Shervin v. Partners Healthcare Sys., Inc.

2 F.Supp.3d 50

Nina SHERVIN, M.D., Plaintiff,

v.PARTNERS HEALTHCARE SYSTEM, INC. et al., Defendants.

Civil Action No. 10–cv–10601.

United States District Court, D. Massachusetts.

Signed March 7, 2014.

Lynn C. Norton, Ellen J. Zucker, Emily J. Nelson, Laura R. Studen, Michael V. Samarel, Burns & Levinson LLP, Boston, MA, for Plaintiff.

Herbert L. Holtz, Amie Tracia Geary, Eugene J. Sullivan, III, Patrick H. Foley, Holtz & Reed, LLP, Rebecca J. Wilson, Sherry Y. Mulloy, Peabody & Arnold, LLP, Boston, MA, for Defendants.

MEMORANDUM AND ORDER

CASPER, District Judge.

I. 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. § 2000e et seq., against Partners, MGPO and Harvard (Counts 8–10); retaliation in violation of c. 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 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 governingbody. 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 health-related 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

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; 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. 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...