United States District Court, D. Massachusetts
ORDER AND MEMORANDUM ON DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (DOCKET NO. 105)
TIMOTHY S. HILLMAN DISTRICT JUDGE.
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
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.
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).
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.
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.
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
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. 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.
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
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
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 ¶
addition, Defendant Counihan informed Catholic that BMF chose
not to renew Plaintiff's contract when Plaintiff had, in
fact resigned. 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.
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. Plaintiff was
never offered the fulltime position at Baystate.
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.
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).
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 ...