Employment – Discrimination – Pretext

U.S. District Court

Where the plaintiff, a board-certified, female neurosurgeon of Indian descent, filed a complaint alleging that the defendants discriminated against her on the basis of her gender and ethnicity, summary judgment is inappropriate on the discrimination claims, as a reasonable jury could find the defendants’ proffered reasons for the adverse employment action taken against the plaintiff to be pretextual.

“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. …

“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 disclosures involving me ... made or given in good faith. ...’ (Docket No. 111 ¶ 51) (emphasis added). Defendants, however, cannot discriminate and retaliate freely because Plaintiff signed the release. Plaintiff alleges that Defendant Counihan lied about her and that those lies were motivated by animus. That sort of conduct is inherently not in good faith. Accordingly, if Plaintiff presents enough evidence that a reasonable jury might find for her, that she signed the release is of no moment. …

“… Defendants have … proffered a legitimate, non-discriminatory reason for the adverse action: their portrayal of Plaintiff was truthful. Accordingly, the Court must determine whether Plaintiff has identified evidence that would permit reasonable jurists to conclude that Defendants’ proffered reason is pretextual.

“I find that a reasonable jury could find the proffered reasons pretextual. First, the record demonstrates that reasonable jurors could find some of the things Defendant Counihan said about Plaintiff were false, which would belie Defendants proffered legitimate reason for the adverse action. …

“… Defendants argue that it is implausible that Defendant Counihan retaliated against Plaintiff because of the absence of a temporal nexus between the protected conduct and the adverse action. …

“Accordingly, the question here is whether, despite the almost five-year gap between the protected activity and the adverse employment action, Plaintiff has produced enough evidence to establish a causal connection. …

“… Defendant Counihan admits that his and Plaintiff’s relationship began to deteriorate after Dr. Gilner’s termination. ... According to Plaintiff, Defendant Counihan began to micro-manage her practice and dismiss her concerns during this period, which lead to her resignation. This is not enough, however, to demonstrate the animus required. … Although Defendant Counihan and Plaintiff’s relationship deteriorated after Dr. Gilner was fired, it is unclear what caused this deterioration. Further, the record is absent of any actions or words which directly relate to Plaintiff’s complaint against Dr. Gilner and would raise the inference of animus or support a causal connection. …

“Accordingly, Plaintiff’s retaliation claims must fail. …

“Because a tortious interference claim is typically not permitted against a party to a contract, employees are normally precluded from bringing claims against their employers for tortious interference. ... However, ‘a supervisor can be labile for tortious interference if “actual malice ... was the controlling factor in the supervisor’s interference.”’ …

“Defendants argue that Plaintiff has failed to demonstrate actual malice and consequently her claim must fail. First, the Court is skeptical that Plaintiff needs to demonstrate actual malice in this case because the relevant relationship was not the contractual relationship in which Defendant Counihan supervised Plaintiff. And even if Plaintiff had to demonstrate malice, the First Circuit has reasoned that ‘[c]ertain situations lend themselves to proof of malice. Pertinently, the SJC has held that the elements underlying a claim for unlawful discrimination may be used to demonstrate malice in the context of a tortious interference claim.’ Zimmerman v. Direct Federal Credit Union, 262 F.3d 70, 77 (1st Cir. 2001). Thus, if Plaintiff were required to demonstrate malice, because her discrimination claims survive this motion, she has proffered enough evidence of malice at this stage. …

“For the reasons stated above, Defendants’ motion (Docket No. 105) is granted in part and denied in part. Accordingly, Plaintiff’s discrimination, defamation, and tortious interference claims survive this motion. In addition, Defendants are granted summary judgment on Plaintiff’s retaliation claims.”

Soni v. Wespiser, et al. (Lawyers Weekly No. 02-383-19) (16 pages) (Hillman, J.) (Civil Action No. 16-10630-TSH) (Aug. 19, 2019).

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