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Brader v. Biogen Inc.

United States District Court, D. Massachusetts

March 4, 2019

MARK BRADER, Plaintiff,
BIOGEN INC., Defendant.



         Plaintiff 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.

         I. BACKGROUND

         A. Factual Background

         1. Relevant Parties

         Defendant, Biogen Inc., is a pharmaceutical company that develops, markets, and manufactures therapies for people living with serious neurological, autoimmune, and other rare diseases.

         Alphonse 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.

         Jessica 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.

         Andrea 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.

         Plaintiff, 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 Dimitrova.

         2. Biogen's Policies

         Biogen 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 harassment.”

         Biogen 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).”

         Both 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.”

         Biogen 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 Biogen.”

         Biogen 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.”

         3. Dr. Brader's June 18, 2014 Presentation and its Feedback

         On June 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.[1] At the same time, Dr. Brader was aware that he was being considered for a promotion to director.

         Following 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.

         Dr. 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 time period.

         4. Dr. Brader's Concerning Behavior

         In the 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.

         5. Meetings on June 30, 2014

         Dr. 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 concerned.”

         After 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.

         6. Emails from Dr. Brader

         After 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 at work.

         On June 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 at work.”

         While 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.”

         On that 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.”

         In 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. Sinclair's assistance.

         On July 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.

         7. Dr. Brader's Medical Leave

         Dr. 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.”

         8. Dr. Brader's Return to Work in October 2014

         Dr. 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.

         Prior 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 ...

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