Soni v. Wespiser

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

_______________________________________

)

DEEPA SONI, M.D., )

) CIVIL ACTION

Plaintiff, )

) NO. 16-10630-TSH

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)

August 19, 2019

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

1 Level II Trauma Centers require 24/7 neurosurgery availability.

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.

2 Defendants point out that Defendant Counihan indicated in another part of the evaluation that “when Dr.

Soni tendered her notice that she wished to terminate her contract, that offer was accepted.” (Docket No.

111 ¶ 80)

3 Defendants object that the alleged Baystate communications are hearsay and that the Court may therefore

not consider them. See Fed. R. Civ. P. 56(c)(2) (“A party may object that the material cited to support or

dispute a fact cannot be presented in a form that would be admissible in evidence.”). Defendant Counihan’s

actual out-of-court statements pose no admissibility problem. They are admissible nonhearsay either as

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

admissions of a party opponent, see Fed. R. Evid. 801(d)(2)(A), or because they are not offered for the truth

of the matter asserted—in fact, they are offered for just the opposite.

The repetition of Defendant Counihan’s statement by another, however, poses a more difficult

problem. According to Plaintiff, Dr. Sherry Taylor from Baystate told her about Defendant Counihan’s

statements. Thus, Dr. Taylor necessarily made the implicit statement, “Defendant Counihan said this!” See

Larez v. City of Los Angeles, 946 F.2d 630, 642 (9th Cir. 1991). Accordingly, Dr. Taylor’s statement to

Plaintiff is an out-of-court statement offered for the truth of the matter asserted and therefore “cannot be

taken into account for purposes of the summary judgment calculus.” Landrau-Romero v. Banco Popular

de Puerto Rico, 212 F.3d 607, 614 n.8 (1st Cir. 2000).

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

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.

1. Discrimination Claims

Both Title VII and Chapter 151B contain provisions prohibiting employers from

discriminating against employees based on gender.4 Gender discrimination can come in two

4 In its Memorandum and Order on Defendants’ motion to dismiss, this Court acknowledged that “no

Massachusetts appellate decision has ever interpreted § 4(1) to apply to an action brought by or against

someone outside of the employment unit.” Soni v. Wespiser, 239 F. Supp. 3d 373, 384 (D. Mass. 2017)

(quoting Thomas O’Connor Constructors, Inc. v. MCAD, 893 N.E.2d 80, 85-86 (Mass. App. Ct. 2008))).

Nonetheless, the Court noted that Mass. Gen. Laws ch. 151B § 4(4A) makes it unlawful “[f]or any person

to coerce, intimidate, threaten, or interfere with another person in the exercises or enjoyment of any right

granted or protect by this chapter.” While Massachusetts courts have not yet defined the precise scope of

Section 4(4A), Araujo v. UGL Unicco-Unicco Perations, 53 F. Supp. 3d 371, 383 n.8 (D. Mass. 2014),

presumably it would also apply outside of the employment unit. See McLaughlin v. City of Lowell, 992

N.E.2d 1036, 1058 n.34 (Mass. App. Ct. 2013) (“As such, § 4(4A) is best understood as a device through

which an individual falling outside the scope of the definition of ‘employer’ may otherwise by liable for

forms. Burns v. Johnson, 18 F. Supp. 3d 67, 72 (D. Mass. 2014). First, “[i]t can mean that the

defendant took a discrete, adverse employment action against the plaintiff because of his or her

gender.” Id. (citing Johnson v. Univ. of P.R., 714 F.3d 48, 53 (1st Cir. 2013)). Second, it “can also

mean that the defendant harassed the plaintiff based on . . . her gender and thereby created a gender-

based hostile work environment.” Id. (citing Johnston, 714 F.3d at 53). Plaintiff asserts the first

type of Title VII claim—that Defendants took adverse employment action against her because of

her gender.5

Because Plaintiff failed to proffer any direct evidence of discrimination, her claim is

generally governed by the burden shifting framework established by the Supreme Court in

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Garcia v. Bristol-Myers Squibb

Co., 535 F.3d 23, 31 n.2 (1st Cir. 2008).6, 7 “The elements of the prima facie case vary according

conduct which the antidiscrimination statue aims to prevent.”); see also Thomas O’Connor Constructors,

Inc. v. MCAD, 893 N.E.2d 80, 86 n.10 (Mass. App. Ct. 2008) (noting that “interpreted literally, the scope

of § 4(4A) is almost without limit”).

Defendants only argument supporting their motion for summary judgment specifically related to

Plaintiff’s rights interference claim is that Plaintiff has not demonstrated actionable discriminatory conduct.

See McLaughlin, 84 Mass. App. Ct. at 74 (“Absent actionable discriminatory conduct, there exists no basis

on which to ground a claim of interference.”). But the McLaughlin court explicitly noted that discrimination

outside of the employment context seems to be precisely the kind of discrimination Section 4(4A) is meant

to address. Accordingly, if Defendant Counihan discriminated against Plaintiff, it would be actionable. See

Soni, 239 F. Supp. 3d at 384 (finding that Plaintiff’s “Chapter 151B discrimination claims find legs in the

language of § 4(4A)”).

5 In ruling on Defendants’ motion to dismiss, this Court concluded that the “a negative reference to a

prospective employer may constitute an adverse employment action.” Soni, 239 F. Supp. 3d at 383.

6 The Court will apply the same framework to assess Plaintiff’s claims under state and federal law. See

Xiaoyan Tang, 821 F.3d at 215 n.9; see also Knight v. Avon Products, Inc., 438 Mass. 413, 420, 780 N.E.2d

1255 (2003) (noting the Supreme Judicial Court’s adoption of the McDonnell Douglass framework “as an

aid to the resolution of claims of employment discrimination under G.L. c. 151B” (citation omitted)).

7 A Plaintiff may also demonstrate sex discrimination “by presenting evidence of discrimination on the

basis of a prohibited bias under the mixed-motives theory of discrimination.” Burns v. Johnson, 829 F.3d

1, 8 (1st Cir. 2016); see also Quigg v. Thomas County School Dist., 814 F.3d 1227, 1235 n.4 (11th Cir.

2016) (“Mixed-motive and single-motive discrimination are different theories of discrimination, as opposed

to distinct causes of action. Specifically, they serve as alternative causation standards for proving

discrimination.”). Because Plaintiff has not pursued a mixed-motive theory, however, the Court will assess

her claims under the McDonnell framework. See Sher v. U.S. Dept. of Veterans Affairs, 488 F.3d 489, 508

n.22 (1st Cir. 2007) (granting defendant summary judgment where plaintiff did “not pursue[ ] a mixed

the nature of the plaintiff’s claim, but the plaintiff must show, among other things, that she suffered

an adverse employment action.” Lockridge v. The University of Maine System, 597 F.3d 464, 470

(1st Cir. 2010); see also River-Rivera v. Medina & Medina, Inc., 898 F.3 77, 88 (1st Cir. 2018)

(“Establishing a prima facie case isn’t usually a tough sell.”). If the plaintiff can establish a prima

facie case, “the burden of production—but not the burden of persuasion—shifts to the employer,

who must articulate a legitimate, non-discriminatory reason for the adverse employment action.”

Id. If the employer proffers a legitimate reason for the adverse action, “the focus shifts back to the

plaintiff, who must then show, by a preponderance of the evidence, that the employer’s articulated

reason for the adverse employment action is pretextual and that the true reason for the adverse

action is discriminatory.” Id.

I will assume Plaintiff has met her modest burden of establishing a prima facie case. See

Garcia, 535 F.3d at 30-31; Lockridge, 597 F.3d at 470; see also Fennell v. First Step Designs,

Ltd., 83 F.3d 526, 535 (1st Cir. 1996) (“On summary judgment, the need to order the presentation

of proof is largely obviated, and a court may often dispense with strict attention to the burden-

shifting framework, focusing instead of whether the evidence as a whole is sufficient to make out

a jury question as to pretext and discriminatory animus.”). Defendants have also 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

motive theory” because the “failure to assert a mixed motive claim before the district court amount[ed] to

a waiver of the claim”).

action. For instance, in the questionnaire he submitted to Catholic, Defendant Counihan indicated

that BMC chose not to renew Plaintiff’s contract. (Docket No. 111 ¶ 155).8 Further, Dr. Counihan

told Dr. Mahon that Plaintiff was fired from Boston Medical Center. Id. ¶ 157. Both statements

are untrue. In addition, Defendant Counihan told Dr. Mahon that “following her employment at

Berkshire Medical Center, Dr. Soni was hired by Mt. Auburn, but showed up 9 months pregnant,

immediately went on maternity leave, and never worked there.” Id. (brackets omitted). Not only

is that statement false, it not so subtly implied that Plaintiff was an inferior doctor based on

stereotypes about working women. See Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989)

(“[W]e are beyond the day when an employer could evaluate employees by assuming or insisting

that they matched the stereotype associated with their group . . . .”).9

Accordingly, I find that a genuine dispute of material fact exists as to whether Defendants’

proffered reasons were pretextual. Accordingly, Plaintiff’s discrimination claims survive this

motion.

2. Retaliation Claims

8 As noted above, Defendants argue that this was obviously a mistake as evidenced by the fact that

Defendant Counihan later corrected himself in his written narrative. While this is a reasonable

interpretation, the fact that Defendant Counihan lied several times about Plaintiff presents a question of

material fact for the jury: what his motivations were for those lies.

9 Plaintiff also argues that there are other statements that traffic in stereotypes. For example, on January

26, 2009, a meeting was held with Plaintiff, Dr. Gilder, John Rogers, Diane Kelly, and Lisa Trumble. The

meeting was supposed to be a “professional coaching session” to help resolve the conflict between Plaintiff

and Dr. Gilner. Dr. Soni was provided feedback from co-workers that she was “a bit timid and ‘Prima

Donnish,’” “meek and agreeable,” “passive/aggressive and somewhat defense,” and “too sensitive.”

(Docket No. 111 ¶ 128). A note from that meeting also indicated that Plaintiff was “hired with some

baggage, personally and professionally.” Id. It is unclear who provided Plaintiff this feedback.

Defendant Counihan took the adverse, allegedly discriminatory action; thus, the relevance of the

statements by other, unidentified employees is unclear. If this were a hostile work environment claim,

where the employer negligently permitted the environment to become pervaded with discrimination, these

statements may be relevant. That is not the case here. Accordingly, the Court will not consider the

statements.

Both Title VII and Chapter 151B also contain provisions that prohibit employers from

retaliating against persons who complain about unlawful discriminatory employment practices.

See 42 U.S.C. § 2000e-3(a); Mass. Gen. Laws ch. 151B, § 4(4). Retaliation claims based on

circumstantial evidence are evaluated using the same McDonnell burden-shifting framework noted

above. Ponte v. Steelcase Inc., 741 F.3d 310, 321 (1st Cir. 2014).10 To make a prima facie case,

a plaintiff “must show that she engaged in protected conduct, that she suffered an adverse

employment action, and that a causal nexus exists between the protected activity and the adverse

action.” Ponte, 741 F.3d at 321. “The causation element of a Title VII retaliation claim is not

satisfied by evidence that retaliation was one motivating factor in the adverse action.” Roy v.

Correct Care Solutions, LLC, 914 F.3d 52, 70 (1st Cir. 2019). Instead, a plaintiff “must show

‘but-for’ causation.” Id. In other words, a plaintiff must show that the adverse action would not

have occurred in the absence of the protected activity. Id.

Like the analysis above, I will proceed directly to the nexus element.11 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.

Temporal proximity can create an inference of causation. See Planadeball v. Syndham

Vacation Resorts, Inc., 793 F.3d 169, 177 (1st Cir. 2015); see also Noviello v. City of Boston, 398

F.3d 76, 86 (1st Cir. 2005) (noting where adverse employment action “follows hard on the heels

of protected activity, the timing often is strongly suggestive of retaliation”). Further, “the inference

of a causal connection becomes tenuous with the passage of time.” Dressler v. Daniel, 315 F.3d

10 As noted above, Massachusetts courts have adopted the McDonnell Douglass framework for evaluating

these claims.

11 Defendants concede that Plaintiff’s formal complaint was a protected activities. See Docket No. 106, at

16. In addition, the adverse action, like her discrimination claim, is that Dr. Counihan lied about her to

other hospitals following her employment at BMC.

75, 80 (1st Cir. 2003); see also Lewis v. Gillette Co., 22 F.3d 22, 25 (1st Cir. 1994) (granting

summary judgment where more than two years elapsed between the protected conduct and the

alleged retaliation); Mesnick v. General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (holding that

the nine month period between the protected conduct and alleged retaliation undermined the

inference of causation); Calero-Cerezo v. U.S. Dept. of Justice, 355 F.3d 6, 25 (1st Cir. 2004)

(noting that “three and four month periods have been held insufficient to establish a causal

connection based on temporal proximity”).

The First Circuit has made clear, however, temporal proximity “is merely one factor

relevant to causation.” Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st Cir.

2014); see also Trainor v. HEI Hospitality, LLC, 699 F.3d 19, 28 (1st Cir. 2012) (treating

“temporal proximity” between protected activity and adverse action as just one factor, “reinforced

by other evidence,” which supported jury verdict); Doherty v. Donahoe, 985 F. Supp. 2d 190, 206

(D. Mass. 2013) (granting summary judgment because “[t]emporal proximity is absent and no

other facts raise an inference or sufficiently support such a causal connection” (emphasis added));

Robinson v. Southeastern Pa. Transp. Auth., 982 F.2d 892, 894 (3d Cir. 1993) (“[M]ere passage

of time is not legally conclusive proof against retaliation.”).

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.

Plaintiff attempts to explain the absence of temporal proximity by alleging “the Catholic

request for information was the first opportunity Defendant Counihan had to retaliate against Dr.

Soni after her departure from the Berkshire.” (Docket No. 110, at 14). However, Plaintiff’s

protected activity occurred at the end of January 2009. She did not tender her resignation until

September 23, 2009. Her resignation did not become effective until May 9, 2010. Therefore,

Defendant Counihan had plenty of time to retaliate. See Mesnick, 950 F.2d at 828.

However, a plaintiff can still succeed on a retaliation claim despite a lack of proximity if

the record supports “a pattern of antagonism in the intervening period.” Jensen v. Potter, 435 F.3d

444, 450 (3d Cir. 2006), overruled in part on other grounds by Burlington N. & Santa Fe Ry. Co.

v. White, 548 U.S. 53 (2006) (noting that a pattern of antagonism in the intervening period can

support a retaliation claim in the absence of temporal proximity). Defendant Counihan admits that

his and Plaintiff’s relationship began to deteriorate after Dr. Gilner’s termination. See Docket No.

111-41, at 5. 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. Cf. Jensen, 435 F.3d at 450 (“The primate antagonist

in Jensen’s retaliation claim is letter carrier Joe Sickler. Shortly after Waters’s transfer to the

Ashley office, Sickler called Jensen ‘the [obscenity] who got [Waters] in trouble;’ he also stated

that when a new supervisor came Jensen would have to get off her ‘fat [obscenity].’ Because these

insults directly relate to Jensen’s complaint against Waters, they raise an obvious inference of

retaliatory animus.” (emphasis added)). 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. See Doherty, 985

F. Supp. 2d at 206.

Accordingly, Plaintiff’s retaliation claims must fail.

3. Defamation

In order to state a claim for defamation, a plaintiff must demonstrate: (1) the defendant

published a false statement regarding the plaintiff—that is, the defendant communicated the

statement concerning the plaintiff to a third party; (2) the statement could damage the plaintiff’s

reputation in the community; and (3) the statement caused economic loss or is otherwise actionable

without proof of economic loss. Flagg v. AliMed, Inc., 992 N.E.2d 354, 365 (Mass. 2013).

As noted above, Defendant Counihan told Catholic that BMC chose not to renew Plaintiff’s

contract. (Docket No. 111 ¶ 155).12 Further, Dr. Counihan told Dr. Mahon that Plaintiff was fired

from BMC. Id. ¶ 157. Finally, Defendant Counihan told Dr. Mahon that “following her

employment at Berkshire Medical Center, Dr. Soni was hired by Mt. Auburn, but showed up 9

months pregnant, immediately went on maternity leave, and never worked there.” Id. (brackets

omitted).

Defendants contend that Plaintiff has not advanced any competent evidence that any of the

material facts in the Catholic communications were untrue. However, Plaintiff testified that all

these statements were false and Defendant Counihan has himself admitted that some of his

statements were false. See Counihan Aff. 115:18-22.

Defendants next argue that “[t]he Catholic Communications, although critical of

[Plaintiff’s] conduct in some respects, were not wholly negative or tending to hold [Plaintiff] up

to scorn, hatred, ridicule or contempt.” (Docket No. 106, at 17). Defendants, however, does

nothing to further develop this argument. As it is not this Court’s job to put flesh on Defendants’

bare bones argument, it is waived. See Medina-Rivera v. MVM, Inc., 713 F.3d 132, 140 (1st Cir.

2013) (“‘[D]eveloping a sustained argument out of . . . legal precedents’ is appellant’s job, not

12 Defendant Counihan admitted at his deposition that this statement was false. See Counihan Aff. 115:18-

22.

ours.” (quoting Town of Norwood v. Fed. Energy Regulatory Comm’n, 202 F.3d 392, 405 (1st Cir.

2000))).

Third, Defendant contends that even if the Catholic communications were defamatory, they

are conditionally privileged. “[A] publisher is conditionally privileged to publish defamatory

material if he or she is a supervisor, executive, or a corporate officer and the information is

reasonably related to the employer’s legitimate business interest, or if the publisher and the

recipient share a common interest and the communication is of a kind reasonably calculated to

protect or further it.” Sklar v. Beth Israel Deaconess Med. Ctr., 797 N.E.2d 381, 388 (Mass. App.

Ct. 2003) (quotation marks and citation omitted). Defendants, however, do nothing to explain how

the facts of this case establish the privilege. “For a claim of defamation, a conditional privilege is

an affirmative defense; the burden rests on the defendant to prove that his defamatory statements

were otherwise privileged.” Harrington v. Costello, 7 N.E.3d 449, 457 n.17 (Mass. 2014).

Defendants have not provided the Court with any facts from which it can conclude the privilege

exists between the hospitals. Cf. Humphrey v. National Semiconductor Corp., 463 N.E.2d 1197,

1198 (Mass. App. Ct. 1984) (“The burden is upon the defendants to show facts which create the

qualified privilege. They have done so by affidavits, by the master’s reports, and by depositions

of Green and of the plaintiff Humphrey . . . and were not contravened by any material offered by

the plaintiff.”). Accordingly, Defendants have not satisfied their burden to demonstrate privilege,

and the Court will not assume it exists.

4. Tortious Interference

To succeed on a claim of tortious interference with an advantageous relationship under

Massachusetts law a plaintiff must show:

(1) That she had a business relationship, (2) that the defendant knew of this

relationship, (3) that the defendant intentionally and maliciously interference with

the relationship, and (4) that the defendant’s actions harmed her.

Zimmerman v. Direct Fed. Credit Union, 262 F.3d 70, 76 (1st Cir. 2001) (citing Comey v. Hill,

387 Mass. 11, 19 (1982)); see also American Private Line Servs., Inc. v. Eastern Microwave, Inc.,

980 F.2d 33, 36 (1st Cir. 1992) (noting that a plaintiff “need not prove that it had a binding contract.

A probable future business relationship anticipating a reasonable expectancy of financial benefit

will suffice” (citing Powers v. Leno, 509 N.E.2d 46, 49 (Mass. App. Ct. 1987))).

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 tortuous

interference. Welch v. Ciampa, 542 F.3d 927, 944 (1st Cir. 2008). However, “a supervisor can be

labile for tortious interference if “actual malice . . . was the controlling factor in the supervisor’s

interference.’” Id. (quotation marks and brackets omitted) (quoting Sklar, 797 N.E.2d at 385).

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.

Conclusion

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.

SO ORDERED

/s/ Timothy S. Hillman

TIMOTHY S. HILLMAN

DISTRICT JUDGE