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Soni v. Wespiser

United States District Court, D. Massachusetts

March 3, 2017

DEEPA SONI, M.D. Plaintiff,
v.
ROBERT WESPISER, M.D., TIMOTHY COUNIHAN, M.D. BERKSHIRE MEDICAL CENTER, INC. BERKSHIRE FACULTY SERVICES, INC., and BERKSHIRE HEALTH SYSTEMS, INC. Defendants.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION TO DISMISS (DOCKET NO. 25)

          TIMOTHY S. HILLMAN, DISTRICT JUDGE

         Plaintiff Deepa Soni, M.D., a board-certified, female neurosurgeon of Indian descent, filed this thirty-five count complaint alleging defendants Robert Wespiser, M.D., Timothy Counihan, M.D., Berkshire Medical Center, Inc., Berkshire Faculty Services, Inc., and Berkshire Health Systems, Inc. discriminated against her on the basis of her gender and ethnicity, retaliated against her, made defamatory statements against her which negatively impacted her career, and negligently and intentionally caused her emotional distress. Defendants move to dismiss all counts in the complaint pursuant to Fed.R.Civ.P. 12(b)(6) on numerous grounds, including that the claims fail as a matter of law, are time barred, and/or lack sufficient factual support. Plaintiff voluntarily dismissed Counts 1, 2, 11 and 12, leaving counts 3-10, and 13-35 currently pending. For the reasons detailed below, defendants' motion to dismiss (Docket No. 5) is granted in part and denied in part.

         Background

         The facts, as summarized from the complaint, are as follows. Plaintiff Deepa Soni is a board certified, Harvard-trained neurosurgeon of Indian descent. She is the second woman to complete Harvard's neurosurgery training program in its 80-year history, and the first Indian woman to do so. She began working at defendant Berkshire Medical Center, Inc. (“BMC”) in November 2008, pursuant to her employment contract with defendant Berkshire Faculty Services, Inc., both of which fall under the control of defendant Berkshire Health Systems, Inc. Defendant Dr. Timothy Counihan, Chairperson of Surgery at BMC, was her direct supervisor, and she was further supervised by defendant Dr. Robert Wespiser, the Chief of Staff at BMC.

         Dr. Soni alleges that Dr. Counihan displayed discriminatory and retaliatory behavior toward her throughout her employment with BMC because she was a female minority who had achieved greater stature than he, she had complained to him about unsafe practices at BMC, and had previously sued other male doctors for gender discrimination. She complained about his failures as Chief of Surgery to BMC administration, though she does not allege that she ever reported his retaliatory or discriminatory behavior toward her during her employment at BMC. The complaint alleges that Dr. Wespiser was “passive and deferred to Dr. Counihan's wishes, including participating in discrimination and retaliation against Dr. Soni.” Compl. ¶28.

         In September 2009, Dr. Soni gave notice of her resignation to BMC, and worked there until May 2010, in accordance with the terms of her employment agreement. She alleges that, after tendering her resignation, Dr. Counihan, with the consent of Dr. Wespiser, undertook a “sham” peer review of her work outside of the BMC's defined peer review procedures, which did not conclude until May 2010, just before her final day at BMC. She asserts that this unorthodox peer review instilled fear and inhibited her from voicing any further complaints while at BMC. While Dr. Soni pled generally that Drs. Counihan and Wespiser discriminated and retaliated against her, this “sham” peer review is the only example of such conduct during her employment with the defendants that is specifically alleged in the complaint.

         In 2012, Dr. Soni's successor in the neurosurgery department at BMC, Dr. Al-Atassi, reached out to her to discuss disparate treatment that he had experienced, which he believed to be discriminatory and retaliatory, including a similar “sham” peer review. Dr. Soni assisted him in retaining counsel to pursue an employment discrimination action.

         Dr. Soni accepted a position at New Hampshire NeuroSpine in the spring of 2013, and as required by her new post, she sought privileges at three area hospitals in April 2013, including Catholic Medical Center (“CMC”). While she was granted privileges at the other two hospitals, in July 2013, the Director of Medical Staff Support Services at CMC, Christine Senko, advised Dr. Soni that her application for privileges at CMC was denied. This was the first time in her career that any hospital had refused to grant her privileges. Dr. Soni was informed that the decision was based on a letter sent by Dr. Counihan to the credentialing committee, and a telephone conversation between Dr. Counihan and Dr. Mahon, its chairperson. Dr. Soni spoke with Dr. Mahon, who “said, in essence, that Dr. Counihan's remarks were the reason that Catholic Medical Center decided to ‘not move forward with credentialing [her].'” Compl. ¶49. Dr. Soni did not list Dr. Counihan as a reference, and asserts that he would not have been the appropriate person at BMC to have provided credentialing information.

         Dr. Counihan admitted to Dr. Soni that he had sent a letter to CMC claiming “she had certain unspecified ‘difficulties' while working at [Berkshire Medical Center].” Compl. ¶51. Dr. Soni asserts that any such statements are false. Dr. Soni then informed Dr. Wespiser of her concerns that both he and/or Dr. Counihan had relayed false and defamatory statements about her to CMC. Dr. Wespiser denied communicating directly with CMC, but also refused to correct the alleged misinformation provided by Dr. Counihan, despite Dr. Soni's request for his assistance, and despite that, as Chief of Staff, such information “should have been provided by him.” Compl. ¶53.

         An unnamed member of the CMC credentialing committee advised Dr. Soni in August 2013 that he was “‘aware of [her] situation, ' and that she had been wronged.” Compl. ¶56. Dr. Soni alleges that in a meeting with this unnamed individual, he disclosed to her that “Dr. Counihan made vicious and defamatory statements about her in a letter, and that the letter was followed by a telephone conversation which was even worse.” Compl. ¶57. He did not provide specific details of the statements made by Dr. Counihan, but he confirmed that “Dr. Counihan said, in essence, that Dr. Soni would be trouble for the hospital because she had filed multiple lawsuits against other hospitals, ” and the committee “made its decision in part based on the fact that she had previously sued other doctors and hospitals for discrimination.” Compl. ¶57 & 59. This same individual also shared that the credentialing committee had “essentially ignored her reference letters from several Board Certified neurosurgeons, which were ‘glowing, ' as well as her own credentials, i.e., Board Certification, no malpractice history, fellowship training, etc.” Compl. ¶58.

         Because she was not granted privileges at CMC, Dr. Soni was unable to keep her position at New Hampshire NeuroSpine. She alleges that she suffered lost wages and emotional distress as a result.

         In November 2013, Dr. Soni began practicing part time at Baystate Medical Center (“Baystate”), and in December 2013, she accepted a patient transferred from a physician at BMC. Dr. Soni alleges that this alerted Dr. Counihan to her new employment at Baystate. One month later, Dr. Soni “learned from her boss that Dr. Counihan was defaming her to senior leadership at Baystate, and that negative comments had made it to the Chair of Surgery at Baystate.” Compl. ¶63. Her boss also “indicated to her that her hiring had to be defended and justified to the Department Chair after this episode.” Id.

         Despite this setback, from March to September 2014, multiple physicians at Baystate “expressed repeated and strong interest in bringing Dr. Soni on board for a permanent Neurosurgical position, ” and she was told by a member of the leadership team on September 2, 2014 that “‘the job is yours…we just have to sort out the details with senior administration.'” Compl. ¶64. Later that month, however, Dr. Soni alleges there was a sudden and dramatic shift, including previously friendly and supportive staff avoiding her and acting “cold” toward her. In addition, Baystate hired two new neurosurgeons with fewer qualifications than Dr. Soni, and assigned cases to them instead of her. Dr. Soni asked some of the physicians with which she worked closely whether the loss of assignments was related to problems with her work, and they assured her that was not the case. In December 2014, Dr. Soni asked a senior physician about the decision to give assignments to the less qualified neurosurgeons, and he responded “it's not like anyone is discriminating against you.” Compl. ¶68. This struck Dr. Soni as odd as she had made no suggestion that she was a victim of discrimination.

         In March 2015, Dr. Soni expressed interest to a senior staff member in the full-time neurosurgeon position Baystate was then advertising, and was told that several candidates were being interviewed. Dr. Soni was not interviewed, and she alleges several physicians indicated their surprise that she was not being considered for the post. Dr. Soni sent a formal letter of interest and her curriculum vitae in response to the advertised full-time neurosurgery position to Baystate on April 1, 2015, but her application materials received no acknowledgement or response. She was approached by an unnamed member of the leadership team on April 3, 2015, and notified that the published advertisement mistakenly sought a general neurosurgeon when the hospital was actually looking to recruit a functional neurosurgeon (a specific sub-specialty), and had already filled the position. He told her that he had spoken with hospital administration previously, and that many physicians were interested in bringing Dr. Soni on full time, but that the administration “said that it was not interested in her because of the purported ‘problems' that she had at [BMC].” Compl. ¶74. The individual hired to fill the full-time position advertised at Baystate was a general neurosurgeon lacking subspecialty training in functional neurology, and was considerably less qualified than Dr. Soni. Dr. Soni alleges that since 2013 and up to the date of the filing of this action, Dr. Counihan continued to make false and defamatory statements about her to others.

         Claims against individual defendants

         Dr. Soni brings claims against Dr. Wespiser for discrimination based on gender and ethnicity in violation of 42 U.S.C. § 2000, et seq. (Count 1); retaliation in violation of 42 U.S.C. § 2000, et seq. (Count 2); discrimination based on gender and ethnicity in violation of Mass. Gen. L. ch. 151B (Count 3); retaliation in violation of Mass. Gen. L. ch. 151B (Count 4); interference with right to be free of discrimination in violation of Mass. Gen. L. ch. 151B §§ 4(4A) (Count 5); aiding and abetting unlawful actions in violation of Mass. Gen. L. ch. 151B §§ 4(5) (Count 6); defamation (Count 7); tortious interference with contractual and/or advantageous relationships (Count 8); intentional infliction of emotional distress (Count 9); and negligent infliction of emotional distress (Count 10).

         Dr. Soni brings claims identical claims against Dr. Counihan: discrimination based on gender and ethnicity in violation of 42 U.S.C. § 2000, et seq. (Count 11); retaliation in violation of 42 U.S.C. § 2000, et seq. (Count 12); discrimination based on gender and ethnicity in violation of Mass. Gen. L. ch. 151B (Count 13); retaliation in violation of Mass. Gen. L. ch. 151B (Count 14); interference with right to be free of discrimination in violation of Mass. Gen. L. ch. 151B §§ 4(4A) (Count 15); aiding and abetting unlawful actions in violation of Mass. Gen. L. ch. 151B §§ 4(5) (Count 16); defamation (Count 17); tortious interference with contractual and/or advantageous relationships (Count 18); intentional infliction of emotional distress (Count 19); and negligent infliction of emotional distress (Count 20).

         Claims against corporate defendants

         In addition, Dr. Soni brings claims against Berkshire Medical Center, Inc. for discrimination based on gender and ethnicity in violation of 42 U.S.C. § 2000, et seq. (Count 21); retaliation in violation of 42 U.S.C. § 2000, et seq. (Count 22); discrimination based on gender and ethnicity in violation of Mass. Gen. L. ch. 151B (Count 23); retaliation in violation of Mass. Gen. L. ch. 151B (Count 24); and negligent infliction of emotional distress (Count 25).

         Dr. Soni brings claims against Berkshire Faculty Services, Inc. for discrimination based on gender and ethnicity in violation of 42 U.S.C. § 2000, et seq. (Count 26); retaliation in violation of 42 U.S.C. § 2000, et seq. (Count 27); discrimination based on gender and ethnicity in violation of Mass. Gen. L. ch. 151B (Count 28); retaliation in violation of Mass. Gen. L. ch. 151B (Count 29); and negligent infliction of emotional distress (Count 30).

         Finally, Dr. Soni brings claims against Berkshire Health Services, Inc. for discrimination based on gender and ethnicity in violation of 42 U.S.C. § 2000, et seq. (Count 31); retaliation in violation of 42 U.S.C. § 2000, et seq. (Count 32); discrimination based on gender and ethnicity in violation of Mass. Gen. L. ch. 151B (Count 33); retaliation in violation of Mass. Gen. L. ch. 151B (Count 34); and negligent infliction of emotional distress (Count 35).

         Discussion

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must allege “a plausible entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S.Ct. 1955 (2007). Although detailed factual allegations are not necessary to survive a motion to dismiss, the standard “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555. “The relevant inquiry focuses on the reasonableness of the inference of liability that the plaintiff is asking the court to draw from the facts alleged in the complaint.” Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

         In evaluating a motion to dismiss, the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Langadinos v. American Airlines, Inc., 199 F.3d 68, 68 (1st Cir. 2000). It is a “context-specific task” to determine “whether a complaint states a plausible claim for relief, ” one that “requires the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 556 U.S. 662, 679, 129 S.Ct. 1937 (2009) (internal citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-that the pleader is entitled to relief.” Id. (quoting Fed.R.Civ.P. 8(a)(2)). On the other hand, a court may not disregard properly pled factual allegations, “even if it strikes a savvy judge that actual proof of those facts is improbable.” Twombly, 550 U.S. at 556.

         Counts 3, 13, 21, 23, 26, 28, 31 and 33 - Discrimination based on gender and ethnicity in violation of ...


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