56.
34
limitations purposes.” D. 217 ¶ 413. The Tolling Agreement, the existence of which the parties
do not dispute, provides that “in a dispute between Dr. Nina Shervin and Partners HealthCare
System, Inc., its representatives, agents, successors, assigns, affiliates, parents, officers, partners,
employees and insurers . . . the parties entered into a tolling agreement to attempt to resolve the
disputes between them . . . .” D. 153-46 at 2. Therefore, consistent with the Court’s rulings
above, in determining any liability on the part of Partners, MGPO, Dr. Rubash or Dr. Herndon,
the jury will be permitted to consider events occurring after June 5, 2008, which is 300 days
before April 1, 2009.
The Court cannot find, however, that Harvard was party to the Tolling Agreement.
While Dr. Shervin argues that Harvard was involved in “on-going efforts to resolve this matter”
in the spring of 2009, D. 217 ¶ 415, by the face of the agreement itself, Harvard is not a party.
While, as Dr. Shervin argues, the agreement binds Partners’ “affiliates,” Harvard is correct in
asserting that it cannot be bound by a tolling agreement that it did not give Partners the legal
authority to which to bind it. See Williams v. Ely, 423 Mass. 467, 479-80 (1996). In an
affidavit, Joan Stoddard, counsel for Partners, stated that she signed the Tolling Agreement on
behalf of Partners and that Harvard did not authorize her to sign the Tolling Agreement on its
behalf. D. 153-47 ¶¶ 8, 10–11. She further attests that she did not intend to bind Harvard and
did not tell Dr. Shervin’s counsel or otherwise suggest to her that she had the authority to bind
Harvard. Id. ¶¶ 12–13. Dr. Shervin has offered no specific, admissible evidence on this record
supporting the contention that Harvard gave Partners the authority to bind it to the Tolling
Agreement. Therefore, the controlling date for statute of limitations purposes for claims against
Harvard is December 30, 2008 – 300 days before Dr. Shervin filed her MCAD complaint on
October 26, 2009. D. 1.
35
C.
The Court Denies Summary Judgment as to the Timely Gender
Discrimination and Retaliation Claims_____________________
1.
Claims Against Dr. Rubash
i.
Discrimination
As noted above, to prove gender discrimination Dr. Shervin must show that “she is a
member of a protected group who has been denied an employment opportunity for which she
was otherwise qualified.” Dichner, 141 F.3d at 29–30. “Such a showing gives rise to an
inference that the employer discriminated due to plaintiff’s [protected status] and places upon the
employer the burden of articulating a “legitimate, nondiscriminatory reason for the adverse
employment decision.” Id.; see also Tate v. Dep’t of Mental Health, 419 Mass. 356, 361 (1995)
(applying same burden-shifting standards for c. 151B discrimination claim). “This entails only a
burden of production, not a burden of persuasion; the task of proving discrimination remains the
plaintiff’s at all times.” Dichner, 141 F.3d at 30. If the Defendants meet such burden, Dr.
Shervin must then prove that the Defendants’ “explanation is a pretext for unlawful
discrimination.” Id. Dr. Rubash argues that Dr. Shervin cannot make a prima facie showing that
he engaged in gender discrimination. D. 144-1 at 16–17. The Court disagrees. As discussed
above, Dr. Shervin has at least provided admissible evidence suggesting that Dr. Rubash may
have foreclosed an employment opportunity at Newton-Wellesley and MGH in the spring of
2009—citing, in support of her argument that Dr. Rubash withdrew her job offer—evidence that
Dr. Rubash told a recommender that no staff positions were available. D. 227-14 at 2.
Dr. Rubash also argues that there is no evidence “to substantiate that [Dr. Shervin’s]
status as a woman had any bearing on Dr. Rubash’s actions in the aftermath of the probation.”
D. 144-1 at 17. However, the Court cannot conclude on the record that a reasonable jury could
36
not surmise from the sequence of the events above that Dr. Rubash had a discriminatory animus,
where Dr. Shervin contends that at least a contemplated offer of employment was later made not
available to her.
ii.
Retaliation
To prove prima facie retaliation, Dr. Shervin must show that she “engaged in protected
conduct,” “suffered an adverse employment action” and that the “adverse action was causally
connected to the protected activity.” Fantini v. Salem State Coll., 557 F.3d 22, 32 (1st Cir. 2009)
(citations and quotations omitted); Mole v. University of Massachusetts, 442 Mass. 582, 591–92
(2004).
To show participation in a protected activity, Dr. Shervin need not prove that
discrimination actually occurred, id. (citations and quotations omitted), but must show that she
“reasonably and in good faith believed that the [defendant] was engaged in wrongful
discrimination, that she acted reasonably in response to her belief, and that the [defendant’s]
desire to retaliate against her was a determinative factor in its decision to [engage in adverse
action].” Tate, 419 Mass. at 364.
Dr. Rubash argues that Dr. Shervin has failed to present evidence that he retaliated
against her because she cannot prove that any adverse action taken against her was causally
connected to any protected conduct. D. 144-1 at 18. The parties do not dispute that Dr. Shervin
engaged in a protected activity in disputing her probation and a jury could find that Dr. Rubash’s
alleged role at least in foreclosing a staff position at Newton Wellesley and MGH in 2009 was
causally connected to her protected conduct.12 Hotly disputed in this case is whether it was ever
suggested that Dr. Shervin would be given a staff position at Newton-Wellesley. Dr. Shervin
12
To extent that Dr. Rubash challenges the aiding and abetting claim, Dr. Shervin’s
claims that Dr. Rubash’s failure to act on Dr. Herndon’s actions also support this claim.
37
contends that both she and Dr. Burke were under the impression that Dr. Shervin had been
offered a post-fellowship staff position. D. 229 ¶ 157 (citing D. 157-9 at 47–48). A jury could
find that if any such job offer did exist, Dr. Rubash ensured that the purported opportunity she
had to work at Newton-Wellesley was not available because Dr. Shervin chose to pursue her
claims and make allegations of discrimination against various people, including him.
2.
Claims Against Dr. Herndon
Dr. Herndon likewise argues that there is “no factual basis for any claim that Dr. Herndon
engaged in discriminatory or retaliatory conduct after June 5, 2008.” D. 152 at 16.
i.
Discrimination
A jury could find that Dr. Herndon’s alleged post-June 5, 2008 efforts to have the
Grievance Committee affirm an allegedly improper disciplinary action against Dr. Shervin
reflected discriminatory animus and/or retaliation.
For instance, Dr. Shervin has provided
evidence that during the Grievance Committee’s 2009 hearing, Dr. Herndon stated that Dr.
Shervin “didn’t do the right thing with the shoulder,” referring to the shoulder case, D. 220-1 at
120, even though the Executive Committee had been informed, by a letter to Dr. Kasser from the
attending surgeon, that Dr. Shervin’s mistake did not rise “to the level of seriousness to which it
seems to have risen.” D. 222-15.
ii.
Retaliation
“Prohibited retaliatory actions are those that constitute a change in working conditions
that ‘create a material disadvantage in the plaintiff’s employment.’” Ritchie v. Dep’t Of State
Police, 60 Mass. App. Ct. 655, 665 (2004) (quoting Flanagan–Uusitalo v. D.T. Indus., Inc., 190
F. Supp. 2d 105, 116 (D. Mass. 2001)).
As discussed above, Dr. Shervin has provided
admissible evidence that Dr. Herndon contributed to the allegedly faulty Grievance Committee
38
investigation by failing to notify the Grievance Subcommittee at least as to the potentially
overstated description of events surrounding the shoulder case. A jury could find, at the least,
that Dr. Herndon took this action as retaliation for Dr. Shervin’s decision to dispute his probation
decision.
The Court finds that Dr. Shervin has presented sufficient evidence suggesting that there
exists a material question of fact as to whether Drs. Rubash and Herndon engaged in
discriminatory and/or retaliatory conduct.
3.
Retaliation Claim Against Partners and MGPO
The Court notes that Partners does not dispute that Dr. Rubash and Dr. Herndon were
employees of Partners, making Partners liable for the actions they took in the scope of their
employment. See D. 172 ¶¶ 2–5; see also Dias, 438 Mass. at 322. Partners nonetheless argues
that Dr. Shervin’s retaliation claims are not legally cognizable because she had no reasonable
and good faith belief that Dr. Herndon placed her on probation out of gender bias, D. 150 at 8,
and “has adduced no evidence to challenge Dr. Herndon’s proffered non-discriminatory reason
for imposing probation.” D. 150 at 11.
The Court cannot so conclude on this record. Even though the pre-June 5, 2008 conduct
may not be the basis of liability under Title VII and c. 151B for the reasons previously stated, the
circumstances surrounding the 2007 probation do bear upon, and will be admissible at trial, as to
the question of whether Dr. Shervin reasonably and in good faith believed that the Defendants
were engaged in discrimination as to her timely retaliatory claims based upon the Defendants’
post-June 5, 2008 allegedly retaliatory claims. Accordingly, the Court notes that Dr. Shervin
testified during her deposition that Dr. Herndon “made comments about the fact that I did not
behave in the way that women behave when they are disciplined by him.” D. 157-1 at 63-64.
39
She has also submitted admissible evidence that Dr. Herndon said that he “had never disciplined
a wom[a]n resident who didn’t cry and [Dr. Shervin] didn’t cry.” Deposition of Dr. Burke, D.
221-8 at 4; see Lipchitz v. Raytheon Co., 434 Mass. 493, 503 (2001) (“Employment decisions
that are made because of stereotypical thinking about a protected characteristic or members of a
protected class, whether conscious or unconscious, are actionable under G.L. c. 151B”). Dr.
Shervin has also provided evidence suggesting that when male residents faced problems, they
were not immediately placed on probation. See D. 217 ¶ 200–203. For instance, Dr. Manish
Sethi testified during his deposition that when his clinical ability and knowledge were brought
into question by an attending surgeon, he was “asked to demonstrate [his] clinical ability and
knowledge in different settings, which [he] did successfully.” D. 220-10 at 12; see Dartt v.
Browning-Ferris Indus., Inc. (Mass.), 427 Mass. 1, 17 (1998) (finding that deviation for standard
procedures could support a reasonable inference of discrimination). That is, on this record, a
reasonable jury could find that, at a minimum, Dr. Shervin had a reasonable and good faith basis
for believing that the probationary decision was discriminatory for the purposes of her timely
retaliatory claims.13
In light of the present record, a jury could find that Dr. Shervin reasonably believed that
Dr. Herndon engaged in retaliatory conduct, not time-barred, in response to her earlier
complaints about her probation being based on gender bias. As discussed above in regard to Dr.
Rubash, the Court also finds that Dr. Shervin has shown that, when looking at the facts in the
13
Dr. Shervin also offers Dr. Burke’s deposition testimony, where he stated that Dr.
Hornicek told him that Dr. Herndon told Dr. Hornicek that he extended probation because Dr.
Shervin challenged his decision to place her on probation. D. 217 ¶ 266 (citing D. 219-20 at 35).
The cited deposition testimony does not indicate when this conversation took place, and Dr.
Shervin does not, in any event, demonstrate to the Court why this statement would not be
considered inadmissible hearsay.
40
light most favorable to Dr. Shervin, there is a genuine issue of material fact as to whether the
non-time barred actions Dr. Rubash took in response to Dr. Shervin’s complaints about probation
were retaliatory.
D.
The Court Cannot Find on this Record that the Conduct of Drs.
Rubash and Herndon Is Not Also Attributable to Harvard_____
Both Harvard and Dr. Shervin expend significant briefing on who was employed by
Harvard. Dr. Shervin argues that the actions of faculty members, including Drs. Herndon and
Rubash, were taken on Harvard’s behalf, making Harvard liable for the actions of these
individuals and also argues that Harvard was her employer for the purposes of Title VII and c.
151B § 4(4).
Harvard counters that the “notion that HCORP faculty members were agents of HMS
when conducting HCORP functions flies in the face of the evidence in this case,” D. 151 at 20,
and cites Chapin v. Univ. of Mass. at Lowell, 977 F. Supp. 72, 80 (D. Mass. 1997) for the
proposition that “a charging party must show that the alleged defendant supervised or controlled
the conduct of the person who was alleged to have committed the unlawful act.” D. 151 at 23.
The parties do not dispute that if the faculty members were acting within the scope of any
employment relationship, the institutional defendants would be liable for the faculty members’
conduct. See Dias v. Brigham Med. Associates, Inc., 438 Mass. 317, 322 (2002) (stating that
under “traditional agency law . . . an employer is liable for torts committed by employees acting
in the scope of their employment”) (citations, quotations and alterations omitted); Rivera-Vega v.
ConAgra, Inc., 70 F.3d 153, 163 (1st Cir. 1995) (“A joint employer relationship exists where two
or more employers exert significant control over the same employees and share or co-determine
those matters governing essential terms and conditions of employment”).
41
The First Circuit has “construed Supreme Court decisions as establishing the proposition
that the terms ‘employer’ and ‘employee’ under Title VII are to be defined with reference to [ ]
common law agency principles.” DeLia v. Verizon Commc’ns Inc., 656 F.3d 1, 4 (1st Cir. 2011)
(quoting Lopez v. Massachusetts, 588 F.3d 69, 83 (1st Cir. 2009) (quotations omitted)). Under
federal law, “the common-law element of control [by the putative employer over the putative
employee] is the principal guidepost that should be followed.” DeLia, 656 F.3d at 4 (citation and
quotations omitted). “Similarly . . . Massachusetts cases have determined that an employer can
be defined as one “‘who has direction and control of the employee and to whom . . . [the
employee] owe[s] obedience in respect of the performance of his work.’” Id. (quoting Fleming
v. Shaheen Bros., Inc., 71 Mass. App. Ct. 223 (2008)); see Wheatley v. Am. Tel. & Tel. Co., 418
Mass. 394, 397 (1994) (“It is our practice to apply Federal case law construing the Federal antidiscrimination statutes in interpreting G.L. c. 151B”). While the First Circuit has set forth a
number of factors for courts to consider, see Alberty-Velez v. Corporacion de Puerto Rico Para
La Difusion Publica, 361 F.3d 1, 7 (1st Cir. 2004) (citation and quotations omitted), “[t]he test
provides no shorthand formula or magic phrase that can be applied to find the answer[] . . . all of
the incidents of the relationship must be assessed and weighed with no one factor being
decisive.” Id. (citation and quotations omitted). “A court must tailor these factors to the
relationship at issue. Often certain factors will not be relevant to a particular case, and a court
should not consider them as favoring either side.” Id. at 7 n.7. “However, in most situations, the
extent to which the hiring party controls the manner and means by which the worker completes
her tasks will be the most important factor in the analysis.” Id. at 7 (citation and quotations
omitted). Therefore, while “a court may decide the employee/independent contractor question as
42
a matter of law,” it may only do so when “the factors point so favorably in one direction that a
fact finder could not reasonably reach the opposite conclusion.” Id.
The Court agrees with Harvard that most of the evidence Dr. Shervin offers does not
assist the Court in determining whether there is a disputed question of material fact as to whether
Harvard controlled the day-to-day activities of the faculty members on staff at the hospital, or the
day-to-day activities of residents. The Court also agrees that Dr. Shervin has, at a minimum,
overstated the relevance of some of the evidence she cites. For instance, while Dr. Shervin
provides evidence that the Residency Director is approved by the Harvard dean, see D. 217 ¶ 36,
there is still no evidence cited from this record that after such appointment, Harvard has any
control over the Residency Director’s activities. While the Affiliation Agreement Harvard has
with its affiliated hospitals states that research experts working in the hospitals are responsible
for instruction of medical students, as they “share the responsibility for all the duties and
objectives of these departments as defined by the Medical School and the Hospital,” D. 219-5 at
9, Dr. Shervin has directed the Court to no evidence on this record suggesting that this provision
actually applies to any of the doctors accused of acting unlawfully in this case.
Still, the Court cannot find that on this record that the “factors point so favorably” to
Harvard such that a jury could not find that the faculty members working at the hospitals were
not under Harvard’s day-to-day control. For one example, the former president and CEO of
Beth-Israel suggested in an affidavit that Harvard and its affiliated hospitals are “closely
intertwined,” such that Harvard may inform the hospitals’ compensation decisions, promotion
criteria, faculty standards and removal rules and procedures. Affidavit of Paul Levy (D. 219-11).
Also, Harvard’s own policies state that the university takes “institutional responsibility” for any
activity for which the Harvard name is used. Harvard Policy on Use of Harvard Names and
43
Insignias (D. 220-4 at 2) (“the activity must be one for which the University takes institutional
responsibility”). Given facts such as these, a jury could determine that Harvard’s control over
the doctors’ everyday functions was pervasive enough such that Harvard should also be
considered their employer, in addition to Partners.
If a jury finds that the faculty members were employed by Harvard and acting under the
scope of that employment,14 then it will be necessary to determine whether Harvard was Dr.
Shervin’s employer, as only a plaintiff’s employer may be held liable for discrimination and
retaliation under both Title VII and c. 151B. Likewise, the Court cannot say on this record that
Harvard was not Dr. Shervin’s employer..15 On this point, the Court notes that Dr. Shervin has
set forth evidence that a resident may be subject to adverse action that could lead to termination
from HCORP if she violates Harvard Medical School bylaws, policies or procedures. D. 220-7
14
Harvard further argues that Dr. Shervin cannot show that it aided and abetted any
discriminatory or retaliatory conduct pursuant to c. 151B, § 4(5) because Harvard had no intent
to discriminate or retaliate against her and there is no evidence that Harvard committed any
wrongful acts not attributable to Partners. D. 151 at 22. As discussed above, the Court cannot
find, as a matter of summary judgment, that Harvard was not responsible for the actions taken by
Drs. Rubash and Herndon.
15
Harvard is correct in asserting that the Court, on a motion to compel, has previously
stated that “[a]s HMS was not Shervin’s employer, HMS has indicated in its opposition that it
does not maintain personnel records (and is not required to do so since it was not an “employer”
[] under c. 149, § 52C) for Shervin or the other HCORP residents.” D. 246 at 4 (citing D. 162).
That prior statement does not foreclose the decision that the Court makes here. In deciding the
motion to compel, the Court utilized a statutory definition of “employer” for the specific purpose
of determining whether Dr. Shervin was entitled to personnel records. See Mass. Gen. L. c. 149,
§ 52C (““Personnel record[,”] a record kept by an employer that identifies an employee, to the
extent that the record is used or has been used, or may affect or be used relative to that
employee’s qualifications for employment, promotion, transfer, additional compensation or
disciplinary action”). The Court makes its ruling here on a fuller record and under the legal
standards articulated above.
44
at 2. A jury could well find that this type of disciplinary policy could affect the day-to-day
practices of a resident.16
The Court recognizes the abundance of evidence Harvard has presented that could very
well lead a jury to find that Harvard did not control any of the day-to-day actions of any of the
doctors in this case. However, given that “[w]hether joint employer status exists is essentially a
factual question,” Rivera-Vega, 70 F.3d at 163, the Court finds that at the least, Dr. Rubash’s
2009 actions, if attributable to Harvard, regarding the purported Newton-Wellesley job offer
could form a timely basis for liability against Harvard, taking into account that Dr. Shervin must
show that Harvard engaged in discriminatory or retaliatory conduct after December 30, 2008.
E.
The Court Denies the Defendants’ Motions for Summary Judgment as to
the Tortious Interference Claims___________________________________
1.
As to Dr. Rubash, There are Material Factual Disputes as to the Existence
of a Contemplated Contract
Dr. Rubash argues that Dr. Shervin has not presented any evidence that he tortiously
interfered with an advantageous business relationship or contemplated contract. D. 144-1 at 19.
To show tortious interference with advantageous business relations, Dr. Shervin must prove:
“(1) a business relationship or contemplated contract of economic benefit; (2) the defendant’s
knowledge of such relationship; (3) the defendant’s interference with it through improper motive
or means; and (4) [Dr. Shervin’s] loss of advantage directly resulting from the defendant’s
16
The Court takes note of Harvard’s reliance on Loewen v. Grand Rapids Med. Educ.
Partners, No. 1:10-CV-1284, 2012 WL 1190145 (W.D. Mich. Apr. 9, 2012) (holding that the
medical school was not the medical resident’s joint employer for Title VII and state law
discrimination claim purposes) for the proposition that a medical resident is not employed by a
medical school for Title VII purposes. D. 151 at 14. Still, based on the standards articulated by
the First Circuit and Massachusetts courts discussed above, the Court finds that Loewen, while
persuasive to some extent, is not controlling.
45
conduct.” Am. Private Line Servs., Inc. v. E. Microwave, Inc., 980 F. 2d 33, 36 (1st Cir. 1992)
(citing United Truck Leasing Corp. v. Geltman, 406 Mass. 811 (1990)).
Dr. Rubash argues that he could not interfere with any business relationship in regard to
Dr. Shervin’s purported position with MGH because “she never had a contract with this
institution or its professional organization for an attending position.” D 144-1 at 20. While Dr.
Shervin’s opposition does not address these arguments (she argues only that “Dr. Rubash surely
interfered with Dr. Shervin’s ability to be hired at the Newton-Wellesley”), D. 231 at 78, the
Court finds that the record provides sufficient admissible evidence such that a jury could find
that there was at least a contemplated contract of future employment with MGH/NewtonWellesley. As discussed above, Dr. Shervin asserts that at the beginning of her third year of
residency, Dr. Burke suggested to Dr. Rubash that Dr. Shervin be brought onto the MGH and
Newton-Wellesley staffs as an attending physician, employed full-time by MGPO. D. 217 ¶
109-110, 112, 117.
The parties do not dispute that Dr. Rubash met with Dr. Shervin in
November 2005 to discuss Dr. Shervin’s potential post-fellowship employment at MGH and
Newton-Wellesley. Where the parties disagree, however, is as to the nature of the conversation –
while Dr. Rubash claims that he never offered Dr. Shervin employment, Dr. Shervin has
presented evidence that Dr. Rubash orally assured Dr. Burke of a “firm job offer.” D. 217 ¶ 115;
D. 229 ¶ 157 (citing D. 157-9 at 47–48).17
17
Dr. Rubash has argued that even if he or any of the Defendants had made an oral
agreement promising Dr. Shervin a position with MGH, the statute of frauds prevents any such
oral agreement from being enforced. D. 144-1 at 15. While the Supreme Judicial Court has held
that the statute of frauds bars enforcement of any oral employment agreement “which by [its]
terms cannot be performed within the year,” Boothby v. Texon, Inc., 414 Mass. 468, 479 (1993),
as discussed above, the Court finds that Dr. Shervin has set forth specific admissible facts for a
claim of interference with at least a contemplated contract, not necessarily with an existing and
enforceable contract.
46
Further, to the extent Dr. Rubash argues “he has definitely indicated that he has taken no
steps to interfere with employment opportunities at [Newton-Wellesley] . . .” and that others
have corroborated such, D. 144-1 at 20, there is evidence in the record that Dr. Rubash told Dr.
Shervin’s recommenders that no open positions were available. Assuming the evidence at trial
bears out Dr. Shervin’s contentions about a staff position at Newton-Wellesley, a jury could
reasonably find that Dr. Rubash tortiously interfered with that opportunity.
2.
The Tortious Interference Claim Against Dr. Herndon Survives
Dr. Herndon first argues that because Dr. Shervin’s intentional interference claim “turns
upon the premise that [the] initial probation decision – an event that occurred on February 2,
2007 – impacted her present and potential future employment” and that because she did not file
her suit until April 9, 2010, the three-year statute of limitations on intentional interference claims
has run pursuant to Mass. Gen. L. c. 260, § 2A. D. 152 at 19. Dr. Herndon further argues that
Dr. Shervin cannot establish that he “knowingly induced HCORP to break its contractual
relationship with her.”18 Id. Dr. Herndon further contends that he “has never communicated
with Dr. Shervin’s prospective employers and she did not have a business relationship inuring to
her economic benefit with which he interfered.” D. 152 at 20.
Dr. Shervin does not specifically address any of Dr. Herndon’s arguments in her
opposition. See D. 231 at 77–78. Even if this claim is time-barred as to the 2007 probation
decision, the Court finds that a jury could conclude that Dr. Herndon tortiously interfered with
18
To show an intentional interference with contractual relations, Dr. Shervin “must prove
that: (1) [she] had a contract with a third party; (2) the defendant knowingly induced the third
party to break that contract; (3) the defendant’s interference, in addition to being intentional, was
improper in motive or means; and (4) [she] was harmed by the defendant’s actions.” G.S.
Enters., Inc. v. Falmouth Marine, Inc., 410 Mass. 262, 272 (1991).
47
Dr. Shervin’s relationship with Partners as well as her HCORP contract by continuing, for
discriminatory reasons, to seek to have the initial 2007 probation affirmed.
3.
The Tortious Interference Claim Against Partners Survives, But
Charitable Immunity Applies
As discussed above, the tortious interference claims against Drs. Herndon and Rubash
shall proceed to trial. Accordingly, the tortious interference claim against Partners (Count 19)
shall also proceed to trial.
The Court finds, however, that Partners qualifies for charitable immunity under Mass.
Gen. L. c. 231, § 85K as to this claim. D. 150 at 19. The statute provides, in relevant part:
It shall not constitute a defense to any cause of action based on tort brought against a
corporation, trustees of a trust, or members of an association that said corporation, trust,
or association is or at the time the cause of action arose was a charity; provided, that if
the tort was committed in the course of any activity carried on to accomplish directly the
charitable purposes of such corporation, trust, or association, liability in any such cause
of action shall not exceed the sum of twenty thousand dollars exclusive of interest and
costs . . . . Notwithstanding any other provision of this section, the liability of charitable
corporations, the trustees of charitable trusts, and the members of charitable associations
shall not be subject to the limitations set forth in this section if the tort was committed in
the course of activities primarily commercial in character even though carried on to
obtain revenue to be used for charitable purposes.
Mass. Gen. L. c. 231, § 85K. A defendant has the burden of proving “both that it is a charitable
organization and that the tort complained of fell within the range of activities covered by the
cap.” Conners v. Ne. Hosp. Corp., 439 Mass. 469, 470 (2003).
Partners has asserted that it is a charitable organization recognized by state and federal
governments. D. 150 at 19; D. 172 ¶ 2. Partners also asserts that Dr. Shervin’s claims “directly
concern her performance as a medical resident and fellow at several hospitals within the Partners
system.” Id.; D. 149 ¶ 6. Given that Dr. Shervin has not disputed the relevant facts and has not
48
argued in her opposition that § 85K does not apply,19 the Court finds that Partners falls under the
charitable immunity cap for tort damages for the tortious interference claim as articulated in
Mass. Gen. L. c. 231, § 85K. See Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223,
240 (2003) (affirming application of the statutory cap for a hospital when it was “undisputed that
the defendant is a charitable corporation and that it was acting in the performance of its
charitable purposes when the harm occurred”).20
Accordingly, the Court DENIES Drs. Rubash and Herndon’s motions for summary
judgment as to the tortious interference claims and DENIES IN PART Partners’ insofar as the
Court finds that Partners is entitled to charitable immunity.
VI.
Conclusion
For the reasons discussed above, the Court DENIES IN PART Dr. Rubash’s motion, D.
144, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct that
occurred prior to June 5, 2008 for Dr. Rubash’s liability; DENIES IN PART Dr. Herndon’s
motion, D. 145, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct
that occurred prior to June 5, 2008 for Dr. Herndon’s liability; DENIES IN PART Harvard’s
motion, D. 148, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on conduct
that occurred prior to December 30, 2008 for Harvard’s liability; and DENIES IN PART
Partners’ motion, D. 149, but ALLOWS it IN PART to the extent that Dr. Shervin cannot rely on
19
See D. 229 ¶¶ 2, 6; Affidavit of Joan Stoddard (D. 157-3 ¶ 4).
20
The Court notes, however, that § 85K does not apply to the discrimination and
retaliation claims against Partners. Ayash v. Dana-Farber Cancer Inst., 443 Mass. 367, 390
(2005) (ruling that Ҥ 85K does not apply to limit damages awarded pursuant to a successful
claim of unlawful retaliation under G.L. c. 151B”); McMillan v. Massachusetts Soc’y for the
Prevention of Cruelty to Animals, 140 F.3d 288, 307 (1st Cir. 1998) (same).
49
conduct that occurred prior to June 5, 2008 for Partners’ liability and Partners is entitled to
qualified immunity for the tortious interference claim.
The Defendants’ motion to strike, D. 236, is DENIED. The Defendants’ motion for
additional time to respond to Dr. Shervin’s opposition papers, D. 237 at 9, is also DENIED as
moot. Dr. Shervin’s motion for leave to file a surreply to the Defendants’ reply briefs, D. 263,
which the Court considered in resolving the instant motions, is ALLOWED nunc pro tunc.
So Ordered.
/s/ Denise J. Casper
United States District Judge
50
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