Russo v. New Hampshire Neurospine Institute, P.A. et al

Filing 64

///MEMORANDUM ORDER re: 42 Motion for Summary Judgment. For the foregoing reasons, Dr. Ahn's motion for summary judgment (doc. no. 42) is granted. The claims against Dr. Ahn in Counts II, III, and V are dismissed. So Ordered by Judge Steven J. McAuliffe.(lw)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Gina Russo
v.

Case No. 21-cv-703-SM-TSM
Opinion No. 2024 DNH 101

New Hampshire Neurospine
Institute, P.A. and
Uri M. Ahn

Memorandum Order
Gina Russo brings claims against her former employer, New
Hampshire Neurospine Institute, P.A. (“Institute”), and one of
its partners, Uri M. Ahn.

Russo alleges that the Institute

discriminated against her based on her gender in violation of
Title VII and RSA ch. 354-A; that the Institute and Dr. Ahn
retaliated against her in violation of Title VII and RSA ch.
354-A; that Dr. Ahn aided and abetted the Institute’s gender
discrimination in violation of RSA ch. 354-A; that the Institute
wrongfully terminated her; and that Dr. Ahn defamed her. 1

Dr.

Ahn moved for summary judgment on the three claims brought
against him, and Russo objected.

The court granted summary

The reference to Title VII is to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the
reference to RSA ch. 354-A is to New Hampshire’s Law Against
Discrimination, New Hampshire Revised Statutes Annotated Chapter
354-A.
1

judgment in favor of Dr. Ahn (endorsed order, November 20,
2024), for the reasons that follow.

Standard of Review
Under Federal Rule of Civil Procedure 56(a), the court
shall grant a motion for summary judgment when the moving party
shows that “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”

Id.

A genuine factual dispute exists if “a reasonable jury could
return a verdict for the nonmoving party,” and a fact is
material to that dispute if it “might affect the outcome of the
of the suit under the governing law.”

Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986).
The court reviews “the evidence in the light most favorable
to the nonmoving party and giving that party the benefit of any
and all reasonable inferences.” Segrain v. Duffy, 118 F.4th 45,
56 (1st Cir. 2024).

“In opposing a motion for summary judgment,

however, a plaintiff must offer admissible evidence.”

Rios v.

Centerra Gr. LLC, 106 F.4th 101, 114 (1st Cir. 2024).

Evidence

for purposes of summary judgment does not include “conclusory
allegations, improbable inferences, and unsupported
speculation.”

To-Ricos, Ltd. v. Productos Avicolas Del Sur,

Inc., 118 F.4th 1, 4 (1st Cir. 2024).

2

Background 2
Gina Russo was employed by the Institute beginning on March
11, 2008, as a physician’s assistant, PA-C (“PA”).

Uri Ahn is

an orthopedic surgeon and a vice president and partner at the
Institute. 3

Russo worked part-time, three days per week, but

also had on-call responsibilities on weekends and holidays.
While Russo worked at the Institute, its doctors were all male,
and there was only one other female physician’s assistant.

The court summarizes the properly supported material
evidence provided by the parties in support of and in opposition
to summary judgment. Because the motion for summary judgment
pertains to the claims against Dr. Ahn, the court did not
include facts provided by the parties that are not material to
Russo’s claims against Dr. Ahn.
2

In the complaint, Russo identified the Institute as a
professional association of doctors that is a New Hampshire
corporation. Doc. no. 1, at 2. Dr. Ahn is a separate defendant
whom Russo describes as a vice president of the Institute and a
partner. Id. Russo attributes many actions and decisions to
“defendants” collectively to include the Institute and Dr. Ahn.
Although Russo states that Dr. Ahn was “a decision-maker
with respect to [Russo’s] employment” (doc. no. 58, at 4), she
has not shown, with a developed legal argument, that Dr. Ahn is
liable for decisions and actions by the Institute. See, e.g.,
Delta MB LLC v. 271 S. Broadway, LLC, 2024 WL 3826113, at *4-*5
(D.N.H. Aug. 15, 2024); Centurion Networking Serv. Partners, LLC
v. Dr. Wade N. Barker, P.A., 2018 WL 1972789, at *4-*5 (D. Mass.
Apr. 26, 2018). She also has not shown that Dr. Ahn is liable
for decisions or actions of other Institute employees.
For purposes of this motion, Dr. Ahn and the Institute are
separate parties and legally separate entities. Dr. Ahn is not
legally liable for the actions of the Institute or other
Institute employees. Therefore, the court considers the actions
taken by the Institute and its other employees separate from
those taken by Dr. Ahn.
3

3

During the first eight years that Russo worked at the
Institute, she had limited contact with Dr. Ahn.

In 2016, the

Institute changed its operations so that the PAs worked with all
of the surgeons.

After the Institute changed its operations,

Russo had more interaction with Dr. Ahn.
Russo provides exhibits that show Dr. Ahn had a history of
being impatient, unpleasant, and rude with Institute employees,
hospital staff, and patients, many of whom were women. 4

His

conduct generated problems and incidents that had to be
addressed by administrators and his peers.
With their increased contact, Dr. Ahn concluded that Russo
did not like him based on her body language toward him in
contrast to her friendly demeanor toward other doctors in the
practice.

He noted that he was not part of the small group of

doctors with whom she was friendly.

Dr. Ahn had been able to

resolve issues with male PAs who worked with him.

Dr. Ahn did

not trust Russo or another female PAs and believed that Russo
avoided working with him.

But, he gave Russo high performance

Dr. Ahn contends that these documents should not be
considered for purposes of summary judgment because they do not
meet the evidentiary standard under Rule 56(c)(2). While that
objection is likely correct, in the interest of a complete view
of Russo’s case, the court has considered the exhibits provided
by Russo.
4

4

reviews.

Their strained relationship resulted in several

incidents of friction and disagreement between them.
The first incident occurred over the weekend of October 15,
2016, when Russo was on call.

Russo was doing rounds at Elliott

Hospital in Manchester when an Institute patient, Dr. Wang’s
patient, was “coded with a cardiac condition,” and Russo was
involved in that patient’s care.

Doc. no. 42-1, at 4.

During

that event, Dr. Ahn called Russo and asked her to see an urgent
patient at St. Joseph’s Hospital in Nashua for a lumbar epidural
abscess.

Russo told Dr. Ahn she could not leave because she was

involved in caring for Dr. Wang’s patient at Elliott Hospital
and asked Dr. Ahn if he could get to St. Joseph’s Hospital.

Dr.

Ahn told Russo to go to see the patient at St. Joseph’s Hospital
as soon as possible, and Russo went to St. Joseph’s Hospital.
Dr. Ahn’s wife, who is a nurse, had previously worked with
Russo.

She heard the conversation between Dr. Ahn and Russo.

Mrs. Ahn thought that Russo’s tone during the conversation with
Dr. Ahn was rude, hostile, and unprofessional.

Dr. Ahn called

Dr. Wang to confirm that Russo had been involved in care for a
patient who was coding and said that Russo was rude and
insubordinate. 5

Russo also called Dr. Wang to say that Dr. Ahn

Russo contends that Dr. Ahn never mentioned that she was
insubordinate until after she claimed gender discrimination.
Dr. Wang, however, testified during his deposition that Dr. Ahn
5

5

had been rude to her and that his directive for her to go to St.
Joseph’s Hospital was inappropriate.
Dr. Ahn complained to the Executive Director of the
Institute, Anne Talbot-Kleeman, about the incident.

Talbot-

Kleeman talked to Russo and suggested that Russo and Dr. Ahn
resolve the issue.
A second incident occurred during the summer of 2017.
Russo met with Dr. Ahn’s patient to obtain his consent for
surgery.

During the meeting, the patient had questions about

the possibility of subsequent additional surgery.

Russo

discussed that possibility and possible alternatives to the then
scheduled procedure.

Russo left the patient to check with Dr.

Ahn about alternatives to the scheduled procedure, but when she
could not find Dr. Ahn, she spoke to Dr. Luther, who said
alternatives could be plausible.

Russo told the patient that

another doctor said an alternative procedure was plausible but
that she did not know what Dr. Ahn’s feeling would be.
After that meeting, the patient’s wife contacted Dr. Ahn
and told him that they had doubts about his recommended surgery
based on what Russo told them.

Dr. Ahn thought that Russo’s

discussion with the patient was an inappropriate surgical

called him after the first incident in 2016 and told him that
Russo had been rude and insubordinate.
6

opinion and that her actions damaged his relationship with his
patient.

Dr. Ahn told Russo he was not happy with her actions

and that her conduct was inappropriate and beyond obtaining
surgical consent, which was her task.

Dr. Ahn asked Talbot-

Kleeman not to assign Russo to any of his cases.
The third incident occurred on March 9, 2019, when Dr. Ahn
and Russo were both on call.

While Russo was working at

Catholic Medical Center, she received a call from Dr. Ahn.

He

was seeking help in administratively discharging a patient.
Russo responded by asking Dr. Ahn whether he needed her to talk
him through a discharge or whether he wanted her to discharge
the patient when she went home.

Both Dr. Ahn and Russo raised

their voices during the conversation and characterized their
interaction as yelling, although they dispute who used a raised
voice first.
Dr. Ahn called Talbot-Kleeman to report that Russo acted in
a disrespectful and unprofessional manner.
email to report that concern.

He also sent an

Russo sent an email to Talbot-

Kleeman about the telephone call as well, in which she reported
that Dr. Ahn became belligerent and called her passive
aggressive and disrespectful.

She reported that he continued to

yell and that she said she was not listening.

Russo met with

Talbot-Kleeman and reported that Dr. Ahn was lazy and took short
cuts with patient care that caused problems.
7

The Institute held a board meeting on March 25, 2019.

Dr.

Ahn told the board members that he could not work with Russo and
that she had been disrespectful, insubordinate, and difficult to
work with.

The board members provided their opinions and

discussed the situation.

Following their discussion, the board

unanimously voted to terminate Russo’s employment.
Talbot-Kleeman met with Russo on March 26, 2019, to inform
her of the board’s decision to terminate her employment.

When

Talbot-Kleeman had a follow up call with Russo on March 29,
Russo expressed her belief that her termination was not fair and
that she believed the Institute was biased against women.
Talbot-Kleeman suggested that they agree to a transition plan
for Russo to continue to work, despite her termination.

The

Institute proposed that Russo would work through June and
receive a $15,000 severance payment.

Russo made a counter

proposal to work until April 19, and the Institute changed the
plan to conform to her proposal. 6
Russo did not agree to the proposed plan, and she and
Talbot-Kleeman continued to negotiate terms for the transition.
On April 29, Russo’s counsel sent a demand letter, alleging
gender discrimination and demanding $100,000.

On May 30,

Russo obtained legal counsel at some point during the
negotiation process.
6

8

Talbot-Kleeman notified Institute partners that any requests for
recommendations for Russo should go through the Institute’s
counsel.

The Institute then decided that May 2 would be Russo’s

last day of work.

Notice was sent to Russo, through counsel,

that she was terminated as of May 2.
Russo received recommendations from Institute doctors.
was hired by Concord Hospital in July of 2019 as a PA.

She

She

remains in that position.
The Institute hired an independent investigator, Elizabeth
Bailey, in July of 2019, to investigate Russo’s allegations of
gender discrimination against the Institute and Dr. Ahn.

Bailey

provided her findings in a letter on September 24, 2019.

She

found that the three incidents involving Dr. Ahn and Russo were
not the result of gender bias or discrimination and, instead,
were due to Dr. Ahn’s dislike of Russo as a person and her
disrespectful communications with him.

Bailey also found that

complaints about Dr. Ahn’s and another surgeon’s conduct showed
unprofessionalism but not gender bias.

She concluded that there

was not a culture of gender bias at the Institute.

Russo filed

a complaint against the Institute and Dr. Ahn with the New

9

Hampshire Human Rights Commissioner in October of 2019, and
filed this action on August 22, 2021. 7

Discussion
Dr. Ahn moved for summary judgment on the claims against
him, Count II - retaliation in violation of RSA 354-A; Count III
– aiding and abetting gender discrimination in violation of RSA
354-A; and Count V - defamation.

Russo argued that material

factual disputes preclude summary judgment. 8

For the reasons

that follow, summary judgment was granted in favor of Dr. Ahn.
A.

Count II – Retaliation

Russo’s retaliation claim in Count II is that Dr. Ahn
violated RSA ch. 354-A when Russo’s employment was terminated on

Although the parties do not cite the decision of the New
Hampshire Human Rights Commission in the record, the court
assumes that decision was not favorable to Russo.
7

Russo asserts that the Institute fabricated evidence to
justify its decision to terminate her employment, which she
argues is sufficient evidence to show intentional discrimination
and to avoid summary judgment. In support, she contends that
“metadata” for five documents show that “defendants” fabricated
them, after they received her demand letter, to show that
meetings occurred years before the demand letter. Russo,
however, provides only her own inferences from dates shown in
the “metadata”, which is insufficient to support her fabrication
charge for purposes of summary judgment. Fed. R. Civ. P. 56(c)
Further, she provides no evidence that Dr. Ahn was involved in
the alleged fabrication. Therefore, the court will not address
or resolve the issue that Russo raises about fabricated evidence
for purposes of Dr. Ahn’s motion.
8

10

May 2, 2019.

Under New Hampshire law, the court relies on

federal cases interpretating Title VII to decide analogous
discrimination claims under RSA ch. 354-A.

Zerveskes v.

Wentworth-Douglass Hosp., No. 24-cv-025-SE-TSM, 2024 WL 4301375,
at *2 (D.N.H. Sept. 26, 2024) (citing Hubbard v. Tyco Integrated
Cable Sys., Inc., 985 F. Supp. 2d 207, 218 (D.N.H. 2013)).

To

establish retaliation, a plaintiff must prove that she engaged
in protected conduct, that the defendant subjected her to an
adverse employment action, and that the adverse employment
action is causally linked to the plaintiff’s protected conduct.
Serrano-Colon v. United States Dep’t of Homeland Sec., No. 221089, 2024 WL 4763442, at *9 (1st Cir. Nov. 13, 2024); Stratton
v. Bentley Univ., 113 F.4th 25, 41–42 (1st Cir. 2024).

“An

employee has engaged in activity protected by Title VII if she
has either (1) opposed any practice made an unlawful employment
practice by Title VII or (2) made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding,
or hearing under Title VII.”

Serrano-Colon, 2024 WL 4763442, at

*9 (internal quotation marks omitted).
Dr. Ahn, along with the other Institute partners, voted
unanimously to terminate Russo’s employment on March 25, 2019.
Russo, however, continued to work at the Institute while she,
through counsel, and Talbot-Kleeman negotiated a transition
plan.

Russo’s counsel sent a letter to Talbot-Kleeman on April
11

29, 2019, that stated Russo’s termination was “the result of one
practitioner who has a well-known problem working with women.”
Doc. no. 51-19, at 2.

Counsel further stated that Russo was

willing to resolve the termination of her employment and “her
claims against the Institute and its partners for the amount of
$100,000.”

Id.

In response to that letter, Talbot-Kleeman decided to
finalize the termination of Russo’s employment immediately
without a further transition period.

She sent a letter to

Russo’s counsel on May 2 that terminated Russo’s employment.
Talbot-Kleeman notified the Institute partners the next day that
Russo’s employment had been terminated.

Dr. Ahn responded to

Talbot-Kleeman’s notice, stating: “Thank you for taking care of
this.”

Doc. no. 51-22.

Russo argues that Dr. Ahn retaliated against her for
claiming gender discrimination by terminating her employment on
May 2.

Assuming that counsel’s letter to Talbot-Kleeman was

protected activity and that the termination on May 2 was an
adverse action, despite the vote to terminate her on March 25,
the record shows that Talbot-Kleeman, not Dr. Ahn, terminated
Russo’s employment on May 2.

Russo provides no evidence that

12

Dr. Ahn retaliated against Russo because of the demand letter
her counsel sent to Talbot-Kleeman. 9
Therefore, Russo did not demonstrate that a material
factual dispute exists

requiring trial of her retaliation claim

against Dr. Ahn.
B. Count III – Aiding and Abetting
“An individual may be held liable for aiding and abetting
unlawful employment discrimination under RSA 354-A:2 and :7.”
Artesi v. DeMoulas Super Markets, Inc., No. 19-CV-214-AJ, 2020
WL 13730262, at *11 (D.N.H. June 2, 2020) (citing U.S. Equal
Emp't. Opportunity Comm’n v. Fred Fuller Oil Co., 168 N.H. 606,
611 (2016)); see also RSA 354-A:2 XV(d) (defining unlawful
discriminatory practices to include “aiding, abetting, inciting,
compelling or coercing another or attempting to aid, abet,
incite, compel, or coerce another to commit an unlawful
discriminatory practice ....”).

“[F]or an individual to be

liable for aiding and abetting unlawful employment
discrimination under RSA 354-A:2,XV(d), it must be proven that
the individual aided and abetted an unlawful discriminatory
practice committed by an employer as specified in RSA 354-A:7,

Dr. Ahn’s after-the-fact thanks to Talbot-Kleeman
establishes that he did not terminate Russo’s employment. As
noted above, Russo has not shown a legal basis to attribute
actions taken by other Institute employees to Dr. Ahn.
9

13

I.”

Fred Fuller, 168 N.H. at 611.

RSA 354-A:7, I describes the

unlawful discriminatory practices by an employer based on gender
or sex.
Russo does not specify which part of RSA 354-A, I she
relies on as an unlawful discriminatory practice by the
Institute that Dr. Ahn aided and abetted.

In fact, Russo did

not address the aiding and abetting claim at all in her
objection to Dr. Ahn’s motion for summary judgment.

She asserts

that the court may infer that her employment was terminated
based on a discriminatory motive based on the actions of
Institute doctors, which she argues could be interpreted to be
evidence of discrimination based on female stereotyping, and
that she may also rely on the burden-shifting framework to show
discrimination.

1.

Stereotyping

Russo contends that Dr. Ahn’s reaction during the telephone
call on March 9 was “over-the-top” and for that reason can be
inferred to be evidence of gender discrimination. 10
Russo cites an email from another former Institute
employee, sent after Russo’s termination, who lists a bad
experience with Dr. Ahn and bad experiences with another
surgeon, and documentation of an incident between Dr. Ahn and an
x-ray technician. Russo argues that the two incidents
demonstrate Dr. Ahn’s bias about how women should behave. The
cited incidents occurred in the context of Dr. Ahn’s
dissatisfaction with the employee’s or staff person’s
10

14

Specifically, Russo argues that Dr. Ahn perceived her response
to his request for help as unprofessional only because she is a
woman.

To make that assumption, however, the response must be,

at a minimum, inappropriately upset and unprofessional.

Burns

v. Johnson, 829 F.3d 1, 15 (1st Cir. 2016).
In the March 9 incident, Russo responded to Dr. Ahn’s
request for help with options that Dr. Ahn found to be
untenable.

Dr. Ahn thought Russo’s response was rude and

unprofessional, and he responded in a raised voice, which caused
Russo to use a raised voice or to yell back at him.
Russo’s interaction with Dr. Ahn could legitimately be
construed to have elicited Dr. Ahn’s heated response.

Russo has

not shown that Dr. Ahn’s reaction was “over-the-top” or would
otherwise support an inference that he reacted badly because of
her gender.

Russo also argues that Dr. Ahn was biased against

Russo based on his belief that women should be submissive not
assertive, but the cited evidence does not support an inference
of stereotyping to show gender discrimination. 11
performance of work responsibilities. While Russo demonstrates
that Dr. Ahn could be unpleasant and rude to people he deemed to
be working for him, these examples do not demonstrate a bias
against women.
Based on the record, Dr. Ahn’s expressed concern with
professionalism and respect seems connected with his perception
of the proper role of a PA in relation to a surgeon, not on
gender.
11

15

Russo points to Dr. Wang’s statements.

Dr. Wang was asked

in his deposition whether he ever witnessed Russo being
disrespectful, and he answered no.

He then explained that Russo

was “very assertive” and “headstrong” and that he did not think
those were bad qualities.

Doc. no. 48-1, at 18.

Dr. Wang

further explained that some of the PAs were timid and that Russo
was more “actional” because if she disagreed with a surgeon she
would be confident in giving her opinion.

Dr. Wang testified

that he usually thought that was a good quality.

As such, Dr.

Wang’s testimony did not show that he viewed Russo negatively or
that he harbored any discriminatory animus against her based on
gender or that Dr. Ahn’s reaction to Russo was because of a
discriminatory animus against women.

2.

Burden-shifting framework

It appears that Russo may intend to show an unlawful
discriminatory practice through a prima facie case under the
burden-shifting framework.
at *7.

See Serrano-Colon, 2024 WL 4763442,

A court may infer discrimination from undisputed facts

under the burden-shifting framework, if the plaintiff provides
evidence “that: (1) she belonged to a protected class, (2) she
performed her job satisfactorily, (3) her employer took an
adverse employment decision against her, and (4) her employer
continued to have her duties performed by a comparably qualified
16

person.”

Id. (internal quotation marks omitted).

If the

plaintiff makes that prima facie case, “the burden of production
then shifts to the defendants to state a legitimate,
nondiscriminatory reason for the adverse employment actions.”
Id. (internal quotation marks omitted).

Then, the defendant is

entitled to summary judgment unless the plaintiff “raises a
genuine issue of material fact that the reasons offered by the
defendants were a pretext for discrimination.”

Id. (internal

quotation marks omitted).
Russo omits the elements of a prima facie case and moves
directly to evidence of pretext.

See Serrano-Colon, 2024 WL

4763442, at *7 (providing elements of prima facie case for
burden-shifting analysis under McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)).

In the absence of showing material facts

to support the elements of a prima facie case, however, Russo
has not carried her burden of establishing a triable issue of an
unlawful discriminatory practice based on the burden-shifting
framework.

Even if Russo could make that minimal showing,

however, she still lacks evidence of pretext.
Russo states that the Institute offered “shifting
explanations” for her termination, which would support a
conclusion that the explanations were pretext for
discrimination.

A plaintiff can establish pretext by showing

that the employer gave different and inconsistent reasons for
17

its actions.

Collazo-Rosado v. University of Puerto Rico, 765

F.3d 86, 93 (1st Cir. 2014).

To demonstrate a pretext,

inconsistent reasons for termination must demonstrate “such
weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions that a reasonable factfinder could rationally
find [that the proffered reason for termination is] unworthy of
credence.”

Cocuzzo v. Trader Joe's E. Inc., No. 23-1695, --- F.

4th ---, 2024 WL 4799281, at *7 (1st Cir. Nov. 15, 2024)
Russo states in her objection to Dr. Ahn’s motion for
summary judgment that the Institute gave the following
explanations for her termination:

“(1) because she voluntarily

agreed in advance to part company if the relationship wasn’t
working; (2) due to ‘irreconcilable differences’ with Ahn, and
(3) because of her insubordinate and unprofessional behavior.”
Doc. no. 47, at 23.

Taken in context, those reasons are neither

shifting nor inconsistent.
Dr. Ahn sought termination of Russo’s employment at the
March 25 partners’ meeting because he determined that she had
been insubordinate and unprofessional in her interactions with
him, which are plausibly understood as irreconcilable
differences about how he expected to be treated.

Then, after

the vote to terminate, Russo, through counsel, began to
negotiate the terms of her employment during a transition
period, and Russo does not dispute that she agreed to leave if
18

that relationship did not work.

For these reasons, the

Institute’s explanations for her termination that she cites are
consistent and are without implausibilities, incoherence, or
contradiction.
Therefore, Russo cannot show a discriminatory employment
practice based on a pretextual reason for terminating her
employment.

Russo provides no other viable grounds to show

gender discrimination by the Institute.

In the absence of a

discriminatory employment practice by the Institute, Russo’s
claim that Dr. Ahn aided and abetted the Institute in a
discriminatory employment practice fails.
C.

Defamation

Russo argued that Dr. Ahn defamed her by telling his
partners during the meeting on March 25 that Russo avoids work. 12
In response, Dr. Ahn contends that Russo lacks evidence that he
made that statement because she did not attend the meeting and
her hearsay evidence of statements at the meeting do not meet
the evidentiary standard under Rule 56(c).

Dr. Ahn also

contends that the challenged statement is not actionable as
defamation because it is an opinion.

In her complaint, Russo alleged that Dr. Ahn said she
“was trying to get out of work.” Doc. no. 1, at 24. In her
objection to the motion for summary judgment, she alleges that
Dr. Ahn told his partners that “Russo avoids doing work for
him.” Doc. no. 47, at 25.
12

19

To establish defamation under New Hampshire law, a
plaintiff must “show that the defendants failed to exercise
reasonable care in publishing false and defamatory statements of
fact about the plaintiff to a third party.”

Richards v. Union

Leader Corp., No. 2022-0197, --- A.3d ---, 2024 WL 4031395, at
*5 (N.H. Sept. 4, 2024).

The challenged statement must be a

statement of fact, not an opinion, to be actionable.

Id.

A

statement of fact may be proven true or false, while an opinion
or an unflattering expression cannot be “objectively verified.”
Id.
The court need not address the hearsay basis of Russo’s
evidence because the challenged statement by Dr. Ahn is properly
characterized as an opinion about the propriety of Russo’s
conduct, and not a statement of fact.

Dr. Ahn perceived that

Russo tried to get out of work or avoided doing work for him.
Those perceptions were expressed as his opinions about Russo’s
actions or inactions.
In other words, Dr. Ahn formed an opinion about Russo’s
motivation for her actions, which might or might not have been
her actual reasoning, but he was expressing only his opinion.
In contrast, for example, if Dr. Ahn said that Russo was absent
on a certain day, refused to come to work on a certain day, or
left work early on a certain day, those statements could be
proven to be true or false.

But, “Russo tried to avoid work” is
20

Dr. Ahn’s opinion based on his perceptions, not a statement of
fact.

Russo cites no evidence to show that Dr. Ahn did not

actually hold that opinion.
Therefore, Russo has not shown a triable issue to avoid
summary judgment on the defamation claim.

Conclusion
For the foregoing reasons, Dr. Ahn’s motion for summary
judgment (doc. no. 42) is granted.

The claims against Dr. Ahn

in Counts II, III, and V are dismissed.

SO ORDERED.
______________________________
Steven J. McAuliffe
United States District Judge
November 22, 2024
cc:

Counsel of Record

21