# Soni v. Wespiser

> District Court, D. Massachusetts · August 19, 2019

URL: https://www.frixlaw.com/law-library/cases/10197967

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** August 19, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10197967

## How later opinions describe it (automated extraction)

- noting that a pattern of antagonism in the intervening period can support a retaliation claim in the absence of temporal proximity
- noting where adverse employment action “follows hard on the heels of protected activity, the timing often is strongly suggestive of retaliation”

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10197967. Public record. Not legal advice.