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Soni v. Wespiser

United States District Court, D. Massachusetts

August 19, 2019

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

          ORDER AND MEMORANDUM ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DOCKET NO. 105)

          TIMOTHY S. HILLMAN DISTRICT JUDGE.

         Plaintiff Deepa Soni, M.D., a board-certified, female neurosurgeon of Indian descent, filed a complaint alleging defendants Robert Wespiser, M.D., Timothy Counihan, M.D., Berkshire Medical Center, Inc. (“BMC”), Berkshire Faculty Services, Inc. (“BFS”), and Berkshire Health Systems, Inc. (“BHS”) discriminated against her on the basis of her gender and ethnicity, retaliated against her, made defamatory statements about her which negatively impacted her career, tortuously interfered with advantageous business relationships, and interfered with her rights in violation of Massachusetts law.

         Defendants now move for summary judgment on all of Plaintiff's remaining claims. For the reasons state below, Defendants' motion is granted in part and denied in part.

         Background

         This Court's review of the record is in the light most favorable to the party opposing summary judgment. Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 46, 50 (1st Cir. 2000).

         On November 1, 2008, Plaintiff began working for BFS at the Berkshire Medical Center. Pursuant to Plaintiff's contract, both BFS and BMC were her join-employers. During all relevant periods, Defendant Counihan was the Chairman of the Department of Surgery. In addition, Defendant Wespiser served as Chief of staff of the independent medical staff at BMC. Both supervised Plaintiff.

         While interviewing for the position with BFS, Plaintiff disclosed to Defendants Counihan and Wespiser and to another one of her prospective supervisors, Lisa Trumble, Vice President of Physician Services for BHS and Executive Director of BFS, that she had discrimination lawsuits pending against Brigham & Women's Hospital and Boston Medical Center.

         On January 23, 2009, Plaintiff filed a written complaint documenting concerns with the hospital administration. Specifically, Plaintiff alleged that Dr. Leon Gilner-another of Plaintiff's supervisors-treated her and other women in a sexist, derogatory, and threatening manner. Shortly after on January 26, a “professional coaching session” was held with Plaintiff, Dr. Gilner, General Counsel John Rogers, Diane Kelly, and Lisa Trumble. Plaintiff was provided feedback from that meeting that she was “a bit timid and Prima Donnish; meek and agreeable; passive/aggressive and somewhat defensive; and too sensitive.” (Docket No. 111 ¶ 128). In addition, a note from the meeting indicated that Plaintiff was “hired with some baggage, personally and professionally.” Id. According to Plaintiff, Defendant Counihan was dismissive of her complaints.

         In April 2009, Dr. Gilner was fired. According to John Rogers, Plaintiff's complaints were not a significant factor in the decision to terminate Dr. Gilsner's employment. Plaintiff disagrees with this assessment. Plaintiff then became the lone fulltime neurosurgeon at BMC. Consequently, Defendants were concerned that BMC might lose its status as a Level II Trauma Center.[1] According to Plaintiff, her workload became overwhelming after Dr. Gilner's departure. Further, Plaintiff's relationship with Defendant Counihan deteriorated and, according to Plaintiff, he began to micro-manage her practice.

         On September 23, 2009, Plaintiff tendered her resignation and her last day of employment with BFS was May 9, 2010. In April 2013, Plaintiff was offered a “locums to perm” position at a clinic in New Hampshire, which she accepted. The position required her to obtain credentials at three local hospitals. Plaintiff obtained credentials from two local hospitals, however, the third- Catholic Memorial Hospital (“Catholic”)-advised her that she would be denied privileges of she pursued them and should withdraw her request. Catholic was the only hospital to contact Defendant Counihan in evaluating Plaintiff's credentialing.

         Catholic asked Defendant Counihan to score Plaintiff on six “core competencies.” In four categories-Medical/Clinical Knowledge, Patient Care, Practice Based Learning and Improvement, and Systems-Based Practice-Defendant Counihan rated Plaintiff as “good.” However, in two different categories-Interpersonal Communication Skills and Professionalism-Defendant Counihan rated Plaintiff as “poor.”

         In the narrative supplement, Defendant Counihan indicated that Plaintiff “failed to regulate her work and clinical care . . . to the point of being disruptive to many aspects of the hospital's healthcare delivery system;” did not “reliably start her workday at an hour . . . consistent with appropriate care of patients;” was “habitually late for her clinic despite our adjusting the scheduled start time;” was “not punctual to the operating room;” “failed to adequately estimate how long her surgery would take, leading to her patient's [sic] being under anesthesia for unexpectedly long periods and significant disruptions in our operating room schedules;” provided unreliable determinations “of when surgery should be considered emergent” leading “to extreme disruption of our operating room and the need for the chairman of anesthesia and me to review all of her cases to ensure those she called ‘emergent' were really emergencies;” and “could not be counted upon to communicate effectively or act as a good team player.” (Docket No. 111 ¶ 79).

         In addition, Defendant Counihan informed Catholic that BMF chose not to renew Plaintiff's contract when Plaintiff had, in fact resigned.[2] Moreover, during a follow-up telephone call, he told Dr. Patrick Mahon of Catholic Medical Center that Plaintiff “had personality quirks which caused her to be fired from Boston Medical Center.” Id. ¶ 155. Defendant Counihan also told Dr. Mahon that “following her employment at Berkshire Medical Center, [Plaintiff] was hired by Mt. Auburn, but showed up 9 months pregnant, immediately went on maternity leave, and never worked there.” Id. According to Plaintiff, this was also a lie. Following that call, the Credentials Committee at Catholic voted to deny Plaintiff's application for privileges.

         From November 2013 through June 2015, Plaintiff worked on a “locum tenens” basis at the Baystate Medical Center in Springfield, Massachusetts. When a fulltime neurosurgeon position opened, she applied. Defendant Counihan spoke to at least two physicians at Baystate regarding Plaintiff's candidacy for the position.[3] Plaintiff was never offered the fulltime position at Baystate.

         Legal Standard

         Rule 56 of the Federal Rules of Civil Procedure provides that the court shall grant summary judgment if the moving party shows, based on the materials in the record, “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. A factual dispute precludes summary judgment if it is both “genuine” and “material.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505 (1986). An issue is “genuine” when the evidence is such that a reasonable factfinder could resolve the point in favor of the nonmoving party. Morris v. Gov't Dev. Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994). A fact is “material” when it might affect the outcome of the suit under the applicable law. Id.

         The moving party is responsible for “identifying those portions [of the record] which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986). It can meet its burden either by “offering evidence to disprove an element of the plaintiff's case or by demonstrating an ‘absence of evidence to support the nonmoving party's case.'” Rakes v. United States, 352 F.Supp.2d 47, 52 (D. Mass. 2005), aff'd, 442 F.3d 7 (1st Cir. 2006) (quoting Celotex, 477 U.S. at 325, 106 S.Ct. 2548). Once the moving party shows the absence of any disputed material fact, the burden shifts to the non-moving party to place at least one material fact into dispute. Mendes v. Medtronic, Inc., 18 F.3d 13, 15 (1st Cir. 1994) (citing Celotex, 477 U.S. at 325, 106 S.Ct. 2548). When ruling on a motion for summary judgment, “the court must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in that party's favor.” Scanlon v. Dep't of Army, 277 F.3d 598, 600 (1st Cir. 2002) (citation omitted).

         Discussion

         As a preliminary matter, Defendants allege that they cannot be liable for Defendant Counihan's communications because Plaintiff signed the following release:

To the fullest extent permitted by law, I extend absolute immunity to, and release from, any and all liability, the hospital and any third party . . . for any acts, communications, reports, records, statements, documents, recommendations or ...

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