Saxena v. University of Massachusetts Medical School

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

DR. VISHAL SAXENA, )

Plaintiff, )

)

v. ) CIVIL ACTION

) No. 19-40007-TSH

)

UNIVERSITY OF MASSACHUSETS )

MEDICAL SCHOOL, )

Defendant. )

____________________________________)

Memorandum of Decision and Order

March 2, 2020

HILLMAN, D.J.

Background

Dr. Vishal Saxena (“Plaintiff” or “Saxena”) filed suit against University of Massachusetts

Medical School (“Defendant” or “UMMS”) alleging claims for: age discrimination under the

Massachusetts Antidiscrimination Act, Mass. Gen.L. ch. 151B §1 et seq. (“Chapter 151B”)

(Count One); race/national origin discrimination in violation of Chapter 151B (Count Two);

retaliation for reporting discrimination in violation of Chapter 151B (Count Three); violation of

the Americans with Disabilities Act, 42 U.S.C. §12101 et seq. (“ADA”) (Count Four);

retaliation in violation of the ADA (Count Five); violation of the Rehabilitation Act of 1973, §

504, 29 U.S.C. § 794 (“Rehabilitation Act”)(Count Six); retaliation in violation of the

Rehabilitation Act based on not granting Plaintiff an accommodation (Count Seven); and

retaliation in violation of the Rehabilitation Act based on Defendant’s invasion of Plaintiff’s

privacy (Count Eight).

Plaintiffs’ claims arise from a series of administrative decisions by UMMS regarding a

potential accommodation for his formaldehyde sensitivity, and alleged harassment he suffered

due to his age and/or national origin. This Memorandum of Decision and Order addresses

Defendant’s Motion To Dismiss (Docket No. 9) which seeks dismissal of Counts One, Two and

Three. For the reasons set forth below, that motion is granted.

Standard of Review

On a Rule 12(b)(6) motion to dismiss, the Court “must assume the truth of all well-

plead[ed] facts and give plaintiff the benefit of all reasonable inferences therefrom.” Ruiz v.

Bally Total Fitness Holding Corp., 496 F.3d 1, 5 (1st Cir. 2007) (citing Rogan v. Menino, 175

F.3d 75, 77 (1st Cir. 1999)). To survive a motion to dismiss, the plaintiff must state a claim that

is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955 (2007).

That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level,

... on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Id. at 555 (internal citations omitted). The standard “requires more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action will not do.” Id.

“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more

than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662,

678, 129 S.Ct. 1937 (2009) (quoting Twombly, 550 U.S. at 556). Dismissal is appropriate if

plaintiff’s well-pleaded facts do not “possess enough heft to show that plaintiff is entitled to

relief.” Ruiz Rivera v. Pfizer Pharm., LLC, 521 F.3d 76, 84 (1st Cir. 2008) (internal quotations

and original alterations omitted). “The relevant inquiry focuses on the reasonableness of the

inference of liability that the plaintiff is asking the court to draw from the facts alleged in the

complaint.” Ocasio-Hernàndez v. Fortuño-Burset, 640 F.3d 1, 13 (1st Cir. 2011).

Facts1

Plaintiff Enrolls at UMMS

Plaintiff enrolled at UMMS, a public medical school, in or about August 2014. Plaintiff

was born in India and at the time of his enrollment was over 40 years old. He had a well-

documented sensitivity to formaldehyde. Formaldehyde is a carcinogen classified as a toxic,

corrosive, and sensitizing chemical. Exposure to formaldehyde can cause the Plaintiff trouble

with breathing, coughing, eye irritation, disorientation, and more. Formaldehyde is utilized to

preserve cadavers that UMMS use in its anatomy lab.

Plaintiff’s Interactions with Faculty Members Regarding Incidents of Harassment and His

Requests for Accommodations for his Formaldehyde Sensitivity

In early September 2014, Plaintiff met with his faculty advisor, Dr. Phil Fournier (“Dr.

Fournier”) and reported that other students were harassing him because of his age. According to

Plaintiff, Dr. Fournier “responded by threatening Dr. Saxena about his vaccination status.” Also,

in late September 2014, Plaintiff met with Susan Gagliardi, UMMS Vice Chair of Medical

Education, who acknowledged his concern about his severe reaction to formaldehyde and asked

him to see a Student Health primary care physician, Dr. Joseph DiFranza. He was told that he

would be evaluated, and Environmental Health and Safety would work directly with Student

Health to implement whatever action is needed. Dr. DiFranza concluded that Plaintiff should not

1 On a motion to dismiss, the Court must treat the factual allegations asserted therein as true, even if

seemingly incredible. See Ocasio-Hernandezt, 640 F.3d at 12. However, the Court is to disregard legal conclusions

masquerading as facts, as well as factual allegation which, “while not stating ultimate legal conclusions, are

nevertheless so threadbare or speculative that they fail to cross the line between the conclusory and the factual.” Id.

(citing Penalbert-Rosa v. Fortuno-Burset, 631 F.3d 592, 595 (1st Cir. 2011)). In this case, Plaintiff’s factual

assertions are replete with legal conclusions, irrelevant matters and improper commentary all of which have been

ignored by the Court.

go into the anatomy lab due to the risk of formaldehyde exposure. Plaintiff was informed by

Student Health Services that he was to be fitted with a respirator despite (Dr. DiFranza’s

conclusion that he not enter the lab even with a respirator). Plaintiff was also asked to provide

letters from a physician regarding his sensitivity to formaldehyde.

On October 3, 2014, Plaintiff again met with Dr. Fournier who continued to threaten him

about vaccines. Dr. Fournier also indicated that his course of study could be delayed to five or

more years, told him “I'm sure you are in good health” and that “this is a small UMMS” so

Plaintiff “should not make trouble because things get around.” Also, in early October, Plaintiff

met with the Chair of the Academic Accommodations Committee, Deborah Harmon-Hines,

(“Harmon-Hines”) to discuss potential formaldehyde accommodations. Plaintiff alleges Harmon-

Hines was “very hostile” and “mentioned Plaintiff’s Indian origin for no attributable reason.”

Harmon-Hines informed Plaintiff, in response to his stating that the process was taking too long,

that his course of study may be delayed to five or more years. Harmon-Hines offered Plaintiff

the accommodation of using a frozen cadaver. Plaintiff contacted Terence Flotte (“Flotte”),

Dean of UMMS, and asked for a meeting to discuss his concerns as to how he was treated by

Harmon-Hines. Flotte refused to meet with him. Flotte instead directed Plaintiff to meet with

Deborah DeMarco (“DeMarco”), Co-Chair of the ADA Accommodations Committee. When he

met with DeMarco, she “refused” to accept his written note from a primary care physician and

instead asked for written documentation from specialists.

Around that same time, Plaintiff spoke with his Anatomy Professor, Dr. Anne Gilroy,

(“Dr. Gilroy”) who informed him that “UMMS only accepts evaluations from American

physicians….” Plaintiff further alleges that Dr. Gilroy told him to “do as he was told,” that he

was “choosing to make trouble for the school,” and that he should “leave the school” and “go

get a job.” Plaintiff felt these comments were aimed at both his age and national origin. In

November 2014, Plaintiff met with the Associate Dean of Student Affairs, Dr. Michael Kneeland

(“Dr. Kneeland”). Plaintiff alleges Dr. Kneeland “asked where [he] is from.” Plaintiff believes he

was referring to his national origin.

Throughout his first semester, Plaintiff and UMMS worked together to find a reasonable

accommodation to permit him to safely enter the anatomy lab. UMMS initially suggested a

respirator, but eventually offered Plaintiff a full hazmat suit for protective wear. UMMS also

offered Plaintiff to perform part of the lab work outside the anatomy lab (i.e., Plaintiff could

dissect a cow’s heart in a different lab). Plaintiff believed, however, that he would still have to

complete the remainder of the lab work in an area where he would be exposed to formaldehyde.

Plaintiff feared the hazmat suit would not adequately protect him. For that and a litany of other

reasons, he also rejected that accommodation. UMMS also suggested a frozen cadaver

alternative, or the possibility of Plaintiff taking anatomy at a different location or transferring out

entirely. When these options were presented, Plaintiff felt they were unreasonable. However,

Plaintiff eventually concluded that the most reasonable accommodation would be to permit him

to use a frozen cadaver. When UMMS and Plaintiff had not agreed to a reasonable

accommodation by February 2015, Plaintiff was forced to drop anatomy.

In the summer of 2015, Plaintiff “raised concerns” with the new Associate Dean of

Student Affairs, Dr. Sonia Chimienti (“Dr. Chimienti”), about “harassment by students at the

school where his age and national origin/race seemed to be underlying issues.” He mentioned

that he had previously raised these concerns with Dr. Fournier in September 2014. Plaintiff

asserts that he sent an email to Dr. Chimienti at the end of August 2015 “mentioning that he still

felt threatened….” Dr. Chimienti suggested that Plaintiff submit his complaints against Dr.

Fournier in writing.

In July 2015, UMMS held a committee meeting dealing with Plaintiff’s medical need for

an accommodation and possibility of providing him with a frozen cadaver. In August 2015, the

results of the committee meeting were communicated to Plaintiff and he received written

notification in September: Plaintiff’s accommodation would be worked out with the anatomy

instructors with input, as needed, from the accommodations office.

Sometime in August 2015, Plaintiff met with Dr. David Hatem and Dr. Michael Ennis.

Plaintiff explained to them that “several students had been harassing him based on his age and

national origin” and that he had previously mentioned this to Dr. Fournier. After this meeting

Dr. Fournier admitted that he had threatened Plaintiff and Plaintiff was ultimately assigned a new

advisor, Dr. Durbin. Plaintiff found Dr. Durbin to be “harsh and aggressive.” Plaintiff continued

to work with UMMS for an accommodation for his formaldehyde sensitivity but stopped raising

discrimination issues with faculty and staff.2

In September 2015, students were notified that Dr. Gilroy had changed the curriculum

and that missing anatomy lab would not be allowed without an excused absence. Plaintiff felt

that this modification would either force him to enter the lab where he would be exposed to

formaldehyde or fail the class. Immediately before anatomy class was to commence, UMMS

offered Plaintiff a new accommodation-- he could wear a hazmat suit while standing away from

the dissecting table and observe the dissection without taking part He rejected this

2 Plaintiff asserted that at this time, he continued to “face a threatening environment” and that he was

“physically abused” by a senior instructor under the supervision of Dr. Fournier. He suggests that other students

were privy to his medical history and disability based on their remarking “aha I think I saw something,” during

clinical skill session—he attributes such remarks to conditions “inferred by Harmon-Hines.”

accommodation because he believed he would still be exposed to formaldehyde. His request to

instead observe the dissection via a video link from outside the lab room was denied.

In late October 2015, a decision was sent to Plaintiff informing him that a progress board

had been convened which recommended that he be stopped from completing his second year of

medical school. At the same time, Dr. Chimienti also reminded him that he should complete

medical school in no longer than six years. In a subsequent discussion, Dr. Chimienti suggested

that he should look to transfer to other schools that do not use formaldehyde preserved cadavers

(the school would transfer this credit) or to wholly transfer out of the school. UMMS left it to

Plaintiff to find an alternative school to take the course.

In January 2016, Plaintiff was informed that he would not be allowed to continue with his

second year of medical school even though he was completing all his coursework. It is difficult

to transfer to another school if you don’t complete your second year. Also, at this time, Dr.

Chimienti recommended three schools that Plaintiff should reach out to regarding taking an

anatomy class and “again asked him to reach out to several hundred schools.” Plaintiff was

charged for class time in January even though he was told he would not be permitted to complete

his second year.

In July 2016, a Dr. Robert Spears, Dean of Student Affairs at the University of Texas

School of Dentistry, agreed with the Plaintiff that he would personally supervise his anatomy

instruction using UMMS’s curriculum. Plaintiff notified Dr. Chimienti of this arrangement on

July 29, 2016. About a week later, Dr. Chimienti told him to take his request to the

Accommodation Committee for approval. Plaintiff instead wanted to meet with the Progress

Board Committee, but that request was rejected. On December 9, 2016, Plaintiff sent his request

with Dr. Spear’s proposal to the Accommodation Committee and included evaluations by his

doctors/specialists. On January 6, 2017, UMMS informed Plaintiff that his documentation was

not adequate because it included faxed letters and the committee only accepts physical letters.

On January 23, 2017, Plaintiff’s lawyer sent UMMS an appeal letter requesting he be provided

reasonable accommodations. After a series of back and forth correspondence UMMS’s lawyer

informed Plaintiff in February 2017 that the school did not “acknowledge” Dr. Spear’s request.

One of the primary issues was that the committee wanted Plaintiff to sign a release permitting

them to communicate directly with his physicians. Plaintiff declined and instead, wanted the

committee to submit questions and requests to his lawyer to be forwarded to the physicians.

On March 15, 2017, the Accommodations Committee rejected Plaintiff’s request that he

be permitted to take an anatomy class with Dr. Spears and the committee continued to suggest

that he use a hazmat suit. On March 24th Plaintiff appealed that decision, which UMMS denied

on April 11, 2017. Exactly 300 days later, on February 5th, 2018, Plaintiff filed a complaint

against UMMS with the Massachusetts Commission Against Discrimination (“MCAD”).

Discussion

UMMS seeks to dismiss Counts One (UMMS knowingly and consciously permitted

faculty and students to mock and bully Plaintiff based on his age), and Two (UMMS permitted

faculty and students to mock Plaintiff based on his national origin) of Plaintiff’s amended

complaint on the grounds that they are barred by the applicable statute of limitations. UMMS

seeks to dismiss Count Three (retaliation for his complaints of age and national origin

discrimination) on the grounds that Plaintiff’s allegations fail to make out a prima facie case of

retaliation.

Whether Plaintiff‘s Claims for Age, National Origin and Race Discrimination are Time-Barred

(Counts One and Two)

Under Massachusetts law, employees must file their discrimination claims with the

MCAD within 300 days of the alleged discriminatory acts. Mass.Gen.L. ch. 151B, § 5. The

“failure to file a timely charge of discrimination with the MCAD (or EEOC) requires the

dismissal of any subsequent lawsuit.” Buntin v. City of Boston, 2015 WL 2165938, *2 (D. Mass.

May 8, 2015) (reversed in part on other grounds by Buntin v. City of Boston, 813 F.3d 401 (1st

Cir. 2015)). Acts beyond this 300-day limit are timely only if either (1) they are substantially

related to an otherwise timely “anchoring” event, or (2) they are part of a “continuing violation.”

See Cuddyer v Stop & Shop Supermarket Company, 434 Mass. 521, 750 N.E.2d 928 (2001).

Here, Plaintiff filed his complaint with the MCAD on February 5, 2018 and therefore, can sue

only as to those alleged discriminatory incidents which occurred after April 11, 2017.

Plaintiff has not alleged a single incident of age or national origin discrimination

occurring within the limitations period. He argues that the 2014 and 2015 discriminatory

incidents are not time-barred because of the continuing violation doctrine. Specifically, Plaintiff

claims UMMS denied his appeal due to his age, race, and national origin, and thus the appeal

denial is an “anchoring” event which time-cures the otherwise time-barred acts. However,

Plaintiff has failed to tie any incidents of age, race or national origin discrimination (the last of

which according to his complaint occurred in 2014-15) to any of these “anchoring events.” 3

3 Although it is not necessary for me to address the merits of Plaintiff’s age/national origin discrimination

claims, that there is not a single fact alleged in the amended complaint that would support a claim for age/national

origin discrimination underscores the futility of Plaintiff’s attempt to argue the continuing violation doctrine. More

specifically, Plaintiff’s discrimination claims are based almost solely on conclusory legal allegations to wit: fellow

students harassed him due to his age and national origin and that he reported these unspecified harassing incidents to

UMMS faculty and administrators. The few specific examples of alleged discriminatory statements/incidents cited

in the amended complaint are on their face innocuous and free of discriminatory animus yet are characterized by

Plaintiff as disparaging him as the result of his age and/or national origin. As noted above, legal conclusion and

improper commentary are not sufficient to support a plausible claim under Iqbal and Twombly.

Therefore, UMMS’s motion to dismiss Counts One and Two on the grounds that they are time-

barred is granted, with prejudice.

Whether Plaintiff stated a Claim for Rehabilitation based on his complaints (Count Three)

It is a violation of Chapter 151B for “any person to coerce, intimidate, threaten or

interfere with another person in the exercise or enjoyment of any right granted or protected

[thereby].” Mass.Gen.L. ch. 151B §4 (4A). Retaliation claims based on circumstantial evidence,

such as the Plaintiff’s, are evaluated under the familiar burden-shifting framework set forth in

McDonell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973); see also Knight v. Avon

Products, Inc., 438 Mass. 413, 420, 780 N.E.2d 1255 (2003) (noting Supreme Judicial Court's

adoption of McDonnell Douglass framework “as an aid to the resolution of claims of

employment discrimination under [Chapter151B]” (citation omitted)). To state a prima facie

case for retaliation under Chapter 151B, a plaintiff must demonstrate that: (1) he engaged in

protected conduct; (2) he suffered an adverse action; and (3) there is a causal connection between

the two. Ponte v. Steelcase, Inc., 741 F.3d 310, 321 (1st Cir. 2014); see also Mole v. University of

Massachusetts, 442 Mass. 582, 591-92, 814 N.E.2d 329 (2004). Ultimately, Plaintiff must prove

that the protected conduct was the “determinative cause” for the adverse action, Lipchitz v.

Raytheon Company, 434 Mass. 493, 504, 751 N.E.2d 360 (2001), that is, the adverse actin would

not have occurred in the absence of the protected activity. See Soni v. Wespiser, 404 F. Supp. 3d

323, 332–33 (D. Mass. 2019).

Both sides agree that for purposes of Defendant’s motion, Plaintiff has met the first two

elements for stating a prima facie case, i.e.., he engaged in protected conduct (complaints to

school officials about age and national origin discrimination) and suffered an adverse action.

They vehemently disagree as to whether Plaintiff has met the nexus element. I agree with

UMMS that to satisfy this element, “Plaintiff must plausibly show that his ‘complaining about

the Defendant’s unlawful age, race and national origin discrimination,’ was the ‘determinative

cause’ of [UMMS] terminating its relationship with Plaintiff, not giving him an accommodation

and “stalling to thwart his ability to finish medical school[,] and ‘not allowing the Plaintiff to

continue to his course of study.’” Def’s Mem. Of L. In Supp. Of Part. Mot. To Dismiss Counts

1,2 and 3 of Pl’s First Amended Complaint (Docket No. 10), at p. 6 (citations to complaint

omitted).

First, there is a temporal disconnect between the last complaints raised by Plaintiff and

the alleged adverse actions. While “[t]emporal proximity can create an inference of causation,”

… ‘the inference of a causal connection becomes tenuous with the passage of time.’” Soni, 404

F.Supp. 3d at 332 (citation to quoted case omitted); 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”) but see Mesnick v.

General Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (holding that nine month period between

protected conduct and alleged retaliation undermined 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”).

In this case, the alleged adverse actions cited by Plaintiff occurred well after the Plaintiff

reported the alleged incidents of discrimination to UMMS faculty and/or administration

members. The First Circuit has made clear that temporal proximity ‘is merely one factor relevant

to causation.’ Garayalde-Rijos v. Municipality of Carolina, 747 F.3d 15, 25 (1st Cir. 2014). So

long as the plaintiff can link the adverse action to the protected activity sufficient to create an

inference to support a causal connection, the passage of time in and of itself is not fatal to his or

her retaliation claim. See Sonia, 404 F.Supp.3d at 332 and cases cited therein. For example, “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.’” Id., at 333( quoting 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, 126 S.Ct. 2405 (2006)) (noting that a pattern of antagonism in the

intervening period can support a retaliation claim in the absence of temporal proximity)).

Here, the Plaintiff has failed to allege any facts which would establish the necessary link

between antagonism based on his complaints related to his age and national origin, and the

alleged adverse actions. As stated previously, Plaintiff’s allegations in support of his age and

national origin discrimination claims are based on legal conclusions and rank speculation (based

on his perceptions). His allegations regarding alleged retaliation by UMMS are likewise based

on legal conclusions and his interpretation of otherwise innocuous statements and actions.

Accordingly, I find that he has failed to state a plausible claim for retaliation under Chapter 151B

based on his age, race or national origin. Therefore, Count Three is dismissed.

Conclusion

Defendant’s Motion To Dismiss (Docket No. 9) is granted Counts One, Two and Three

of the Amended Complaint are hereby dismissed.

/s/ Timothy S. Hillman

TIMOTHY S. HILLMAN

DISTRICT JUDGE