United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
DOUGLAS P. WOODLOCK UNITED STATES DISTRICT JUDGE
Dr. Mark Brader brings this suit against his former employer,
Biogen Inc., alleging disability discrimination and negligent
infliction of emotional distress. Discovery having been
completed, Biogen Inc. now moves for summary judgment.
Biogen Inc., is a pharmaceutical company
that develops, markets, and manufactures therapies for people
living with serious neurological, autoimmune, and other rare
Galdes was employed by Biogen as the Senior Vice President of
the Technical Development (“TD”) department in
Biogen's Pharmaceutical Operations and Technology
(“PO&T”) division. In that role, Dr. Galdes
oversaw several Biogen groups, including the Protein
Pharmaceutical Development (“PPD”) group.
Ballinger was employed by Biogen as a Senior Director
responsible for PPD. She reported directly to Dr. Galdes.
Andrew Weiskopf was employed by Biogen as a Director in PPD
and reported to Ms. Ballinger.
Sinclair was employed in the Human Resources
(“HR”) department at Biogen and was the HR
employee primarily assigned to provide HR support to the PPD.
Dr. Mark Brader, worked for Biogen from
October 8, 2007 until November 6, 2015. He was employed as a
Principal Scientist in PPD. Dr. Weiskopf was his direct
supervisor from July 2013 until his employment with Biogen
ended. Dr. Brader's previous supervisor was Mariana
provides its employees with a document entitled “Values
in Action Code of Business Conduct”
(“Code”). The document instructs employees to
“[p]romptly report concerns about possible violations
of laws, regulations, this Code and policies to your
supervisor” as one of every employee's
responsibilities. Responsibilities for managers include that
“[n]o matter who the allegation involves, [the manager]
must report it without exception.” The Code also
states, in its “Harassment-free workplace”
section, that all employees “have the right to work in
an environment that is free from intimidation and
also provides its employees with a Non-Discrimination and
Non-Harassment Policy (“Policy”). The Policy
states that “Biogen is committed to providing a
workplace free of unlawful harassment and discrimination. The
document provides that “[s]upervisors and managers must
immediately report any alleged or perceived incidents or
discrimination or harassment (whether or not the incident
occurs in his or her area of responsibility).”
the Code and the Policy set forth a non-retaliation policy.
The Code states that Biogen does not tolerate
“[t]hreatening, intimidating, coercing, or retaliating
against those who report their concerns - anywhere, anytime,
for any purpose.” The Policy provides that
“Biogen will not knowingly permit any retaliation
against any employee who complains in good faith, of
discrimination or harassment or who participates in an
investigation. It is a violation of this Policy, and
unlawful, to retaliate against [such] employee.”
has a separate “ADA Non-Discrimination and
Accommodation Policy” (“ADA Policy”) that
states “Biogen is committed to fulfilling its
obligations under the Americans with Disabilities Act
(“ADA”) and it is the Company's policy to
hire, train, promote, compensate, and administer all
employment practices without regard to disability.
Discrimination against job applicants or employees because
they are disabled is prohibited and will not be tolerated by
also maintains a Global Investigations Protocol
(“GIP”) setting forth its “procedures for
the reporting, evaluation, and tracking of matters that
potentially require internal investigation by Biogen Idec or
its affiliates and sets forth guidelines for the conduct and
documentation of resulting internal investigations.”
The GIP “applies to matters involving potential
violations of law, Biogen Idec's Code of Conduct, or
other significant internal policies by Biogen Idec personnel
or individuals acting on Biogen Idec's behalf.”
Dr. Brader's June 18, 2014 Presentation and its
18, 2014, Dr. Brader gave a presentation to the PPD group.
The presentation was a technical review showcasing the work
he and his team had accomplished over the previous years. Dr.
Brader's presentation was mostly comprised of slides that
he had previously presented both internally at Biogen and
externally. Dr. Brader was especially focused on this
presentation because while he was on leave for back surgery,
Dr. Weiskopf informed him that TD senior management would be
in attendance. At the same time, Dr. Brader was aware
that he was being considered for a promotion to director.
the presentation, Dr. Brader's former manager, Dr.
Dimitrova, expressed some concerns to Dr. Weiskopf about Dr.
Brader's presentation. Dr. Weiskopf shared Dr.
Dimitrova's feedback with Dr. Brader during a meeting on
Friday, June 20, 2014. Dr. Brader claims that Dr. Weiskopf
made “objectionable statements” that he
“couldn't understand” about his presentation
when they met, calling his presentation “terrible,
” and stating that Dr. Brader's presentation had
insulted PPD and Dr. Dimitrova and was used inappropriately
to present Dr. Brader's personal views and agenda. Dr.
Brader further states that Dr. Weiskopf's comments were
absurd and nonsensical, leaving him bewildered and confused
by this sudden and malicious criticism.
Brader asked Dr. Weiskopf to meet to discuss the feedback
several times between their initial meeting on June 20, 2014
and June 30, 2014, and, in fact, met with Dr. Weiskopf
multiple times during this period. Dr. Brader characterized
Dr. Weiskopf's feedback with respect to his June 18, 2014
presentation as “harassment.” He testified that
Dr. Weiskopf's feedback and conduct was offensive because
it insulted him and was, in his view, “blatantly and
obviously false.” When he was asked what he thought was
Dr. Weiskopf's motivation, Dr. Brader testified that he
did not know and that he could only “speculate”
as to Dr. Weiskopf's motivation. He also testified that
he was unaware of Ms. Ballinger's motivations during this
Dr. Brader's Concerning Behavior
weeks following his presentation, Dr. Brader's wife began
to notice negative changes in his mental health. On Sunday,
June 29, 2014, Dr. Brader ran into Ms. Ballinger and her
husband, who is also employed at Biogen, during a walk in
Lexington, where they both live. Ms. Ballinger was concerned
that Dr. Brader was not “himself” during this
interaction and it appeared there was “something not
right” with him. Later that day, Dr. Brader emailed
both Dr. Weiskopf and Ms. Ballinger seeking to meet further
with them about the feedback he had received regarding his
presentation. Based on her encounter and the emails Dr.
Brader later sent to both Ms. Ballinger and Dr. Weiskopf, Ms.
Ballinger became concerned about Dr. Brader. The next day,
Ms. Ballinger and Dr. Weiskopf informed Ms. Sinclair about
their concerns with Dr. Brader's behavior.
Meetings on June 30, 2014
Brader met with Dr. Weiskopf on the morning of June 30, 2014.
This meeting was requested by Dr. Brader. During the meeting,
Dr. Brader asked Dr. Weiskopf to “stop harassing”
him and, specifically, objected to Dr. Weiskopf's
criticisms of his June 18, 2014 presentation. When Dr.
Weiskopf would not agree that his criticisms of Dr. Brader
were “inappropriate or unfair, ” Dr. Brader asked
two colleagues to join the meeting. Dr. Brader indicated to
the two colleagues that he and Dr. Weiskopf were having
“a disagreement about [his] performance or [his]
technical presentation, a disagreement that [he was] having
difficulty understanding, ” and he wanted their help in
“understand[ing] what [Dr. Weiskopf was] trying to
communicate to [him].” Dr. Brader claims that he did
not feel safe during this meeting because Dr. Weiskopf would
not change his criticisms of his presentation. Dr. Brader
testified that while Dr. Weiskopf did not make any movement
that made him fear for his physical safety, his “body
language, ” “hostile persona, ” and
unwillingness to change his view on Dr. Brader's
presentation made Dr. Brader feel unsafe and “very
meeting with Dr. Weiskopf, Dr. Brader emailed Ms. Ballinger.
Shortly thereafter, around 2:30 PM, Dr. Brader met with Ms.
Ballinger at the Starbucks on Biogen's campus. Ms.
Ballinger described Dr. Brader as “agitated” and
jumbled and noticed that he kept putting his hands in and out
of his pockets. Dr. Brader told Ms. Ballinger that he
considered Dr. Weiskopf's criticisms of his presentation
as harassment, including the “way [Dr. Weiskopf] chose
to conduct [his] performance review and the way in which he
communicated to [him].” Dr. Brader testified that he
did not know the reason, motivation, or basis for what he
characterized as Dr. Weiskopf's “harassment”
of him. During the meeting, Ms. Ballinger asked Dr. Brader
why he did not feel safe, but Dr. Brader could not provide
her with a clear response. After the meeting, Ms. Ballinger
reported on what had happened during the meeting to Ms.
Sinclair. At Ms. Sinclair's request, Ms. Ballinger
emailed Dr. Brader to confirm information on the employee
assistance program and to connect him with Ms. Sinclair to
follow-up on any concerns about feeling safe at work.
Emails from Dr. Brader
his meeting with Ms. Ballinger, Dr. Brader began to send a
series of emails to Ms. Sinclair, Ms. Ballinger, Dr.
Weiskopf, and other Biogen employees on June 30 and July 1,
2014. Dr. Brader testified that he believed by this point
that he was having some type of mental health episode. The
emails sent were, for the most part, incoherent. Certain of
the emails generally stated that Dr. Brader did not feel safe
30, 2014, at 4:45 PM, Dr. Brader sent an email to Ms.
Sinclair. At 4:52 PM, he sent an email to Ms. Ballinger and
Dr. Weiskopf. In these emails, he stated that he does not
feel safe at work. He sent an email to Ms. Sinclair at 5:31
PM. The email is full of incomplete thoughts and is unclear.
Two minutes later, at 5:33 PM, he sent another email to Ms.
Sinclair, indicating that it was his first
“normal” email of the day. Within thirty seconds,
he sent another email to Ms. Sinclair with only a subject
line that read “I do not feel safe at work.” In
response to this email, Ms. Sinclair sent an email to Dr.
Brader at 5:50 PM. In that email, Ms. Sinclair referred Dr.
Brader to Biogen's Employee Assistance Program. She
included, “It is important that our employees feel safe
he was emailing Ms. Sinclair, Dr. Brader was also responding
to an email sent by an external collaborator at New York
University. He told the external collaborator that he had
“a small HR issue right now to deal with.” When
he was further pressed on the issue by the external
collaborator, Dr. Brader responded that he “told [his]
supervisor that [he did not] feel safe.”
[Id.]. He copied Ms. Sinclair in that email. In
response, Ms. Sinclair sent an email to Dr. Brader, copying
Ms. Ballinger, requesting that they “connect tomorrow
before [he] respond[s] to further e-mails.”
same day at 9:38 PM, Dr. Brader sent a reply to Ms. Sinclair
and copied Dr. Weiskopf, Dr. Galdes, and Ms. Ballinger. Dr.
Brader claimed he “need[ed] to get a message to
[Biogen's Chief Executive Officer
(“CEO”)]” and that he was
“upset.” A few minutes later, at 9:55 PM, Dr.
Brader sent an email to Dr. Weiskopf, Dr. Galdes, Ms.
Sinclair, and Ms. Ballinger and copied several Biogen
employees. The email was directed to Dr. Galdes. At 11:14 PM,
Dr. Brader sent another email to Ms. Sinclair but copied
several other Biogen employees, including Ms. Ballinger and
Dr. Weiskopf. He again requested to meet with Biogen's
CEO and indicated that he was “not feeling 100.”
On July 1, 2014, at 3:01 AM, Dr. Brader sent an email to Dr.
Weiskopf and copied Ms. Sinclair and two additional Biogen
employees, including Brian Fahie, Dr. Brader's
“mentor.” In this email, Dr. Brader indicated
that he would “see a mental health professional
asap” and that he had “been described as mentally
unstable by [his] supervisor and senior director.” At
7:24 AM, Dr. Brader sent Dr. Galdes an email. He noted that
“there is something terribly wrong with PPD.” He
further indicated that he recently sought “treatment
for possible PTSD.” Dr. Brader also stated that he
would “plead insanity.”
response to Ms. Sinclair's email to him at 7:43 AM
indicating that she would call his home phone or cell phone
at 8 AM, he sent an email at 7:54 AM and copied Dr. Weiskopf.
In this email, Dr. Brader stated that he was “directly
called crazy by [his] senior director.” He also wrote
that he was “unusually angry, but calm.” At 10:41
AM, Dr. Brader sent an email to Ms. Sinclair, Dr. Galdes, and
Dr. Weiskopf, copying Ms. Ballinger and several other Biogen
employees. The email listed 41 bullet points, the first one
which included, “Yes I retruly [sic] am
wondering whether I have a mental health issue.” Ms.
Sinclair spoke with Dr. Brader on July 1, 2014 in an effort
to understand why he did not feel safe at work. Dr. Brader
responded to Ms. Sinclair that he did not feel safe at work
because of a dispute over performance feedback that he had
been given by Dr. Weiskopf and Ms. Ballinger. Ms. Sinclair
offered Dr. Brader Biogen's confidential Employee
Assistance Program. Eventually, Ms. Sinclair was able to
speak to Dr. Brader's wife, who confirmed that Dr. Brader
had been hospitalized. On the morning of July 1, 2014, Dr.
Brader's wife emailed to express her appreciation for Ms.
7, 2014, while hospitalized, Dr. Brader sent two other
largely incoherent emails to a lengthy list of Biogen
employees. These emails asked for Biogen's assistance and
stated that he was “scared.” Dr. Brader did not
mention the words “harassment” or
“discrimination” in these emails. Rather, his
focus remained on the feedback he received on June 18, 2014
concerning his presentation.
Dr. Brader's Medical Leave
Brader was on medical leave from July 1, 2014 to October 26,
2014. Biogen uses a third party vendor to manage medical
leave. No. Biogen employee received information from a
medical care provider regarding the cause of Dr. Brader's
behavior in late June and early July 2014. The only specific
medical information given to Biogen regarding what had
happened to Dr. Brader at this time came from Dr.
Brader's wife, who told Ms. Sinclair three weeks after
his symptoms started that an infection had caused Dr.
Brader's behavior, and that his behavior was part of a
temporary issue. Dr. Brader's health care provider
supported the information given by his wife: in completing
Biogen's Disability and Accommodation Questionnaire
(“DAQ”) for Dr. Brader's July to October 2014
leave, the provider noted that the “impairment began
following back surgery.” Ms. Sinclair, Dr. Galdes, and
Ms. Ballinger understood that Dr. Brader's behavior in
late June and early July 2014 was, as his wife indicated,
caused by a temporary infection and that he had recovered
fully from his infection when he returned to work. Prior to
this lawsuit, Dr. Brader never stated to any of them that he
had a broader mental health issue. Dr. Brader's health
care provider also supported the conclusion that his illness
was temporary and that he had fully recovered when, in
completing the DAQ, he noted that “upon return”
Dr. Brader would have “no restrictions.”
Dr. Brader's Return to Work in October 2014
Brader met with Ms. Sinclair on the day he returned to work.
He requested, and was permitted, to use vacation time when he
initially returned to work so that he was not working a full
schedule immediately. He made no other request for
accommodation. Dr. Brader returned to his same position,
compensation, and responsibilities. He did not make any
complaint about feeling unsafe at work or about
discrimination or harassment when he returned to work.
to his leave, Dr. Brader had worked on a project with an
external collaborator, Avia Biosystems (“the Avia
Project”). While Dr. Brader was on leave, the Aviva
Project was moved to another group and ...